be for a common of piscary in gross, the deed must, of course, be produced; and some evidence of user should be brought forward, in order to preclude the possibility of presuming a surrender of the grant, if it be very old.

In a case of fishery, a document produced from the Duchy Office of Lancaster, purporting to be a survey of the manor in 33 Eliz. by the deputy surveyor of the duchy, and whilst the manor belonged to the duchy, was rejected, whether as reputation, or made under public authority, although the survey had been founded on the presentment of the tenants of the manor *at a Court of Survey, and Queen Elizabeth had paid the expenses.(p)

[*420]

It is easy to collect from the foregoing observations upon a common in gross, that if a right of this sort be claimed in gross, not being a commonable right, the deed confirming the title (and there must be a deed) should be produced. If the permission to fish be by grant, the better way seems to be to plead a license, and to give in evidence the leave thus obtained.

Lastly, should a deed be brought forward an any occasion in which the owner of the land may appear to have granted a fishery in his soil exclusively of himself and all others, but at the same time reserving the land, and this not by way of lease, but absolutely, it should seem, that the deed would be evidence of a grant of fishery in gross, notwithsianding the objections which have been raised against the existence of an exclusive fishery without the soil.

By analogy to the fact that it is not necessary to prove an actual taking of fish in order to support an action for disturbing a fishery,(q) it may be safely alleged, that the act of fishing is sufficient to shew an assertion of a right, without proof of the catching of any fish. The invasion of the right in possession, if overlooked becomes in time either strong evidence in favour of a wrong doer, or it operates to shew that the party thus intruded upon must have been indifferent on the subject of his rights.

In an action of trespass upon the plaintiff's oyster fishery, the defendant pleaded, 1, the general issue; then, 2, a public right of fishery, and the plaintiff replied a prescription to have the sole, several, and exclusive liberty to take oysters upon the said fishery. The plaintiff put in an inquisitio post mortem, and other documents from the Tower, to shew the antiquity of his fishery, and also that it had been parcel of the manor of B. He also gave in evidence three judgments in trespass, and then offered licenses appearing on the Court rolls, and bearing date from 1661 downwards, till the end of the 17th century, whereby the lords of the

(p) 7 Ad. & El. 617, Evans v. Taylor. S. C. 3 Nev. & P. 174. (2) 1 Wms. Saund. 346 (b), Patrick v. Greenway.

manor had, in consideration of certain rents, granted the liberty of fishing and dredging for oysters. It was objected by the defendant's counsel, the payment of these rents, ought to be shewn in addition, either by the bailiff's account or otherwise; but Mr. Justice Heath declared, that he could not distinguish these licenses from old leases, which were *always received in evidence in favour of persons claiming under the lessors. And the learned Judge thought, also, that payment [*421]

must be presumed under licenses of so ancient a date, for that it could not be reasonable to suppose that evidence of such payment had been preserved. However, the learned Judge added that to give any weight to these licenses, payments made in latter times, under licenses of the same kind, must be shewn, or that the lords of the manor had exercised other acts of ownership over the fishery, which had been acquiesced in. A regular set of leases, or agreements for leases, of the oyster fishery, were then produced, and it appeared that rent had been paid under these for forty years past. Evidence was likewise adduced to shew that strangers when they approached within the limits of the fishery, had always been driven off by a watchman stationed for the purpose. (a)

.

The following evidence successfully given on behalf of the defendant, upon an information against the farmer of Lord Barclay, for attempting to exclude the Crown from about three hundred acres of derelict land in Gloucestershire. The plea was not guilty, and the defendant proposed to prove, that the lords of the manors adjacent to the Severn, particularly those of the Barclay Manor, (to which it was contended this derelict land appertained), had been accustomed to claim all royal fish taken within the river opposite to their manor usque filum aquæ; that these lords had the sole right of salmon fishing; that they had all wrecks cast between high and low water mark; that the lands of the adjacent manors had ancient rocks or fishing places, and wears, within the channel; that they had from time to time granted these fishing places, some by lease, some by copy of Court roll, by the names of rocks, &c., and had received rents for the same; that the manors on either side of the Severn were bounded one against another by the filum aquæ, according to common tradition and reputation; and lastly, that the increases, happening by the reliction of the river, were constantly enjoyed by the lords adjacent.

Before, however, the half of this evidence had been elicited, the defendant was urged by the Court and the King's Attorney General to withdraw a juror, the title to the land in question appearing so clear on the defendant's side. This, after some reluctance, was done accordingly, and the issue was acquiesced in by the Crown for ever afterwards. (3)

[*422]

In cases of suits or services due by inhabitants and other *persons to mills, the plaintiff proves his possession of the corn mill, if it be not admitted, and then gives evidence of the custom, according to the particular facts, which obliges certain persons to grind their corn at

(r) 1 Campb. 309, Rogers v. Allen. JUNE, 1853.-25

(s) Hale de Jure Maris, p. 35.

his mill, and he then shews that the defendant is one of the parties under the obligation, and concludes by proving the breach of the custom on the part of the defendant. (t) The following evidence was adduced in Cort v. Birkbeck:(u) 1. The proceedings in a suit in the Exchequer in which the then occupier of the mill was the plaintiff, and certain tenants and resiants of the manor defendants, and in which the jury found for the custom. 2. The record of the verdict whereby the jury found the custom in the words of the issue. 3. A subsequent decree of the Court of Exchequer confirming and continuing the custom. 4. Proceedings in scire facias to revive the decree against some of the then inhabitants. The breach was then proved. This custom was demurred to, but the Court were of opinion that it was sufficient to maintain the issue. For here the proceedings in the Exchequer were evidence to prove the custom, and there was, moreover, testimony to shew that the defendant had used flour not ground at the plaintiff's mills. The issue was, therefore, fully proved.(v) Long usage and acquiescence in one uniform payment is cogent evidence of the reasonableness of a toll for grinding at a mill.(w)

Trespass was brought for breaking flood gates. There was a justification by the defendant as lessee of a mill under the Bishop of W. Old leases of the mill granted by a Bishop of W. were put in, and it was proposed to put in an old map of the place in question from the same custody; but it was rejected. The only case where a map of the property is receivable, is where it is not disputed that at the time when it was made the property belonged to a person from whom both parties derive their claim.(x)

Evidence of what a former tenant has said as to a request of permission to use the water of a mill, is admissible.(y)

A lease of land, and letters written by the defendant whilst he was lessee of a mill, were held receivable to shew unity of possession of the land and mill.(*)

[*423]

*An old map of the parish belonging to the lord of the manor, was rejected by the Judge in a tithe cause in Equity, the right in question being a private right. (a)

The evidence needful to be brought forward on trials for the disturbance of watercourses, differs but little whether the facts to be established consist of injuries to mill streams, or to any other species of watercourse.

(t) See 2 Wms. Saund. 113 (a). Willes, 657. (u) Dougl. 218. (v) See Dougl. 219, 223; but see 2 B. & C. 827, Richardson v. Walker, where this case of Cort v. Birkbeck was very much observed upon.

(w) 6 M. & S. 69, Gard v. Callard. This was a malt mill.

(x) 7 C. & P. 479, Wakemen v. West. Id. 481, Doe d. Hughes v. Lukin.

(y) 8 C. & P. 105, Wakeman v. West.

(2) 2 Moo. & R. 244, Clay v. Thackrah. 9 C. & P. 47.

(a) 5 Sim. 243, Newcome v. Matthew.

To shew the plaintiff's possession of the mill to which the water is appurtenant, or of the close over which it runs, and then to detail accurately the injury sustained, as nearly as may be possible in the terms of the declaration, together with proof of the defendant's misconduct, seem to be the main points of testimony in matters of this nature.

The necessity of developing in a very accurate manner the mischief done, has been fully proved in the Chapter upon Pleading; and it is an invariable principle, that if the proof differ materially from the allegations in the pleading, such a discrepancy will be fatal. Thus in two cases which have been already cited, the damage stated in the declaration did not tally with that proved at the trial. Upon the one occasion, the defendant was charged with placing and continuing a heap of earth so as to prevent the open water from flowing away into a ditch at the back of his house. The evidence was, that the heap was not originally so placed, but that earth fell in process of time from the heap into the ditch, and thus obstructed the passage. This was a fatal variance.(b) So, again, we have seen, that where the charge was for diverting and turning water, and the evidence disclosed the penning back and checking of it, the difference was such as to cause the plaintiff to be nonsuited. (c) And although it was more recently held, that an allegation of the diversion of water was sufficiently sustained by proof of the defendant having cut down a dam so as to hinder the plaintiff from the enjoyment of his regular and accustomed supply, the stream not being in fact diverted, (d) yet it is highly dangerous to venture upon such experiments; and the wiser course is to ascertain the real damage so as to state it clearly in the declaration, and establish it as laid, at the trial.

And, further, it is not sufficient merely to shew that the defendant has done some act which he has not been warranted *in doing, the plaintiff must satisfy the jury that he has sustained some injury. [*424] So that where it was shewn, that the defendant had erected a dam higher up the stream than the water enjoyed by the plaintiff, but it appeared also, that the plaintiff had not been injured according to the grievance stated in the declaration, the Court held the defendant entitled to a verdict, for the flowing water was publici juris, and the party complaining had neglected to shew that he was prevented from having water which he had acquired a right to use for some beneficial purpose. And the circumstance of the finding of the jury that the defendant had no right to stop the water in the summer was considered to make no difference.(e) In answer to the action for disturbing the plaintiff's watercourse, an adverse possession of water at a given level, or used in a particular manner, may be shewn, but then it must be in most cases the exercise of an adverse right for twenty years. So that an enjoyment of this for nineteen years, to the prejudice of a person whose land lay lower down the stream,

(b) 5 Taunt. 534, Fitzsimons v. Inglis.

(c) 6 Price, 1, Griffiths v. Marson. See Carth. 118. (d) 7 Moore, 345, Shears v. Wood.

(e) 2 B. & C. 910, Williams v. Morland.

was held insufficient. (f) However, Lord Ellenborough gave it as his opinion, in the great case of Bealey v. Shaw, that less than twenty years' enjoyment might or might not afford a presumption of a right, according as it might be attended with circumstances to support or rebut the right.(g) So that an acquiescence in a certain mode of using a stream might, perhaps, be left to the jury as evidence of right, although the possession should have been for a time rather less than twenty years; and if so, the ruling of Mr. Sergeant Adair in Prescott v. Phillips would be shaken. Evidence that the plaintiff had erected a new wheel within twenty years, requiring less water than the old wheel, would not avail in an action for obstructing the watercourse, although the mill to which the water ran was not called an ancient mill in the declaration.(h)

In arranging evidence in cases of this nature, it seems important to attend to the following distinctions, which will seem also to illustrate the point of adverse possession above mentioned. If a person enter upon the enjoyment of unappropriated water, and a stranger interfere with him, he may maintain his action immediately against the party thus intruding upon his right; but if at the time of his taking the beneficial possession of this water, another landowner higher up the stream, have been accustomed for twenty years to divert part of the channel, or to use the water in any particular way, the *new comer cannot then sue his [*425] neighbour, who has so long reposed in the undisturbed and uninterrupted user of his share of the stream. While, again, if upon the arrival of this new comer, the neighbouring landowner commence a different system of working his mill, or begin to use the river in an unaccustomed manner, this change, if acquiesced in for twenty years, or, perhaps, somewhat less, will be binding on him who is lower down, since it must be either gross neglect which has permitted a damage to continue so long, or the presumption naturally arises, that no injury at all has taken place. This supineness, however, is not of frequent occurrence, for the ordinary feeling upon any unusual diversion of a stream is one rather of extreme jealousy, than of indifference.

Upon not guilty or not possessed, &c., a very slight amount of damage will suffice to retain the plaintiff's verdict.

The loss of five per cent. of water by evaporation, in consequence of a diversion will be sufficient. So the pollution of the water by soap-suds, however small the inconvenience, will be sufficient upon not guilty.(i).

It has been said, that mutual benefit is evidence of an agreement; so that, if two persons have property near a river, and each have land between the property of both and the river, and then each of them cut through the other's ground for water, according to the opinion of Lord

(f) 6 East, 212, Prescott v. Phillips, cited there. (h) 1 B. & A. 257, Saunders v. Newman.

(g) Id. 215.

(i) 18 L. J., Exch. 305, Wood and others v. Waud and another. S. C. 3 Exch. 748, ante, p. 270.