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benefit which was attached to his estate. It was an extension

1805. of the right before exercised by thein, and a material injury

BEALEY to the plaintiff. But then it is said, that subsequent to the against enlargement of the defendants' sluice in 1791, they kept the

SHAW. key of the clough, and there was an acquiescence of the plaintiff, and that be asked leave to take the water when it was not wanted by the defendants. But the whole that it amounts to is this, That all the evidence of the right being with the plaintiff down to 1791, for a small space of time afterwards (about three years) rather than have a dispute with the defendants, he consented to this arrangement, by which he expected to have the benefit of the water with their consent. But that is not to be compared with the weight of evidence in support of the plaintiff's right: and if the verdict bad been against him on that ground, I should have thought that there ought to have been a new trial; and consequently I cannot say that this verdict is wiong.

LAWRENCR, ). I think the law was very correctly stated by the learned Judge at the trial; and the objection now made by the delendants to the plaintiff's claim is incone sistent with the ground on which they allempt to rest their own case. For they contend that they had a right to apo [ 219 propriate as much of the water as they pleased from time to time to their own use; and yet they deny the same right to the plaintiff to appropriate to his use what had not been appropriated before by any other person. In this the de.. fendants are wrong; for if the occupiers of their premisses could before have appropriated to themselves any part of the water flowing through their own lands, by the same rule. those through whose lands it afterwards fiwed might apa propriate so much as had not been appropriated before by others. The question then is seduced to this, Wherler there be any ewidence to shew that the plaintiff was at. ləmpling to obtain more water than be bad before the en. (argement of the defendants' works in 1791? Now the evig deoce relied on, of leave asked of they for the water by the plaintiff, by po means shews that; for thongh in a case of doubt conccroing the right to a thivg, leave asked by one party of the other for the use of it would be strong evidence of the right; yet here there is clear evidence of what ihę M2

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1805.

BEALEY against SHAW.

right was down to that period; namely, That the defendants
had only a right to all the water which they could carry off
in a sluice of certain dimensions, such as they had been
used to enjoy prior to the year 1791, when they took upon
themselves to enlarge it after the plaintiff had applied to
certain uses what had before been unappropriated by them.
· Le Blanc, J. As to whether particular facts proved in
a cause should or should not be pointedly left to the consi.
deration of the jury, inuci musl depend upon the inanner in
which the case is stated to the Judge and jury at the time.
Now here the point insisted on by the defendants at the
trial was, That as prior to the year 1787, those who occa-
pied the defendants' premisses were the only persons who
bad works on this stream, and had taken, froin tine to time,
as much water as they pleased, leaving the rest to flow in the
natural channel, the plaintiff who came in 1787 to an estate
lower down the river, had only a right to take so much as
the defendants did not chuse lo take at any future time.
This position it was which iny Brother Grahun denied to
be law; and I think be properly denied it; for the true rule
is, That after the erection of works, and the appropriation
by the owner of the land of a certain quantity of the water
flowing over it, if a proprietor of other land afterwards take
what remains of the water before unappropriated, the first-
mentioned owner, however he might before such second ap-
propriation have taken to himself so much more, cannot do
so afterwards; therefore the evidence of the defendants'
taking more of the water after the appropriation by the
plaintiff in 1787, did not not interfere with the rule of law
as laid down at the trial. And there is no evidence which
goes to shew that the verdict is wrong; for as to the particu-
lar facts, which it is now said ought lo have been pointedly
stated for the consideration of the jury, if they were not re-
lied on at the time, and the case was not put on that ground,
it is not sufficient now to say, that such or such a fact might
have applied to another view of the case.

Rule discharged (a).

(a) In an action on the case between Duncombe and Sir Ed. Randall, for the diversion and stopping of a river, it was agreed by the Court, That is one had anciently ponds replenished by channels out of a river, he cannot change the channels if any prejudice accrue to another by that. Hetl. 32. But he may cleanse, thovgh he cannot change or enlarge them, Brown . Best, I Wils. 174

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Sir HENRY HARVEY, Knt. against COOKE and

Another.

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any further or

and waited for

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were afterwards

ASSUMPSIT was brought against the defendants as the One of the

ships of a squaagents of Capt. Milne, to recover 42611. 4s. d. under drou is detach.

ed by the comthe following circamstances: Capt. Milne, of his Majesty's is frigate, La Pique, was, in Hiarch, 1796, on the Leeward officer to lay off

r a certain place, Island station, in the West Indies, under the command of within the li Admiral Laforey, as the commander in chief on that sta- mits of the sta

tion, from tion. On the 24th of April, 1796, Admiral Laforey was whence the cap.

diari e ammondor in tain, without superseded by Rear Admiral Christian, as commander in chief, ander whose command Capt. Milne put hinself. On ders for that the 2sd of June, 1796, the plaintiff, Rear Admiral Harvey, though he b superseded Rear Amiral Christian as commander in chief on written for

sucb to bis suthat station. On the 14th of September, 1996, Vice Admi- perior officer, ral Sir Hyde Parker, not having been specially appointed to

them some that command, arrived at Barbadoes, on the Leeward Island time, takes

upon him on his station, on which he remained waiting for orders from the own respe Admiralty; and senior in rank to the plaintiff, till the 1st of lity (though,

from laudable November following, when he went to and took the com- motives which mand of the Jamaica station, leaving the plaintiff com

approved of by mander in chief on the Lerward Island station. On the 3d the Admiralty)

to depart, and of October, 1796, Rear Admiral Christian left the Leeward Island station, and sailed for England by orders. On the convoy with the

homeward 21st of July, 1796, Capt. Milne sailed from Demerara to St. bound trade,

and in the Kitt's, with a convoy of merchantmen under his care, under

"cac, under course of the the particular circumstances hereinafter stated, “ without any voyage home,

out of the limits orders or directions from the plaintiff, or any other admiral for of his station, that purpose;" aod on the 10th of August following,* pro.. (but nothing

turned on the ceeded without orders from St. Kitt's to England with the question of li. same convoy, and, arrived at Spithead on the 9th of October,

on the oth stahon mits) he takes a

on the shor Orlovet, prize, --held, and on the next day communicated such arrival, with an ac- that the supe

rior flag officer count of his proceedings, to the Admiralty.

. who had before The case then stated various letters from different persons, the capture suc

ceeded the one tending to explain the reason of Capt. Milne leaving his by whom the station, off Demerara, without orders: the substance only of

2. tbe whetonase of order fox being

been originally

issued (admitmitting him to stand in the same situation in point of right) was not entitled to share the flag officer's share of 1-8th given by the King's proclamation to a flag officer, directing or assist. ing in a capture by a ship under his command, M3

which *[ 221 ]

TELOUF ICI CUC 10War

10 proceed as

1605.

HARVEY

against Cooki.

which letters is here stated. (a) On the 1st of June, 1996, Admiral Christian wrote to the Governor of Demerara, that he should direct a ship of war to take under convoy, on the 15th of July next, the trade from Demerara to Europe, as on that day the ship must sail, to enable her to reach the general rendezvous in time; and to communicate such arrangement to the inerchants. This communication was accordingly made ; and, between the 15th and 18th of July, the governor recived a memorial from the merchants at Dimerara, stating, that they had made every exertion to get their ships loaded in time, in consequence of the above notification, but that no convoy had appeared ; that if they waited Jonger, they, might be too late to join the convoy at St. Kitt's, and that, should they proceed without convoy, they should lose their insurances, which were made on warranty of convoy. They therefore prayed the governor ( to make application to Capt. Milne, of La Pique, then at anchor off the mouth of Demerara, to take the trade under bis convoy to St. Kitt's. Then followed a letter received by Capt. Milne from the governor, and dated 18th July, 1796, inclosing an extract from Admiral Christian's letter, to the effect before . mentioned: and also the above memorial from the merchants, &c. in which letter the governor pressed 'Capt Milne, in consequence of the distressed situation of the trade waiting for the expected convoy, to take the ships under his own convoy to the place of general rendezvous ;' suggesting at the same time the necessity of bis inmediate and speedy return to his station, as a matter of no less consequence for the proteetinn and defence of the colony. In consequence of the letters and memorial, Captain Milne sailed on the 21st of July, 1796, from Demerara, taking under his convoy the trade from thence bound to England, and proceeded with thein to St. Kitt's, where he arrived on the 31st of July, 1796. On the 27th of July, 1796, being off St. Lucia, Capt. Milne dispatched a tender with a letter to Admiral Christian al Martinique (which teuder arrived there on the 1st of August followiny) in which he stated that he received the admiral's letters of the 231 of June and 21st of July, after he was

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(a) The Court complained of the excessive length of the case, which is here very much curtailed, long as it still appears.

under

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under way with the trade from Demerara ; but found nu orders transmitted as mentioned. That his orders were to lay off Demerara, for the protection of that colony; but in consequence of the petition of the merchants, &c. and the governor's letter, and the necessity of the case (no other ship to convoy the trade having arrived as expected) to proe ceed without delay 10 St. Kitts ; he had complied with these sequisitions, and taken charge of the convoy accordingly: which he hoped Admiral Christian would approve of; and thai, should the convoy be gone from St. Kitt's before he arrived, he should wait for his (Admiral Christian's) orders, as some of the ships were in want of repairs, which might detain them two days. The letter to Capt. Milne from Ad. miral Christian, of the 23d of June, 1796, above referred 10, stated (among other things) that the Mudras was appointed to relieve Capt. Milne upon his then station. On the 1st of Au. gust, :796, Capt. Milne being off St. Kitt's, received a memo. rial from the inasters of the merchant vessels which he was convoying; in which, after stating their disappointinent at not meeting the expected convoy, the danger of their remaining in those seas during the hurricane months, the vigilance of the enemy, and the large British property at stake, they earnestly pressed Capt. Milne to continue his convoy of the fleet, and to give directions for its sailing for Europe. Capt. Milne, expecting orders from the commander'in chief, gave no answer to their inemorial until the oth of August, 1796; when the weather threatening, and the masters of the trade again pressing him to go on with them to England, for the reasons before stated, be determined, the next morning, to stand over towards Guadaloupe, and, if he saw no vessel coming down, to return and take charge of them for Enga land. He accordingly stood over ; bot finding no vessels, he returned and took charge of the convoy on the gth of August, and proceeded to England without orders. Previous, however, to his leaving St. Kilt's, he wrote a letter to Admiral Ilarvey as his then commander in chief, dated St. Kitt's, 9th August, 1796, containing an account of what he bad done in respect of the ships under his convoy, up to that period : 'that be had before written to Admiral Christian for orders, but as yet, had received yo orders respecting any further proceed. ings. That he had received the petitions above stated, and

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