ing at the new mill. And thus, in a case where a mill had been erected out of the manor, a bill praying to have it demolished was ordered to be dismissed, but without prejudice to the lord of the manor. And the Court said, that it was lawful for any tenant to set up a mill upon his own ground, out of the manor, but not within the manor; although, if the owner or tenant of such a mill, out of the manor, should cause or persuade any of the tenants or resiants within the manor to grind there, or fetch any grist out of the manor to his own mill, it was stated that he might be prohibited by a decree of the Court.(x) So, again, where a new mill had been erected within a manor where many of the copy hold tenants resolved to grind their corn, it was decreed in the Exchequer, against the defendant, who had erected the mill, that he should not withdraw or take away any grist from the other mill; but the mill was not decreed to be demolished; for that can be done in the King's own case only, or in the case of his patentee. (y) So, again, a bill in equity was preferred, for the purpose of obtaining a decree to demolish a mill near one of the King's manors, which had been granted to the plaintiff in fee-farm. It appeared that the farmer had mills, which were prejudiced by reason of the proximity of the new mill; and the Court doubted whether they could decree the destruction of a mill which was not within the King's manor, where there was neither tenure nor custom whereby the inhabitants were obliged to grind at the [*254] *King's mill. And a day was given to search for precedents; but the reporter adds, upon search made, none could be found to warrant such a proceeding.(*) As we have already observed, the user of private immunities must be so regulated as not to interfere with or injure the right of others. If one man, therefore, use his right of water inimically to the interests of his neighbour, without a lawful cause for so doing, he is answerable for any damage which he may occasion. And a fortiori, if a stranger should meddle with the enjoyment of an easement to which he has no manner of title, he will be placed in the like condition. Thus, it was, where a prior brought an action against the defendant, for injuring a watercourse which the plaintiff and his predecessors had immemorially enjoyed for various necessary uses, such as watering beasts, cooking, brewing, &c. The defendant, a glover, had made a lime-pit for calves' skins and sheep skins, so near to the rivulet as to corrupt the stream, so that the tenants of the prior had been compelled to quit their houses. The Court considered this act to be a nuisance. (a) The enlarging of ancient channels is an act which may render the par (x) Hardr. 174, Green v. Robinson and others. (y) Id. 177, White and Snoake v. Potter. (z) Hardr. 184, The Mayor and Burgesses of Searborough v. Skelton. (a) 13 H. 7, 26. S. C. cited 9 Rep. 59. ty so proceeding seriously responsible. Thus, the plaintiff brought an action on the case for a diversion of his watercourse, complaining that the defendant had dug two pits, and had made two ponds near his course, so that the water which had been accustomed to flow into the plaintiff's grounds, was diverted into these pits and ponds. The defendant answered that all the water sprang in his own soil; that he and those, &c., had immemorially used those pits for the watering of his meadows and cattle; and that as the pits were choked up with mud, he dug the holes which the plaintiff had complained of, and made dams and banks accordingly. But the Court held, that the law was not with the defendant upon this occasion; that he had in effect, confessed the plaintiff's action; that he had not any right to enlarge ancient pits; and that if he had any prescription, he should have brought it forward. Judgment was given for the plaintiff.(b) Hence it appears, that it is no matter if the water have its origin in the ground of the person making the obstruction, the gist of the mischief being the damage done to the possession of another. *A possession of water for twenty years has always been considered as prima facie evidence of the right. A case occurred, in [*255] which it appeared that the plaintiff and defendant occupied closes adjoining to each other, on the River Medway. There had been a gush of water, time out of mind, from a hole in the close of the plaintiff, which ran along from thence into the river. About 'twenty-seven years before the action, the occupier of the plaintiff's close erected a bath on it, and a plentiful supply of water was derived from the spring. The plaintiff bought the close subsequently, and built a paper manufactory; and the defendant becoming the owner of the adjoining close opened a stone quarry therein. Finding the water inconvenient, the defendant caused a deep drain to be made; but by reason of the excavation, the water, which was accustomod to flow so abundantly into the plaintiff's bath, decreased gradually, until it was reduced to about an eighth or tenth part of the former quantity. For this damage the action was brought. The defendant intended to urge, that the cases in which the enjoyment of water for twenty years had been considered as conclusive, were sustainable only on the prescription of a grant from owners of land further up the stream, and that there could be no such presumption in the present action, because no one, probably knew the source from whence the plaintiff derived his supplies of water. But Lord Ellenborough intimated his opinion, that the only question was, whether the diminution of the plaintiff's supply was attributable to the drain dug by the defendant; and said, that the exclusive enjoyment of water, in any particular manner, for twenty years, afforded a conclusive presumption of right.(c) It should be remarked here, that this point respecting the possession (b) 1 Wils. 174, Brown v. Best; and see Hetl. 32. (c) 1 Campb. 463, Balston v. Bensted. for twenty years, had been much discussed three years before, in the great case of Bealey v. Shaw, (d) (which we shall refer to presently), (e) and that, upon a due consideration of the matter, it was determined, that as running water was publici juris, whoever should appear to have first appropriated to his own use any part of a stream which had not previously been made the subject of a private right, might maintain an action for disturbance of his possession, although his dominion over the water had existed for a season much short of twenty years. There is another rule upon this subject deserving of attention, [*256] *and it is, that the acquiescence of lessees will not bind the landlord, nor of the tenants for life him who has the reversion. The law on the question of dedication of ways to the public is the same. (f) With respect to the right of water, an action was brought by the tenant of a farm, for the diversion of water from his wear. It appeared that A. was tenant for life, and that he made a jointure, in pursuance of a power which he had for the purpose; that in 1747 he gave a license to B. to erect a wear in his, A.'s soil, for the purpose of watering B.'s meadow; that A. died, and that the jointress entered, and continued seised till 1799, when the tenant of the farm which A. had, diverted the water from the wear. The Court were of opinion, that this acquiescence of the particular tenants for life would not affect the reversioner, although they refused to disturb a verdict which had passed for the plaintiff, inasmuch as the decision for the plaintiff would not conclude the rights of the parties. (g) Again, if one man should interfere with the waterspout of his neighbour, and so divert the course of the droppings, to his prejudice, he will be responsible for so doing. So that, where one had a spout above his house, whence the water was accustomed to fall, and another erected a house adjoining, so that the course of the water being disturbed, it fell on the walls of the old house, to the prejudice of the timbers, it was held to be a nuisance.(h) Perhaps, if a well were shown to be an ancient well, an action might lie for interfering with the water. But in general this is not so. Therefore, where the defendant carried on mining operations in his own land in the usual way, but thereby drained away the water from his neighbour's well, it was held that the plaintiff had not such a sufficient right or interest in the subterranean water, to enable him to maintain an action.(i) There was an agreement between A. and B. to refer. A. claimed a yard and pump as his exclusive property. B. had entered the yard after (d) 6 East, 208. (e) See post. (f) See 5 B. & A. 354, Wood v. Veal; and a "Treatise of Ways," 1829, p. 13. (g) 2 Wms. Saund. 175 (d), Bradbury v. Grinsell. (h) 18 E. 3, 22, B. 9 Rep. 54. (i) 12 Mees. & W. 324, Acton v. Blundell. notice, and had taken water from the pump. A hedge and ditch divided the lands of A. and B., which A. alleged that B. had removed into his, A.'s land. The matter being referred, the arbitrator was empowered to direct the future enjoyment, care, and management of the yard, pump, and hedge. The yard and pump were awarded to A., subject to B.'s easement, but, nevertheless, A. and B. were for the future jointly to repair the yard and pump at their joint cost. It was *further awarded, [*257] that B. had not removed the hedge and ditch into A.'s land; but, that the hedge should thereafter be kept in repair by B. B. for that purpose might take mud from the ditch. Subject to such privilege, the ditch was to be thenceforward considered to be the ditch of A. It was held, that the direction as to future enjoyment was not inconsistent with the other part of the award, and that the arbitrator had not exceeded his authority. The submission also recited, that trespass had been brought by A. against B., and also an agreement that the costs should abide the event of the award. It was held, that the arbitrator could not make any award as to costs, and not having decided all the matters referred in favour of either party, each must pay his own costs.(k) But, (returning to the detail of obstructions,) perhaps no mischiefs of this nature have proved a more fruitful source of litigation than injuries sustained by millers, in consequence of the obstruction or misuse of watercourses by their neighbours. A remedy for such grievances was very early acknowledged by our law; and although the circumstance of each case are seldom, if ever, the same, there are yet some general principles, to which it may be safe and useful to refer, as being applicable, for the most part, to the rights of parties who are engaged in disputes. To mention one or two, before we enter generally upon the decisions:-it is allowed on all hands, that water is, in the first instance, common to all, but that it is in the power of an individual to appropriate a portion of that universal property to himself for his own private benefit, whereby he acquires a title to use the stream, (so reduced into possession, as it were,) independently of, and without molestation from others. A watercourse, however, being obviously of great commercial value, rights, both in public navigable rivers and others, were soon asserted; and then it happened, that the person who first appropriated the water could no longer go on engrossing the channel to his own advantage, because, however he might have been justified in so doing before a second appropriation, he would, probably, interfere with his neighbour, by any further acquisition. Hence, many altercations have arisen between the original proprietors of a stream, and new comers who assume a right, (and most frequently with success,) to participate in the benefit. And a very clear rule of law results from these considerations;-namely, that the author of any prejudice or nuisance to his neighbour, occasioned by obstructions, whether he be the ancient owner who attempts an unlawful extension of his easement, or a (k) 4 Nev. & M. 188, Boodle v. Davies. [*258] mitted. *stranger who encroaches upon the old right, shall be answerable in damages for the misfeasance which he may have com It is no matter for what purpose the water may have been diverted, if the miller sustain damage in consequence. Thus, it was said, many centuries back, that if a course of water should run to a mill, and the tenant of the adjoining land should do something by which it would flow in another direction, so that the mill, instead of grinding ten quarters in one day, would grind one quarter only, a remedy might be had at law for the mischief so done. (1) So again, it was affirmed, that, upon the building of a new mill on the banks of the same river, where one had already existed time out of mind, there would not be any redress on behalf of the proprietor of the ancient mill, provided the new comer should neither stop the flow of the water to the other mill, nor cause too great an abundance of water, whereby it might be hindered from working.(m) So also, if stake nets be put into the river, and thus prevent the enjoyment of sufficient water, by which the profits of the mill are diminished, a remedy is open against the wrong doer.(n) Any act, which alters the accustomed course of the water, is an obstruction. So that the straitening of a channel, by the erection of piles and pales, by which the usual flow of the stream is interrupted, is such an injury as will justify an action. By narrowing the bed, along which the water flows, its course is altered, and the grinding of a neighbouring mill might thus be seriously hindered. (0) So again is the making of a ditch across a river which runs to a mill, though the ditch be on the defendant's soil.(p) One had an ancient watercourse, or river coming to his mill, and the old banks of the river having become hollow, a dam was made in the ground of another person by the direction of justices, about a rood from the old bank, and the water was thus holden in. A stranger, not the owner of the ground, cut the dam, and an action on the case was brought. Hobart, C. J., fearing lest judgment might pass against the plaintiff, by reason of the insufficiency of the declaration, caused the trial to be stayed, and the declaration being considered faulty, the plaintiff was directed to take a new writ.(g) A person, who had a freehold in a meadow, through which a certain *stream was wont to run, constructed a wear, or dam, across the [*259] current, so that a mill in the vicinity, which used to grind two quarters of wheat per day, would scarcely grind one quarter. No question was made but that this conduct was actionable; the only dispute being, whether the proper remedy had been adopted. (r)(s) An assise of nuisance was the ancient mode of proceeding in those days, and, on one (7) 2 H. 4, 11. B. (m) 22 H. 6, 14. 1 Ro. Ab. 107, cites S. C. 3 Ridgw. 319. (0) 48 E. 3, 27. Bro. Na. pl. 7, cites S. C. (P) F. N. B. 183, 184, note (b). |