William Northam against Richard Hurley
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1853 |
| Date | 05 February 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 586
COURTS OF QUEENS BENCH, AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 22 L. J. Q. B. 183; 17 Jur. 672. See Kensit v. Great Eastern Railway, 1883-84, 23 Ch. D. 566; 27 Ch. D. 122.
[665] william northam agaiiist kichakd hurley. Saturday, February 5th, 1853. Where A., being owner of land through which a stream runs down to the land of B., grants by deed to B. that the stream shall ba in the controul of B. and bis assigns, and shall flow in a free and uninterrupted course through a channel described in the deed, and afterwards A. and B. assign, respectively, their land to Y. and Z., Y., if he divert the water from such channel, though he does not thereby deprive Z. of the use of any water, is liable to an action at the suit of Z. In such action, it is sufficient for Z. to declare that, by reason of his possession of the land, he is entitled to have the use and benefit of the water flowing in a certain direction along the channel, and that defendant diverted the water therefrom. It is not necessary to refer to the grant. [S. C. 22 L. J. Q. B. 183 ; 17 Jur. 672. See Kensit v. Great Eastern Railway, 1883-84, 23 Ch. D. 566 ; 27 Ch. D. 122.] Case. The first count charged that, before and at the time of committing, &c., plaintiff waa lawfully possessed of a certain close of meadow land called (to wit) Fourth Tanner's Meadow, and defendant was possessed of a certain other close of meadow land adjoining the said close of plaintiff, called (to wit) Third Tanner's Meadow!; in which last mentioned close there was a stream or watercourse, called and known as Magelake Brook, and another stream or watercourse, rising from a spring near the last metttioned close, in a close of land of defendant called the Second Tanner's Meadow ; and which two streams or watercourses united together in the close called the Second Tanner's Meadow, at a certain point there, and, from and after such junction, ran together in one united stream through and along a part of the last mentioned close, and through the said close called the Third Tanner's Meadow, in a direction towards the said close of plaintiff: and that "plaintiff, by reason of his possession of the said first mentioned close of meadow land, was entitled to have the use and benefit of the water of the said united stream or watercourse ; and' the said united stream or watercourse, long before and until the committing," &c., " ran and flowed, and of right ought to have run and flowed, and still of right ought to run and flow, from and out ofi the said [666] dose of the defendant in a certain direction, and through and along a certain channel, unto and into the said close of the plaintiff, for the watering and irrigation of bis said close, and the benefit and improvement of the soil thereof, at all times of the year except the first ten days of every month in each year." That defendant, well knowing the premises, but contriving and intending to injure plaintiff, ana to deprive him of the use, benefit and enjoyment of the water of the said united stream or watercourse for the purpose aforesaid, and in the manner and at the times aforesaid, heretofore, to wit on llth January 1850, and on divers other days and times between that day and the commencement, &c,, the said days and times, respectively, being other days and times than the first ten days of each month within that period...
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