Canham v Fisk
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 53
EXCH. OF PLEAS.
S. C. 2 Tyr. 155; Price, P. C. 148; 1 L. J. Ex. 61.
[126] canham v. fisk. Exch. of Pleas. 18U1.-If land, with a run of water upon it, be sold, the water passes with the land, and the vendee, having used the water, though for less than twenty years, gains a title to it by appropriation, and may maintain an action for obstructing it. -Where costs are ordered to abide the event, neither party has the costs of the first trial, unless the verdicts are both tor the same party.-Semble. [S. C. 2 Tyr. 155 Price, P. C. 148 ; 1 L J. Ex. 61.] Case for diverting a water-course running through the plaintiff's garden, and used by him. Plea, not guilty. At the trial, before Gar-row, B., at the last Summer Assizes for the county of Norfolk, it appeared by the plaintiff's evidence, that, up to the year 1811 or 1812, the plaintiff's garden and an adjoining close, in which a stream took its rise and flawed through the garden, were the property of Mrs. Holford, and in one possession. About that time, the plaintiff'purchased the garden, and continued to use the water, till the obstruction complained of. The defendant subsequently purchased the head of water, and diverted it. The learned Judge was of opinion that the unity of ownership destroyed the prescriptive right; and nonsuited the plaintiff'. Kelly moved for a new trial. The Judge was mistaken in supposing that an unity of possession destroyed the plaintiff's right. [Bayley, B. An unity of possession merely suspends; there must be an unity of ownership to destroy a prescriptive right.] The plaintiff had a title by appropriation and enjoyment, quite sufficient to sustain the action, without any prescriptive right. W'iihams v. Morlund (2 B. & C. 910; 4 E). & R. 583). The Court granted the rule, and- B. Andrews and Prendergrast shewed cause. Upon the facts of this case, the direction of the learned Judge was correct. Until 1811 or 1812, both closes belonged to Mrs. Holford, and both were in one occupation. There was, [127] therefore, no ground for a prescriptive right, uor for the presumption of a grant. [Bayley, B. If the owner of two closes sell one with a run of water upon it, can the vendor, or any other person claiming under him, obstruct or divert that water'!] That must depend upon the terms of the conveyance, which was not produced, and must be taken not to favour the plaintiff's claim. l T. r a i 54 HITCHCOCK V. BAT IAM 2 C. & J. 128. [Bayley...
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