Bealey against Shaw and Others

bealey against shaw and others. Thursday, Feb. 7th, 1805. The owner of land through which a river runs cannot by enlarging a channel of certain dimensions through which the water had been used to flow before any appropriation of it by another, divert more of it to the prejudice of any other land owner lower down the river, who had at any time before such enlargement appropriated to himself the surplus water which did not escape by the former channel. [Referred to, Wilts and Berks Canal, &c., Company, v. Swindon Waterworks Company, 1873, L. R. 9 Ch. 453; Angus v. 'Dalian, 1877-81, 3 Q. E. D.108; 4 Q. B. D. 162; 6 App. Cas. 740. Approved, White v. White [1906], A. C. 81.] This was an action on the case, wherein the plaintiff declared that on the 1st of January 1799 he was possessed of certain lands, mills, and other buildings and machinery used in his trade of a whitster, and- that a stream of water used to flow out of the river Irwell through a watercourse through his land, and was used to work his said mills and machinery; and that the defendants then, &c. injuriously widened, deepened, and enlarged certain fenders, sluices, and watercourses, leading out of a part of the river Irwell higher than the commencement of the plaintiff's stream, and thereby drew off and diverted from the said river a greater quantity of water than used to flow and ought to have flowed into the defendants' fenders and sluices, and continued the same so widened, &c. and the water so drawn off from thence hitherto, f 6 EAST, 209. BEALEY V. SHAW 1267 and thereby prevented the same from flowing to the premises, &e. of the plaintiff, by which he was deprived of the advantage of the said stream, &c. There were several other counts stating hi substance the same grievance in different ways. Plea not guilty. At [209] the trial before Graham B. at the last Lancaster Assizes, the short state of the case in evidence appeared to be this. The plaintiff's and the defendants' mills and works were both situated near the banks of. the river Irwell, from the water of which they were supplied. The first diversion of the river was in 1724, when a mill was erected on the defendants' premises by those from whom they claimed, and a weir was made above, and the water brought from the river by means of a sluice, adequate in quantity to the wants of the then owners ; the remainder (which was more or less according to the season, and sometimes but little in dry weather,) continuing to flow as before in the natural channel. Another weir was built by the owners of the same premises about 40 years ago, and a third about "20 years ago ; and as the works were from time to time enlarged, more water was taken from the Irwell to supply them, and no objection made, there being then no other mill on the stream in that- part of the country. The present weir of the defendants was made by Messrs. Potter and Crompton (from whom the defendants immediately claimed) when they were in possession of the same premises in 1791. It was made about forty yards higher up the river ; and at the same time the sluice by which their works were supplied was considerably widened and deepened, so that nearly double the quantity of water was drawn from the Irwell which had ever before been taken. The plaintiff's works were first erected in 1787, and his weir and sluice then first made upon his premises, which were situated lower down the stream, and between the works of -the defendants and the tail of their sluice where the water was again returned into the bed of the river, which there made a great bend. In consequence of the alteration of the defendants' sluice in 1791, by [210] which so much more water was taken from the bed of the river above the plaintiff's works than before, they were materially impeded, and sometimes obliged to stop working altogether. Before that time there was no complaint of want of water; but then disputes began concerning it: and the defendants still attempted to exercise acts of exclusive occupancy of the water after the complaints originated; for they put a lock on the clough, the key of which was kept by them for three years together, and applications were several times made by the plaintiff's foreman to...