Wood and Another v Waud and Others

JurisdictionEngland & Wales
Judgment Date26 April 1849
Date26 April 1849
CourtExchequer

English Reports Citation: 154 E.R. 1047

IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER

Wood and Another
and
Waud and Others

S. C. 18 L. J. Ex. 305; 13 Jur. 472. Approved, Greatrex v. Hayward, 1853, 8 Ex. 291; Broadbent v. Ramsbotham, 1856, 11 Ex. 602; Rameshur Pershad Narain Singh v. Koonj Behari Pattuk, 1878, 4 A. C. 121; Kensit v. Great Eastern Railway, 1883, 23 Ch. D. 570; M'Evoy v. Great Northern Railway of Iceland, [1899] 2 Ir. R. 333. Applied, Chamber Colliery Company v. Hopwood, 1886, 32 Ch D. 549; M'Glone v. Smith, 1888, 22 L. R. Ir. 568; Bunting v. Hicks, 1894, 7 R. 293; 70 L. T. 455; Hanna v. Pollock, [1900] 2 Ir. R. 664; Baily v Clark, [1902] 1 Ch 668; Sharp v. Wilson, 1905, 93 L. T. 155; 21 T L. R. 679. Referred to, Burrows v. Lang, [1901] 2 Ch. 509. Dictum not adopted, Ormerod v. Todmorden Mill Company, 1882, 11 Q. B. D. 160.

[748] wood and another v. waud and others. April 26, 1849.- A riparian proprietor has a right to the natural stream of water flowing through the land in its natural state ; and if the water be polluted by a proprietor higher up tlie stream, so as to occasion damage in law, though not in fact, to the first-mentioned proprietor, itgives him a good cause of action against the upper proprietor, unless the latter have gained a right hy long enjoyment or grant. - Where the owner of land through which a stream flows has within twenty years built mills upon its bank, and applied the water of the stream to the working of them, he may recover upon an issue raised, by a traverse of an allegation that his right to the water was " by reason of the possession of the mills." - But no action will lie for an injury by the diversion of an artificial watercourse, where, from the nature of the case, it is obvious that the enjoyment of it depends upon temporary circumstances and is not of a permanent character, and where the interruption is by a person who stands in the nature of a grantor. Where water has flowed in an artificial arid covered watercourse for more than sixty year's from a colliery into an immemorial and natural stream, upon whose banks the plaintiff's mills are situated, the plaintiff, in such case, has no right for diversion of the water of such artificial watercourse against a party through whose laud it passes, but who does not claim under or who is unauthorised by the colliery owners. The case, however, would be different if the water were polluted ; and the abstraction of water to the amount of 5 per cent., or its detention so as to occasion sensible inconvenience, will support an action for such injury. [S. C. 18 L. J. Ex. 300 ; 13 Jur. 472. Approved, Greutrex v. Haywant, 1853, 8 Ex. 29 1 ; Broadbent v. Itamsbot/mm, 1856, 11 Ex. (502; llamenhw Perxhatl Narai/n Situjh v. Koonj Behari Pattuk, 1878, 4 A. 0. 121 ; Kensit v. (treat Eastern liailway, 1883, 23 Ch. D. 570; M'Evoy v. Great Northern Hallway of Ireland, [1899] 2 Ir. E. 333. Applied, Chamber Colliery Company v. Ifopwoad, 188(i, 32 Ch. D. 549; M'Cflone v. Smith, 1888, 22 L. K. Ir. 568; Hunting v. Hicks, 1894, 7 K. 293; 70 L. T. 405 ; Hannv, v. Pollock, [1900] 2 Ir. R. 6G4; Baily v. Clark, [1902] 1 Ch. 068; Sharp v. Wilson, 1905, 93 L. T. 155; 21 T. I*. K 679. Referred to, Burrow* v. Lang, [1901;] 2 Ch. 509. Dictum not adopted, Ormerod v. Todmorden Mill Company, 188:4, n q. B. D. 160.] Case. The first count of the declaration stated, that the plaintiffs were lawfully possessed of certain mills, lands, and premises, and, by reason thereof, of right ought to enjoy the advantage of the water of a watercourse called the Bowling Beck, which ought to have run arid flowed in great abundance arid purity, and without the disturbance, pollution, and heating thereinafter mentioned, to the said mills, &c., of the plaintiffs, to supply the same with water for working them, and enjoying the said land and premises, and other necessary purposes ; yet the defendants wrongfully discharged and poured into, and mixed with the water of the said watercourse, above and near1 to the said mills, &c., quantities of foul, noxious, impure, and offensive materials, to wit, lee$ of soap, and the washings, filth, and refuse of wool, to wit, wool which the defendants had washed near and above the said mills, itc., and other dirt, tilth, and impurity, and also discharged and poured into, and mixed with the water of the said watercourse quantities of hot water, by means whereof the water of the said watercourse was rendered foul, dirty, heated, spoiled, and unfit to be used for working the said mills, or for the enjoyment of the said lands and premises, or other the said necessary 1048 WOOD V WAUD 3 EX. 749 purposes, and sufficient water in quantity and punty, and otheiwise in pioper [749] condition as afoiesaid, did not run to the said nulls, &c, as it ought to have done, arid otherwise would ha\edone, and the plaintiffs were greatly damnified, &c The second count stated, that the plaintiffs weie lawfully possessed of certain othet mills, lands, premises, arid hereditaments, and by teason thereof ought to enjoy the watei of the said watei course called the Bowling Beclc, which ought to have run and flowed in great abundance, and without the disturbance and inteiruption thereinafter mentioned, unto the said last-mentioned mills, &c , for the same purposes as before, yet the defendants wrongfully, to wit, by placing and laying on the bed of the said watercourse quantities of eaith, clay, stone, and other materials, and coritrriuing the same so placed and laid, and by means of drams, channels, and excavations, prpes, passages, and cloughs, made and placed in the giound above and near the said last-mentioned mills, &e , which drains, &c , communicated with the said watercourse, obstructed, and turned, and diew off quantities of watei of the said watei course, above and neat the sard last-mentioned mills, &c , and diverted and turned other quantities of the water of the said watercourse away fiom the said last mentioned mills, &c , and detained and kept back, and hindered the water from flowing in its usual course, by leason whereof the watei of the said watercourse, sufficient for the working of the said last-mentioned nulls, &c, and the enjoyment of the said last mentioned lands and premises, and the said other purposes, did not How to the plaintiff's last-mentioned mills, &c , as it otherwise would have done , and the plaintiffs were greatly damnified, &n The third count stated, that the plamtitts were lawfully possessed of certain othei mills, works, lands, premises, and hereditaments, and ought to enjoy the advantage of the watei ol another watercourse called the Bowling Hough, which ought to have run and flowed in greaty plenty and abundance, and without the disturbance and interruption thereinafter mentioned, [750] unto the said last-mentioned mills, &c, foi the same purposes as before , yet the defendants wrongfully, to wit, by means of a drain or channel which they had made to communicate with the said last-mentioned watercouise, near ta and above the said List-mentioned mills, &c , and by means of a steam-engine and machinery of theirs, near to and communicating with the said drain or channel, pumped up and drew ott from the said last-mentioned watercourse quantities of watei abo\ e and near to the said last-mentioned mills, &c , and wrongfully diverted and turned quantities of water away fiom the said last mentioned mills, &c , and wrongfully wasted, disposed of, and consumed other quantities of water which would otherwise have flowed to the said last-mentioned mills, &c , and stopped and hirideied the water of the said last-mentioned watercourse from running and flowing in its usual course to the said last-mentioned mills, &c , and supplying the same with water for working the same, &c , as it othei wise would have done, &o , and by reason theieof the plarntiffs were greatly damnified, &c The fourth count stated, that the plaintiffs were lawfully possessed of ceitain other mills, woiks, lands, premises, and hereditaments, and ought to enjoy the advantage of the water of a certain other watercouise, to wit, a watercourse called the Bowling Beck, which had been, and of light ought to be, in pait composed of and supplied with water by a watercourse flowing into and joining the same, above and near the said lastVmentroned mills, &c, to wit, a watercouise called the Low Moor Sough, and which stream, called the Bowling Beck, ought to have inn and flowed in great plenty and abundance, arid composed and supplied as aforesaid, and without the disturbance arrd interruption thereinafter mentioned, unto the said latt-mentioiied mills, &c , foi the same purposes as befoie, yet,the defendants wiong-fully diverted and turned quantities of the watei of the said watercourse called the Low Moot Sough, which other-[751]-\vise would have flowed into the Bowling Lieck, awa\r from the same, by causing the said quantities of watei of the said Low Moor Soiugh to pass and flow from the said watercourse, near and above its junction with th^ said Bowling Beck, and near and above the said last-mentioned mills, &c , into arid through channels, excavations, and passages in the ground communicating with the said Low Moor Sough arid with a reservorr of the defendants, and wrongfully kept and detained the said water, to vut in the said reservoir, and by such diverting, turning, keeping, and detaining, wrongfully obstructed and hindered the water of the same watercourse fiom flowing in its usual course into the said Bowling Beck, and the water of the said Bowling Beck from running or flowing in its usual couise and magnitude, and so composed and supplied as afoiesaid, to the said last mentioned uulla, Ac , and, by leason of the committing of the said grievances, the water of the 3EX.T52. WOOD V. WAUD 1049 Bowling Back, sufficient for the working &c., could not flow &c., and the plaintiffs were greatly damnified, &c. The defendants pleaded, first, not guilty...

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