water; and it may mean the land over which the water flows. "Which it does mean must be shown by the context; and if "there is no context, I apprehend that it would not mean anything but the easement or right to the flow of the water."1 The right, therefore, to the ownership of the bed of such watercourses depends entirely on the words of the instrument which creates them, interpreted according to the usual rules of construction. The most important of these artificial watercourses -viz., canals, sewers, and waterworks-are wholly the creatures of statute; and the rights of property in them of course depend on, and are regulated in each case by, the individual statute to which it owes its origin, and by those statutes which apply to such works generally. The full consideration of such artificial watercourses will be given in a later chapter."

1 Taylor v. St. Helens, 6 Ch. D. (C. A.) 264.

2 Badger v. Yorkshire Rail. Co., 28 L. J., Q. B. 118; 7 Jur., N. S. 459.

3 See as to rights in artificial watercourses, post, Chap. IV., and, as to canals, post, Chap. V.

CHAPTER III.

OF NATURAL RIGHTS OF WATER, AND THEREIN OF THE
DUTIES OF RIPARIAN OWNERS.

Riparian rights gene

rally.

Founded on the right of access to the stream.

Natural Rights and Duties of Riparian Owners.

HITHERTO We have treated almost exclusively of the ownership of the soil over which water flows, and of those rights incident to and arising out of the ownership of soil. In the present chapter we purpose to consider what are usually termed riparian rights, or rights of proprietors of land on the banks of streams, arising, strictly speaking, not from the ownership of the bed over which the water flows, but from the right of access which such proprietors have to the water. In the case of non-tidal waters, where the owner of land on the banks is primâ facie owner of half the bed, this may appear a fine-drawn distinction; but on the banks of tidal waters, where the ownership of the bed is prima facie in the Crown, the distinction will be manifest-as the origin of such rights cannot be referred to ownership of the bed. With respect to the ownership of the bed of the river," says Lord Selborne in Lyon v. Fishmongers' Company,1 "this cannot "be the natural foundation of riparian rights properly so called, "because the word riparian' is relative to the bank, and not to the bed, of the stream; and the connection, when it exists, of 'property on the bank with property in the bed of the stream depends not upon nature, but on grant or presumption of law. "In some tidal navigable rivers (as the Severn), parts of the bed "of the tidal stream belong to riparian owners; and it appears "from Mr. Angell's book (often quoted in our Courts), that in "Pennsylvania and Alabama, States whose jurisprudence is "founded generally on English law, the whole property in the "beds of large non-tidal navigable rivers is in the State. The "title to the soil constituting the bed of a river does not carry "with it any exclusive right of property in the running water of

66

66

11 App. Cas. 683; 45 L. J., Ch. 68; 35 L. T. 569.

"the stream, which can only be appropriated by severance, and "which may be lawfully so appropriated by every one having a "right of access to it."

to waters flowing in a

chaunel.

The principles of law to be hereafter stated apply to all water- Only exist as courses flowing in a certain and definite channel, whether above or below ground; for if the course of a subterranean stream be defined well known, the rights with regard to it will be the same as if it had been wholly above ground. But waters, whether above or below ground, having no certain course or defined limits, such as those merely percolating through the strata of the earth, and those diffused over its surface, are not watercourses, nor are they subject to the law of watercourses.1 The law relating to percolating water, and water without a defined course, will be considered at the end of this chapter.

It is manifest that the property of riparian owners may exist on the banks of tidal navigable rivers as well as on non-navigable streams. Riparian owners on the former have similar rights and natural easements to those belonging to riparian proprietors above the flow of the tide, underlying and controlled, though not extinguished, by the public right of navigation. This latter right the proprietor on a navigable river enjoys, "superadded to "his riparian rights." His riparian rights are subordinated to the public right" in this respect, that whereas in a non-navigable "river all the riparian owners might combine to divert or pollute "or diminish the stream; in a navigable river, the public right "of navigation would intervene and prevent this being done."3

A riparian proprietor, notwithstanding that the river is navigable, can acquire an interest in its water power, as derived from a reservoir artificially formed by a dam across its channel, and sell the same along with and as appurtenant to his land. Even if such sale should not be effectual against the public, the vendor cannot himself impeach it on that ground. Such a power, however, could not be exercised if it interfered in any way with the public right of navigation, which is paramount to all private rights."

non-navig

Rights on
navigable and
able rivers
where con-
trolled by
public right
of navigation.

identical, save

Contact necessary.

In tidal rivers.

Natural right to water not

an easement.

Artificial watercourses.

Acquired rights.

3

"It is of course," says Lord Selborne,1 "necessary to the exist"ence of such riparian rights that the land should be in contact "with the flow of the stream, but lateral contact is as good jure "nature as vertical, and not only the word 'riparian,' but the "best authorities, such as Miner v. Gilmour, and Lord Wensley"dale in Chasemore v. Richards, state the doctrine in terms "which point to lateral contact rather than vertical. It is true "that the bank of a tidal river, of which the foreshore is left bare "at low water, is not always in contact with the flow of the stream, but it is in such contact for a great part of every day "in the ordinary and regular course of nature, which is an "amply sufficient foundation for a natural riparian right."

A watercourse may be either natural or artificial, and the rights of the riparian proprietors on the banks thereof are in the one case corporeal, and in the other incorporeal rights. The right to the use of the flow of the water in its natural course, and to the momentum of its fall on the land of the proprietor, is not what is called an easement, because it is inseparably connected with and inherent in the property in the land: it is parcel of the inheritance, and passes with it.1

Where a stream is artificial, that is, does not arise ex jure naturæ from the soil, or flows in a channel cut by artificial means through the lands of adjoining proprietors, the rights of such proprietors are not prima facie the same as those of proprietors on the banks of natural streams. The mutual rights of the parties in such cases are not natural, but acquired rights, and are dependent for their existence entirely on the words of the grants by which they have been acquired, or on the nature of the user, which can be proved if the claim is by prescription. A watercourse, however, though an artificial one, may have been made under such circumstances as to confer all such rights as a riparian owner would have had in the case of a natural stream. Moreover, the natural rights to water are liable to be abridged, enlarged or modified in many ways by grant or prescription. Thus a right may be acquired to throw back upon the land of the

1 Lyon v. Fishmongers' Company, 1 App. Cas. at p. 683; North Shore Rly. v. Pion, 14 App. Cas. 612.

2 12 Moo., P. C. 131.

3 7 H. L. C. 349.

4 Angell on Watercourses, pp. 96, 98 ; Woolrych on Waters, p. 146.

Phear, Rights of Water, p. 39. See

5

remarks of Bowen, L. J., in Chamber Colliery Co. v. Hopwood, post, p. 249.

6 See Rameshur Pershad Singh v. Koonj Behari Pattuck, 4 App. Cas. 121; Wood v. Waud, 3 Ex. 748; Sutcliffe v. Booth, 32 L. J., Q. B. 136; 9 Jur., N. S. 1037, and cases post, pp. 250 et seq.

proprietor higher up the stream the water which, unless so reflected, would by the force of gravity pass from it; or to discharge the water upon the land lying lower down the stream. either injured in quality, or with a degree of force greater or less than the natural current.1 All such acquired rights are termed easements. It is purposed in the present chapter to consider the natural rights of water only, leaving to a subsequent chapter all acquired rights.2

natural

on occupancy.

"The subject of right to streams of water flowing on the Rights in "surface," says Lord Wensleydale,3 "has been of late years streams, "fully discussed, and, by a series of carefully considered judg"ments, placed upon a clear and satisfactory footing. It has been not founded "settled that the right to the enjoyment of a natural stream of "water on the surface ex jure nature belongs to the proprietor "of the adjoining lands, as a natural incident to the right to the "soil itself; and that he is entitled to the benefit of it, as he is "to all the other advantages belonging to the land of which he "is the owner. He has the right to have it come to him in its “natural state, in flow, quantity and quality, and to go from "him without obstruction, upon the same principle that he is "entitled to the support of his neighbour's soil for his own in "its natural state. His right in no way depends on prescription "or the presumed grant of his neighbour."

to

It was at one time contended that a title to the use of running water was not a right of property; but that water was publici juris, and, as such, the right to use it could only be acquired by occupancy. This view seems to have been favoured by Blackstone, and there are dicta in some of the earlier cases 5 the effect that by the law of England the possessor who first appropriates any part of water flowing through his land to his own use, has a right to use so much as he has appropriated as against the world. The cases of Mason v. Hill and Embrey v. Owen have now, however, finally negatived this contention. In Mason v. Hill, Lord Denman, delivering the judgment Mason v..

1 Sampson v. Hoddinot, 1 C. B., N. S. p. 611; 26 L. J., C. P. 148, See Gale on Easements, p. 270; Goddard on Easements, p. 53.

2 Post, Chap. IV.

3 Chasemore v. Richards, 7 H. L. C. 382; 29 L. J. Ex. 81. See also Embrey v. Owen, 6 Ex. 353; Sampson v. Hoddinot, 1 C. B., N. S. 590; Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Wright v. Howard, S. & St.

190; 24 R. R. 169.

42 Black. Com. 402. As to the DutchRoman Law on this point as practised in Cape Colony, see French Hoek v. Hugo, 10 App. Cas. 336; 54 L. T. 92.

5 Williams v. Morland, 2 B. & C. 913; 26 R. R. 579; Liggins v. Inge, 7 Bing. 692; 33 R. R. 615.

65 B. & A. 1; 39 R. R. 354.

Hill.