PART IV. Defence. It is no defence to show that the defendant has covenanted to yield up the premises in repair (e). class, where the building was erected as a mere accessory to a chattel, were held to be removeable; but those of the latter class, which were accessory to the freehold itself, were considered to be irremovable. In the case of Dean v. Allalley (3 Esp. C. 11), Lord Kenyon seems to have considered erections for the purposes of farming to be on the same footing with those made for the purposes of trade; but this was much doubted by Lord Ellenborough, in the subsequent case of Elwes v. Maw, 3 East, 57. In Fitzherbert v. Shaw (1 H. B. 258), Gould, J. expressed an opinion at the trial that a tenant from year to year might during the term remove a wooden stable placed on blocks or rollers, or a shed or brick-work which he had erected; but ultimately the question turned upon an agreement entered into between the parties. In Penton v. Robart (2 East, 88), it was held that the tenant was justified in removing a building constructed of wood, and erected on a foundation of brick, for the purposes of trade, after the expiration of the term. And a barn put upon pattens, or blocks of timber lying upon the ground, but not fixed in or to the ground, may be removed by the tenant; for they are not fixtures. Per Lord Ellenborough, 3 East, 56; Culling v. Tuffnel, B. N. P. 34. In Horn v. Baker (9 East, 215), it was held that the stills of a distiller, which were fixed to the freehold were not goods and chattels within the stat. 21 Jac. 1. c. 19, s. 10 & 11; but that vats and utensils, which were not so fixed, were within the statute. Parts of a machine put up by a tenant during the term, i. e. certain jibs which were placed in cases and steps affixed to a warehouse, but which jibs were fastened by pins above and below, and capable of being removed without injury either to the cases and steps, or the building, and which were articles usually valued between out-going and in-coming tenants, were held to be the chattels of the outgoing tenant, for which he might maintain trover. Davis v. Jones, 2 B. & A. 165. A tenant may during his term remove matters of ornament, such as ornamental marble chimney-pieces, pier-glasses, hangings,wainscots fixed only by screws, and the like (Beck v. Rebow, 1 P. Wms. 94; Ex parte Quincey, 1 Atk. 477; Lawton v. Lawton, 3 Atk. 13). But although a tenant occupy a house for the purpose of trade, and may, according to the general rule, remove vats set up in relation to trade (per Lord Holt, Poole's case, 1 Salk. 368), yet he cannot remove that which is affixed to complete his house, as hearths and chimney-pieces. Per Holt, C. J. ibid. and per Lord Ellenborough, in Elwes v. Maw, 3 East, 53. A tenant cannot remove fixtures after giving up the possession. Per Gibbs, C. J. in Lee v. Risdon, 7 Taunt. 188. 2 Marsh. 495. Where a conservatory was built on a foundation of brick, communicating with the dwelling-house, the windows of which opened into it, it was held to be waste in a tenant for life who removed it. Buckland v. Butterfield, 2 B. & B. 54. A les (e) Kenlyside v. Thornton, 2 Bl. R. 1111; 2 Will. Saund. 252, c[Regula Placitandi, 271.] *WATER-COURSE. PART IV. Proof of right. Ir a stream of water run through the land of A., and Evidence of thence through the contiguous close of B., and A. has title. * 1672 for the space of twenty years used a portion of the stream for particular purposes, such enjoyment will be prima facie evidence of a legal title in A. so to appropriate that portion of the water (f) (1). But such evidence is liable to be rebutted by contradictory or explanatory evidence (g). A lessee of premises, for the purpose of trade, puts up fixtures, and takes a new lease, in which he covenants to repair; he is, it seems, bound to repair those fixtures. Thresher v. London Waterworks Company, 2 B. & C. 608. Qu. Whether lime-kilns erected for purpose of trade be removeable. Ibid. Buildings erected for purposes of trade cannot be removed where the lessee covenants to repair the erections and buildings erected during the term, and the said premises so repaired, &c. to leave and yield up at the end of the term, Naylor v. Collinge, 1 Taunt. 19; per Abbott, C. J. 2 B. & C. 614. (f) Bealey v. Shaw, 6 East, 214. A mortgagor in possession of the premises mortgaged is tenant to the mortgagee, and may be so described in a declaration for an injury to the reversion. Partridge v. Dyson, 5 B. & A. 604. (g) Supra, 1217. Where a plaintiff had enjoyed a spring and stream of water issuing out of his own grounds for twenty years, and the defendant, by opening a quarry in his own adjoining lands, intercepted the spring, it was held to be no answer to the action that a grant could not be presumed, inasmuch as the existence of the water-course through the defendant's land had been but recently discovered; and Lord Ellenborough held that the enjoyment for twenty years afforded conclusive evidence of right. Balston v. Bensted, 1 Camp. 463. If, however, such a right really depended upon the presumption of a grant, the evidence of twenty years' enjoyment could scarcely be considered to be conclusive. Qu. therefore, whether the right in such a case does not depend on other principles. Mutual benefit is evidence of an agreement. If two men have property near a river, and each has land between the property of both and the river, and they cut through each other's ground for water, and that continues for twenty years, an agreement is to be presumed. Per Lord Cowper, 12 Vin. Ab. Q. a. pl. 8, cites G. Eq. R. 4 Hil. 6 Ann. An user of the banks of a river by fishermen for more than twenty years, with evidence of their having levelled and improved the landing place, affords presumptive evidence of a grant to the lessees of the fishery in a public navigable river. Gray v. Bond, 2 B. & B. 667. Although both the fishery and landing place once (1) [See, on this subject, Ingraham v. Hutchinson, 2 Conn. Rep. 584. Curtis & al. v. Jackson, 13 Mass. Rep. 514. Angell on Water-courses, ch. IV. sec. 5. ch. VII. sec. 4.1 PART IV. And it will be evidence to the extent only of the portion of water actually appropriated. Thus, if A. erect a weir, of the height of three feet, and Proof of right. ten years afterwards add another foot to the height of the weir, B. having in the mean time appropriated the surplus water flowing over the first weir, B. may maintain an action against A. for thus heightening the weir (h). * 1673 * Where a mill has been erected on a stream for a long period of time the owner has a right that the water shall continue to flow from his mill over the land of another, in belonged to the same person, (ib.) and although there was no evidence to show that the former owner, or those who claimed under him, knew that the shore had been so used. Where a grant of wreck was made by H. 2, and confirmed by H. 8, to the proprietor of land on the coast, who within forty years had constructed an embankment across a small bay to reclaim sea-mud, and had since exerted an exclusive right to the soil without opposition, it was held, that from such usage, anterior usage might be presumed; and that the usage, coupled with the terms of the grant, served to elucidate it, and to establish the right so asserted, Chad v. Tilsed, 2 B. & B. 403. (h) Bealey v. Shaw, 6 East, 214. The persons under whom the defendants claimed had eighty years since erected a mill, and made a weir to divert the water from the river Irwell, which weir had at various times before 1787 been enlarged. In 1787 the plaintiff built a mill lower down the stream, which was supplied by the water not then taken by the defendants' weir, and continued to enjoy the surplus water till 1791, when the defendants so enlarged their weir and extended their works as to take all the water from the plaintiff's mill. The Court held the action to be maintainable. Lord Ellenborough said, that twenty years exclusive enjoyment of water in any particular manner affords a conclusive presumption of right in the party so enjoying it; but less than twenty years may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right. And in the same case Le Blanc, J. said, "The true rule is, that if after the erection of works, and the appropriation by the owner of land of a certain quantity of water flowing over it, the proprietor of other lands takes what remains of the water before unappropriated, the first mentioned owner, however he might before such second appropriation have taken to himself so much more, cannot do so afterwards." And see the observations of Holroyd, J. Ib. And it should seem, that if A. appropriated at any time any portion of the water which had always been accustomed to run through the land of B. so as to diminish the quantity of water passing through B.'s land, and thereby to diminish the value of B.'s land, B. might maintain an action against A., although an enjoyment of the water so diverted by A. for twenty years would be prima facie evidence of the title, and an answer to the action. In other words, it seems that A. could not by the mere act of appropriation diminish the quantity of water which ran through B.'s land to the prejudice of his estate in point of value, although enough was still left to B. for the purposes for which he had actually used the water, the same manner that it has done during all that time (i). And it is no defence that the owner has, within the last twenty years, substituted a new wheel, which requires less water than the old one (k). PART Iy. Proof of right. * Although an adverse enjoyment for the space of twen- * 1674 ty years is, as against a private individual, evidence of a grant by him, yet it is otherwise in the case of a public river navigable by all the king's subjects; no obstruction for twenty years will bar a public right (1). Ownership of the soil is prima facie evidence of a right of fishery. of fishery. Where a river is not navigable, the presumption is that the soil is the property of the owners on each side, to the middle of the river (m) (1). But in the case of a navigable (i) Saunders v. Newman, 1 B. & A. 258. (k) Ibid. See Luttrel's case, 4 Rep. 86; supra, 1213. If a millhead pens back the water upon the adjoining lands and injures them, but in consequence of defective construction, and want of repair in the wheels and waste-gates, the mill-pond is by the working of the mill, at seasons wholly selected by the miller, without the control of the land-owner, so soon and so frequently exhausted, that the adjoining lands are frequently relieved from the stagnant water, and suffer but small damage, the miller (it seems) is justified in repairing and improving the construction of his mill, and thereby penning the water back on his neighbour's lands for longer periods, although he thereby occasions greater damage to him. Alder v. Savill, 5 Taunt. 454. (1) Vooght v. Winch, 2 B. & A. 662; Weld v. Hornby, 7 East, 195. Whether a river be navigable or not is of course a question of fact for the Jury (Vooght v. Winch, 2 B. & A. 662). The flux or reflux of the tide is evidence of a navigable river (Miles v. Rose, 1 Marsh. 313. 5 Taunt. 705), but not conclusive. (Ibid.) It was held in that case that the cutting of rushes in the creek by strangers, and without interruption, was a strong circumstance to show that the river was public. The fact that pleasure-boats were accustomed to sail up the creek was also relied upon, by Gibbs, C. J. The public are not entitled of common right to tow on the banks of ancient navigable rivers (Ball v. Herbert, 3 T. R. 253); or to use the sea-shore for bathing; or to cross the sea-shore on foot, or with machines for that purpose. Blundell v. Catterall, 5 B. & A. 268, Best, J. dissent. (m) Carter v. Murcot, 4 Burr. 2162. [Arnold v. Mundy, 1 Halsted's Rep. 1. The People v. Platt, 17 Johns. 195. King v. King, 7 Mass. Rep. 496.] (1) [When a river is the boundary between two nations or States, if the property is in neither, and there is no convention respecting it, each holds to the middle of the stream. But when one State is the original proprietor, and grants the territory on one side only, it retains the river within its domain, and the newly erected State extends to the river only, and the low water mark is its boundary. Handly's Lessee v. Anthony & al. 5 Wheat. 374.] PART IV. * 1675 Former verdict. Variance. river, the presumption is that the soil is vested in the Crown. Yet a subject may claim a prescriptive right to a several fishery in an arm of the sea, even against the Crown (n). * Proof of the very act of fishing in the locus in quo, is evidence of the right, although it be not proved that fish were actually caught (o). It has been seen that a verdict for the defendant in a former action, for diverting water from his mill is evidence, but not conclusive, for the defendant in a second action (p). So a verdict for the plaintiff, in an action for obstructing his barges in a navigable river, is strong, but not conclusive, evidence, in an action for a similar obstruction (q). An action for obstructing a water-course is local in its nature (?), but a local description is unnecessary (s). An allegation that the plaintiff, by reason of his possession of a mill, with the appurtenances, was entitled to the use of water running in a certain tunnel to the mill, is not supported by proof that the tunnel was made on the defendant's land, upon an agreement by the latter to convey the right, no conveyance having in fact been made, and * 1676 the defendant's * assent having been refused, for the plain (n) Mayor of Orford, &c. v. Richardson, 4 T. R. 439. A man may prescribe for a several fishery in a navigable river without showing a grant from the Crown (Rogers v. Allen, 1 Camp. 312); and a several fishery in a navigable river is divisible; it may be abandoned to the public as to the taking of floating fish, and preserved as to the dredging for oysters. Ibid. [See Pitkin v. Ölmsted, 1 Root, 217. Carson v. Blazer, 2 Binney, 475. Hooker v. Cumming, 20 Johns. 90. Peck v. Lockwood, 5 Day, 21. Lay v. King, ibid. 72. Adams v. Pease, 2 Conn. Rep. 481. Chalker v. Dickinson, 1 Conn. Rep. 382.] (0) Patrick v. Greenway, 1 Will. Saund. 346, b. Hence it is said that the very act of fishing is sufficient damage to support an action for disturbance of the plaintiff's right. Ibid. For wherever an act injures another's right, and would be evidence in favour of the wrongdoer, an action may be maintained for an invasion of the right, without proof of any specific injury. Ibid. And see Wells v. Watling, 2 Bl. R. 1283; Hobson v. Todd, 4 T. R. 71; and the above case of Patrick v. Greenway. Note; that in the last case the action was in trespass. (p) Vooght v. Winch, 2 B. & A. 662; supra, 1279; and Vol. I. p. 206. (g) P. C. Miles v. Rose, 5 Taunt. 705. 1 Marsh. 313. (r) Mersey and Irwell Navigation v. Douglas, 2 East, 497. (s) Ib. & supra, 1570, |