This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(q) Holmes v. Goring, (1824) 2 Bing. 76; 9 Moore, 166; see Gale, 10th ed. p. 179; Goddard, 8th ed. 379.
(r) Corp. of London v. Riggs, sup.; see Serff v. Acton Local Bd., (1886) 31 Ch. D. 679; 55 L. J. Ch. 569; Taf Vale R. v. Cardiff R., 1917, 1 Ch. pp. 515, 516.
(s) Clarke v. Rugge, (1607) 2 Roll. Abr. 60, pl. 17; Packer v. Well-stead, (1658) 2 Sid. 1ll; Bolton v. B., (1879) 11 Ch. D. 968, 972; 48 L. J. Ch. 467; Met. R. v. G. W. R., (1900) 82 L. T. 451; 64 J. P. 472; Gale, 10th ed. p. 183.
(t) Deacon v. S. E. R. Co., (1889) 61 L. T. 377; and see dicta of Blackburn, J., in Pearson v. Spencer, (1861) 1 B. & S. 584; 3 ib. 761; 7 Jur. N. S. 1195; Gale, pp. 183, 346.
(u) Pearson v. Spencer, sup.
(x) Ward v. W., (1852) 7 Ex. 838; 21 L. J. Ex. 334.
(y) Cooke v. Ingram, (1893) 68 L. T. 671; Young v. Star Omnibus Co., (1902) 86 L. T. 41; Swan v. Sinclair, 1924, 1 Ch. 254.
(z) James v. Stevenson, 1893, A. C. 162; 62 L. J. C. P. 51; and Mid. R. v. Gribble, 1895, 2 Ch. 829; 64 L. J. Ch. 826, where the vendor having a right of way over level crossing as owner of land on both sides of the railway alienated the land on one side without reservation of right of way, the right was held to be extinguished.
(a) Lovell v. Smith, (1857) 3 C. B. N. S. 120, 126, 127; and see Hulbert v. Dale, 1909, 2 Ch. 570.
(6) Wimbledon Commons Conservators v. Dixon, (1875) 1 Ch. D. 362, 368, per James, L. J.; 45 L. J. Ch. 353; Bradburn v. Morris, (1876) 3 Ch. D. 812; miner's Safe Co., Ltd. v. G. N. & City R., 1907, 1 Ch. 208, 226.
(c) Allan v. Gomme, (1840) 11 A. & E. 759; 9 L. J. X. S. Q. B. 258; and see Henning v. Burnet, (1852) 8 Ex. 192; 22 L. J. Ex. 79; Williams v. James, (1867) L. R. 2 C. P. 577; 36 L. J. C. P. 256; Wood v. Saunders, (1875) 10 Ch. 582; Harris v. Flower, (1904) 90 L. T. 669; Milner's Safe Co., Ltd. v. G. N. & City R., sup.
(d) United Land Co. v. G. E. R., (1875) 10 Ch. 586; 44 L. J. Oh. 685; Newcomen v. Coulson, (1877) 5 Ch. D. 133; 46 L. J. Ch. 459; Finch v. G. W. R. Co., (1879) 5 Ex. D. 254; 41 L. T. 731; Harris. v. Flower, sup.; White v. Grand Hotel, Eastbourne, Ltd., 1913, 1 Ch. 113. Thus, a right of way may include the right of space for turning; Knox v. Sansom, (1877) 25 W. R. 864; and see Sketchley v. Berger, (1894) 69 L. T. 754.
The law as to water and watercourses seems in its principal points to be as follows (f): - Every riparian proprietor has a prima facie right to fish the stream in front of his own land (g); and to use it for his own purposes in any manner not inconsistent with the exercise of a similar right by the proprietors of land above or below. But he can neither as against those below injure the quality of the water, nor sensibly diminish its quantity, nor as against those above can he dam up the water to their inconvenience (h). A riparian owner cannot, except as against himself, confer on anyone who is not a riparian owner any right to use the water of the stream; and an action will lie by riparian owners lower down against a non-riparian owner who has, under a grant from a riparian owner, done any injury to the stream (i). But in order to obtain either damages or an injunction, some injury, must be shown to have been done to the lower riparian owners; and no relief will be given against such a non-riparian owner if, after using the water, he return it undiminished and unpolluted (k). The right to divert and use the stream for the purpose of irrigation is a question of degree, which cannot be precisely defined, but depends upon the application of the above general principles to the particular case (l). Where the right to a certain flow of water has been acquired, it will not be lost by the application of the water to a new and more beneficial use (m).
As to water and watercourses.
(e) Watts v. Kelson, (1871) 6 Ch. 166; see note, ib. p. 169; 40 L. J. Ch. 126; and see Reilly v. Booth, (1890) 44 Ch. D. 12; 62 L. T. 378, and Somerset v. G. W. B. Co., (1882) 46 L. T. 883.
(f) As to the rights of a riparian owner against a public body taking or diverting the stream under statutory powers, see Stone v. Mayor of Yeovil, (1876) 2 C. P. D. 99; 46 L. J. C. P. 137; and see and dis-tinquish Bush v. Trowbridge Water Co., (1875) 10 Ch. 459; 44 L. J. Ch. 645.
(g) Lamb v. Newbiggin, (1844) 1 C. & K. 549. As to who is a riparian owner, and as to the power of a riparian owner to grant to a non-riparian owner the use of the watercourse, see Nuttall v. Bracewell, (1866) L B. 2 Ex. 1; 36 L. J. Ex. 1; Holker v. Porritt, (1875) L. R. 10 Ex. 59; 44 L. J. Ex. 52.
(h) See Wright v. Howard, (1823) 1 S. & S. 190; 1 L. J. (O. S.) Ch. 94; Mason v. Hill, (1833) 5 B. & Ad. 1; 2 N. & M. 547 (commented on in Orr-ewing v. Colquhoun, (1877) 2 A. C. at p. 854); Acton v. Blundell, (1844) 2 M. & W. 349; 13 L. J. Ex. 289; Wood v. Waud. (1849) 3 Ex. 748; 18 E. J. Ex. 305; Embrey v. Owen, (1851) 6 Ex. 353; 20 L. J. Ex. 212; Bawstron v. Taylor, (1855) 11 Ex. 369; 25 L. J. Ex. 33; Miner v. Gilmour, (1858) 12 Mo. P. C. 131; 7 W. R. 328; Ambler v. Bradford Corporation, (1902) 87 L. T. 217; and see Swindon Waterworks Co. v. Wilts and Berks Canal Co., (1875) L. R. 7 H. L. 697; 45 L. J. Ch. 638; Young v. Bankier Distllery, 1893, A. C. 691; 69 L. T. 838; Roberts v. Gwyfrai Hist. Co., 1899, 2 Ch. 608; 68 L. J. Ch. 233; Baily v. Clark, 1902, 1 Ch. 649; 71 L. J. Ch. 396; Mccartney v. Londonderry & L. S. B. Co., 1904, A. C. 301; and see Barker v. Faulkner, (1898) 79 L. T. 24, as to a weir preventing passage of fish up stream; and see Jones v. Llanrwst U. D. C., 1911, 1 Ch. 393, 402; Hulley v. Silversprings Bleaching Co., 1922, 2 Ch. 268.
But the right to flowing water exjure naturœ only prevails where it has a defined course; and does not extend to water flowing over, or soaking through, permeable land, before it has found its way into a definite channel (n). If a subterranean watercourse is known to exist in a defined channel, the landowner's rights are the same ias if it were superficial (o). But the principles which regulate the rights of owners of land in respect of water flowing in a certain defined course, whether in an open stream, or by a known subterranean channel, are wholly inapplicable to water percolating through underground strata without any known definite course (p). Thus, the owner of an ancient mill could not maintain an action against a landowner, who, by sinking a deep well on his own ground, had intercepted the water which would have otherwise percolated through the soil into a river which supplied the motive power to the mill (q); and the mere fact of such landowner obtaining control over the water so intercepted will not impose on him the obligation to prevent it from flowing into the adjoining land as it did before it was intercepted (r). But where water from a spring flows in a channel, the landowner cannot cut off the spring at its source, or abstract the water from the channel, to the injury of a riparian proprietor lower down the stream (s).. Although the owner of land has no right to restrain the intetrception of water which percolates into his land, he is entitled upon general principle to restrain the adjoining owner from polluting it (t); for "if water be polluted, the person fouling is sending filth on to his neighbour's land, and thus creates a nuisance and in a sense commits a trespass, just as he would if he took a basket of rubbish and emptied it on his neighbour's soil " (u).