Acquired rights of water termed easements. Definition of easement. CHAPER IV. OF ACQUIRED RIGHTS OF WATER, AND THE EASEMENT In addition to the natural right to receive flowing water in its accustomed course, rights, the object of which is to interfere with the natural course of the stream, may be acquired over a stream flowing through a man's land or through his neighbour's land. Thus a right may be acquired to throw back upon the land of proprietors 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 Such acquired rights are termed easements. An easement may be defined as a service or convenience which one neighbour hath, without profit upon, over, or from any land or water of another. An easement (under which head all acquired rights of water are classed) differs from a profit à prendre, in that the former is merely a right to do some act which, if done without such right, would be a simple trespass on another's property, while a profit à prendre carries with it a right to take and appropriate a portion of the soil and its produce.3 Easements must be used in connection with some tenement, and cannot, as hereditaments, be created or acquired in gross.* The tenement in respect of which an easement is used is termed the dominant tenement; and the tenement upon, over, or from which it is used is termed the servient tenement. 1 Gale on Easements, 7th ed. by George Cave, 1899, p. 250; Sampson v. Hoddinot, 1 C. B.. N. S. 611; 26 L. J., C. P. 148. 2 Co. Lit. 19, 20; see also Angell on Watercourses, p. 244; Hewlins v. Shippam, 5 B. & C. 221; 31 R. R. 757; Manning v. Wasdale, 5 A. & E. 764; 44 R. R. 576; Race v. Ward, 4 E. & B. 702. 3 Phear, Rights of Water, p. 57; Race v. Ward, 4 E. & B. 702; 24 L. J., Q. B. 153; Manning v. Wasdale, 5 A. & E. 764; 44 R. R. 576; Goodman v. Saltash Corporation, 7 App. Cas. 633; Tilbury v. Silva, 45 Ch. D. 98; 62 L. T. 254. 4 Ackroyd v. Smith, 10 C. B. 164; Shuttleworth v. Le Fleming, 19 C. B., N. S. 637 Hill v. Tupper, 2 H. & C. 121; and see also remarks on the last case by Bramwell, B., in Nuttall v. Bracewell, L. R., 2 Ex. 11; 36 L. J., Ex. 1. Considered with reference to the servient tenement, an easement is frequently termed a servitude. The easements relating to water may be classified thus:1. The right to affect or use the water of a natural stream in any manner not justified by natural right (a) In quantity; (b) In quality. 2. The right to conduct water across a neighbour's land by an artificial watercourse, and to go on his land for the purposes of clearing it. 3. The right to discharge water or other matter on a neighbour's land. 4. The right to go on a neighbour's land to draw water from a well. It is proposed to consider, first, how these easements may be acquired; and, secondly, the nature, extent, and mode of enjoyment of the above-named particular easements of water. Easements of Water, how acquired. The origin of rights of this kind is referred either to express contract between the parties, or to a similar contract implied from the peculiar relation of the parties at the time they became possessed of their respective tenements, or from the longcontinued exercise of the right from which a previous contract between them may be inferred; or to the provisions of an Act of the legislature.3 "A watercourse," says Woolrych," may be either a real or an incorporeal hereditament. If by grant, prescription, or other"wise, one should have an easement of this kind in the land of "another person, it would partake of the latter quality; but if "the water flow over the party's own land, although, indeed, it "cannot be claimed as water, yet it is, in effect, identified with "the realty, because it passes over the soil, and cujus est solum, "ejus est usque ad cœlum." Easement of water. An easement is an incorporeal right. agreement. The ceremony required by law for the creation of easements By express and all other incorporeal hereditaments, is a deed, devise, or record; and as the same ceremonies are requisite in the transfer 1 The acquired rights of fishery and navigation are fully treated of elsewhere; see Chaps. VI. and VII. 2 Gale on Easements, p. 24. 3 Per Cockburn, C. J., in Mason v. Shrewsbury Railway, L. R., 6 Q. B. 537 40 L. J., Q. B. 293; 25 L. T. 239. Woolrych, p. 146. : An easement can only be created or assigned at law by deed. of a right as are requisite in its original formation, a water right as an incorporeal hereditament can only be assigned by deed, devise, or record.1 This point was decided in Hewlins v. Shippam,2 where the question was, whether a right to a drain running through the adjoining land could be conferred by a parol licence, and under the Statute of Frauds; and the Court held that such an interest could only be created by deed. 66 Bayley, J., in delivering the judgment of the Court, says: A right of way or a right of passage for water (where it does not create an interest in land), is an incorporeal right, and stands "on the same footing with other incorporeal rights, such as "rights of common, rents, advowsons, &c. It lies not in livery, "but in grant, and a freehold interest in it cannot be created or "passed (even if a chattel interest may, which I think it cannot), "otherwise than by deed."3 After citing other cases in support of his opinion, the learned judge continues: "And in Fentiman v. Smith," where the plaintiff "claimed to have passage for water by a tunnel over defendant's "land, Lord Ellenborough lays it down distinctly- The title "to have the water flowing in the tunnel over defendant's land 1 Angell on Watercourses, p. 324; Gale on easements, p. 25. An easement could not, until recently, be created by a grant under the Statute of Uses, but now the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41, s. 62), provides as follows: "(1) A conveyance of freehold land "to the use that any person may have, "for an estate or interest not exceeding "in duration the estate conveyed in the a tenant for life to 'sell the settled land or any easement, right, or privilege over or in relation to the same," i.e., "to subject the settled land to any such easement." See Sutherland v. Sutherland, L. R., 3 Ch. 169; see Gale on Easements, 7th ed., p. 71. 25 B. & C. 221; 31 R. R. 757; see as to this subject, Gale on Easements, pp. 35-95. 3 Hewlins v. Shippam, 5 B. & C. 221 ; 31 R. R. 757; see also Fentiman v. Smith, 4 East, 107; 7 R. R. 533; see also Corker v. Payne, 18 W. R. 436; Cocker v. Cowper, Í C. M. & R. 418; 40 R. R. 626; Duke of Somerset v. Fogwell, 5 B. & C. 875; 29 R. R. 449; Gale, pp. 29, 53. + Co. Litt. 9a. 42a, 169; 2 Roll. Abr. 62; Shep. Touch. 231; Monk v. Butler, Cro. Jac. 574; Rumsey v. Rawson, 1 Vent. 18-25; Hoskins v. Robins, 1 Vent. 123-163; Harrison v. Parker, 6 East, 154; 8 R. R. 434. 54 East, 107; 7 R. R. 533. "could not pass by parol licence without deed.' Upon these "authorities, we are of opinion, that, although a parol licence "might be an excuse for a trespass till such licence were counter"manded, that a right and title to have passage for water, for a "freehold interest, required a deed to create it; and that, as "there has been no deed in this case, the present action, which "is founded on a right and title, cannot be supported." The doctrine laid down in this case was fully recognized in Cocker v. Cowper, where an action was brought for stopping a watercourse. It appears from the award of the arbitrator that the channel in question consisted of a drain and tunnel which had been constructed in defendant's land by the plaintiff with the verbal consent of the then tenant and the defendant, and that the water had flowed through it up to the year 1833, when upon the plaintiff's refusal to pay for the use of the water the defendant diverted the channel. The Court of Exchequer were clearly of the opinion that the plaintiff was not entitled to recover. "With regard to the question of licence," says the Court, "the "case of Hewlins v. Shippam is decisive to show that an ease"ment like this cannot be conferred unless by deed." With regard to the effect of a licence, Mr. Phears thus expresses himself. "It is very important in considering the subject of easements to distinguish as early as possible between a right1 "to do an act in alieno solo and a licence to commit an act of "trespass. The right involves a certain continuing element, and "has an incorporeal existence, whether any act be done under "it or not the possessor of the land over which it extends is, "so far as it is capable of being exercised, deprived of an incident "of territorial property, and the possessor of the right acquires "by it, just to the same extent, an interest in the land itself. "Whether the possessor of a right avails himself of it or not, "he is entitled, while it continues, to treat it as something "having an abstract existence, and to protect it from any "infringement-i.e. from anything, the effect of which would "be to prevent his free exercise of it when he chose. On the 66 1 See also the remarks of the learned judge on the cases of Winter v. Brockwell, 8 East, 309; Webb v. Paternoster, Palm. 71; Wood v. Lak". Sayer, 3; and Taylor v. Walters, 7 Taunt. 374; 18 R. R. 499. 21 C. M. & R. 418; 40 R. R. 626; see also Wood v. Leadbitter, 13 M. & W. 838; Wood v. Manley, 11 A. & E. 30; Bird v. Higginson, 6 A. & E. 824; 66 "other hand a licence1 merely excuses the act when done, is retrospective and not prospective in its operation; it begets no obligation on the part of the licensor to keep it in force, and "may, therefore, be revoked by him at any moment.” Equitable Where, however, the owner of a servient tenement has by doctrine of acquiescence. express consent, or by such acquiescence as would make it a fraud to insist upon the legal right, induced others to incur expense in the execution of permanent works or the like, the High Court of Justice, administering equity, will, in many cases, restrain him from the benefit of this rule. "The Court," says Lord Eldon, "will not permit a 3 "will not permit a man knowingly, though "passively, to encourage another to lay out money under an "erroneous opinion of title (and the circumstance of looking on "is in many cases as strong as using terms of encouragement) —a lessor knowing and permitting those acts which the lessee "would not have done, and the other must conceive that he "would not have done, but upon an expectation that the lessor "would not have thrown any obstacle in the way of the enjoy"ment." Thus in Duke of Devonshire v. Eglin, where expense had been incurred in constructing a watercourse through defendant's lands, with his consent, but without any grant under seal, and after a user of nine years defendant attempted to interfere, he was restrained, upon terms, by perpetual injunction from interfering with the further user of the watercourse." 4 So where a licence to take water which is essential to the enjoyment of property is acted upon, and expense incurred to the knowledge of the licensor, the Courts will grant relief. In Bankart v. Tennant, the defendant, being the owner of a canal of which plaintiffs were customers, gave the plaintiffs to understand that as long as they were customers they should have the use of the waste water of the canal for certain furnaces and smelting works which they had erected on the banks. James, V.-C., held that this did not give them any equitable right to the 1 Brooke's Abridg. title "License"; 2 See 36 & 37 Vict. c. 66, s. 24. & Ph. 91; Somerset Canal v. Harcourt, 24 Beav. 271; Rochdale Canal v. King, 2 Sim., N. S. 28; Cotching v. Bassett, 32 Beav. 101. 14 Beav. 530. As to what acquiescence is not sufficient, see Blanchard v. Bridges, 4 A. & E. 194; 53 R. R. 26; Bankart v. Houghton, 27 Beav. 425; Bankart v. Tennant, L. R., 10 Eq. 141; 39 L. J., Ch. 809; 23 L. T. 137. 5 See Owen v. Davies, W. N. (1874), 175. 6 L. R., 10 Eq. 141. |