Enjoyment must be nec vi, nec clam, nec precario, "canal as that contended for by the appellants, would "have been ultra vires of the respondents, and consequently 66 length of user could never confer an indefeasible claim upon appellants under the Prescription Act, as no grant "of the use of the water could have been lawfully made "by the respondents." So, in The Rochdale Canal v. Radcliffe, the owners of land within twenty yards of a canal were empowered by statute 34 Geo. III. c. 78, to take water from the canal for the sole purpose of condensing steam for their engines, such water to be returned to the canal (allowing for inevitable waste) so that no obstruction should accrue to the navigation, the surplus water to go to the Bridgwater Canal. The company sued the defendant for taking more water than was sufficient for condensing steam, and for using it for other purposes. The defendant pleaded a user as of right for twenty years to draw off so much water as was necessary for other purposes. The jury found the twenty years' user as of right, and a verdict was ordered to be entered for the defendants. On a motion by the plaintiffs for judgment, non obstante veredicto, the Court of Queen's Bench held, that the company could not, consistently with the Acts of Parliament regulating their canal, have granted the water for other purposes than that permitted by the statute 34 Geo. III. c. 78. That an actual grant, if proved, for the purposes mentioned in the plea, would have been illegal and no justification, and, therefore, that the grant for such purposes, implied from twenty years' user, was no legal defence. The enjoyment which, by length of time, both at common law and under the statute, will confer the right to an easement must be uninterrupted,2 open,3 and of right,— 1 18 Q. B. 287. 2 An act of partial interruption may qualify an easement without destroying it. Thus, in Rolle v. Whyte (L. R., 3 Q. B. 286), where a weir was claimed across a river by prescription, and a miller on the banks was proved to have occasionally interrupted it by shutting down a fender, it was held that this did not destroy the right, as there was nothing to prevent a second easement being acquired, as subordinate to one already existing, where the subject-matter admitted of it. See Angus V. Dalton, 3 Q. B. D. 85. nec vi, nec clam, nec precario.1 Where, therefore, the right2 claimed has been interrupted by any lawful impediment, or where the easement has, either from the mode in which the party enjoys it, or from the nature of the easement itself, been secret, or where again the enjoyment has originated under licence or permission from the owner of the servient tenement, no right will be gained by length of time. Under the statute, however, where the right to a watercourse has existed for forty years, it will not be invalidated unless such licence be by deed or writing.1 66 In order, moreover, to raise the presumption of a and adverse. grant of an easement in a watercourse, the user or enjoyment must have been adverse,"—that is, have interfered with the enjoyment of the owner of the servient tenement. "By usage," says Cresswell, J., delivering the judgment of the Court in Sampson v. Hoddinot “(a man) may acquire a right to use the water in a manner not "justified by his natural right; but such acquired right "has no operation against the natural right of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the "stream or his power to use it, so as to raise the presump"tion of a grant, and so render the tenement above a "servient tenement. If the user of the stream by the 66 plaintiff for irrigation was merely an exercise of his "natural right, such user, however long continued, would "not render the defendant's tenement a servient tene"ment, or in any way affect the natural rights of the "defendant to use the water. If the user by the plaintiff 66 was larger than his natural rights would justify, still "there is no evidence of its affecting the defendant's 1 Civ. Law, 1, ff. de serv. 1. 10, ff.; Co. Litt. 113 b; Bracton, lib. 2, f. 51, f. 52 a, 222 b. 2 Angell, p. 369; see Gaved v. Martyn, post, 253, where the question of right is fully treated; Mason v. Shrewsbury Railway, L. R., 6 Q. B. 578. 3 See per Erle, C. J., 17 Q. B. 275; Bright v. Walker, 1 C., M. & 4 2 & 3 Will. IV. c. 71, s. 3; see 5 Angell, p. 368. Claim to easements by custom. "tenement, or the natural use of the water by the defendant, so as to render it a servient tenement. But if the user by the defendant has been beyond his natural right, "it matters not how much the plaintiff has used the water, 66 or whether he has used it at all. In either case his "right has been equally invaded, and the action is main"tainable." User, moreover, which is neither physically capable of prevention by the owner of the servient tenement, nor actionable, cannot support an easement either affirmative or negative.1 An easement may also be claimed by particular custom, as in the inhabitants of a district to use a common watering place; and an action will lie by an inhabitant for the infringement of the right, without proof of special damage. Thus, in Harrop v. Hirst, where the plaintiff had, in common with the inhabitants of a particular district, enjoyed a customary right at all times to take water from a spout in a highway for domestic purposes, and defendant, a riparian owner, stopped the water, the Court held that an action was maintainable without any proof of special damage, inasmuch as the act of defendant might, if repeated often enough, without interruption, furnish evidence in derogation of the plaintiff's legal rights. So, in Race v. Ward, and Manning v. Wasdale, a right to go on another's land and take water for domestic purposes, was held to be an easement, and not a profit à prendre, and so capable of being claimed by custom by the inhabitants of a district. In Carlyon v. Lovering, a right was claimed by custom to use a natural stream for the purpose of washing ore, 1 Sturges v. Bridgman, 11 Ch. Fineux v. Hoveden, Cro. Eliz. 664. and carrying away sand, stones, rubble, and other stuff dislodged and severed from the soil in working a mine. The Court found the custom to be good, and Watson, B., in delivering judgment, thus states the law with regard to customs: "It is settled that a custom to be valid in law "must be reasonable, certain, and defined. It was ob"jected that the custom pleaded in the present case was "unreasonable and indefinite, as the exercise of the cus"tom might go to the destruction of the plaintiff's land adjoining the stream; that there was no limit to the 66 user as to the times and extent of the user. No doubt if "that were so, the pleas would be bad; but we think they "are not open to these objections. The exercise of the privilege as claimed was in respect of working a mine "and winning the ore where the stream passed through "defendant's land. Thus, the user is limited to the "necessary working of the mine, and the quantity of "water sent down, although not expressly so alleged. "We think that the custom alleged is sufficiently definite, "and is not unreasonable. It is possible more stuff may 66 come down at one time than another; but that does not "show that the custom is bad (see Tyson v. Smith).1 We "think it is to be confined in user to the necessary work"ing of the mine, etc." Particular Easements of Water. The right which a riparian owner has to the flow of a natural stream in its natural state, may be interfered with by the acquisition of easements, the effect of which may be to alter its quantity, velocity, or quality, to his prejudice. Thus, a right to divert and obstruct the flow of the stream, or to pollute its waters, may be gained by Act of Parliament, by express grant, or by long enjoyment, as prescribed by law.2 1 6 A. & E. 745; 9 A. & E. 406. See Ivimey v. Stocker, L. R., 1 Ch. 396, and Gaved v. Martyn, 14 W. R. 62, as to acquisition of water course by tin-bounders under custom of Cornwall. 2 Sampson v. Hoddinot, 1 C. B., N. S. 590; Embrey v. Owen, 6 Ex. Easement of diversion and obstruction. "The general rule of law," says Lord Ellenborough,1 "as applied to this subject, is, that, independent of any par"ticular enjoyment used to be had by another, every man "had the right to have the advantage of a flow of water "in his own land, without diminution or alteration; but an adverse right may exist founded on the occupation of "another; and though the stream be either diminished in quantity, or even corrupted in quality, as by means of "the exercise of certain trades, yet, if the occupation of "the party so taking or using it have existed for so long "a time as may raise the presumption of a grant, the "other party whose land is below must take the stream subject to such adverse right." 66 "The right of diverting water," says Cockburn, C. J., in Mason v. Shrewsbury Railway Co.,2" which, in its natural course, would flow along the land of a riparian owner, "and of conveying it to the land of the party diverting it, "the servitus aquæ ducenda of the civilians, is an easement "well known to the law of this, as of every other country. "Ordinarily, such an easement can be created by the laws "of England only by grant or by long-continued enjoy"ment from which the existence of a former grant may "be reasonably presumed. But such a right may, like "any other right, be created in derogation of a prior right "by the action of the legislature. But, however it is "called into existence, the right is essentially the same." From the above case, it would seem that a right to divert the waters of a natural stream, for the purposes of a canal, is an easement which may be conferred on a company by their Act of Parliament, and, as such, subject to the law of easements generally. Of the acquired right to divert the waters of a stream, the cases of Beeston v. Weate3 and Saunders v. Newman1 353; Howard v. Wright, 1 Sim. & 1 Bealey v. Shaw, 6 East, 208. 2 L. R., 6 Q. B. 586. 3 5 E. & B. 986. 4 1 B. & A. 258. |