Fentiman against Smith
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1803 |
| Date | 23 June 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 770
IN THE COURT OF KING'S BENCH.
fentiman against smith. Thursday, June 23d, 1803. Where one declared in case for obstructing a water-course, upon his possession of a mill with the appurtenances, and that by reason of such his possession he had a right to the use of water running in a certain tunnel to the mill; such allegation is not supported by proof that the tunnel was made on the defendant's land, which he had agreed to let the plaintiff have for this purpose for a certain consideration, but of which no conveyance was made by the defendant to the plaintiff, and he had since refused assent: because the plaintiff had not the water by reason of his possession of the mill, &c. but by parol licence or contract, which could not pass the title to the land, and as5 a licence was revocable, and revoked. In an action on the case for diverting a water-course from the plaintiff's mill, the declaration stated that whereas the plaintiff on the 1st of January 1803, and long (a)1 This statute is set forth in the Appendix to Eunnington's edition of the Statutes, vol. 10, p. 139; and vide ib. p. 143, the stat. 3 & 4 Ed. 6, c. 16, s. 16. (6) By stat. 2 & 3 Ann. c. 6. (a)2 His Lordship afterwards referred to Mr. Serjt. Williams's observations on this statute in his notes on the case of Jevens v. Harridge, 1 Saund. 8, and 2 Show. 235, there referred to. 4 EAST, 108, HEATH .V. HUBBAED " 77t before, was and still is lawfully possessed of a certain cotton mill, with the appurtenances, situate at Addingham in [108] the county of York, near to two certain rivulets there called the Town Beck and the Back Beck, the water of which rivulet called the Back Beck until the interruption complained of had flowed into and still of right ought to flow into the Town Beck by means of a certain tunnel or goit there above the plaintiff's wear there erected across the Town Beck a little above the said mill; and the plaintiff by reason of his possession of the said mill, during all the time of working the same, of right ought to have had, and still of right ought to have, the use and benefit of both the said rivulets called the Town Beck and Back Beck: yet the defendant knowing the premises, and to deprive the plaintiff of part of the use and benefit of his said mill with the appurtenances, whilst the plaintiff was so possessed thereof as aforesaid at, &e. cut a channel, &c. whereby the water of the Back Beck was diverted from...
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