it follows as a necessary consequence, that when a party complains that another has deprived him of water which came to his premises, he must shew that it was water that he had a right to have the beneficial use of, and that he was deprived of that which he was capable of applying to some uses of his own. The plaintiff, by his declaration, claims a right to the use of this water at all times, but still if he had as much water as was necessary to supply his land, the defendant would be guilty of no wrong in preventing any additional quantity from coming to his premises. It is not necessary that the plaintiff should have a greater supply, if he already has the ample use, benefit, and enjoyment of as much as he can possibly want. The gravamen of the injury alleged in the first count of the declaration is, that the defendant unlawfully and wrongfully prevented the water of the stream from running and flowing in its usual and regular course, and its usual calm, moderate, and smooth manner, unto and past the plaintiff's lands, as the same otherwise would have done, and thereby the water of the stream ran in a different direction, &c. The plaintiff does not here complain that he was deprived of that usual and ample supply of water which was necessary for the supply of his land, and the ample and convenient use thereof. He complains of an alteration of the course of the river; but non constat that that deprived him of the necessary supply of water for his premises. Then the second count does not carry the case any farther; and indeed, I doubt whether that count could be supported in law. The gravamen of that count is, that the defendant wrongfully and injuriously stopt, hindered, and prevented the water of the stream from running and flowing in its usual or regular course, and in its usual calm and smooth manner. Suppose that to be so, still it does not appear that the plaintiff has sustained any injury. He has not alleged any; and as he has sustained none, then he is clearly not at liberty to predicate that the defendant has wrongfully prevented the water from running in its usual course. The jury have negatived all injury,

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and therefore it appears to me that the defendant is entitled to retain the verdict.

HOLROYD, J.-I am also of opinion, as far as the circumstances of this case are communicated to us, that the verdict which was entered for the defendant is correct, and that the plaintiff is not entitled to have a verdict entered for him. Running water is not in its nature private property originally; at least no longer than it remains on the land of the person to whom it comes. Now, before the water came to the plaintiff's premises, independently of appropriation or prior usage, he would not be entitled to it; nor could it be said to be his property though he might sustain some damage by the stoppage of it. Running water may become the property or quasi the property of another person before it comes to the plaintiff's premises, either by prior use or previous appropriation to himself, and that person may have a right to use it so as to prevent its coming at all times in a particular manner to the premises of others. This principle may, in its application, be extremely advantageous to the public. Many very valuable mills, which are of great benefit to the manufactures of the country, could not exist but for this doctrine. In the case of Bealy v. Shaw (a) that principle was recognised and acted upon; but the decision there will not help this plaintiff, because he does not, by his declaration, allege a cause of injury, to which that case can apply. In that case the persons under whom the defendants claimed had erected a mill near the river Irwell, in the year 1724, and water was brought from the river, by means of a weir and sluice, adequate in quantity to the wants of the then owners, the remainder continuing to flow on as before in the natural channel. Two other weirs were subsequently erected at different periods on the same premises, and as the works were from time to time enlarged, more water was taken from the Irwell to supply them, and no objection was made, there being then no other mill on the (a) 6 East, 208.

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stream in that part of the country. In the year 1787 the plaintiff erected a weir and sluice on his premises, which were situated lower down on the stream, and between the works of the defendants and the tail of their sluice, where MORLAND. the water was again returned into the bed of the river, which there made a great bend. In 1791 the persons under whom the defendants immediately claimed, erected another weir about forty yards higher up the river, and at the same time the sluice by which their works were supplied was considerably widened and deepened, so that nearly double the quantity of water was drawn from the Irwell which had ever before been taken. The effect of this was, that the works of the plaintiff were materially impeded, and they were sometimes obliged to stop working altogether; and the Court held that though the defendants or those from whom they claimed might have originally appropriated the whole of the water to themselves, yet as the plaintiff had subsequently appropriated the remainder to himself, they could not by enlarging their sluice deprive him of that water in which he had acquired a right by enjoyment. If in the present case the plaintiff had framed his declaration so as to shew that he was entitled to the unappropriated water of the stream, and had alleged that he had been deprived of the use of the surplus water, then possibly he might have been entitled to a verdict, but the present declaration is framed with a totally different view from that now insisted upon as the ground on which he is entitled to a verdict. This action is not for preventing the water from coming down to the plaintiff's premises, but it is for erecting one pent-stock and enlarging another, so as to prevent the water of the stream from running along in its usual and regular course, and in its usual calm, moderate, and smooth manner, and diverting it into another channel, so as to let it come with much greater impetuosity against the plaintiff's premises than before. Undoubtedly it is alleged in the declaration that the plaintiff had the enjoyment and use of the water, and it was proved that the water was prevented from going down to

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the plaintiff's premises; but it is not alleged that the plaintiff was damnified by the want of water, or that his premises were of less value than if the water had been suffered to flow in the former manner. Nothing of that kind is alleged, nor indeed was any thing of that kind proved. The learned Judge's report appears to me to shew, that no injury was done to the plaintiff's premises, and what the jury have found, negatives any right of action for the injury for which the plaintiff claimed to recover. We must, therefore, consider this declaration as framed upon a cause of action which was not proved. Merely obstructing the water which had been accustomed to flow through his lands, does not per se afford any ground of action. Some benefit must be shewn to have arisen from the water going to his lands, or at least it was necessary to shew that some deterioration was occasioned to his premises from the subtraction of the water. That not being the case, the plaintiff is clearly not entitled to a verdict.

LITTLEDALE, J.-I am of the same opinion. The first count of the declaration does not allege that the plaintiff has been deprived of any benefit arising from the water; but the allegation is, that the defendant wrongfully and injuriously diverted the water in such a way as to prevent its flowing in its usual calm, moderate, and smooth manner. It does not go on to say, that the plaintiff had been thereby deprived of the use and benefit of water for the necessary enjoyment of his premises. The way in which the plaintiff's declaration is framed in the beginning, shews that the case put by Mr. Chitty of an action of trespass is wholly inapplicable. In actions of trespass it is in general not necessary to prove pecuniary damage to have been sustained, although it be alleged; for in trespass to land, for instance, if a man wrongfully comes upon the land of another, in point of law damages are considered as consequent, though none be actually sustained. So if a man has a right of way, and his right be obstructed or hindered, that will give him a cause of action,

although he sustains no pecuriary injury. The same principle applies to the disturbance of a right of common, where the injury being to the right which the plaintiff is entitled to exercise, from day to day, a cause of action arises, though no actual injury is sustained. This is a settled principle in the cases to which I have alluded; but generally speaking there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a plaintiff to maintain an action on the case. Com. Dig. tit. action upon the case for a disturbance, A. 1. Now, applying that principle to the present case, it is clear that the plaintiff has made out no title to a verdict. Assuming that the finding of the jury shews that the plaintiff has sustained a wrong and injury by the act of the defendant in penning up the water during the summer, still the plaintiff has not alleged any temporary loss or damage by reason of that circumstance. The plaintiff might sustain a temporary loss or damage by the deprivation of water during that particular season of the year. It may be intended that during the time the alleged obstruction took place, he had occasion for water for domestic purposes in his house or for the irrigation of his meadows, yet the finding of the jury will not entitle him to a verdict for an injury which he does not allege in his declaration. The plaintiff may have a remedy if he sustains a temporary loss or damage in this respect; but water is of that peculiar nature, that a man cannot say that the mere diversion of it will, per se, give him a right of action: some special injury must be alleged and proved. Assuming, however, that the plaintiff may have sustained a loss by the act of the defendant in stopping the water during the summer, still that is not the ground of his complaint. He only alleges that his banks have been injured by reason of the flowing of the water in a more impetuous manner through a different channel. He does not complain of any want of water, or that he has sustained any damage by the penning up of the stream; and therefore to entitle him to a verdict, he must not only have alleged but proved a damage arising from the want of water.