These are the leading rules which settle the rights connected with ways on the surface. The words of the Act for shortening the time of prescription, as it affects rights of way, will be found under that head. A form of the lease of a way-leave is also inserted in the Appendix. As to way-leaves underground, they are generally made the subject of special stipulatio, and in consequence, it is presumed, of this practice, there has been comparatively little litigation on the subject, and no leading case can be brought forward upon any peculiar points arising out of disputes under this head. CHAP. VII. RIGHTS CONNECTED WITH THE FLOW OF WATER. By the law of England water flowing in a stream is publici juris, that is to say, a thing the property in which belongs to no individual, but the use of it to all. An individual can only acquire a right to it, by applying so much of it as he requires for a beneficial purpose, leaving the rest to others, who, if they acquire a right to it by subsequent appropriation, cannot lawfully be disturbed in the enjoyment of it. Primâ facie the proprietor of each bank is the proprietor of half the land covered by the stream, but there is no property in the water itself. Every proprietor has an equal right to use the water. Consequently, none can have the right of using the water to the prejudice of another, nor can he lawfully diminish the quantity which would otherwise descend to those below, nor throw back the water upon those above, unless he has a grant or licence from the persons affected by such acts, or by proving an uninterrupted enjoyment of such right for twenty years. This period of twenty years has been adopted in the statute 2 & 3 Wm. IV. c. 71, for shortening the time of prescription in certain cases. The second section enacts that "no claim to any watercourse, or the use of any water, where such shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated by showing only that it was at first enjoyed at any time prior to such period; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such shall have been enjoyed for the full period of forty years, the right shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing." For the other enactments or provisoes of this statute the reader is referred to the chapter on Prescription. After the erection of works, and the appropriation, by the owner of the land of the water flowing over it, if a proprietor of other land afterwards takes what remains of the water before unappropriated, the owner above, whatever he might have done before, cannot afterwards appropriate more to himself than he had done.* The exclusive right to a flow of water once acquired can only pass by grant as an incorporeal hereditament. A licence, verbal or otherwise, to use or take the water at any place, may be revoked, even without an express power of revocation being reserved, unless works have been constructed and expenses incurred on the faith of it.† Bealy v. Shaw, 6 East, 208. No proprietor of the banks of a stream has a right to diminish the quantity or injure the quality of the water, to the detriment of other owners on the other parts of the banks. If he does so, the remedy is by way of an action on the case for the special injury. For in such a case the plaintiff must be able to show either that some benefit arose to him from the water going through his land, of which he has been deprived, or at least that some deterioration was occasioned to the premises by the abstraction of the water. If the proprietor can thus show that he is injured by the diversion of the water, it is no answer to the action to show that the defendant was the first person who appropriated it to his own use, unless he has had twenty years' undisturbed enjoyment of it in its altered course. In short, any appropriation of water which injures any other proprietor, must be set up by grant or prescription, and until so established may be successfully resisted.* But the alleged injury must not be imaginary. If the water be deprived of noxious matter (produced by a discharge of such matter into it above), before it reaches the land of an owner below, there can be no ground for action.† If water be heated, and sent down to a proprietor below in that heated state, a sufficient injury is thereby incurred to form the ground of an action. But undoubtedly the right to disturb flowing water and render it noxious by the washing of minerals, or to *Bealy v. Shaw, 6 East, 208. † Elmhirst v. Spencer, 2 Mac. & G. 45. alter the rate of its current, or to divert and discharge it lower down, may be acquired by uninterrupted user.* But in a recent case, Acton v. Blundell (12 M. & W. 324), it has been held that the owner of land through which water flows in a subterraneous course, has no right or interest in it which will enable him to maintain an action against a landowner who, in carrying on mining operations in his own land in the usual manner, draws away the water from the firstmentioned owner and lays his well dry; the well having been sunk within twenty years from the commencement of the action, and therefore no title having been acquired by user and prescription. A vast amount of learning was brought to bear in the discussion of this leading case, which is a very important one. The plaintiff had brought his action for the disturbance of certain underground springs, streams, and watercourses, which he said ought of right to flow and percolate into his closes for supplying certain mills with water, He further complained of the draining off of a spring or well of water, in a close of his, by the possession of which close, as he alleged, he ought, of right, to have the benefit and enjoyment of that spring or well. The defendants denied the alleged rights. It was proved that within twenty years from the commencement of the action, a former owner and occupier of the plaintiff's land had sunk a well in that land in order to raise water to work his mill, and that the defendants about sixteen years * Wright v. Williams, 6 M. & W. 77. |