Mason against Hill and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 114
IN THE COURT OF KING'S BENCH
S. C. 1 L. J. K. B. 107. For subsequent proceedings see S. C. 5 B. & Ad. 1 (with note).
mason against hill and others. Tuesday, January 31st, 1832. The proprietor of lands contiguous to a stream, may, as soon as he is injured by the diversion of the water from its natural course, maintain an action against the party so diverting it; and it is no answer to the action, that the defendant first appropriated the water to his own use, unless he has had twenty years' undisturbed enjoyment of it in the altered course. [S. C. 1 L. J. K. B. 107. For subsequent proceedings see S. C. 5 B. & Ad. 1 (with note).] Case. The first count of the declaration stated, that the plaintiff was lawfully possessed of a mill, manufactory, and premises in the county of Stafford, and by reason thereof ought to have had and enjoyed the benefit and advantage of the water of a certain stream which had been used to run and flow, and of right ought still to run and flow unto the said mill, &c. in great purity and plenty to supply the same with water for working, using, and enjoying the same, and for other necessary purposes. That the defendants by a certain dam and obstructions across the stream above the plaintiff's premises, impounded, penned back, and stopped the water, and by pipes and tiles, &c. diverted it from the plaintiff's premises, and prevented it from flowing along the usual and proper course. And farther, that the defendants injuriously heated, corrupted, and spoiled the water, so that it became of no use to the plaintiff, whereby he was prevented from using his mill and premises in so extensive and beneficial a manner as he otherwise would have done. Plea, not guilty. At the trial before Bosanquet J., at the last Spring Assizes for the county of Stafford, the following appeared to be the [305] facts of the case. The plaintiff and the defendants had land contiguous to the stream, the land of the defendants being situate on a part of the stream above the land of the plaintiffs. The stream acted as a sewer to part of the town of Newcastle-under-Line, and the water was consequently foul and muddy. It had been unprofitable to both parties until it was diverted by the defendants. This diversion took place in 1818, by the defendants' erection of a weir or dam across the stream, at the part contiguous to their own land, and by means of this weir and of channels and reservoirs made in their land, great part of the water was conveyed to certain buildings belonging to them at some distance from the weir, and there used as part of the supply of water necessary for a steam-engine. About ten years after this diversion, the plaintiff made a channel in -his land contiguous to the stream, for conveying the water to some buildings belonging to him at a little distance from the stream, for the purpose of some process of manufacture not previously carried on there. Some attempts at accommodation between the parties took place, but were ineffectual, or unsatisfactory ; and before the action was brought, the plaintiff's works were occasionally suspended for want of the water diverted by the defendants, and which after it had been used by them was suffered to pass away into a level below the plaintiff's works. It was contended on the part of the defendants, that as they had first appropriated the use of the water in the sewer to beneficial purposes without injuring the plaintiff, they had acquired a right therein, and were not answerable for the diversion, and Williams v. Morland (2 B. & C. 910), was cited. The learned TJ306] Judge acting upon that authority, directed the jury to find a verdict for the defendants. In the ensuing term Campbell obtained a rule nisi .for a new trial, on the ground that the defendants who had diverted the water could 3 B. & AD. 307. MASON V. HILL 115 acquire no right to have it flow in its 'new channel by mere appropriation without twenty years unmolested enjoyment. Sir James Scarlett and Godson on a former day in this term shewed cause (a). Supposing that the plaintiff has in fact sustained any damage in this case, which is not admitted, still the Judge's direction was right, and the defendants are entitled to retain the verdict. Wright v. Howard (1 Sim. & Stu. 190), will be cited to shew that unless a party has enjoyed the use of running water for twenty years, he can acquire no property in such use of it, but any person who has lands lower down the stream may maintain an action against him for diverting it; but the dictum of the Master of the Eolls in that case cannot be supported. It is no doubt generally true that a person must have had twenty years' undisturbed possession of many similar rights (as light and air) before he can make an exclusive title thereto, but that cannot be extended to flowing water. For general convenience requires when a man first appropriates water to valuable purposes without the dissent of any one else, and without doing any damage or injury to another, he should gain a title to the use, Williams v. Morland (2 B. & C. 910). Bealy v. Shaw (6 East, 208), shews that where water is left unappropriated, twenty years need not elapse before the person who possesses himself of that water [307] can bring an action for an injury done to his newly-acquired right. There Lord Ellenborough says, " I take it that less than twenty years enjoyment may or may not afford a presumption of a grant, according as it is attended with circumstances to support or rebut the right." And Le Blanc J. said, "The true rule is, that after the erection of works, and the appropriation by the owner of the land of a certain quantity of the water flowing over it, if a proprietor of other land afterwards take what remains of the water before unappropriated, the first-mentioned owner, however he might before such second appropriation have taken to himself so much more, cannot do so afterwards." In that very case the plaintiff had had an enjoyment of the water previously unappropriated by the defendant, without objection from him, for four years only ; and Lord Ellenborough was of opinion that that occupation was a sufficient title. In Cox v. Matthews (1 Vent. 237), Lord Hale said, " If a man hath a watercourse running through his ground and erects a mill upon it, he may bring his action for diverting the stream, and not say antiquum molen-dinum ; and upon the evidence it will appear whether the defendant hath ground through which the stream runs before the plaintiffs, and that he used to turn the stream as he saw cause, for otherwise he cannot justify it, though the mill be newly erected." And in Saunders v. Newman (1 B. & A. 258), it was finally decided that it was not necessary to state the mill to be ancient; and Holroyd J. there recognised the law laid down by Le Blanc J. in Bealy v. Shaw as to the right to use flowing water. If the position here contended for prevail, then on [308] a stream where twenty mills have been erected, the owner of the lowest may require the nineteen above him to be pulled down, and thus put a stop to all improvement; and the person who builds a mill on an unappropriated stream will be entirely at the mercy of the land-owners lower down. The plaintiff cannot now be in any other situation than he was when the diversion was first made; and as he then sustained no damage, for he had made no use of the water, the case of Williams v. Morland (2 B. & C. 910), shews that this action is not maintainable. Campbell, E. V. Richards, and Whateley contra. The water not having flowed for twenty years in that channel into which the defendant had diverted it, he did not acquire any right to have it to continue in that course, and the plaintiffs right to the flow of water in its natural and usualchannel is not. lost. It is true that the defendant might have taken the water with impunity, if he thereby caused no damage to the plaintiff or the other proprietors of the land on the bank of the stream, because to give a right of action there must be both damnum and injuria, and for that Williams v. Morland (2 B. & C. 910), is an authority. There the injury alleged in the declaration was not proved. Flowing water, like light and air, is publici juris; every person having land on the banks of a stream, is entitled prima facie, to have the water flow in its natural course, and that right cannot be lost except by grant or long uninterrupted enjoyment from which a grant may be presumed. As to light, every man on his own land, has a right to as much as will come to him. If he erect [309] on the extremity of his land a building with windows, and they continue unobstructed (a) Before Lord Tenterden C.J., Littledale, Taunton, and Patteson Js. 116 MASON V. HILL 3 B. & AD. 310. for a period of twenty years, the law then implies the consent of the owner of the adjoining land to that mode, of enjoyment; though the latter may, undoubtedly, within twenty years build on his land, and thereby obstruct the light, which would otherwise pass to the building of his neighbour. So that the title to the enjoyment of the light in prejudice of another's right is not acquired by mere appropriation, but by occupancy continued for twenty years. The right to flowing water is of the same description. Every proprietor of land on the banks of an ancient stream is primft facie entitled to the benefit of the water as it exists in its natural state, and no one proprietor without the consent of the others, has a right to make use of the flow in such a manner as will be to their prejudice. Their consent may be inferred from an unmolested continuance of a particular mode of enjoyment for twenty years. But there is no reason why a grant should be presumed within a less period in the case of water, than of light. And the authorities clearly shew that there must be the same length of enjoyment. The opinion delivered by the Master of the Rolls in Wright v. Howard...
To continue reading
Request your trial
-
Singapore Finance Ltd v Lim Kah Ngam (S'pore) Pte Ltd (Eugene HL Chan Associates, Third Party)
...and to use it for any purposes as he pleased, not inconsistent with a similar right of the owners upstream and downstream: see Mason v Hill 5 B & Ad 1; 110 ER 692. This argument was rejected because the foundation and origin of the rule governing surface streams were inapplicable to undergr......
-
Coryton and Another v Lithebye
...first appro priated the water to his own use, unless he has had twenty years' undisturbed enjoy ment of it in the altered course. 3 B. & Ad. 304, Mason v. Hill. 5 B. & Ad. 1. 2 Nev. & M. 747, S. C. What is said by Lord Hale in Cox v. Matthews (cited above in the principal note) is perfectly......
-
M'Glone v Smith
...3 East. 346. Nelson v. Couch 15 C. B. (N.S.) 99 Bickett v. Morris L. R. 1 Sco. App. 47. Wood v. WaudENR 3 Ex. 748. Mason v. HillENR 3 B. & Ad. 304; 5B. & Ad. 1. William v. MorlandENR 2 B. & C. 910. Embrey v. OwenENR 6 Ex. 353. Routledge v. HislopENR 2 E. & E. 549. Wright v. HowardENR 1 Sim.......
-
Oldaker v Hunt
...effect of the Act. Mr. Roupell, Mr. Hingeston and Mr. 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 Gran......
-
Waterproofing the New Fracking Regulation: The Necessity of Defining Riparian Rights in Louisiana?s Water Law
...on running water may use it as it runs for the 81. Walther, supra note 47, at 555; GETCHES, supra note 9, at 19 (citing Mason v. Hill , 110 E.R. 692 (Eng. 1833), as the case in which the writings of Justice Story and Kent were incorporated into English riparian doctrine). 82. G ETCHES , sup......
-
Reviews
...compressed manner. He has somevery interesting observations to make on leading water-property cases such asMason vHill (1833) 5 B & Ad 1, 110 ER 692; Acton vBlundell (1843) 12 M & W324, 152 ER 1223; and Chasemore vRichards (1859) 7 HLC 349, 11 ER 140.However, long-spun doctrinal history is ......
-
Reviews
...compressed manner. He has somevery interesting observations to make on leading water-property cases such asMason vHill (1833) 5 B & Ad 1, 110 ER 692; Acton vBlundell (1843) 12 M & W324, 152 ER 1223; and Chasemore vRichards (1859) 7 HLC 349, 11 ER 140.However, long-spun doctrinal history is ......
-
Reviews
...compressed manner. He has somevery interesting observations to make on leading water-property cases such asMason vHill (1833) 5 B & Ad 1, 110 ER 692; Acton vBlundell (1843) 12 M & W324, 152 ER 1223; and Chasemore vRichards (1859) 7 HLC 349, 11 ER 140.However, long-spun doctrinal history is ......