-11

it

consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect" (q).

The question therefore was, what was A.'s right? If A. had an absolute right to insist upon the defendants keeping the water off his land, he had suffered an injury. If A. had only a right to insist upon the defendants taking reasonable care to keep the water off his land, he had suffered a loss, but had not suffered an injury. The majority of the Court of Exchequer held (r) that the plaintiff's right was only to insist on reasonable care on the part of the defendants, and that A. therefore could not maintain an action. The Exchequer Chamber (s) held that A.'s right was to have the water kept off his land, and that therefore A. could maintain an action, and the House of Lords affirmed (t) the judgment of the Exchequer Chamber. A., therefore, must now be taken to have suffered an injury as well as a loss.

A.'s right would, however, have been different had the water accumulated naturally, and not been artificially collected (u).

Wherever the rights of adjacent owners, or the rights of persons of whom one owns the surface of the soil, and the other the soil below the surface, come into question, the inquiry, what does or does not constitute an injury to the one party or the other, is apt to give rise to fine distinctions.

The owner of land, for example, has a right to support for his land from the adjacent land (v); but this right is not an absolute right, and the infringement of it is not a

(q) Fletcher v. Rylands, L. R. 1 Ex. 279 (Ex. Ch.).

(r) Ibid., 34 L. J. 177, Ex. ; 3 H. & C. 774.

(s) Ibid., L. R. 1 Ex. 265; 35 L. J. 154 Ex. (Ex. Ch.)

(t) Ibid., L. R. 3 H. L. 230.

(u) Smith v. Kenrick, 7 C. B. 515; 18 L. J. 172, C. P. Compare Baird v. Williamson, 33 L. J. 101, C. P.; 15 C. B., N. S., 376.

(v) Nicklin v. Williamson, 10 Ex. 359; 23 L. J. 335, Ex.; Smith v. Thackerah, L. R. 1 C. P. 564; 35 L. J. 276, C. P.

D

cause of action without appreciable damage (w). But this right of the owner to support from the adjacent land, extends only to the land in its natural unincumbered state, and not with the additional weight of the buildings upon it (x). For "it may be true that if my land adjoins that of another, and I have not by building increased the weight upon my soil, and my neighbour digs in his land so as to occasion mine to fall in, he may be liable to an action. But, if I have laid an additional weight upon my land, it does not follow that he is to be deprived of the right of digging his own ground, because mine will then become incapable of supporting the artificial weight which I have laid upon it" (y). The owner of land has again a right to support for the natural surface, as against the owner of the subjacent strata (z), though not to support of buildings erected thereon (a), yet he may maintain an action for disturbance of the natural right to support for the surface, notwithstanding buildings have been erected thereon, provided the weight of the buildings did not cause the injury (b).

Take again rights having reference to water. A millowner has no right of action against a person, who, by digging a well on his own land, prevents the natural percolation of water to his mill-stream (c). But a person has a right of action when an underground stream which flows into the plaintiff's mill-stream is fouled by the works of the defendant (d). And the general rule on this point seems to be that a proprietor of land has a

(w) Nicklin v. Williamson, 10 Ex. 359; 23 L. J. 335, Ex.; Smith v. Thackerah, L. R. 1 C. P. 564; 35 L. J. 276, C. P.

(x) Dodd v. Holme, 1 A. & E. 493; Wyatt v. Harrison, 3 B. & Ad. 871. (y) Wyatt v. Harrison, 3 B. & Ad. 876, per Curiam.

(z) Humphries v. Brogden, 12 Q. B. 739; 20 L. J. 10, Q. B.; Smart v. Morton, 5 E. & B. 30; 24 L. J. 260, Q. B.

(a) See Humphries v. Brogden, 12 Q. B. 742; 20 L. J. 10, Q. B.

(b) Stroyan v. Knowles, 6 H. & N. 454; 30 L. J. 102, Ex.

(c) Chasemore v. Richards, 29 L. J. (H. L.) 81, Ex.; 7 H. L. C. 849.

(d) Hodgkinson v. Ennor, 4 B. & S. 229; 32 L. J. 231, Q. B.; and see Acton v. Blundell, 13 L. J. 289, Ex.

an

right to have the natural streams of water which run through his land, run in their natural course (e), and has a right also to use it as it passes (ƒ), and all riparian proprietors have these rights (g); but that on the other hand, with respect to water, whether on the surface or under ground, not running in defined streams, no similar rights exist. Such water is the absolute property of the owner of the soil of which it forms a part, and no action my will lie for abstracting it, although such abstraction may the diminish the water under neighbouring lands, or otherhe rise injure them (h). Hence, where A. was the owner of land, and X., by draining his own land, withdrew from has A. water which theretofore ran beneath A.'s land, and thereby caused A.'s land to subside, A. was held to have no right of action against X. (i).

mste

nst

to

|

A. and B. (the plaintiffs) were allowed by M., the proprietor of a canal, to divert some of the water in it, and use it for their steam engines. X. (the defendant) fouled the water of the canal, whereby it flowed into their premises in a foul state and injured the boilers of their engines (k). The damage to A. and B. was in this case clear. The question was whether the plaintiffs, being simply permitted by M. to use the stream, had a right of action against X. The Court of Exchequer (1) held that the plaintiffs had a right of action, i. e., had sustained an injury. The judges in the Exchequer Chamber (m) were equally divided in opinion, as to whether the plaintiffs had or had not a right of action.

"It is contended," says Crowder, J., "that no right

(e) Wood v. Wand, 3 Ex. 748, 775.

(f) Embrey v. Owen, 20 L. J. 212, Ex. ; 6 Ex. 369.

(g) Ibid.

(h) Acton v. Blundell, 12 M. & W. 324; 13 L. J. 289, Ex.; Chasemore v. Richards, 29 L. J. 81, Ex.; 7 H. L. C. 349.

(i) Popplewell v. Hodkinson, L. R. 4 Ex. 248; 38 L. J. 126, Ex. (Ex. Ch.).

(k) Whaley v. Laing, 2 H. & N. 476; 26 L. J. 327, Ex. ; 3 H. & N. 675; 27 L. J. 422, Ex. (Ex. Ch.).

(7) 2 H. & N. 476; 26 L. J. 327, Ex.

(m) 3 H. & N. 675; 27 L. J. 422, Ex. (Ex. Ch.)

of action is shown in the declaration.

But I think it sufficiently appears that the plaintiffs were in the lawful enjoyment of a beneficial flow of clear water from the branch canal, and that the defendant wrongfully polluted the stream and thereby damaged the plaintiffs, which appears to me a sufficient statement of a good cause of action" (n).

The opposite view is thus stated by Williams, J.: The declaration" shows no cause of action; it merely allege that the plaintiffs had enjoyed the benefit of the water of a canal, near to their engine, which waters had bee used, and ought to have been free from the pollution thereinafter mentioned; and it then avers that the de fendant polluted them and thereby damaged the engines. I agree with the Barons of the Exchequer as to the construction of the allegation that the waters ought to have been free from pollution, viz., that it means, not an assertion of title in the plaintiffs, but that the defendant had no right to foul the water. But if this be so, then the declaration contains no allegation whatever that the plaintiff's were rightfully in the enjoyment of the benefits of the waters, and there is nothing to show that they were not themselves wrongdoers, in which case I think they would have no right of action " (o).

"I can find," it is said by Wightman, J., "nothing in the declaration to show that the defendant by fouling the water injured any right of the plaintiffs, nor that as against them he can be considered a wrongdoer, and the introduction of the word' wrongfully,' will not make him, primá facie, a wrong doer, unless the circumstances stated in the declaration show him to be so. I am therefore of opinion that the declaration does not show any right of action against the defendant" (p).

This case therefore raised the question, whether a person merely permitted to use certain water has a right

(n) Whaley v. Laing, 3 H. & N. 680 (Ex. Ch.), per Crowder, J.

(0) Ibid., 683, judgment of Williams, J.

(p) Ibid., 685, judgment of Wightman, J.

It

er

as against a wrongdoer, to have the water kept pure; and though the rights of such a mere licencee still appear doubtful, it would seem that a person to whom the right to use the water has been regularly granted by the owners of the stream, may sue any one who pollutes it (q), on the principle that "as a general rule, when a man has a property, he may grant to others estates in, and rights of enjoyment of it, and the grantees may maintain actions against those who disturb them" (r).

A canal company granted by deed to A. (the plaintiff) the sole and exclusive right or liberty of putting or using pleasure-boats for hire on their canal. X. (the defendant) put and used pleasure-boats for hire on the canal. It was held (s) that A. could not bring an action in his own name against X. The ground of this decision is, that though X. was a wrongdoer as against the company, and that though A. had a right as against the company to the exclusive use of the canal, X. had not violated any right possessed by A. as against him.

"This grant merely operates as a licence or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right. It is argued that as the owner of an estate may grant a right to cut turves, or to fish, or hunt, there is no reason why he may not grant such a right as that now claimed by the plaintiff. answer is that the law will not allow it. So the law will not permit the owner of an estate to grant it alternately to his heirs male and heirs female. A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of property; but he must be content to accept the estate and the right to dispose of it subject to the law as settled by decisions, and con

The

(q) Nuttall v. Bracewell, L. R. 2 Ex. 1; 36 L. J. 1, Ex. See Stockport Water Works Co. v. Potter, 3 H. & C. 300; 31 L. J. 9, Ex.

(r) Ibid., L. R. 2 Ex. 11, per Bramwell, B.

(s) Hill v. Tupper, 2 H. & C. 121; 32 L. J. 217, Ex.