66 CHAPTER II. OF INLAND WATERCOURSES; THE OWNERSHIP OF THE SOIL THEREOF, AND OTHER MATTERS. a water course. A WATERCOURSE may be defined as a body of water Definition of issuing ex jure naturæ from the earth, and by the same law pursuing a certain direction in a defined channel, till it forms a confluence with the sea. "A spring of water, both in law and in ordinary language, is, as I under"stand it," says Jessel, M. R.,2 "a natural source of "water, of a definite and well-marked extent. A stream "of water is water which runs in a defined course, so as to "be capable of diversion; and it has been held that the "term does not include the percolation of water under"ground." "A spring," says Brett, L. J.,3 "is not an "artificial space, but a natural chasm in which water has "collected, and from which it either is lost by percolation, "or rises in a defined channel." A watercourse, flumen vel cursus aquæ, has been defined by Lord Tenterden, C. J., as water flowing in a channel between banks more or less defined.4 Woolrych defines a river as a running stream pent in on either side with walls and banks, and it bears that name as well where the waters flow and reflow, as where they have their current one way. This definition includes, therefore, all natural streams, however small, which have a definite and permanent course, and excludes all bodies. 5 4 Rex v. Inhabitants of Oxford- 5 Woolrych on Waters, 40; Subterranean streams. Surface and percolating water. Limits of a watercourse. of water, however large, which are of a temporary character, i. e. which are dependent on the will or convenience of individuals for their volume or duration.1 A subterranean stream may flow in such a known and defined channel as to give rise to similar rights as would exist above ground. "If," says Pollock, C. B., "the course of a subterranean stream were well known, as is "the case with many which sink underground, pursue for "a short space a subterraneous course, and then emerge 66 again, it could never be contended that the owner of the "soil under which the stream flowed, could not maintain "an action for the diversion of it, if it took place under "such circumstances as would have enabled him to re"cover, if the stream had been wholly above ground." The principles which regulate the rights to water flowing in known and defined channels, whether upon or below the surface of the ground, do not apply to water, whether under or above ground, having no certain course or defined limits, such as that merely percolating through the strata of the earth, or that diffused over its surface, such water not being subject to the law of watercourses.3 A stream begins at the point where the water palpably rises to the surface and forms a channel, and extends till it mingles with the sea outside the body of a county.5 In a late case in the Exchequer it appeared that the water from a spring flowed in a gully or natural channel to a stream on which was a mill. The spring was cut off at its source, and the water was received into a tank as it rose from the earth, by the licence of the owner of the soil on which the spring rose. The action was for diversion by the mill-owner. The judge at the trial told the jury that the questions for them were, whether there was a 1 Briscoe v. Drought, Ir. R., 11 C. 2 Dickenson v. Grand Junction 146. 3 Acton v. Blundell, 7 M. & W. 324. Dudden v. Ciutton Union, 26 L. J., Ex. 146, 11 Ex. 627; Phear, 33. 5 See Reg. v. Keyn, 2 Ex. Div. 62. natural or defined watercourse from the spring-head to the stream, and if so, whether the defendant had diverted water from this watercourse. Pollock, C. B., said: “The "real question is, whether there is a natural watercourse "which, but for the acts done by the defendant, would "have conveyed water to the stream, and from thence to "the mill of the plaintiff. If there is a natural spring, "the waters of which flow in a natural channel, it cannot "be lawfully diverted by anyone to the injury of the "riparian proprietors. The law of the case is clear and "undoubted. This was a natural spring, the waters of "which had acquired a natural channel from its source to "the river. It is absurd to say that a man might take "the water of such a stream, four feet from the surface." Martin, B.: "A river begins at its source when it comes to "the surface, and the owner of the land on which it rises "cannot monopolize all the water at the source, so as to prevent its reaching the lands of other proprietors lower "down." 1 must flow in may be dry. It is not, however, necessary to constitute a watercourse A watercourse that the water should flow continually, as a channel may a regular be occasionally dry, but it must appear that the water channel, but flows usually in a regular channel, and has a well defined occasionally and substantial existence,3 the law making a distinction between a regular flowing stream which at certain seasons is dried up and those occasional bursts of water which in times of freshets and melting of snows descend from the hills and inundate the country. So also the waste water from a canal, allowed to pass out of the canal, is not a watercourse to which any of the doctrines either as to natural or artificial streams will apply. "The water 1 Dudden v. Clutton Union, 11 Ex. 627; Rawstron v. Tayler, 11 Ex. 369; Wood v. Waud, 3 Ex. 748, 779; Angell on Watercourses, 5, 6; see also Reg. v. Metropolitan Board of Works, 3 B. & S. 710. 2 See Drewett v. Sheard, 7 Car. & P. 465; Trafford v. Reg., 8 Bing. 204. 3 Angell on Watercourses, 5. Ibid.; see also Drewett v. Sheard, 7 Car. & P. 465. Staffordshire Canal v. Birmingham Canal, L. R., 1 H. L. 254, 272; Rochdale Canal v. Radcliffe, 18 Q. B. 287. See also Ch. V. A water course con sists of bed, bank, and water. 66 passing from the Wolverhampton Level to the Atherly Junction," says Lord Cranworth, "is not a natural, nor even an artificial, stream in the sense in which "these words are understood in the many cases in which "the law relating to flowing water has been considered. "The water in this canal is not flowing water. It is "water accumulated under the authority of the legislature "in what is in fact only a tank or reservoir, which the "respondents are bound to economize, and use in a par"ticular manner for the convenience of the public. It "never flows. It is let down artificially, for the con"venience of persons wishing to pass with boats, by what may be called steps, till it reaches the Atherly Level, "and so enables the boats to pass into appellant's canal. "To such water none of the doctrines either as to natural "or artificial streams is applicable." 66 Every watercourse, says Mr. Angell,' consists of-1. The bed; 2. The bank or shore; 3. The water. The bed is covered by the water, and is the space subjacent to the water through which it flows, and is that which contains the water at its fullest when it does not overflow its banks. It is, generally speaking, all the soil below the high water mark either of the ordinary daily tides or of the ordinary floods. "The bed of a river is the alreus, as distinguished "from the shore, and from places where flood waters occa"sionally collect."3 The bank is the outermost part of the bed in which the river naturally flows. The shore or beach may be defined as that part of the river-bed lying between the top of the bank and that part of the bed where the river actually flows, and which, as the water rises or falls, is land or river. The bed and the water may be said to be correlative terms, as one cannot be owned without touching the other.1 1 Angell on Watercourses, 30; Grotius de Jur. Belli, 2, 8, 9. 2 As to this, see Menzies v. Breadal bane, 3 Wils. & Shaw, 243. 3 Per Lord Campbell, C. J., in Abraham v. Great Northern Rail., 16 Q. B. 592. See R. v. Oxfordshire, 1 B. & A. 289; Reg. v. Derbyshire, 2 Q. B. 745, 755. Angell on Watercourses, 30. 66 water of a does not arise the soil It is generally laid down in the text-books and in the The right to earlier reported cases that the right of private property in the use of the a watercourse is derived as a corporeal right and heredita- watercourse ment from or is embraced in the ownership of the soil from the over which it naturally passes, according to the well-known ownership of maxim, cujus est solum, ejus est usque ad cœlum.1 “A water- thereof. course," says Woolrych,2 "may be either a real or a "corporeal hereditament. If by grant, prescription, or "otherwise, one should have an easement of this kind in "the land of another person, it would partake of the latter quality; but if the water flow over the party's own land, although indeed it cannot be claimed as water, yet it is in "effect identified with the realty, because it passes over the 66 66 soil, and cujus est solum, ejus est usque ad cœlum." "An "action cannot," says Blackstone,3 "be brought to recover "the possession of water by the name of water only, but "it must be brought in respect of the land which lies at "the bottom, and the description of it must be,-so much "land covered with water." From this identification of the land with the water a grant of a field or meadow will carry all the timber and water standing and being thereupon. This doctrine is supported by modern authority with regard to standing and percolating water, and also, it would appear, with regard to running water which rises and remains for the whole of its course on the land of a single owner, for in such cases the water is the absolute property of such owner, and no one is entitled to share the use of it with him;5 but with regard to natural streams flowing through adjoining lands, the enjoyment of which is only usufructuary and not absolute, the right to use the water has been held in modern cases not to arise from the 1 Angell on Watercourses, 8; Woolrych on Waters, 146; Phear on Waters, p. 22; 1 Stephen's Black. 7th ed., pp. 659, 693; Co. Litt. 4; Rex v. Wharton, Holt, 499. 2 Page 146. 3 2 Comm. 18. 4 Angell on Watercourses, 9; |