Magor and Others against Chadwick and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 532
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 367; 9 L. J. Q. B. 159; 4 Jur. 482. Questioned, North Eastern Railway v. Elliot, 1860-63, 1 J. & H. 154; 2 De G. F. & J. 423; 10 H. L. C. 333. Limited, Rameshur Pershad Narain Singh v. Koonj Behari Pattuk, 1878, 4 App. Cas. 127; Hamma v. Pollock, [1898] 2 Ir. R. 546; [1900] 2 Ir. R. 689.
[571J magor and others against chadwick and others. 1840. In the absence of a special custom, artificial water-courses are not distinguished in law from natural ones; and a title may be gained by twenty years user, as well to the former as the latter. Therefore, where mine owners made an adit through their lands to drain the mine, which they afterwards ceased to work, and the owner of a brewery, through whose premises the water flowed for twenty years after the working had ceased, had during that time used it for brewing: Held, that he thereby gained a right to the undisturbed enjoyment of the water, and that mines could not afterwards be so worked as to pollute it. Qusare whether a universal practice in the neighbourhood to resume the use of such adit waters, for mining purposes, after a long interval, might not have been set up in answer to the claim of easement, thereby raising the inference, that the party claiming used the water, not of right, but only during the accidental disuse of the adit, and with knowledge that the mine owners reserved to themselves a power to recommence working, and thereby disturbing the waters. [S. C. 3 P. & D. 367; 9 L. J. Q. B. 159; 4 Jur. 482. Questioned, North Eastern Railway v. Elliot, 1860-63, 1J. & H. 154; 2 De G. F. & J. 423; 10 H. L. C. 333. Limited, Bameshur Pershad Narain Singh v. Koonj Behari Puttuk, 1878, 4 App. Gas. 127; Hanna v. Pollock, [1898] 2 Ir. E. 546; [1900] 2 Ir. E. 689.] Case. The declaration stated that plaintiffs were lawfully possessed of certain buildings, brewery, and premises at Eedruth, in the county of Cornwall, and, by reason thereof, of right had and enjoyed the benefit and advantage of the waters of a certain stream which had been used, and of right ought, to run and flow unto and (a) See also, as to the powers of the commissioners under stat. 4 & 5 W. 4, c. 76, a. 46, BegwM v. The Guardians of the Braintree Union, Hil. t. 1841, post. UAD.feE.S72. MAQOR V. CHADWICK 533 into the said buildings, brewery, and premises without interruption, fouling, or annoyance, to supply the same with water for working, using, and enjoying the brewery, and for brewing beer there, and for other necessary purposes. Breach, that defendant* wrongfully fouled and polluted the water of the said stream which flowed unto and into the said premises, and thereby rendered it impure and unfit for working, using, and enjoying the brewery, and for brewing beer there, and for other necessary purposes; whereby plaintiffs were injured in their business of brewers, and were unable to brew beer in so large and beneficial manner as they had theretofore done. Pleas. 1. Not guilty. 2. That plaintiffs at the time when, &c., ought not of right to have had or enjoyed the benefit or advantage of the waters of the said stream, nor have the same been used to run and flow, nor of right ought they to run and flow unto and into the [572] said buildings, brewery, and premises without interruption, fouling, or annoyance, to supply the same with water for working, &c., iu manner and form, &c. Issue was joined on both pleas. The cause was tried before Patteson J., at the Launcestion Summer Assizes, 1837, when it appeared that the stream or watercourse claimed by the plaintiffs flowed from the mouth of an adit, or underground passage in adjoining lands not belonging to the plaintiffs, and which had been originally made, upwards of fifty years ago, for the purpose, of clearing the water from a certain mine, by the owner of the mine, but that the mine bad not been worked for more than thirty years pait; that, after tho working was discontinued, the plaintiffs availed themselves of the water coming along this channel to brew beer, and, after clearing the adit themselves, had for more than twenty years obtained from it pure water for that purpose, and had erected a brewery there at a great expense. It was admitted that, at the time when the adit was originally made and the mine worked, the water must have been unfit for the uses to which the plaintiffs now applied it. The defendants were owners of other mines (copper mines), and had lately used the old adit for the purpose of draining them, by which the water had agaiu been made foul and unfit for brewing. It was not shewn that they were connected with, or claimed under, the owners of the adit or mine, or of the lands through which it flowed. The defendants contended that a custom (a)1 prevailed in Cornwall, by virtue of which an [573] adit, onca artificially made for draining a mine, was always an adit, and might at any time be again employed for that purpose; and they adduced evidence in proof of such custom. They also contended that an artificial watercourse was different in its nature from a natural one, and that the same rules of law could not be applied to both. The learned Judge took the opinion of the jury on the evidence of the alleged custom, which they negatived. He also stated to them that, in the absence of custom, artificial watercourses are not distinguished in law from such as are natural; that the same rules apply to them ; and that twenty years' enjoyment might therefore warrant the jury in finding in favour of the right. The jury found a verdict for the plaintiffs, on both issues. In Michaelmas term Bompas Serjt. obtained a rule nisi for a new trial, on the ground of misdirection. In Michaelmas vacation, 1839. Sir W. W, Follett, Crowder, and Butt (a)2 shewed cause. The custom being negatived, the only question is, whether a right can be obtained by user, for twenty years, of the water flowing through an artificial channel. The general proposition that uninterrupted user of a flow...
To continue reading
Request your trial
-
Yard v Ford
...W. 795, Kinlock v. Ne-vile. As to what is an enjoyment " as of right" of an artificial watercourse, see 5 M. & W. 203, Arkwright v. Gell. 11 A. & E. 571, Magor v. Chadwick. 3 N. & P. 367, S. C. By sect. 4 " Each of the respective periods of years herein-before mentioned shall be deemed and ......
-
Hanna v Pollock
...was erected which turned some of the water coming down the cut to N. The plaintiff swears that the drain from (1) 1 J. & H. 145. (2) 11 Ad. & E. 571. 690 THE HUSH REPORTS. [1900. Appeal. " Weir " to S is Lis own drain, which is all the evidence we have _1899,_ on that subject. What I think ......
-
Oldaker v Hunt
...Gray, for the Respondents, referred to Aldred's case (9 Rep. 57 b.); Mason v. Hill (3 B. & Ad. 304 ; 5 B. & Ad. 1); Magor v. Ghadwick (11 A. & E. 571); Wood v. Waud (3 Exch. 748); Frewin v. Lewis (4 Myl. & Cr. 249); Dickenson v. The Grand Junction Canal Company (15 Beav. 260) ; Davenport v.......
-
Sampson v Hoddinott
...and any other water-course 1 [Cresswell, J. All the authorities, from the Digest downwards, shew that there is.] Magor v. Chad-wick, 11 Ad. & E. 571, 3 P. & D. 367, shews that the law of easements in respect of water-courses is generally the same, whether they are natural or artificial. [Cr......