the water empty itself so readily as it had been accustomed ; (h) for diverting the greater part of a course of water; (i) for straightening water, so as to prevent a mill from grinding so regularly as it had been wont ;() and for many other similar nuisances. So with respect to con[*277] duits it was said, if a man stop my conduit, I shall have an assise of nuisance ;(7) but as we have above said, these writs of assise are at an end.

The real action of quod permittat, now also abolished, was once very available for the purpose of recovering rights of water.

So, again, præcipe quod reddat lay for an acre of ground covered with

water.

The action upon the case has long been resorted to in cases of consequential injury by reason of the obstruction of these rights. It was, however, of early origin. Thus, the plaintiff had immemorially a mill in T., to which the water flowed from a neighbouring vill; the defendant made a trench to let the water out of its course, and the Court held, that the action would lie.(m) So where there was custom for the inhabitants of Southwark to have a common watering place for their cattle; it was held, that any inhabitant of Southwark might have an action against the defendants for stopping it up.(n) It is true, that upon occasions subsequent to this decision, it was determined, that case would not lie where assise or quod permittat might be brought ;(0) but it is sufficient merely to state, that these distinctions have long since been overruled.

Indeed, the difficulty which is now occasionally felt, arises from a question whether case or trespass be the proper remedy. The objection, however, applies to individual cases, for the general rule is clear, that where the damage does not immediately result from the act complained of, it is consequential, and then case is the proper remedy; on the contrary, where the act itself, and not the consequence of it, occasions the mischief, trespass is the right action.(p) Thus, if a person pour water upon his neighbour's land, the injury is immediate, and the aggrieved person brings trespass; but if he stop a watercourse upon his own land, or place a spout in such a direction as to damage the land of another, these latter acts produce consequential mischief, and the party should sue his action on the case. (2) The defendant caused water to overflow the plaintiff's fishery, by throwing down a weir in the plaintiff's close,

(i) See F. N. B. 184 (B.)

(h) 48 Id. pl. 4.

(k) 9 Ass. pl. 19. Bro. Assise, pl. 145, cites S. C. Bro. Accion sur le Case, cites S. C.

(2) 14 H. 8, 31. Bro. Nuisance, pl. 13.

(m) 21 H. 7, 30. Bro. Accion sur le Case, pl. 71.

(n) Co. Litt. 56, Westbury v. Powell. S. C. cited in Cro. El. 664.

(0) See Cro. E1. 520.

(p) See Chit. on Pleading, ed. 1834, vol. 1, pp. 140, 141.

(2) See Id. 126.

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where the defendant was a trespasser, and trespass was brought. There was also a count in case, and it was urged, that this was not a trespass, and that trespass could not be joined with case. The Court assented to the latter ojection, but were of opinion that the act complained of was a plain trespass. (r) On the other hand, where the defendant dug ditches, and so diverted the plaintiff's water out of the rivers, and damaged the meadows of the plaintiff, an action upon the case was brought; and it was moved to arrest the judgment, because it had not appeared in evidence that the diversion of the water was consequential to the digging of the ditches, and thus that trespass 'was the proper form. But the Court said, that the injury should be intended after the verdict to have been consequential. (s) It appears that the Court held the action on the case to have been the proper remedy upon this last occasion.(t) And it was deemed unnecessary upon such an occasion to aver that the water had run time out of mind, for if it had run but one year, so as to drown the plaintiff's lands, the action would lie.(u) So where one had a right to enter the yard, of another, and fixed a spout there which discharged water upon the plaintiff's land, it was held, that case, and not trespass, should have been brought, and judgment was given for the defendant.(v)

The action on the case is also the proper remedy for the proprietor of a house whom it annoyed by the continual dropping of water from an adjoining dwelling. Thus, upon such an occasion, a feoffment was made of the new house, and the only question was whether an action would lie against the new feoffee for a continuance of the nuisance. The Court held that it would.(w) So where the defendant erected a cornice upon his house, so that the rain water flowed from the cornice into the plaintiff's garden adjoining, and damaged the garden; it was held, that an action lay, and that the cornice was a nuisance from which injury to the plaintiff might be inferred. And proof that rain had fallen between the time of the erection of the cornice, and the commencement of the action was deemed unnecessary.(x) So an action of a similar nature was held to lie against a party for continuing a bank, so as to surround the plaintiff's meadow with water. It appeared, that the bank [*279]

had been raised before by the feoffee of the defendant, and the Court said, that a remedy might be had against an heir under such circumstances.(y) According to another report of this case, some doubts seems to have been entertained by two of the judges,(z) and, at length, after ad

(7) 1 Lord Raym, 274, Courtney v. Collett. 12 Mod. 164. S. C. cited also 2 Sir Wm. Bl. 898.

(s) 11 Mod. 257, Leveridge v. Hoskins. See 2 S. C. 1 Str. 6 Burr. 1113.

(t) See 1 Str. 636. 2 Lord Raym. 1403.

(u) 1 Vin. Abr. 557, Smith v. Babb, Gawdy, J.

(v) 2 Lord Raym. 1399, Reynolds v. Clarke.

(w) Mo. 353, Rolfe v. Rolfe, cited there in Beswick v. Combdon. S. C. cited in

5 Rep. 101.

(x) 1 C. B. 829, Fay v. Prentice. 14 L. J., C. P. 298.

(y) Ibid. Beswick v. Combden. Id. 449.

(z) Cro. El. 403.

journing the case, the judgment was given for the defendant, upon the ground that assise of nuisance, or quod permittat, should have been brought. (a) This latter difficulty is now entirely got rid of, and the opinion of the Court, according to the report in Coke, viz.-that the defendant having kept and maintained the bank as he found it, had not done any offence, and that if it were a nuisance before his time, it would be no offence in him to keep it,(b) cannot now be considered as law.

The defendant's husband in his lifetime fixed a small pipe and cock into a main pipe, and thus diverted a watercourse from the house of the plaintiff. After the death of the husband, the wife continued the nuisance, and it was held, that an action lay against her. (c) The action upon the case may also be employed where an obstruction has arisen in consequence of the neglect on the part of another person to do repairs. And thus, in the case against the Corporation of Lynn, which has been already cited, the defendants were obliged to submit to damages, for their omission to cleanse a creek, in consequence of which the plaintiff was compelled to carry his corn round about.(d)

With respect to parties in possession or reversion, it had been held, that in an action for stopping a rivulet, and drowning the close, and so spoiling trees, case was the proper remedy for the reversioner, and trespass for the tenant in possession. For the reversioner could not have trespass in respect of injury to the possession.(e)

In alleging a right to take water, care must be employed to shew that the obstruction complained of, is properly connected with the right. The plaintiff complained that the defendant had locked up a door-way, so that the plaintiff could not come to his cistern. Issue was [*280] taken on the right, and a verdict found for the plaintiff. But judgment was arrested, for non constabat, that the plaintiff had any right to go through the door-way.(f)

If a man cannot have access to cleanse his gutter, because the defendant has thought fit to stop up a passage, an action on the case will lie, but a prior request to the defendant for that purpose should appear on the record. After verdict, however, that request will be presumed.(g)

So much has been said as to the diversity between the actions of trespass and case, that the mere mention of the former as a remedy for immediate injuries to rights of water, may be sufficient.

(a) Cro. El. 520.

(c) Dy. 319, Moore v. Dame Browne.

(b) Ibid.

(d) Cowp. 86, the Mayor of Lynn v. Turner, in error from a judgment of the Court of Common Pleas. The judgment was affirmed. S. P. 45 E. 3, 17. Bro. Accion Sur le Case, cites S. C. pl. 20.

(e) 3 Lev. 209, Biddlesford v. Onslow.

(f) 6 Ad. & El. 786, Tebbutt v. Selby. S. C. 1 Nev. & P. 710.

(9) 1 Mod. 27, Tomlin v. Fuller, S. C. 1 Ventr. 48. 2 Keb. 575, 583.

An action of covenant also will lie for obstructions, where the circumstances of the case will warrant. It was held, in a case concerning a watercourse, that the devisee of an equity of redemption, (the legal estate being in a mortgagee,) was not liable in covenant, as assignee of all the estate, right, title, and interest of the original covenantor. The Corporation of Carlisle sued the defendants in covenant, for that one G. D. had bargained and sold to them, for certain considerations, so much of the River Caldew, running through his lands called D. Holme, as should be sufficient for the grinding of corn at all times at the city mills. There was a covenant that G. D., &c. should not divert or obstruct any part of the water so granted. It was then alleged, that all the estate, right, title, and interest of G. D. in the said lands, &c., came to and vested in the defendant by assignment. The breach was, that the defendant erected a wear across the River Caldew, near the city mills, and higher up the stream, and so had diverted the water whereby the mills had become less serviceable. The defendants, amongst other pleas, said, that the estate did not come to them by assignment, &c. It was objected on their behalf at the trial, that the action was improperly brought against them as assignees of all the estate, &c. of G. D., the same being vested in one W. as mortgagee in fee, while the defendants were only seized in the equity of redemption, as devisees in trust under a will. The learned Judge being of opinion that the plaintiffs had failed in their averments, directed a nonsuit, and the Court of King's Bench subsequently confirmed his opinion. They held it to be quite clear, that the devisees of an equitable estate (the only character to be ascribed *to the defendants upon the record) could not be liable to an action of covenant as assignees.(h)

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Lastly, a person aggrieved by obstructions such as we have above spoken of, may redress himself by abating the nuisance, provided, at the same time, that it be done without tumult or a breach of the peace.

Thus if a man make a ditch in his land, by which the water, accustomed to run to my mill, becomes diminished, I am at liberty to fill in the ditch, and the entry upon the land of the aggressor was said by Littleton to be congeable, or allowable for that purpose.(i) So also in the converse is this case. For if water run over the laud of another, and he so stop it in his course, as that it surrounds my land, it is competent for me to abate the obstacle which hinders the escape of the water.(k) And thus again, if water running near to a vill should by any means be checked in its flow, each inhabitant is empowered by law to destroy whatever impediment there may be, because the town would otherwise be inundated.(?) And, on the other hand, if a lawful watercourse be impeded,

(h) 8 East, 487, Mayor, &c. of Carlisle v. Blamire and another. Whether a covenant not to sell or dispose of water from a well to the injury of the proprietors of certain waterworks, their heirs, executors, administrators, and assigns, ran with the land so as to bind, as well as be enforced by assignees, was made a quære. A demurrer was allowed in equity, and the parties were remitted to their rights at law. 16 Ves. 454, Collinson v. Plumb.

(i) 9 E. 4, 35.

(k) 8 E. 4, 5.

(2) 9 E. 4, 35.

it is competent to the party injured quietly to abate the nuisance. Thus where the tenant of a house had a conduit for the purpose of conveying water thereto, which ran through the land of a copyholder, it was held, that he might dig the copyholder's land, for the purpose of amending his pipe.(m) So again the plaintiff had erected a dam for supporting a fish pond on his own soil, but this erection stopped a rivulet which the defendant enjoyed for the benefit of his cattle, and diminished the water, upon which he entered and abated the nuisance, and the Court refused to set aside a verdict in his favour.(n) However, the thing complained of cannot be abated until it actually becomes a nuisance; so that if one see his neighbour erecting that which it is probable will ultimately be such, it cannot be abated as long as it continues in an offensive state. (o) Moreover, if the person injured abate no more than is necessary, any damage resulting from the act will not be laid to his charge. As where [*282] one erected a mill-dam, partly on his own land, and partly on the land adjoining; upon which the owner of the adjoining land pulled down the part on his land, and the whole dam fell down, and the water run out; it was held, that the owner was justified. (p) But where the plaintiff had a right to irrigate his meadow, by placing a dam of loose stones across the stream, and occasionally a board or fender, and he fastened the board with two stakes, which he had no right to do, the defendant was held liable in case for pulling down the board, as well as the stakes, although, as owner of the adjoining land, he had a lawful power to abate the latter.(g) On the other hand, if a barrier be removed, as in a mine, which prevented water from flowing into another mine, the owner may have an action, for it is the duty of the other owner to make provision against this inroad of the water. By removing a barrier of coal from his mine, he inflicted an injury upon his neighbour.(r)

Nevertheless, it must immediately occur to the reader upon this point, that a remedy by injunction is open to the person who is thus disadvantageously situated. A Court of Equity will judge, from the several affidavits on both sides, whether the thing in question will be injurious, and will discriminate between a malicious attempt to frustrate the prospects of the defendant by the injunction, and a well founded reason for apprehension.

However, it has been declared, that if a party look carelessly on whilst an injury is carried on, and he wilfully permit its accomplishment, his application to equity will be unavailing. Thus, upon the diversion of a watercourse, it appeared, that the plaintiff at law had been put to great expense by reason of the injury, but also that he saw the work whilst it was proceeding, and connived at it, by testifying his assent, rather than

(m) Mo. 644, Guy v. Brown; and see 39 H. 6, 32. Br. de son tort, pl. 43, cites S. C.

(n) 2 Smith Rep. 9, Raikes v. Townsend. (P) Cro. El. 269, Wickford v. Bill.

(9) 6 Bing. 379, Greenslade v. Halliday.

(0) 12 Mod. 510. Holt's Cases, 499.

(r) 2 Dowl. & L. 203; 13 L. J. Ex. 361, Firmstone v. Wheeley.