Industry As A Riparian Use
| Published date | 01 January 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00507.x |
| Author | A. H. Hudson |
| Date | 01 January 1959 |
INDUSTRY
AS A RIPARIAN
USE
IT
IS,
of course, one of the most firmly established propositions of
English law that a rtparian occupier is entitled to make use of the
water
of
a stream flowing past his land, even to the extent of
exhausting it,
for
ordinary purposes connected with the riparian
tenement. He may use the water for extraordinary riparian
purposes provided he returns it substantially undiminished in
quantity and unchanged in quality.
A
very small deduction, vary-
ing with the circumstances of each case, will not be accounted an
interference with the rights
of
lower occupiers. At common law no
water at all may be used for non-riparian purposes.
One doubt, however, seems to cling about the precise meaning
of the words
“
ordinary
”
and
‘‘
extraordinary
”
in this context.
“
Ordinary,” of course, always and everywhere connotes ordinary
domestic use-drinking, cooking, washing and the watering
of
cattle-use
ad lavandum et potandum
in the time-honoured phrase
-and all other riparian uses are, generally speaking, regarded
as extraordinary. The suggestion was, however, advanced in
Orrncrod
v.
Todmorden
Mill
Co.’
that in some districts industrial
uses may
be
so
common that they could properly be called an
ordinary use. Brett
M.R.,
who in the argument appears to have at
first assumed that manufacturing was always an extraordinary use,
in his judgment at p.
168
said that he was disposed
to
accept this
contention of counsel for the defendant but he expressly said that
it
was not necessary to decide the point in the case before him.
Bowen
L.J.
at p.
172,
whilst also saying that this point did not
require decision, was prepared to assume for the purpose of argu-
ment that manufacture need not always be extraordinary and in no
way indicated that he regarded the suggestion as contrary
to
principle, and it has received the approval of some textbook writers.
Thus Cheshire,
Modern
Real
Property
4.
and Gale on
Easements
ti
both appear to accept it as good law. The relevant passages from
the two books are:
“
Manufacture, in the present connection, is prima facie an
extraordinary purpose, though the ultimate solution
of
this
question depends on local trading conditions, and on the use
to
which the water of rivers is put in the adjoining district.”
(Cheshire.)
“It
has been said that the user which was at one time
extraordinary might by changes in the condition
of
the
1
(1883) 11
Q.B.D.
155
at
p.
167.
2
At
p. 166.
3
The argument
would
seem
to
have been
a
sudden improvisation.
4
8th
ed., p.
119.
5
12th
ed.,
p.
237.
35
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