Bawstron v Taylor
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1855 |
| Date | 23 June 1855 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 873
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 25 L. J. Ex. 33. Applied, Broadbeat v. Ramsbottom, 1856, 602, post; Bradford Corporation v. Ferrand, [1902] 2 Ch. 660 Referred to, Dudden v. Guardians of Culton Union, 1857, 1 H. & N. 629; Chasemore v. Richards, 1857, 2 H. & N. 183, Bradford Corporation, v. Pickles, [1894] 3 Ch. 53.
[369] bawstbon r. taylor. June 23, 1855.-The owner of land has an unqualified right to dram it for agricultural purposes, in order to get rid of mere surface water, the supply of the water being casual and its flow following no regular or definite couise ; and a neighbouring proprietor cannot complain that he is thereby deprned of such water which otherwise would have come to his land.- The land of the plaintiff and defendant was contiguous, and on the outside of the defendant's land, and near to it, was a wet springy spot, where at most seasons of the year some water rose to the surface, and collected in sufficient quantity to flow down the slope of the land. In times of wet a gieat body of water flowed down, and after a long drought there was hardly any, and sometimes none. There was no regularly formed ditch or channel for the water, the place where it flowed being constantly trodden in by cattle. The water which was not absorbed (and, except in times of drought, all of it was not absoibed) ran into an old watercourse of the plaintiff, which led into a reservoir of the plaintiff'. The water had so flowed for upwards of twenty years. The defendant, for the purpose of draining his land, and of supplying some part of his property with water, diverted this water from the plaintiff's reservoir -At another spot on the plaintiff's land, as long ago as any one could recollect, water had always risen to the surface. There had generally been a drinking place for cattle formed with stones, and the overflow of the water went down a ditch, and thence into a watercourse to the plaintiff's reservoir:-Held, that the defendant was not liable to the plaintiff for having deprived him of the use of such waters, he having diverted them by draining his land, for the purpose of getting rid of the water, and of supplying another portion of his property with it.-For upwards of twenty years water had flowed through an old drain on the defendant's land, and along an Ex. Div. xii.-28* 874 KAWSTRON V. TAYLOR 11 EX. 376. ancient watercourse, and thence along a close of the defendant, called G. B.^ and had thence contributed to supply the plaintiffs mills after their erection in 1845. In that year the defendant by deed conveyed to the plaintiff the close G- B, *' together with all ways, watercourses, liberties, privileges, rights, members, and appurtenances to the same close belonging or appertaining," subject to the proviso, that it should be lawful for the defendant to use, for any manufacturing, domestic, or agricultural purposes, any water flowing from or through the contiguous lands of the defendant unto and into the close G. B., returning the surplus, or so much as remained, after being used for the purposes aforesaid, into its usual channel at a certain point, so that the water should not be diverted from its then course, but be allowed to flow into the close G. B. The defendant erected a lock-up-tank upon his land, and caused the water which aroae on his land, near to the close G. B., and which had previously been accustomed to flow along the old drain and ancient watercourse into the close G. B, and he caused the water to be conveyed from the tank to a lower part of his land, to be used by his tenants. This water waa uaed by them for the purposes mentioned in the proviso to the deed, but the surplus could not be returned to the close G. B.-Held, that by the deed the defendant granted to the plaintiff the use of the water, subject only to the use by himself of it as specified in the proviso ; and that, by locking it up, he had diverted it, and was liable to an action for a breach of his covenant, by reason of such diversion. [S. C. 25 L. J. Ex. 33. Applied, Broadbent v. Ramsbottom, 1856, 602, post; Bradford Corporation v. Ferrand, [1902] 2 Ch. 660 Referred to.Duddenv. Guardian? of Cidton Uiwon, 1857, 1 H. &N. 629 ; Chasemore v. Richards, 1857, 2 H. & N. 183, Bradford Corporation, v. Pickles, [1894] 3 Ch. 53.] Thda was an action to recover damages for the injury to certain mills, manufactories, cottages, and premises of the plaintiff, caused by the diminished supply of water in consequence of the alleged unlawful acts of the defendant. The declaration contained four counts. The first count was for the diversion of certain streams and watercourses from the premises of the plaintiff. The second count was [370] for cutting and making certain pipes and drains near to streams and watercourses which ought to have supplied the mills and premises of the plaintiff, and so preventing water from flowing and percolating, under ground and on the surface in its natural and ordinary course into those streams and watercourses, whereby the supply of water to the premises of the plaintiff had been diminished. The third count was for laying pipes and drains by the defendant in his own lands, and so preventing the flow and percolation, from the lands of the defendant to those of the plaintiff, of water which the plaintiff alleged he was entitled to, and which would have flowed to his mills and manufactories. The fourth count was as follows :-And the plaintiff also sues the defendant, for that by a certain deed bearing date the llth day of August, A.D. 1845, sealed with the seal of the defendant, and by him delivered to the plaintiff for the consideration therein mentioned, the defendant conveyed to the plaintiff, his heirs and assigns, a certain piece or parcel of land therein described and called Clayfield, &c., a certain other piece or parcel of land therein described aa being part of a certain close called Gin Bank, (excepting and reserving unto the defendant, his heirs and assigns, and their servants, agents, tenants, and workmen, certain rights in the said deed specified, but which are not material to the plaintiff's present complaint); and it was by the said deed declared, that it should and might be lawful for the defendant, his heirs and assigns, and his and their tenants, lessees, or grantees, to use and apply for any manufacturing, domestic or agricultural purpoats, any water flowing from or through the contiguous lands of the said defendant uato and into that portion of the Gin Bank thereafter refened to, returning the surplus^ or so much as might remain after being used for the purposes aforesaid, into its natural course or channel at a certain point maiked (B) in a map or plan indorsed upon the said deed, and so that the same water should not be at any time diverted from its then present [371] track or course, but be allowed to run and flow into that portion of the Gin Bank so marked (B) as aforesaid. And the plaintiff says that divers large quantities of water afterwards, and after the making of the said deed, flowed from and through the said contiguous lands of the said defendant, and would in the natural and ordinary course of the said water...
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