Title: Acton v. Blundell
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Permanent Link: http://ufdc.ufl.edu/WL00004438/00001
 Material Information
Title: Acton v. Blundell
Physical Description: Book
Language: English
Publisher: 12 M & W 355
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Acton v. Blundell (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004438
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text
. .. 1 1

,a.W.as2. U ACTION V. BLUNDELL 120
S ,,w waIs at. liberty to draw, and it appears, by the judgment reported, did draw,
S,.inn- of fact, the propriety of which we do not [324] in the least question. lBul
.:ti:::.t.ely we are not at liberty to do the same upon this specria:l verdict, which is
p, r;iwtfect that we cannot give any judgment upon it, and we, therefore, hold that,
-, must be a venire de novo awarded, as was done in the case of A. v. Tr',d,dl nrl
,.: Bing. 204; 1 M. & Scott, 401; 2 C. & J. 265).
Venire de novo.

,',l. i'. BLUNDELL AND ANOTHER.(0) Exch. Chamber. 1.43.-The owner of
.nd through which water flows in a subterraneous course, has no right or interest
in it which will enable him to maintain an action ,ir'iins, t a landon ner, who, in
carrying on mining operations in his own land in the usual manner, drains away
the water from the land of the first-mentioned owner, and lays his well dry.-
~iiere, if the well had been ancient, whether there would have been any
SC. 13 L. J. Ex. 289. Approved, Chasemore v. RicharlkI, 1 5i0, 7 H. L. C. 349 ; A' v
Iircr Company v. Johnson, 1860, 2 El. & El. 435. Adopted, Grand Juirin Canral
.-tfny v. Shugjar, 1871,L. R.-6 ChApp.A.87; In r, TT iitri : Trafibrl v. Blawc,
i,.-, 36 Ch. 1). 618. Applied, West Cumberland L-n Comw'pan v. K'r8~ion, 1877,
: Ch. D. 780; Ballard v. Tomlinson, 1884, 26 Cb. D. 202; BoI'w'r v Sn.'ord!, 18I9,
5 T. L. R. 573; M'Evoq v. Great Narthern Baile.w, Company of Ireland, [1900]
SIr. R. 332; Bradford Corporation v. Ferrand, [1902) 2 Ch. 655. Followed,
IPlacor ish Silver, &-e., Company v. Dumbell, 1873, L. H. 5 P. C. 60. Distinguiished,
l;dialrd v. Tomlinsoc, 1885, 29 Ch. D. 125. Dissented from, Did.invn v. Granud
Jntrion Canal Company, 1852, 7 Ex. 282. Considered, Bro rbewt v. Rantni/latom,
1i56, 11 Ex. 602; Jordeson v. Sutton, &c., Gas Company. [I 199] 2 Ch. 248. E\ plained,
li',dford Corporation v. Pickler, [1894] 3 Ch. 66; Salt 'Union Limitul v. hrunner,
Mod and Company, [1906] 2 K. 832.]
Case. The first count of the declaration stated, that the plaintiff, before and at
i~c, was, and from thence hitherto has been, and still is, lawfully possessed of certain
e1sae, with divers mills, factories, buildings, and wells thereon, with the appurtenances,
state &o., wherein and whereby he the plaintiff carried and still carries on the trade
a business of a cotton-spinner, and for the working, occupying, and using which said
rsts factories, buildings, and wells, he the plaintiff, before and at the time of com-
maing the grievances hereinafter mentioned, used and applied the water of certain
ender-ground springs, streams, and water-courses, and by reason thereof, before and
at tie time of committing such grievances, of right ought to hare had and enjoyed,
and still of right ought to have and enjoy, the benefit and advantage of the water of
tk iid springs, streams, and watercourses, which, during all that rime, of right ought
A have run, flowed, and percolated, and until &c., of right had run, flowed, and
pcolated, and still of right ought to run, flow, and percolate into the said closes
,'25] and premises of the plaintiff, for supplying the same closes with water for the
String, occupying, and using.the said mills, factories, buildings, and wells, and for
t$econvenient use and occupation of the said closes with the appurtenances. Breach,
A4t the defendants sunk divers pits, shafts, holes, and tunnels, near to the said closes
3l premises, and erected, put down, and worked divers engines and pumps in and
Ma the said pits &c., and kept and continued &c., and by means as well of the digging
Sfte said pits &c. and the working of the said engines, as of the continuing the said
i slaml pits &c., diverted and carried away from the said closes and premises oi the
Sa plaintiff the water of the said springs, streams, or watercourses, and hindered
4* prevented the same from running, flowing, and percolating in and along their
"t'I courses, and in their usual manner and quantities, to the said closes 'c., and
Supplying the same with water for the working &c. the said mills, factories, buillinvs,
S4. wells, and for the convenient use and enjoyment of the said closes with the
qptenances, as the same of right ought to have done &c., and thereby &c.
Te second count alleged, that the plaintiff, before &c., was and from thence
The judgment in this case was delivered on the 18th of May, 1843, but the
S ht been unavoidably postponed.

7.. 5
I.' .









hitherto hath been and still is lawfully possessed of a certain close, building. "an
premises &c., within which was a certain spring and well of water, and the plieain
by reason of the possession of the said close &c., still of right ought to have the uU
benltit, and enjoyment, of the water of the said spring and well, for the cocnveoet
-and bIeneficial occupation of the said close &c., and for supplying the same with wm r
for the necessary purposes thereof. Breach, that the defendants wrongfully a,
drained, drew off, pumped, and carried away the water of the said spring and wlt,
and caused the same to run, flow, and percolate out of and away from the said Will,
and out of and away from the said close &c.; and the said well thereby became, end
during, all the time aforesaid continued to be, and still is, empty and dry, whereby &e.
[326] Pleas, first, not guilty: secondly, to the first count, that the plaintifl did
not before or at &c. use or apply the said water of the said underground spr'ilAg
streams, and watercourses for the working and occupying and using the said mits
&c., as in that count mentioned, and ought not of right to have had and enjoyed tk
benefit of the said water &c., and that the said water &c. ought not of right dlriii.
that time in the said first count mentioned to have run, flowed, or percolated, nor,
until the commencing of the supposed grievances, had of right run, flowed, or percol;ted
into the said closes &c., for supplying the said closes with water for the workil,:.
occupying, and using the said mills, factories, buildings, and wells, and for the co-
venient use and occupation of the same closes, modo et formal. Thirdly, to the seeIond
count, that the plaintiff, by reason of the possession of the said close &c., had not f
right, nor, at the time of the plaintiff's declaring, ought he to have had the use, becn-fit.
and enjoyment of the said water of the said spring and well for the convenient an4
beneficial occupation of the said close &c., and for the supplying the same with water
for the necessary purposes thereof, modo et formA. On both which pleas issues were
The cause came on to be tried before Rolfe, B., at the Liverpool Spring AssizA,
1841, when (as it was stated in the bill of exceptions on which this writ of error Wa
brought) the plaintiff's counsel gave in evidence (inter alia) that the plaintiff was the
owner and in possession and occupation of a piece of land, with a cotton mill eircto
thereon, situate in a street called the Wallgate, in the town of Wigan, in which ill
he carried on the business of a cotton-spinner with one John Acton; that the said la
and mill formerly for many years belonged to, and were occupied by, one Thuva
Ilardman up to his death, which occurred in the year 1837; that from and after h6
death, the said land and mill belonged to and were [327] occupied by one John ActL
deceased, up to his death, which occurred in the year 1839, and that from and aflor
his death the plaintiff became and was such owner and occupier as aforesaid, e~a
continued such owner and so in possession and occupation, from thence to the tia"
of the trial. That within twenty years before the commencement of the suit, naetl.
in the latter end of the year 1821, and whilst the said Thomas Hardman was sMA
owner and in possession and occupation as aforesaid, he the said Thomas IIardAw
sunk and made in the said land a certain well, and that by means of such well he th-
said Thomas Hardman, from the time of such sinking, and the said John AtWt-
deceased, and the plaintiff, during the time they were respectively such owners a"
so possessed as aforesaid, did from time to time, according to their convenience. rMAt
draw, and procure from and out of such well, water for supplying and workings 4A
said mill with the appurtenances, and for the convenient use and occupation ***
same; that the well was originally sunk to the depth of about eighteen ylad4, a*
the supply of water from it was then sufficient for the purposes of the said milll W*
in the year 1833 and 1831 the supply of water from the well was defective, awAd M
the said Thomas Hardman, the then occupier of the mill, in the latter year dee*wkl
the well about three yards, and the supply of water from it was agai rn waswit 'a
the purposes of the mill, and continued to be so until the year 1837; tilrt u4 tw
year the defendants sunk a coal-pit in the glebe land belonging to the lt* "
Wigan, of which glebe land the defendant Blundell was then, andl from trin' hdt'
has been, lessee from the rector, under the provisions of an act of Parliarlln'uri:t
in that year; that the said coal-pit was about three quarters of a mile f -im t-w Ol
mill: tlat when the said pit was sunk to a certain depth, aunely, ablIt thtrk
yards, the water ceased to flow in the well, and so continue ed for a peril 'o a l -*
months, during which time the pit was worked, and the [328] owner i"li O~UaI *
the mill obtained water fr'm other sources, for the working of the -.-idl MI j*WL


1 :,'21


.,, ~,. ..,.-,ri;.C-ii-rl-*u; ----r~lri~i~-~l ~ -

12 M. &W.2y


dv4 u that period the well was again deepened about six yards by the said John
iMdeceased, the then owner and occupier of the mill; that at the end of that
oA the pit ceased to. Ie' worked for a short interval, during which interval the
,w rose in the well again; that afterwards, viz., in 1838, the working of the pit
(joieed again, and has continued ever since; that, soon after the water left the
0:gilast aforesaid, the well was again deepened by the then owner and occupier of
4 t r b about twelve yards more, and that the water rose in the well again, and
j_.,&a-troke of the plaintiffs engine-pump being shortened, and by the aid of a lodge
nv.'oir made on the plaintiff's land, was sufficient for the purposes of the mill,
continued to be so until December, 1840, when the water r,'ain ceased to flow in
well; that in the same year the defendants sunk another coal-pit, called the engine-
in the said glebe, about 735 yards distant from the said well; that, whilst the
vv as working, the water began to fail again, viz., in September 1840, and in
iM ber following it became insufficient for the purposes of the mill, and the plaintiff,
.6,what time to the commencement of this action, was obliged to procure water from
j*asources for the purposes of his mill; and that the defendants have continued to
aJ. the said pits, which were sunk and made, and have always been worked, in the
U UiJ.A:nd proper manner; and that..the said-pits have bten drained by steam engines,
Inrtier to win and get the channel coal there; that, when the last-mentioned pit had
u4t. sunk to a considerable depth, and before it had reached and extended so deep as
stratum of the said cannel coal, namely, at the depth of about eighty yards from
surface, large quantities of water sprang out from a stratum of rock, which lay
- ithait depth, and was penetrated in the sinking of the same pit; that, until the last-
Si9]-mentioned .pit was sunk down to that stratum of rock, little or no water was
Sin the pit; that in that district where the said well and the pits are situate,
tt~a mineral strata dip is about one yard in seven yards; that the first-mentioned pit,
la*. reference to the said well, is upon the rise of the said strata, and the engine and
ton the dip; that the level of the bottom of the said new engine-pit is lower than
ipt bottom of the said well; that, previous to the sinking of the said well in 1821,
4*.said mill was worked and supplied with water from a well about nine yards deep,
Sw garden near the said mill, but not being the property of the said Thomas Hardman,
.Im Acton, or the plaintiff; -that the last-mentioned well was entirely in the strata
o .'oil and clay, and did not penetrate or reach any rock, and that the water in the
it-nmentioned well has continued to flow as usual.
The plaintiff gave evidence tending to shew, from the nature of the strata lying
N,,ween the well in question and the pits sunk by the defendants, and which strata
1,01sisted of porous rocks, that the failure of the water in the well arose wholly or
;r'rtially from the sinking the engine-pit; and that, by reason of the premises, the
t:intiff had been put to and incurred great pecuniary loss and damage.
The bill of exceptions then stated, that "the defendants' counsel insisted, before
h:e said learned Baron, that the said several matters so produced and given in evidence
rn the part of the said plaintiff were not sufficient, and ought not to be admitted as
ridence to the jury, to entitle the plaintiff to a verdict on any material point of the
'.id issues secondly and lastly above joined, and that they shewed that the said second
a : last issues ought wholly to be found for the defendants. And to this the counsel
ifi the said plaintiff did then and there insist &c. that the said several matters were
-I:icient, and ought to be admitted as evidence to the jury, to entitle the said plaintiff
a'. verdict on the said issues secondly and lastly above joined, [330] or on a material
I :t thereof, and that they did not shew that the said issues ought to be found wholly
I- the defendants. And that the said learned Baron did then and there declare and
river r his opinion to the jury, that, assuming that the defendants were guilty of the
: ievances alleged in the declaration, yet, if they did proceed and act in the usual and
r :rper manner on the land of the defendant Blundell for the purpose of working and
liningg a coal mine therein, they might lawfully do so; that the law had made no
I visionn against it; and that the evidence was not sufficient to support the allegations
': wvcrsed by the second and third pleas, so as to entitle the plaintiffs to a verdict on.
ti! -e pleas, and in such case those issues ought to be found for the defendants: upon
iieh the plaintiffs counsel excepted to the said opinion, and the jury, in pursuance
(' the direction, found a verdict for the defendants on the second and last issues, having
I-.ea discharged for finding a verdict on the plea of not guilty."
Assignment of errors, and joinder in error.
Ex. Div. viL.-39*


f &SW.329.


The plaintiffs points for argument were, that the ruling of the learned .11 at'
the trial was erroneous; that there was sufficient to warrant the jury in 41ndiu a
verdict for the plaintiff on the second and last issues; and that the plaintiff was eftfk
to use the water, unless the defendants could shew some right or justitica:ti,,
drawing it away, beyond the working of coals on the lands of them or one of them
The defendants' points were, that they, in right of the defendant Blundcell. ha
right to sink pits and shafts, and pump up the water in the usual and proper Waow
for the purpose of winning and getting coals from the coal seams of the said BlundtU.
in the lands in which the said pits and shafts were sunk, notwithstanding thl o-
ceedings had the effect of diminishing the spring of water in the plaintiff's well
well not having been sunk, made, or enjoyed for the space of twenty years lbicfem U
com-[331]-mencement of.this action. Also, that, even though the plaintillfs wt htuuL
been made and enjoyed more than twenty years before the commencement of 4kt
suit, yet that, inasmuch as the spring of water therein was an underground spr;,
and one of which the defendants and those under whom they claimed had no nohic
no right to the same was acquired as against the owners or occupiers of the Mi* 4%
the land of the defendant Blundell, so as to prevent those owners and occupier' f sw
winning and working those mines, notwithstanding those operations, when carri: **-
in the usual and proper manner, might have the effect of diminishing the flow oi MtW
in the plaintiffs well.
There was another point, turning on the statute under which the defeodca
Blundell held the mines, but it was abandoned on the argument.
The case was argued on the 1st December 1842, by
Cowling, for the plaintiff. Laying the general issue out of the case, it appc:.. b4
the evidence that the defendant Blundell, by sinking the engine-pit in his own ladw
and using the steam engine to pump up the water, has drained away and eirdl
abstracted the water which would otherwise have supplied the plaintiffs well in hnr
the plaintiff's, land. It appears also that the plaintiffs well was sunk within tweihi
years, and the defendants' coal-pits still'more recently, so that neither party am hu&
gained a right by lapse of time. It is submitted that, under this state of circunAluoru
the direction of the learned Judge was incorrect in point.of law. No doubt, guA~en~i
speaking, a party may sink pits and work the coal in his own land, and there o 0
provision against it; but that is an imperfect view of the case. The law docs t. 4a4
that a party may so work whatever the consequences may be, or how far soever 6i4
the property of the party the effects may extend; it does not give the pe e~-
absolute un-[332]-qualified right independent of all circumstances; but thatt r~A
must be subject to another and paramount rule--sic utere tuo ut alienum non latI,*
and the question comes to this, whether there is any jus alienum in the plawh*
Without inquiring at present whether there was any peculiar privilege on *ccW
the act being done by the defendants in carrying on mining operations, but *aS1v0.m
that the doing of the act was, abstractedly speaking, lawful, it is submitted ~t it
water passes in its natural course through a person's land, he has a right to t$ vw
of it as it passes, and to be protected against another obstructing it, or altery ms'
stream so as to prevent such user, unless the-rther has gained some right or (HwvisJ
(as it is technically called) by grant or otherwise; and here the defendanut- do t
allege they have gained any such right. The right contended for by the pdluhfr
incident to, and follows from, the possession and occupation of the land, ; Miand
no length of time to acquire it. Such right is almost self-evident. The wa: tr *
party's as long as it is on his land, as every thing is his that is above or b oi
This is not disputed as to water flowing on the surface of the land, but tlh qu
is whether it makes any difference that it flows below it. It cannot; for t *Vt4
arises from the occupation of the land, and must equally apply to water riun n qA 11W
the surface. Indeed, from the nature of watercourses, there can be no -40c-u z
between them on this point, whether superficial or not; for all water iS or0'"0"
underground, and this very stream may at some distance be on the Iclv.l W* f,
flow along the surface. If there were any difference, a party might go, ****.
e? case of surface water, to some place before it reached the surface, amnd cu a
stream, and, according to the argument on the other side, he might do
impunity. All the authorities treat the right to the use of flowing water al'
right following and arising from the occupation of the land itself, and thl'. "
distinction [333] between water flowing below and above the surface. l~ h' A$ i


afo .-u: .ace water arose and was discussed in Mtwloon v. Ilill (5 B. & Ad. 1 ; 2 Nev.
S. 74 1. .In that case, Lord Denman, J., in delivering the judgment of the Court,
t "-u-" The proposition for which the plaintiff contends is, that the possessor of lands,
t h which a natural stream runs, has a right to the advantage of that stream
in its natural course, and to use it when he pleases for any purposes of his
Siit inconsistent with a similar right in the proprietors of the land above and
tjo---that neither can any proprietor above diminish the quantity, or injure the
,ihlt, of water which would otherwise descend, nor can any proprietor below throw
4ak the water without his license or grant:-and that, whether the loss by diversion
o at general benefit of such a stream be or be not such an injury in point of law as
iamstain an action without some special damage, yet, as soon as the proprietor of
+ I.iud has applied it to some purpose of utility, or is prevented from so doing by
ticdliversion, he hai a right of action against the person diverting." That doctrine
oplies to this case, and no less to underground than to surface water. And in
tefck. Corm.14, water is stated to be one of those things which are acquired by
Lusancy. "There are some few things which, notwithstanding the general introduc-
h. and continuance of property, must still unavoidably remain in common; being
,$, wherein nothing but an usufructuary property is capal:le of beipg had; and,
therefore, they sfill belong to the first occupant, during the time he holds possession
f them, and no longer. Such (among others) are the elements of light, air, and
wtter; which a man may occupy by means of his windows, his gardens, his mills, and
other conveniences; all these things, so long as they remain in possession, every man
iasa right to enjoy without disturbance." There the rule of law is put upon the
round [334] that a party has a right to water so long as it passes through his land.
y v. Pigott (3 Bulstr. 339; Poph. 166; W. Jones, 145; Noy, 84), which was
a.action on the case for stopping a watercourse, the Court held, that the right to the
*f of water is not extinguished by unity of ownership, in which respect it is dis-
itpguished from a way. Whitlock, J., says (3 Bulstr. 340), "There is a difference
between a way, a common, and a watercourse. Bracton, lib. 4, fol. 221-2, calls them
Vervitutes praediales, those which begin by private right, by prescription, by assent, as
a way or common, being a particular benefit to take part of the profits of the land.
This is extinct by unity, because the greater benefit shall drown the less. A watercourse
.,th not begin by prescription, nor yet by assent, but the same doth begin ex jure
u:Iture, having taken this course naturally, and cannot be averted." And Jones, J.,
ys, This watercourse is not extinct by the unity of possession, the same being a thing
iich ariseth out of the land, and no interest at all by this claimed in the land, but quod
etrere solebat this way, and so to have continuance of this." And Crew, C. J., and
Doderidge, J., concur. There a distinction is taken between a right of wayor of common,
:.id a right to the use of water, which is jure nature; but no distinction is taken between
auter below and above the surface. It is treated as a natural right, and if it be so, how can
ite material whether the stream flows on or under the surface ? Lord Denman, C. J., in
delivering the judgment in MIason v. Hill (5 B. & Ad. 23), quotes the Roman Law (2 Inst.
fit. 1, s. 1) :-"Et quidem natural jure communia sunt omnium hee : a~r, aqua profluens,
et mare, et per hoc littora maris." And he quotes Vinnius, in his Commentary on the
i::stitutions, as explaining the meaning of the text:-"Item aqua profluens, hoc est aqua
jpis, qua vel ab imbribus collect, vel e venis terre scaturiens, perpetunum fluxum agit,
1335] flumenque But rivum perennem facit. Postremo propter mare, etiam littora
mans. In hisce rebus duo sunt, quae jure natural omnibus eompetunt. Primum
tommunis omnium est harum rerum usus, ad quem nature comparatea sunt, tum si
id earum rerum per naturam occupari potest, id eatenus occupants fit, quatenus ea
owapatione usus ille promiscuous non heditur." And he proceeds to describe the use
o water, "aqua profluens ad lavandum et potandum unicuique jure natural concessa."
Wd in the Pandects,(a) lib. 39, tit. iii., De Aqua, et Aqun pluvim arcendze, there are
Ot* following opinions on this subject applicable to the present case. "Similiter
su)iunt Sabinus et Cassius. Nam iidem aiunt: Aquam pluviam in suo retinere, vel
"Plr'icientum (b) ex vicini in suum deyivare, dum opus in alieno non fiat, omnibus.
s esse. Prodesse enim sibi unusquisqhe, dum alii non nocet, non prohibetur; nee
"utwtquam hoc nominee teneri." Similiter Pomponius: Si in meo aqua erumpat qua

(a) Potier's ed., vol. 3, p. 578-9.
(b) Halvand reads superfluentum, note, id.



Sy m.334.



ex tuo fundo venas habeat; si eas venas incideris, et ob id desierit ad me atia p.-
venire: tu non videris vi feeisse, si nulla servitus mihi eo nominee debita fuerit me
interdicto quod vi aut clam teneris." Denique Marcellus scribit: Cunm eo qm ah
suo fodiens vicini fontem avertit, nihil posse agi ; nee de dolo actionem: Et easr .
debet habere; si non animo vicino nocendi, sed suum agrum melioremn Aei.4 iA
fecit." And in the following page there is the following passage: "Similiter "Sa;W,
et Cassius. Nam iidem aiunt: Si aqua naturaliter decurrat, aquie pluvi:r anrOa,
actionem cessare. Quod si opere facto aqua aut in superiorem partem repellitMr, au
in inferiorem derivatur; aqu? pluvize arcendze actionem competere." They ru4
appear to lay down this-that, as to flowing water, each party is entitled to use t as
it passes through his own land, and if another takes away the water, or dra-ws it k
an action is maintainable against him. And, in this [3361 case, by the act of tL.
defendants, the plaintiff is deprived of this water which would otherwise flow in~o h
well. [Maule, J. It appears to me tb it what Marcellus says is against you 1"
English of it I take to be this: if a man digs a well in his own field, and tl.6re
drains his neighbour's, he may do so, unless he does it maliciously.] His languave t
to be construed according to the state of things at the period he used it. Minit e wa
then altogether unknown, at least on the scale and with the means now applied r~.
He meant therefore, probably, digging a well in order to obtain access to the sovwe
that he might use it for occupation purposes: and it may be admitted, without pre-
judice to the plaintiff's case, and indeed is rather part of it, that the occupiers ~(a
land have a right to use the water flowing through it for occupation purposes, khosuq
such use may possibly, and in rare instances, prejudice their neighbours. Such Vus,
however, is very different from that in the present case, where, by means of sk w.-
engines, &c., the defendants continually abstract all the water from the t4is~hit's
land. That the Romans knew little about cutting off or using under-ground cunV
of water appears from their use of aqueducts. [Maule, J. That is not connclusive it
is certain they, in some instances, used water-pipes for their dwelling-houses. What
do you-understand by user for occupation purposes ?] Such purposes as Vinnius redfs
to, ad lavandum et potandum, for the use of the family or cattle. It may be dilsatt
to define the exact boundary of those purposes; the same difficulty would has
applied to the doctrine in Mason v. Hill, and yet was not noticed; nor is it neeasaf
to discuss it here. A right like the present seems acknowledged from the rtNo4I
times; for wells have always been considered as of the highest value: habitatio s a~d
towns have grown up about them, and yet, if the defendants are right, all this is heA
at the caprice of the owner of neighboring mines, who may lay those wells dy at
any moment they [337] please; for 4t is very difficult to say, that, if the minet.a--
may do so within twenty years, he can be barred by any lapse of time.
Few authorities can be found, both in consequence of the rarity of such a;n ocu-
rence as the present until recently, and the difficulty of bringing satisfactory )pn
home to a defendant; but the existence of the right contended for seems assiwun Al-
recognized in them, so far as any inference is deducible. Thus, in the Year &as
14 Hen. 8, 31, where an action on the ease was brought for diverting a rivitr, is
said by Row, It seems that here he shatl have assize of nusanf e and nut acl a-
the case; as if you stop a Conduit I shall have assize of nusance." That s u**
right to the watercourse, otherwise the only remedy would have been for t: d-he
done to the conduit or waterpipe itself, and not for the right to the watcri-' e.: wa
Browne v. Best (1 Wils. 174), which was a special action on the case for divve*
watercourse, the plaintiff declared upon his own possession of the place, throiw!; A*-
the water used to run, and then set out the course of it, and stated that the d
digged two pits and two ponds partly in and near the said course, diverted 6$t UdIA
into those pits, and made dams and banks to the ponds, by which the wat.: hIat l
diverted in its ancient course, and a great part of it sunk into those n1'!.
little had come to the plaintiffs grounds. The defendant pleaded, th::t ;:l 1 uac"
springs were in his ground, and that the two pits had beeni there timi, ''.
for the use of water for the meadows and cattle; and that the pits lei.i: i. A
with mudi, he dug two large pits anl ndmaloe dams and banks, as it was l.i'n m W
to do. The plaintiff replied do injuria, ;nd on demurrer to that repli.uation :0 ALa
argument, l.ce, C. J., says,-" I amn of opinion that the declaration is v. e!y ,
that in the case of a water-[338]-course, which is jure nature, this is tle behs- U'
declaring; for the plaintilt, being possessed of the place, declares tli. tt*wk



crmitw solebat through that place time out of mind, and that the defendant had
it ; and I think the defendant, by this plea, has not at all denied the
adihaving such a watercourse, but says that it took its rise in his (the defen-
d2 :roiunCd ; that the water runs through part of his ground ; that there were two
4e inoiemorially ; and acknowledges he h as enlarged the pits, and made the obitruc-
l)(,in the declaration ; this really amounts to a confession of the plaintiffs
acwM, 4rf, although there have been pits in the defendant's ground time out of mind,
,ti a cna lnnot enlarge them, but they must remain as they have always been, and so
Srule both in the common and civil l:aw." And afterwards he adds, "The
t4uts, indeed, might have cleansed the pits, keeping them as they were before,
rt~moot enlarge them." The language thus used is applicable to underground as
Ajl surface watercourses; and there the jus alienum is recognized. The pleadings
a dian for injuries to watercourses never staxt the water to be superficial. In
Akow.# v-. Gell (5 M. & W. 203), the question in this case did not exactly arise,
fft th following observation .was made as to underground watercourses by Lord
., C. B.:-" If the plaintiffs have established that they have a right as against
M Pa keep the water, it is no answer that you are doing an act in your own land.
Sru water was at first subterraneous." 'This right is only a part of one more general
rtq*. that is, a right to all the advantages which the land, possesses, and all its
Stau~ s implanted in it by nature. If it does not exist, a person may convert a
SIqt into a mountain or conversely, and thereby throw all the water upon, or draw
1* Am, his neighbour's land. And yet a person has not an unlimited right over his own
(fi] land; for if he excavates it so as to make his neighbour's fall in, he is liable,
at~sadmitted in Wyatt v. Harrison (3 B. & Ad. 871). The inconveniences attend-
Q contrary rule would be very great. If the defendant has the right he contends
(& ,how far does it extend ? He does not want the water for his own use, and what
#Ais to become of the water abstracted 1 Does the law allow it to be sent in one
Wtleked stream along the surface ? May the defendants allow it to find its own way ?
(sio it might go into another colliery and drown it, which would be contrary to
tuttd v. Banks (2 Burr. 1113). If they may act in such a manner, they would not
I lable, although their neighbours' land should sink in consequence of the water
1dbe abstracted from under it. It can make no difference that the defendants are
t~ia in mining operations. It is impossible to lay down any general rule as to
'Airusal and proper mode of mining." The present mode was unknown until
(awly; and, therefore, cannot have been provided for by the common law, and it is
iMpfible to say what will be the "usual and proper mode" in future times, or
wktlr the present mode will not then be considered as gross negligence. In fact,
ntum operations form a species of trade now. In Tredwen v. Bourne (6 M. & W. 463),
ft1l, B. says, in the course of the argument, "a mining concern is a trading concern."
Nkut it is no answer to a nuisance that a party is carrying on a lawful trade: thus,
rutuiv both actions and indictments have been brought against alkali manufacturers
S Afikinjury done to their neighbours' property..and it seems difficult to draw any
AAwion on account of the species of injury committed being different, or the trade
ki presentt instance being carried on under ground. In fact, if the defendant is
riMa i ceems difficult to say he may not do the same for his own amusement solely.
cM44 J. [340] I suppose these general doctrines as to watercourses will not be
da*t but is this a watercourse ?J The term "watercourse" must apply to all
Oai^ however they may flow, or though they percolate through strata of rock as
i~kt present instance, not merely to rivers only or streams forming one continuous
>I~ i water. If it did not, a party might abstract into his own laud mineral waters
AWi4 neighbour's. The case seems to fall within the rule laid down in A'lredl's
:.'- Co. 59 a.). So if a man has a watercourse running in a ditch from the river
: afl house for his necessary use; if a glover sets up a lime-pit for calve skins and
I lt kins so near the said watercourse that the corruption of the lime-pit has
tr(iwtA L it, for which cause his tenants leave the said house, an action upon the case
Slftl we same, as it is adjudged in 13 H. 7, 26 b. ; and this stands both with the rule of
IA =~Mf,,i reason, "se. prohibetur ne quis faciat in suo quod nocere possit alieno : et
'.** V tuo ut alienum non wudas." The importance of the question is obvious; for,
it ~t1u',lId ,ut is right, any tract of country, however extensive or populous, may
e. Id dr, ,at the caprice of an individual, and deprived of one of the greatest
W'L-u*uM of existence: and, on the other hand, taking the plaintiffs view, some


- so. ^


mines may not be capable of being worked at all, or to such profit as they othlc .
would, according to the mode of mining at present in use
Addison, contrh. The direction of the learned Judge, at the trial, was lkprf4tf(
correct. It is admitted here that there is no user for twenty years-no claim of r op
from lapse of time; and, therefore, it must be considered as if both the well :;, t~1
pit were sunk recently. The proposition on the part of the plaintiff is rather stihlcy ,
for the direct consequence of it is this, that if any person, a mere cottager for insAwAs
sink a well in his ground, the [341] mines of the surrounding neighbourhood, howft.
extensive and valuable, can never afterwards be worked; if the doing so woutM ha&
the effect of materially diminishing the water in the well; and it is to be observed .
this case, that, if the plaintiff, who was proved to have deepened his well from i*
to time, were to sink it lower than the engine pit, he might still procure w
Where the consequences to other proprietors are so strikingly disproportionate, #nWe
very clear authorities ought to be produced in support of such a right; but none *4L.
have been adduced. The maxim, sic utere tuo ut alienum non ladas, does not p (a
forbid damna generally, but damna injuriosa. To constitute a violation of 'tl*
maxim, there must be injuria as well as damnum. There are many cases in wkicA q
man may lawfully use his own property so as to cause damage to his neighbour, co a*
it be not injuriosum. He may build a wall on his own ground so as to obstruct ftl
lights of his neighbour, who may not have acquired a right to them by gmnit #r
adverse user. He may build a mill near the mill of his neighbour to the grievovw
damage of the latter by loss of custom, and so in other cases. In Bracton, lii. 4
fol. 221, there is the following passage:-" Nocumentum enim poterit esse justunm, &
poterit esse injuriosum. Injuriosum, ubi, quis fecerit liquid in suo injuste c4t-
rlegem vel contra constitutionem, prohibits a jure. Si autem prohiberi a jure wA
possit ne faciat, licet nocumentum faciat et damnosum, tamen non erit injurio4w-.j
licitum est enim unieuique facere in suo quod damnum injuriosum non eveniet vi i.
ut si quis in fundo proprio construat aliquod molendinum, et sectam suam et alior:".
vicinorum substrahat vicino, facit vicino damnum et non injuriam: ctim a lege v: .
constitution prohibits non sit ne molendinum habeat vel construct." To devi'"
therefore, any aid from the maxim, sic utere, &c., the plaintiff must shew that Ltht
sustained injuriam, which is the whole question.
[342] As to the passages quoted from the Pandects, they will be found o,
examination to be in favour of the plaintiff. What Marcellus writes is clearly w
Marcellus scribit: Cum eo, qui in suo fodiens, vicini fontem avertit, nihil pos -
nee de dolo actionem: et sane non debet habere, si non animo vicino noccud'i.
suam agrum meliorem faciendi id fecit." Dig. lib. 39, tit. iii., s. 12. And, in t-
39th book of the Digest, tit iii., s. 21, there is another passage, which is tl:- ***-
way. It is as follows :-"Si in meo aqua erumpat, quae ex tuo fundo venas h::..-'
si eas venas incideris, et ob id desierit ad me aqua pervenire, tu non videris vi :- '
si nulla servitus mihi eo nominee debita fuerit, nee interdicto quod vi aut clam t<.','e:'
And here it is admitted that there is no servitus. There is also another pas s 'a
the Code (Corpus Jur. Civilis, tom.- 2; Cod., lib. iii., tit. xxxiv.), lib. iii.,
",De Servitutibus et Aqu&," s. 10:-" Si ibi servitutem aquse [ducendte] deberi i
animadverterit, nee hae te non utentem spatio temporis amisisse perspexert. '*'.
iterum jure proprio providebit. Nam si hoc minime probetur, loco prop l i
opere, dominus fundi continere aquam, et facere, quo minus ager tuus irrig:Lnr 1
non prohibetur." And, in section 12, of the same title, non modus pnrdic',r. .
servitus aquae ducendal terminum facit." The doctrine and principles of the civil 151
therefore, are altogether in favour of the defendants.
It may be admitted that a man has a right to use the water of a running s~
on his own land, when it comes therein its natural course, in any way he p !a,* '
as not to interfere with the rights of others; but the question here is, hab he a A' .
facie right to have it retained there in the absence of prescription, or lr1o
equivalent user? It is submitted he cannot have such a right to the wkc de .
running stream any more than to that of light and air. All the cases on this .-r*
were fully gone [343] into in the case of Magor v. Cht'l'i (11 Ad.
3 Per. & D. 367). In that case it was held, that an artificial watercoulr- W O'
distinguished in law from a natural one, and that a title might be gaiiedl yl .
years' user, as well to the former as the latter; and that where mine ow~
made an adit through their lands to drain the mine, which they afterw~ud


12 M.&w

j ,wk('altd tie owner of a brewery, through whose premises the water flowed for
S.Aears after the working had ceased, had during that time used it for brewing,
& owner of the brewery thereby gained a right to the enjoyment of the water,
lAt the mines- could not afterwards be so worked as to pollute it. But in that
e. e had been a user for twenty years, without which it was not pretended such
j.~I,,'oI be claimed. The right claimed by the plaintiff cOUld only depend upon
O k-ivingI been a user for a period of more than twenty years, and here it is clearly
Sr none such existed. Suppose the water to be retained in a recently made
,u04.o the circumstance of its being supported and backed up by a rib of clay in
lnJP of an adjoining proprietor, and the latter to take away the rib of clay, so
j se water flowed off from the well, the proprietor of the well could not maintain
A Wkhi, because he had acquired no right to the support of the adjoining land.
IPu-a&Jl v. Scott (3 M. & W 220), it was held, that, if a party builds a house
,town land, which has previously been excavated to its extremity for mining
W, he does not acquire a right to support for the house from the adjoining
rJO another, at least until twenty years have elapsed since the house first stood
e ravated land, and was in part supported by the adjoining land, so that a grant
~tk owner of the adjoining land of such right to support might be inferred. In
atesse, Aldeison, M., in delivering the judgment of the'Court, says, "Rights of
C;s) this sort, if they can be established at all, must, we think, have their origin in
wast If a man build his house at the extremity of his land, he does not thereby
qmsw any right of easement, for support or otherwise, over the land of his neighbour.
WL U no right to load his own soil so as to make it require the support of that of
6u aohbour, unless he has some grant to that effect." And he afterwards says,
"rf : e law stood as it did before Lord Tenterden's Act, (2 & 3 Will 4, c. 71, s. 2),
wtAhould say that such a grant ought not to be inferred from any lapse of time short
d4wnty years after the defendants might have been or were fully aware of the facts.
Even since that act, the lapse of time, under those peculiar circumstances, would
i.bbly make no difference. For the proper construction of that act requires that
k i .-iment should have been enjoyed for twenty years under a claim of right.
UP.. neither party was acquainted with the fact that the easement was actually used
*all: for neither party knew of the excavation below the house." The last-mentioned
p4 of the judgment goes to shew that the right claimed could not have been
Mupprted, even though the well had been sunk more than twenty years, independently,
at kat, of Lord Tenterden's Act, inasmuch as this is the case of an underground
S,1s4 of water, of which water neither the defendants, nor those under whom they
clhted, had any notice. A servitus is not created by secret usage. In the case of
%4s.e watercourse, it is reasonable that a right should be allowed to be acquired
.lpie of time, because the flow of water is open to the sight and observation of all
A joining proprietors. But in the case of an underground spring, which is hidden
t* fri sight, it would be unreasonable that a right should be acquired by lapse
5ne against a party ignorant of its existence or adopted use; and the authorities
S inst the acquirement of a right of this kind by secret user. In Bracton, lib. 4,
j, 221, there is the following [345] passage:-"Item [servitutes] pertenire
-nit sine constitution per lougum usum continuum et pacifieum, et non inter-
:nt per aliquod impedimentum contrarium, ex patientiA inter prtesentes quite
ir ad consensum. Et unde licet servitus expressed non imponatur vel constituatur
untate dominorum, tamen si quis usus fuerit per aliquod tempus pacific sine
i interruption, nee vi, nee clam, nee precarib, quod idem est quod de gratiA, ad
Ssine juditio disseysiri non potest: quia si violentia adhibeatur, nunquam erit
si:eysitoris, propter temporis diuturnitatem, nisi per negligentiam ipsius qui vim
Sr ex long et pacificA et continuA possession inter prisentes, secus inter absentes,
Sseysina multipliciter poterit interrumpi. Si autem fuerit seysina clamdestina,
*i"cntiA dominorum vel illis ignorantibus, et si scirent essent prohibituri, licet
S*t de consensus, vel dissimulatione ballivorum, valere non debet.' There is also
4-d4 passage in folio 232:--"Et sicut poterit quis habere servitutem in fundo
Si i constituatur, ita poterit etiam per longum usum sine constitution ex scientiA
':entiz dominorum, quia long patientia trahitur ad consensum, sicut in com-
us pasturis et.hujusmodi." These passages shew clearly that easements and
of this kind cannot be acquired by secret usage. The usage must be ex scientitA
S.:iiutia dominorum. So also the courts in construing the term user, under the



w< W. :"


late act, have said that it must be open and notorious. The passage cited from Blaik.
stone's Commentaries only shews a right to use the water whilst it is on his owN
land, which is not denied. .The case of Sury v. Pigott, the best report of which i.
that in Popham 166, only decides that the right.to a watercourse is not extinguishel
by unity of possession. There the water had flowed time out of mind, and there was,
.therefore, a right existing by prescription or grant. [Maule, J. It shews that, if
,a right was acquired from adverse enjoyment, the [346] unity of possession would
not have extinguished it.] The case of Brown v.-Be.rt (1 Wils. 174), was a case where
the right was established by length of time; therefore it has nothing to do with th,.
present one. So, in Balston v. Benstedl (1 Camp. 463), there had been twenty ye1ar.'
uninterrupted enjoyment of the water flowing on the surface of the ground. The
marginal note is "after twenty years' uninterrupted enjoyment of a spring of water,
an absolute right to it is gained by the occupier of the close in which it issues above,
ground, and the owner of an adjoining close cannot lawfully cut a drain whereby the
supply of water to the spring is diminished." That is a proposition which the defen.
dants are not interested in denying, but the contrary. It is submitted there is no
evidence apparent in the case to support the right claimed by the plaintiff in his
declaration, unless it could be acquired by the use and enjoyment of the well for
a single day only before the defendants sunk their pit. To that length the argument
on the part of the plaintiff must go in order to support his action.
Cowling, in reply. The argument on the part of the defendants appears to assume
that the plaintiff relies on a servitude having been acquired or a prior occupation .
Neither of which is the case, but the question is admitted to be the same whether
the well or the pit is the more recent, provided the mine owner has not himself gainre .
a servitude. According to the defendants' argument, it is doubtful whether Oth
plaintiff could by any lapse of time acquire a servitude, however ancient his well or
works might have been, which appears an extraordinary conclusion for the Court
to arrive at. It has not been shewn that there is or ought to be any distinction
between superficial and underground streams in respect of the question before [347]
the Court; nor has any answer been given to the inconveniences pointed out :a
resulting from a decision in favour of the defendants. The extracts from the (i il
law are, at the most, conflicting; but probably they are reconcilable in the m:un, n
before mentioned, that, when the Roman lawyers speak of cutting off veins of t.
they are alluding solely to the doing so for occupation purposes, which the plain'i
does not dispute to be allowable. This would seem to receive confirmation from li*t
language used, "irrigari possit," in the extract from the Code, lib. 3. The opini,",i
of Bracton was under the consideration of Whitlock, J., and commented on by L~,
in Sury v. Pigott. Magor v. Chadwick, if it has any bearing on the ease, tends to -he'
that there is no difference between natural or artificial, surface or subterranEus
watercourses. Balston v. Bensted proves that the defendant cannot claim any pcciula-
privilege on account of carrying on mining operations, unless he can establish #t
there is some substantial difference in this respect between a mine and a quarry.
Cur. adv. vult.
The judgment of the Court was now delivered by
TINDAL, C. J. The question raised before us on this bill of exceptions is adt ot
equal novelty and importance. The plaintiff below, who is also the plaintiff in erwt
in his action on the case, declared in the first count for the disturbance of his gii*sf 4,
the water of certain underground springs, streams, and watercourses, which, i k
alleged, ought of right to run, flow, and percolate into the closes of the plainll.#: 6'
supplying certain mills with water; and in the second count for the draining o* f,
water of a certain spring or well of water in a certain close of the plaintiff. by rtMeA
of the possession of which close, as he alleged, he ought of right to haveA 1 w-.
benefit, [348] and enjoyment of the water of the said spring or well for the ~.'Ve~
use of his close. The defendants by their pleas traversed the rights in the mnas'
alleged in those counts respectively. At the trial the plaintiff proved, tih:. w< ;A
twenty years before the commencement of the suit, viz. in the latter end of il L-
former owner and occupier of certain land and a cotton-mill, now belong : .n 't 0
plaintiff, had sunk and made in such land a well for raising water for the wblt FA
the mill; and that the defendants, in the year 1:837, had sunk ai coal-pit inll 0
of one of the (efendants at a;bont three-quarters of a mile fironl the pI1-at"iltl
and about three years after sunk a second at a somewhat less distance ; the cv"nWs



12 M. & W. 346.


which sinkings was, that, by the first, the supply of water was considerably
A, l>, and by the second was rendered altogether insufficient for the purposes of
mill he learned Judge before whom the cause was tried directed the jury, that,
if dlefetdants had proceeded and acted in the usual and proper manner on the
la fr the purpose of working and winning a coal-mine therein, they might lawfully
, to. ;nd that the plaintiff's evidence was not sufficient to support the allegations in
A declaration as traversed by the second and third pleas. Against this direction of
tJude the counsel for the plaintiff tendered the bill of exceptions which has
havrrgued before us. And after hearing such argument and consideration of the case,
wc o opinion that the direction of the learned Judge was correct in point of law.
i':, question argued before us has been in substance this: whether the right to the
Kmcnit of an underground spring, or of a well supplied by such underground spring,
.t warned by the same rule of law as that which applies to, and regulates, a watercourse
auMOu on the surface.
'ie rule of law which governs the enjoyment of a stream flowing in its natural
court over the surface of land be-[349]-longing to different proprietors is well estab-
lokt.; each proprietor of the land has a right to the advantage of the stream flowing
S, is natural course over his land, to use the same as he pleases, for any purposes of
uA Men, *not-inconsistent with a similar right in-the proprietors of the land above or
bs ow; so that, neither can any proprietor above diminish the quantity or injure the
qu liy of the water which would otherwise naturally descend, nor can any proprietor
blxw throw back the water without the license or the grant of the proprietor above.
l lahw is laid down in those precise terms by the Court of King's Bench in the case
.llt M.on v. Hill (5 B. & Ad. 1; 2 Nev. & M. 747) and substantially is declared by the
Vict.Chancellor in the case of Wright v. Howard (1 S. & S. 190), and such we con-
Sdat. correct exposition of the law. And if the right to the enjoyment of underground
springs, or to a well supplied thereby, is to be governed by the same law, then
uaJoabtedly the defendants could not justify the sinking of the coal-pits, and the
divwetion given by the learned Judge would be wrong.
But we think, on considering the grounds and origin of the law which is held to
overn running streams, the consequences which would result if the same law is made
applicable to springs beneath the surface, and, lastly, the authorities to be found in
tl. books, so far as any inference can be drawn from them bearing on the point now
wldt discussion, that there is a marked and substantial difference between the two
tats, and that they are not to be governed by the same rule of law.
The ground and origin of the law which governs streams running in their natural
ourse would seem to be this, that the right enjoyed by the several proprietors of the
fews over which they flow is, and always has been, public and notorious: that the
joyment has been long continued-in [350] ordinary cases, indeed, time out of
!'id-mi-and uninterrupted; each man knowing what he receives and what has always
cc in received from the higher lands, and what he transmits and what has always been
in~smitted to the lower. The rule, therefore, either assumes for its foundation the
wMplied assent and agreement of the proprietors of the different lands from all ages,
tr perhaps it may be considered as a rule of positive law, (which would seem to be
h. opinion of Fleta and of Blackstone), the origin of which is lost by the progress of
tiiM; or it may not be unfitly treated, as laid down by Mr. Justice Story, in his
J1pnment in the case of Tyler v. Wilkinson, in the courts of the United States (4 Mason's
*Aterican) Reports, 401), as "an incident to the land; and that whoever seeks to
und an exclusive use must establish a rightful appropriation in some manner known
admittedd by the law." But in the case of a well sunk by a proprietor in his own
lA4 the water which feeds it from a neighboring soil does not flow openly in the
Sqtit of the neighboring proprietor, but through the hidden veins of the earth beneath
tt -uurface; no man can tell what changes these underground sources have undergone
t th:e progress of time: it may well be, that it is only yesterday's date, that they
ft took the course and direction which enabled them to supply the well: again, no
prCietor knows what portion of water is taken from beneath his own soil: how
~tk he gives originally, or how much he transmits only, or how much he receives:
tk contrary, until the well is sunk, and the water collected by draining into it,
t~atcannot properly be said, with reference to the well, to be any flow of water at
A In the case, therefore, of the well, there can be no ground for implying any
wMu4consent or agreement, for ages past, between the owners of the several lands


beneath which the underground springs may exist, which is one of [351] tile owJL
tions on which the law as to running streams is supposed to be built ; nor; fir -ttA
reason, can any trace of a positive law be inferred from long-continued ac-quijescS
and submission, whilst the very existence of the underground d springs or of A& ta
may be unknown to the proprietors of the soil.
But the difference between the two cases with respect to the consequence. if 4
same law is to be applied to both, is still more apparent. In the case of the rI-uLi
stream, the owner of the soil merely transmits the water over its surface: he rm,4d4
as much from his higher neighbour as he sends down to his neighbour ~bebow L.
is neither better nor worse: the level of the water remains the same. But f'~t
man who sinks the well in his own land can acquire by that act an absohnliz o
indefeasible right to the water that collects in it, he has the power of prevent i",g ,A
neighbour from making any use of the spring in his own soil which shall ixuhoi
with the enjoyment of the well. He has the power, still further, of dcbuarrii<: t-
owner of the land in which the spring is first found, or through which it is transyii ittA
from draining his land for the proper cultivation of the soil: and thus, Iby af MAk
which is voluntary on his part, and which may be entirely unsuspected by k4k
neighbour, he may impose on such neighbour the necessity of bearing a heavy expiuwf
if the latter has erected machinery for the purposes of mining, and discovers, wklake>
late, that the appropriation of the water has already been made. Further. Kt
advantage on one side, and the detriment to the other, may bear no proportion. T*.
well may be sunk to supply a cottage, or a drinking-place for cattle; whilst the owk -
of the adjoining land may be prevented from winning metals and mincreals ,
inestimable value. And, lastly, there is no limit of space within which the cl:iiX of
right to an underground spring can be confined: in the present case, the nearest coa-
pit [352] is at the distance of half a mile from the well: it is obvious the law wust
equally apply if there is an interval of many miles.
Considering, therefore, the state of circumstances upon which the law is groiiftd
in the one case to be entirely dissimilar from those which exist in the other; and (Wat
the application of the same rule to both would lead, in many cases, to consequecot
at once unreasonable and unjust; we feel ourselves warranted in holding, up**-
principle, that the case now under discussion does not fall within the rule wktL-
obtains as to surface streams, nor is it to be governed by analogy therewith.
No case has been cited on either side bearing directly on the subject in dispuk
The case of Cooper v. Barber (5 Taunt. 99), which approaches the nearest to it, setWM
to make against the proposition contended for by the plaintiff. In that cas; V(c.
defendant had for many years penned back a stream for the purpose of irriga, in? -
consequence of which the water had percolated through a porous and gravelly *oA
into the plaintiff's land: but as this percolation had been insensible, and unki o"wl R
the plaintiff until the land was applied for building purposes, the Court held, tlhA thu
defendant had gained no right thereby, so as to justify its continuance. The C*A
of Partridge v. Scott (3 M. & W1. 230) is an authority to shew, that a man, by bui4(tt
a house on the extremity of his own land, does not thereby acquire any right oI'* kw
ment, for support or otherwise, over the adjoiing- land of his neighbour. It i$ Sl-
in that case, "he has no right to load his own soil, so as to make it require the suo~ay
of'that of his neighbour, unless he has some grant to that effect." It must fol 01,
parity of reason, that, if he digs a well in his own land so close to the soil F -s
neighbour, as to require the support of a rib of clay or [353] of stone in his nci2!; '
land to retain the water in the well, no action would lie against the owner *r
adjacent land for digging away such clay or stone, which is his own properti,'
thereby letting out the water; and it would seem to make no difference a:s
legal rights of the parties, if the well stands some distance within the plai '
boundary, and the digging by the defendant, which occasions the water to l' *
the well, is' some distance within the defendant's boundary; which is, in uWl *^-
the very case before us.
SThe Roman law forms no rule, binding in itself, upon the subjects of the l Vt"l
but, in deciding a case upon principle, where no direct authority can be c(itAd f*-
our books, it atfords no small evidence of the soundness of the conclusion 9tk -
we have arrived, if it proves to be supported by that law, the fruit of the ve*k
of the most learned men, the collective wisdom of ages and the groundwolrk o m -
municipal law of most of the countries in Europe.


12 XI. &: .


b-hich is one of [351] t-.,
*. sed tobe built; nor, fo Z.
:on long-r-ontinn.. 1 a-t;
rgroun d springs or i ti:.
; pect to the conse;uueCn! ,*,
.-rent. In the case of th -
S-:-ater over its surface: 1,:
--:own to his neighbour I ',,
":remains the same. Bi;:
S"-re by that act an al ,:'
Se has the power of prev.mw ,
his own soil which shall i*.
e r, still further, of debarfl
S~ r through which it is tr.,-i ..i.
of the soil: and thus, ,\
be entirely unllsl.i)po t.. l
-2essity of bearing a heavy -.,
a f minig, and discovers, wi,
-eady been made. Furtht,:
.-er, may bear no proportion.
:-place for cattle; whilst the I*
winning metals and mine:iI
Sof space within which the el-.
the present case, the nearsr.ct
S..e well: it is obvious the law .

--es upon which the law is gron!r
which exist in the other; ;aul .
-ad, in many cases, to consellt> .
-Ives warranted in holding,
-s not fall within the rule v'.
ed by analogy therewith.
directly on the subject in dis:
OKroaches the nearest to it. s,-
l he plaintiff. In that casF
-a for the purpose of irrigati.',
.through a porous and gravel
:. been insensible, and unknov.n
S purposes, the Court held, th:i;
justify its continuance. The
-v to shew, that a man, by bUii>g
Thereby acquire any right oi0
Island of his neighbour. It is-
so as to make it require the s.u-:
Sto that effect." It must follow.
n land so close to the soil i '
-or [353] of stone in his ne;ghl
-ould lie against the owner i:
-:ie, which is his own propert;v
S. r to make no difference as t-
-3me distance within the pl:i::'
-.ch occasions the water to tlow :
S boundary; which is, in sul't."

-, upon the subjects of these rv,'- ,
direct authority can be cited -i
.undness of the conclusion at ':
:hat law, the fruit of the rese::
of ages and the groundwork (

1h:nthority of one at least of the learned romian lawyers appears decisive upon
S apint< in favour of the defendants ; of somuc others the opinion is expressed with
St.b.iCrity. Ini the Iigest, lib. 39, tit. 3, 1 :qua ct Iaq.ur pl uvie arcandte, s. 12,
iOtVu i Marcelluw scribit, Cum co, qui in suo fodiens, vicini fontem avertit, nihil
: nee de dolo actionem, et sane non debt h;ahre; si non animo vicini
secd suum agruni melioreni facieuni, id fecit."
lt is scarcely necessary to say, that we intimate no opinion whatever as to what
W.A(t lie the rule of law, if there had been an uninterrupted user of the right for
,,titia the last twenty years; but, e*c*,-i ii,. ourselves strictly to the facts stated
AtO 1,ill of exceptions, we think the present case, for the reasons above given, is not
j."0overned by the law which applies to rivers and flowing [3 -i] streams, but that
1j4cr falls within that principle, which gives to the owner of the soil all that lies
Shis surface; that the land immediately below is his property, whether it is
j" rock, or porous ground, or venous earth, or part soil, part water; that the person
u owns the surface may dig therein, and apply all that is there found to his own
at his free will and pleasure; and that if, in the 'exercise of such right, he
.,3fpts or drains off the water collected from underground springs in his
Ut bour's well, this inconvenience to his neighbour falls within the description of
SJAmum absque injuria, which cannot become the ground of an action.
We think, therefore, the direction given by the learned judge at the trial was
St*t4, and that the judgment already given for the defendants in the Court below
*A-hbe affirmed.
Judgment affirmed.

(In Error from the Court of Exchequer Chamber.)

i;;TIAND v. DOE D. WYTHE AND OTHERS. House of Lords. 1843.-A testator by
his will empowered his devisee for life of real estate to demise and lease for
twenty-one years, "so as upon such lease there were reserved and made payable,
during the continuance thereof, the best improved yearly rent that could reason-
ably be had for the same, without taking any.sum or sums of money by way of
fine or income for or in respect of such lease or leases, and that in every such
lease there should be contained a clause of re-entry for non-payment." In exercise
of this power, a lease was made for twenty-one years, to hold from the llth of
October, 1833, at the yearly rent of 903, payable by equal half-yearly payments,
viz. on the 6th April and on the llth of October in every year, except the last
half-year's rent, which was thereby reserved and agreed to be paid on the 1st of
August next before the determination of the term:-Held, in Dom. Proc., (by
Lord Lyndhurst, C., Lord Brougham, and Lord Campbell; Parke, B., Williams, J.,
Coleridge, J., Maule, J., Rolfe. B., and Wightman, J.; disseutientibus Tindal, C. J.,
Patteson, J., and Coltman, J.), that this lease was a valid execution of the power:
reversing the judgment of the Exchequer Chamber, and affirming that of the
Court of Exchequer.
[S. C. 10 Cl. & F, 419; 8 E. R. 801 (with note).]
S The Court of Exchequer Chamber having reversed the judgment of the Court of
S '~rhequer in this case (see 2 M. & W. 661; 5 M. & W. 688), a writ of error to
: House of Lords was brought by the defendant below, which was argued on the
i;th and 15th of June, 1842, by the Solicitor-General (Sir W. W. Follett) and
V. Richards, for the plaintiff in error, and by Pemberton and Biggs Andrews, for
:*.e defendants in error.
Their Lordships submitted the following question to the judges present:--Whether
'xe lease of the 14th of December, 1833, was a valid execution of the leasing power
-v enl by the will of Benoni Mallett.
The learned judges differed in opinion, and on the 19th [356] of June, 1843,
.e-ivered their judgments seriatim, as follows:-
GWIGHTMAN, J. My Lords, it appears to me that the lease set out in the special


1, Yt %W. 354 RUTLAND V. DOE3

C" _.,..
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