complained of is the diminution of the water conveyed down the streams to the reservoirs to mills Nos. 1 and 3, caused by certain works of the defendant. The streams must be considered respectively. In 1832 the plaintiff erected mill No. 1, and placed the reservoir on an old watercourse shewn upon the plan. It flows down from a place called the Long Acres, and derived some supply of water from the two sources which will be now adverted to. The land slopes principally from the right to the left of the plan. The arrows shew more accurately the direction of the slopes. At the right hand, about the top of the plan, at the spot marked D, upon moor land just outside the defendant's property, was a wet, spongy spot. At most seasons of the year some water rose to the surface, and sufficient collected to flow down the slope of the land. It took the direction down a hollow place inside of the wall along the course of the blue dotted line to the Slacks farm house. In times of wet a great body of water flowed down, and after a long drought there was hardly any, and sometimes none. There was no regular formed ditch or channel for the water, the place where it flowed being constantly trodden in with cattle. There was at times a drinking place for cattle at the corner of the field near D., but unless kept clear it was soon trodden in with cattle. Near to the Slacks there was a channel cut, which conveyed the water into a trough there, which the water flowed through and supplied the house. The water after leaving the trough took no particular direction. It either flowed over the meadow down the slope of the land, or the tenant of Slacks made it flow through the manure heap and then over the meadow; or at times of a great flow of water the tenant turned it to the back of the house, through a hole in the fence, or cut a channel to carry it off, whichever was most convenient: but whichever direction was given to the water, so much of it as was not absorbed by the land (and all was not absorbed except in times of VOL. XI. C C EXCH. 1855. RAWSTRON บ. TAYLOR. 1855. RAWSTRON v. TAYLOR. drought) found its way down the slope of the land into a ditch which carried it to Long Acres and thence down the old watercourse. The water had flowed in the manner above described for more than twenty years before the act of the defendant complained of, in fact, as far back as living memory could speak to. The defendant, for the purpose of procuring a supply of water to some property belonging to him, situate toward the bottom of the plan, and at the same time draining his land, laid many pipes in his field, as shewn by the pink dotted lines; and one drain was laid up to the point D., off his own land, and this took the water away which would otherwise have flowed down by the Slacks in the manner stated, and diminished the supply of water to the reservoir to mill No. 1. This is one of the acts of diversion complained of; and if the plaintiff is, under the facts stated, entitled to maintain an action in respect of it, the damages are, by consent, assessed at 57. 58. The other source from which some supply of water was derived was at the point K. in the Lower Barn Field, not far from Long Acres. There had always, as long as any one could recollect, been water rising to the surface there. There had generally been a regular drinking place for cattle formed with stones, and the overflow of the water went down into the ditch near K., on the right of the Long Acres meadow, and flowed to Long Acres and there supplied a trough, and then flowed down the watercourse. There had been a trough in the Long Acres field about the point marked "Old Well," which had been supplied with water by a drain from the ditch. The defendant carried one of his drains under the spot K., where the water had formerly collected on the surface, and by so doing conveyed the water, which had formerly risen to the surface, to the property at the bottom of the plan before referred to, and since that was done there had been no more water rise to the surface there, and the supply which the reservoirs formerly derived from that source has been taken away. If the plaintiff is entitled to maintain an action in respect of the taking of the water, the damages are, by consent, assessed at 51. 58. The interference with the water also complained of by the plaintiff, relates to the supply of water to the reservoir to mill No. 3. For much more than twenty years before the act complained of, an old drain, shewn by the yellow dotted line, had opened at the point H. into an ancient watercourse, coloured yellow. This watercourse, after joining another at the point B., flowed to the point A., and thence contributed to supply the plaintiff's reservoir to mill No. 3, from the time of its erection in the year 1845; and, as this drain at its upper portion passed through some springy ground, there was generally water flowing down it which ran along the watercourse and helped to supply the reservoir. The defendant, a short time before the commencement of the action, caused to be constructed at the point marked L., a tank or well, which he had the means of locking up, and of which he kept the key, and this was so constructed as to enable him to send the water collected in it in the direction down either of the dotted pink lines, or down the old drain (dotted yellow line) leading to the point H., and he caused the old drain to be stopped up near to the well, and the water flowing down it from above to be turned into the well. By this means the greater portion of the water which had formerly flowed down the old drain was conveyed into the well, and, as the defendant before the commencement of the action had caused all the water collected in the well to flow down one or other of the channels dotted pink, the act of the defendant in stopping the drain had undoubtedly caused the supply of water to the plaintiff's reservoir to mill No. 3 to be diminished. The drain shewn by the yellow dotted line was originally constructed by the owner or occupier for the purpose of draining the land, and it does not appear to have been repaired or kept in order by any other person at any time. 1855. RAWSTRON v. TAYLOR, |