No. 3. - Harrop v. Hirst.

if there is an obstruction in its nature permanent. If acquiesced in for twenty years, it would be evidence of a renunciation and abandonment of the right of way. That is the ground upon which a reversioner is allowed to bring his action for an obstruction, apparently permanent, of lights and other easements which belong to the premises." Now, it is impossible to deny that if this defendant, being occupier or owner of land through which the stream of water flows to this spout, had from time to time during a period of twenty years abstracted large quantities of water, and had even left this spout insufficiently supplied with water to meet the exigencies of the inhabitants for domestic purposes, that after that lapse of time such acts would constitute evidence of a right in derogation of their right, and which might put an end to all practical possibility of the establishment of it at law.

Under these circumstances, I think, although we must take it, after the finding of the jury, that no particular individual damage has been sustained by the plaintiffs, an action is nevertheless maintainable by the plaintiffs as inhabitants of the district for the invasion of the general right of the inhabitants of the district to a supply of water from this spout for domestic purposes, and I base my opinion more especially upon the grounds I have adverted to, as expressed in the note to the case of Mellor v. Spateman, supra.

MARTIN, B. I am of the same opinion. I think this case is indisputably within the doctrine laid down in the notes to Mellor v. Spateman, supra, and I have always thought that the doctrine there laid down was perfectly correct.

BRAMWELL, B. I am of the same opinion.

CHANNELL, B. I also am of the same opinion. It appears to me that the law is correctly laid down in the proposition that has been cited from the notes to the case in Williams's Saunders, and that that proposition goes a long way to determine the present case. It seems that where an indictment may be maintained for a common nuisance, that is, for that which is an injury to all the Queen's subjects, there is no remedy by action unless you can prove individual damage. That is undisputed law. But I am not aware that the same rule is applied where it has not been an injury to the whole of the public in contravention of the law, but an injury to the inhabitants of a particular district. On the other hand, it has been conceded, and cannot be denied, and it is laid down in the notes to Mellor v. Spateman, supra, that if there is an

actual injury to the right, that then the action is maintainable. But it is said that here there is an injury to the right; and it is replied that when the injury to the right exists, there must be some proof of individual or personal injury to the plaintiff himself. I take the verdict of the jury to amount to this, that there was the right existing and an injury to that right in point of law, but that it was not attended with any pecuniary loss, or any extraordinary expenditure of time or labour in getting the water. It merely comes to this, that because the plaintiff did not want the water on this particular day, or did not go for it, or it was supplied from some other source, therefore pecuniary loss or pecuniary expenditure did not arise, and no question in respect of loss of time and labour could arise. Now, it was conceded, as I understand, that in the case of one of the other inhabitants who did go to the spout on the particular day in question and found the water abstracted by the defendant, and could not therefore obtain the supply of water, there would be such damage or loss in his case as would entitle him to maintain the action. It clearly follows from that that other persons than the plaintiffs inhabiting the district, and so entitled to this right to the supply of water, had their right interfered with and put in jeopardy by the acts of the defendant. If so, then that would be some evidence against the plaintiffs of a right in the defendant in derogation of their rights. If this right had been exercised for a sufficiently long period against the will of the inhabitants of the district, then the plaintiffs, as two of such inhabitants, might be prevented from making good their right. Therefore I think there was here such an invasion of the plaintiffs' right as entitles them to maintain this action, although they sustained no personal damage or pecuniary loss.

Rule discharged.

ENGLISH NOTES.

The principle of the ruling case is so well established as to need little comment. The note in Saunders referred to by MARTIN, B. (p. 550, supra), is as follows: "Wherever any act injures another's right, and would be evidence in future in favour of the wrong-doer, an action may be maintained for an invasion of the right without proof of any specific injury." And this rule is deduced from the cases of Wells v. Watling 2 Black. Rep. 1233; Hobson v. Todd, (1790) 4 T. R. 71 (2 R. R. 335); and Pindar v. Wadsworth, (1802) 2 East, 154 (6 R. R. 412). In Mar

zetti v. Williams (1830), 1 B. & Ad. 415, it is observed by TAUNTON, J. (p. 426): Trespass quare clausum fregit is maintainable for an entry on the land of another, though there be no real damage, because repeated acts of going over the land might be used as evidence of a title to do so, and thereby the right of the plaintiff might be injured. So an action may be maintained by a commoner for an injury done to his common, without proving actual damage." The principle was applied by the Court of Common Pleas in Bower v. Hill (1835), 1 Bing. N. C. 549, where defendants, having erected on their own premises a permanent obstruction to a navigable drain leading from a river through defendant's premises to plaintiff's close, it was held that an action lay, although the portion of the drain which passed through the plaintiff's close had for sixteen years been completely choked up with mud. The same principle is assumed and applied throughout the train of cases carried on in recent years for the protection of commons, of which the case of Robertson v. Hartopp (C. A. 1889), 43 Ch. D. 484, 59 L. J. Ch. 553, may be taken as a sample. The form of action (or suit) in those cases was, in order to obtain an injunction, adapted to the practice of the Court of Chancery, one of the injured class suing "on behalf of himself and all other" persons of the class. The application of this form of suit to this class of cases was invented, and first successfully carried out (with the advice and concurrence of the leaders of the Bar from time to time) by Mr. Phillip H. Lawrence, then a solicitor (since called to the bar), whose firm and their successors, Messrs. Horne & Hunter, and Horne & Birkett, appear in the reports of all the cases as the solicitors of the plaintiffs.

It will be observed that in the judgment of CHANNELL, B., in the ruling case, it is stated to have been conceded that, where an indictment may be maintained, there is no remedy by action without proof of individual damage. This will appear hereafter under the ruling case of Ricket v. Metr. Ry. Co. (No. 7, infra). The distinction is that, in the cases under the above rule, the injury affects the plaintiff, not as one of the public generally, but as one of a particular class or section of persons.

AMERICAN NOTES.

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The principal case appears to have been scantily cited in this country, and in its exact circumstances the violation of a quasi-public customary right in water, and a recovery therefor by one of the public class entitled to its benefits, although he has suffered no personal damage thereby, on the ground that a continuance of the violation might ripen into a prescriptive rightdo not discover any American case precisely parallel with it.

we

In Crooker v. Bragg, 10 Wendell (New York), 260; 25 Am. Dec. 555, NEL

SON, J., observed: "A person through whose farm a stream naturally flows is entitled to have the whole pass through it, though he may not require the whole or any part of it for the use of machinery. Upon any other principle, this right to the stream, which is as perfect and indefeasible as the right to the soil, would always depend upon the use, and a party who did not occupy the whole for special purposes would be exposed to have the same diverted by his neighbour above him, without remedy, and which diversion, by twenty years' enjoyment, would ripen into a prescriptive right beyond his control, and thereby defeat any subsequent use." The same doctrine of the power to vindicate the right against hostile prescriptive acquirement or defeat is clearly declared in Amoskeag M. Co. v. Goodale, 46 New Hampshire, 53; Stein v. Burden, 24 Alabama, 130; 60 Am. Dec. 453; Blanchard v. Baker, 8 Greenleaf (Maine), 253; 23 Am. Dec. 504; Ripka v. Sergeant, 7 Watts and Sergeant (Penn.), 9; 42 Am. Dec. 214.

The principal case is cited, with apparent approbation, by Washburn (Easements, 570), but no American cases are cited to its doctrine.

*

There seems to be a conflict between the text-writers. Gould (Waters, § 214) cites it to the point, that "Actual nominal damages need not be shown in order to support an action for any extraordinary and unreasonable use of the water by a riparian owner, when the act complained of, if continued, would bar the plaintiff's right, and nominal damages may be recovered in order to prevent the acquisition of an adverse title by prescription." This is supported by that author by a great number of American authorities, of which it will be sufficient to name the following; Munroe v. Stickney, 48 Maine, 462; Lund v. New Bedford, 121 Massachusetts, 286; Crooker v. Bragg, 10 Wendell (New York), 260; 25 Am. Dec. 555; Seeley v. Brush, 35 Connecticut, 424; Hulme v. Shreve, 3 Green (New Jersey Eq.), 116; Gladfelter v. Walker, 40 Maryland, 1; Graver v. Sholl, 42 Penn. St. 58; Dumont v. Kellogg, 29 Michigan, 422; 18 Am. Rep. 102; Plumleigh v. Dawson, 1 Gilman (Illinois), 544; Stein v. Burden, 29 Alabama, 127; 69 Am. Dec. 394; Watson v. Van Meeter, 43 Iowa, 76; Cory v. Silcox, 6 Indiana, 39; Little v. Stanback, 63 North Carolina, 285; Chapman v. Copeland, 55 Mississippi, 476; Green v. Weaver, 63 Georgia, 302; Creighton v. Evans, 53 California, 55; Smiths v. McConathy, 11 Missouri, 517; Amoskeag M. Co. v. Goodale, 46 New Hampshire, 53; Haas v. Choussard, 17 Texas, 588. In many of these cases the precise point was not decided, but their leaning is that way.

On the other hand, Mr. Bigelow (Lead. Cases on Torts, p. 518) says: "In general, it is probably true that where a right is exactly defined, any infraction will be ground for an action entitling the plaintiff to nominal damages at least. Thus in the case of a right to the possession of land, no one can lawfully put foot upon the soil of another without permission, express or implied; and for every infraction of this right an action may be maintained, though the owner of the land suffered no damage whatever. Williams v. Esling, 4 Barr (Penn.), 486. But the right of usufruct in running streams is incapable of any such exact definition, and the courts can only say that where the plaintiff has sustained actual injury from an undue use of the water, he has a ground of action; short of this he has not." Mr. Bigelow criticises the contrary doctrine

of Crooker v. Bragg, 10 Wendell, 260, but that doctrine was followed and approved in Parker v. Griswold, 17 Connecticut, 288; 43 Am. Dec. 739; Davis v. Fuller, 12 Vermont, 178; 36 Am. Dec. 334.

In Parker v. Griswold, supra, it was explicitly held that a lower riparian owner might recover nominal damages for the diversion of a natural stream by an upper proprietor, "notwithstanding he has sustained no perceptible or actual damage by such diversion." This is a very learned examination, citing many English cases, including Bowen v. Hill, 1 Bing. N. C. 549, and also Webb v. Portland Manuf. Co., 3 Sumner (United States Circ.), 190; Blanchard v. Baker, 8 Greenleaf (Maine), 253; 23 Am. Dec. 504; Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pickering (Mass.), 241; Whipple v. Manuf. Co., 2 Story (United States Circ.), 661; and Allaire v. Whitney, 1 Hill (New York), 487, in which COWEN, J., approves Crooker v. Bragg, supra, and cites the opinion of POWELL, J., in Ashby v. White, 2 Ld. Raym. 948, and observes: "But actual damage is not necessary to an action. A violation of right with a possibility of damage forms the ground of an action." Mr. Bigelow approves Parker v. Griswold, supra, and also Sampson v. Hoddinott, 1 Com. B. N. S. 590, and does not seem to discuss the question of damage by reason of the assertion of a right which may grow into a prescription. He admits that in case of a "permanent diversion an action may be maintained without proof of actual damage, citing Parker v. Griswold. Judge Cooley does not cite the principal case in his work on Torts.

No. 4.- WEDGEWOOD v. BAILEY.

(K. B. AS COURT OF ERROR, 1782).

RULE.

A PLAINTIFF recovers according to the right which he has at the time of bringing the action.

Wedgewood v. Bailey.

Sir T. Raym. 463.

Trover by five, and before verdict one of them dies, and they proceed to trial, and verdict for the plaintiffs, and then the plaintiffs suggest that one of them is dead, and pray judgment for the rest, and had it; and the defendants bring a writ of error and assign for error, that the party died before verdict, and so a verdict was given for a dead person. And after argument at the bar, judgment was reversed, because every man shall recover according to the right which he hath at the time of the bringing the action; and therefore if the heir brings an ejectment and his ancestor dies