Race against Ward and Others

[702] RACE against ward and others. Tuesday, January 30th, 1855. Water as it issues from a well or spring is not to be considered as produce of the soil, ho as to make the right to take it in alieno solo, for domestic purposes, a profit a prendre. Such right is an easement only, and may be claimed by custom.- Action for breaking plaintiffs close. Plea : justifying under a custom, from time immemorial, for all the inhabitants of the township in which plaintiff's close was situate to take water from a well or spring in that close, and carry the same to their houses, to be used for domestic purposes. Held, on demurrer, that the custom, as stated in the plea, was good. [S. C. 3 C. L. R. 744 ; 24 L. J. Q. B. 153 ; 1 Jur. N. S. 704 ; 3 W. R. 240. Applied, Hall v. Nottingham, 1875, 1 Ex. D. 4. Referred to, Mayor of Saltash v. Goodman, 1880-82, 5 C. P. I). 449 ; 7 Q. B. D. 106 ; 7 App. Cas. 633 ; Mercer v. Dunne, [1904] 2 Ch. 551; [1905] 2 Ch. 538; FUzhardinge v. Pureell, [1908] 2 Ch. 163.] The first count alleged that the defendants broke and entered the close of the plaintiff, at Horbury, in the parish of Wakefiekl, and trod down, &c. the grass growing there, and subverted, &c. the soil, and placed on the said close divers cartloads of earth &c., and kept and continued the same upon the said close &c. The second count alleged that the plaintiff was possessed of a field at Horbury aforesaid, and, by reason thereof, was entitled that the waters from time to time collecting and being in and upon the said field should be drained and carried away from the same by and through a certain drain in the said field ; and that the defendants broke into and burst the said drain, and threw and placed large quantities of earth &e. there, and wrongfully obstructed the same, whereby divers large quantities of the waters which from time to time during that time collected and were in and upon the said field were prevented from running away from the same as they otherwise would have done, and were then caused to overflow and accumulate upon the said field, Plea 1, to the first count: That the close in which &c. in the first count mentioned is situate io the township of Horbury, in the said parish of Wakefield, and that there now is, and from time whereof &c. hath been, a certain custom in the said township, that is to say, that all the inhabitants of the said township have been used and accustomed, during all the time aforesaid, [703] to have, and of right ought to have had, and still of right ought to have, the liberty and privilege to have and take water from a certain well or spring of water situate in the said close in which &c., and to carry the same to their respective dwelling houses in the said township, to be used aud consumed therein for domestic purposes (a), every year and at all times in the year, at their free will and pleasure: and the defendants say that, a short time before the said time when &c., the plaintiff had caused the said well or spring to be filled up with divers large quantities of materials, and the same continued so filled up at the said time when &c.; insomuch that the said inhabitants, at the said time when &c., were prevented by reason thereof from procuring water therefrom as they were accustomed and of right entitled to do; therefore the defendants, being iuhabitanta of the township, and of right entitled to have and procure water from the said well or spring, (a) Both pleas were amended, upon the argument, by inserting the words "for domestic purposes," 260 RACE V. WARD 4 EL. & BL. 704. entered upon the said close for the purpose of reopening the said well and removing the said materials with which the same had been filled up by the plaintiff, and did remove and take out the said materials with which the said well or spring had been so filled up, and in so doing did necessarily and unavoidably &c. (justifying the trespasses in the first count mentioned). Plea 2, to the second count: That the said close in which &c. in the second count mentioned is situate &c.; and that there now is, and from time whereof &c. hath been, a certain custom (setting out the custom as in plea 1): and the defendants say that, a little before the said time when &c., the plaintiff had unlawfully caused [704] the water of the said well or spring to be carried away from the said well or spring along and by the said drain in the second count mentioned, and had unlawfully constructed the said drain for that purpose; insomuch that the water in the said well or spring was by reason thereof, at the said time when &c., so diminished that the said inhabitants...