Frankum against The Earl of Falmouth and Another
| Jurisdiction | England & Wales |
| Judgment Date | 14 January 1835 |
| Date | 14 January 1835 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 175
IN THE COURT OF KING'S BENCH.
S. C. 4 L. J. K. B. 26, 90: at Nisi Prius, 6 Car. & P. 529.
frankum against the earl of falmouth and another. Wednesday, January 14th, 1835. Plaintiff declared that he was possessed of a mill, and by reason thereof was entitled to the use of a certain stream for the mill, and that the water ought to run and flow to the mill; and that defendant " wrongfully and injuriously" diverted the same: Held that, on a plea of not guilty, the only matter in issue was the fact of the diversion, and that the right to the use of the stream, as claimed, was admitted. The defendant also pleaded, that the plaintiff was not entitled to the watercourse by reason of the possession of the mill; and also that the water ought not to run and flow to the mill. The jury (being directed by the Judge to find specially, found that the defendant had diverted the stream, and prevented it from supplying water necessary for the proper enjoyment of the plaintiff's premises as they existed before the mill was erected; but found no right in respect of the mill: Held that, on this finding, the variance in the declaration was material; and that the Court could not give judgment for the plaintiff under stat. 3 & 4 W. 4, c. 42, s. 24. The Court directed that judgment should be entered for the defendant on the last two issues, and for the plaintiff on the first, without damages. [S. C. 4 L. J. K. B. 26, 90 : at Nisi Prius, 6 Car. & P. 529.] Case. The declaration alleged, that whereas the plaintiff, at, &c. was possessed of a certain water grist mill, with the appurtenances, situate, &c., and by [453] reason 176 FBANKCJM V. THE EABL OF FALMOUTH 3AD.&B.454. thereof before and at, &c., of right ought to have had and enjoyed, and still of right ought, &c. the benefit and advantage of the water of a certain stream or watercourse in, &c., which during all those times of right ought to have run and flowed, and until the division thereof herein-after mentioned of right had run and flowed, and been used and accustomed to run and flow, and still of right ought to run and flow, unto the said mill of the said plaintiff, to supply, &c.; yet the defendant well knowing, &c., but contriving, &c., whilst the said plaintiff was so possessed of his said mill, with the appurtenances, to wit, &c., in, &c., and higher up the said stream or watercourse than the said mill of the said plaintiff...
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...question, whether a conversion, if proved, was wrongful, might be raised : but that is otherwise now. In Frankum v. The Earl of Falmouth (2 A. & E. 452), it was held that, in case for wrongfully and injuriously diverting water which, as the inducement alleged, ought to have run and flowed t......
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