rect proof of witnesses as to the genuineness of the handwriting. They are not to be taken as direct proof to establish the paper, but merely as corroborative of such direct proof or as a circumstance in a case of this character, where such direct evidence had been first given, proper for the consideration of the jury. Besides the English authorities referred to, we think the admission of such testimony, under such circumstances and for such purpose, is sustained by the majority of American cases, few as they are, in which this question has directly arisen, been considered and expressly decided. Turner v. Hand, 3 Wall. Jr., 92; Taylor Will Case, 10 Abbott's Pr. Rep. 300; Johnson v. Brown, 51 Tex. 65; Beadles v. Alexander, 9 Bax. 604.

The motion to dismiss is overruled. This is not an appeal from an order or decree of an Orphans' Court, which must be taken within thirty days from the date of the order, and the record transmitted within thirty days from the date of the appeal, as required by Rule XIII (29 Md. 6), but is an appeal from a "determination of a court of law," from which an appeal may be taken within nine months from its date, and the record transmitted within six months after the appeal, as provided by Rule II (29 Md. 1). Appeals from rulings of a court of law on a trial of issues sent from an Orphans' Court have always been treated as falling under the last cited rule, and under that the appeal and transmission of the record in this case were in time.

Ruling affirmed and cause remanded.

The defendants were owners of a mill at a distance from a river, the water of which they conducted to their mill through a pipe laid by them in the land of a riparian owner. The right to lay the pipe was given to them by that owner by a deed, which purported to grant to them the right to lay water pipes in and through the land to the river. In an action by a riparian owner against the defendant for taking water out of the river and returning it diminished in quantity and deteriorated in quality: Held, on appeal, that the plaintiff was entitled to succeed, as the defendants were not riparian owners, but had a mere easement to lay the pipe, and that the riparian owner, through whom they claimed could not grant his riparian rights, except as against himself.

Appeal of the defendants from the judgment of Cave, J., on further consideration.

The action was brought by the plaintiffs, who were riparian owners, against the defendants for taking water out of the Burnley River, and return

ing it diminished in quantity and deteriorated in quality.

It appeared that the defendants were millowners, their mill being at a distance from the river, and they conducted the water of the river to their mill by means of a big pipe laid through the land of a riparian owner named Scholfield.

The right to lay the pipe was given to the defendants by that owner by a deed, whereby he granted and demised to them for a term of years, "the right, liberty, authority and privilege to place, fix or lay water-pipes in and through a certain plot of land *" to the river. The further facts sufficiently appear in the following judgment of

*

*

CAVE, J.-The plaintiffs in this case are riparian owners on the Burnley River, and have for many years been in the habit of conducting water from the river to their mill, and there using it for condensing purposes, and they complain that the defendants have injuriously affected their rights as such riparian owners by conducting part of the water of the river to the defendants' mill, where some of it is used or lost, and the remainder is returned to the river in a heated condition, so that the quantity of the water, when it arrives at the plaintiffs' land, is sensibly diminished, and its quality deteriorated. The evidence adduced by the plaintiffs was very loose and vague, that of the defendants was more precise, and according to their witnesses, the following appear to be the facts of the case.

The Burnley River is a small stream, and there was no satisfactory evidence as to what was the average quantity of water running down it. The defendants are not riparian owners, but by means of a pipe laid through the land of a riparian owner above, about fifty yards above the plaintiffs' intake, they conduct thirty-eight feet of water per minute to their works.

This water they use for condensing purposes, and after using it, they return thirty-seven feet of it per minute to the river, three or four yards below the point at which it was taken out, and the water is consumed at the defendants' works, or lost whilst passing to and from them. [His lordship then commented on the evidence and continued:-]

Upon this evidence I asked the jury-first, assuming the defendants not to be riparian owners, or entitled to the same rights as riparian owners, but to be mere strangers, does the use made by them of the water sensibly affect, or is it, if continued, capable of sensibly affecting, the plaintiffs' right to have the stream flow to their clow undiminished in quantity and undeteriorated in quality? and, secondly, assuming the defendants to be riparian owners, or to be entitled to the same rights as riparian owners, is the use made by them of the water a reasonable use under all the circumstances of the case? These questions put to the jury were submitted to the counsel on either side, who stated they could not suggest any alteration or addition.

The jury found, in answer to the first of these questions: "We are agreed that the water is affected, but the plaintiffs have failed to show that for practical purposes they are sensibly damaged." They answered the second question in the affirmative. Looking at the evidence and the questions put, I understand the first answer to mean that the plaintiffs' right as riparian owners to have the water flow undiminished in quantity, and undeteriorated in quality, without reference to any actual use they may make of it, was sensibly affected; but that, looking to the use they actually made, or could practically make, of the water, they had not sustained, and would not in the future sustain, any substantial damage, so long as the water is not affected further than it is at present affected by the defendants; or, in other words, that what the defendants do is not suffi cient of itself to produce substantial damage to the plaintiffs, but that it is of a nature, if done to a sufficient extent, to produce substantial damage, and, consequently, that in that way the right of the plaintiffs is affected.

The first contention of the defendants was that proof of substantial damage was necessary to the maintenance of the action, and, consequently, that upon these findings they are entitled to the verdict. Now, whatever the case might be, if what is here complained of had been done by the defendants accidentally on a single occasion, I am of opinion that as the defendants claim to do this continuously as a matter of right, it is not necessary for the plaintiffs to prove that they have sustained actual damage. Wilts, etc. Canal Navigation Co. v. Swindon Waterworks Co., 22 W. R. 445; 24 Ib. 284; L. R. 9 Ch. 451; 7 H. L. 697. If twelve other parties were to use the water in the same way, and to the same extent as the defendants. it can not be doubted that the plaintiffs would sustain substantial and serious injury; yet if this contention of the defendants is correct, the plaintiffs would have no remedy against any one of the thirteen, because no one of them alone caused substantial damage. If I am right in this view, it is incumbent on the defendants to justify their interference with the plaintiffs' rights by showing, either that they are themselves riparian owners, in which case the finding of the jury in answer to the second of the above questions would entitle them to the verdict, or that, if not riparian owners, they are nevertheless entitled to affect the plaintiffs' rights to the same extent as they might have done if they were riparian owners. Now, it is admitted that the defendants are not riparian owners, but they have a grant from a riparian owner of the right to lay a pipe into the bed of the river for the purpose of conveying water through the land of such riparian owner, and they have the unwritten consent of the other owners of the land, between the land of the riparian owner and the defendants' mill, to their continuing this pipe through the lands of such intervening owners to their mill.

I will first consider a very curious contention

put forward by Mr. Ambrose. He asserted that all persons who have lawful access to running water have a right to use it for all reasonable purposes, on the ground that running water is the property of all mankind. For this proposition he cites Liggins v. Inge, 7 Bing. 692, where Chief Justice Tindal lays it down that, "Water flowing in a stream, it is well settled by the law of England, is publici juris." By the Roman law, running water, light and air are considered as some of those things which had the name of res communes, and which were defined, "things, the property of which belongs to no person, but the use to all." And, by the law of England, the person who first appropriates any part of the water running through his land to his own use, has the right to the use of so much as he thus appropriates against any other. He also cited Chief Baron Pollock, in Wood v. Waud, 3 Ex. 775, who says: "Flowing water, as well as light and air, are, in one sense, publici juris. They are a boon from Providence to all, and differ only in their mode of enjoyment." So, again, Mr. Baron Parke, in Embrey v. Owen, 6 Ex. 369, says: "Flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only." So, again, in Wilts, etc. Canal Navigation Co. v. Swindon Waterworks Co., Lord Justice James says: "All streams, however, are publici juris, and all the water flowing down any stream is for the common use of mankind who live on the banks of the stream." In the Roman law, running water, along with air and the sea, was deemed to be a res communis (Justinian Inst., lib. 2, tit. 1, s. 1), while rivers and harbors were res publicæ. Ib., s. 2. Vinnius, in his Commentary on the Institutes, 4th ed., at p. 125, describes the use of “aqua profluens" as "ad lavandum et potandum unicuique jure naturali concessa." Owing, however, to the greater demand for water for manufacturing purposes, it has been found necessary in our law to limit the right to running water; and, as is pointed out in Mason v. Hill, 3 B. & Ad. 304, and 5 Ib. 1, running water can no longer be said to be publici juris in the original sense of the words. In Orr Ewing v. Colquhoun, L. R. 2 App. 854. Lord Blackburn points out that the case of Mason v. Hill settled the law that the proprietor of land on the bank of a natural stream above the flow of the tide has, incident to his property in the land, a proprietary right to have the stream flow in its natural state, neither increased nor diminished, ard this quite independently of whether he has yet made use of it, or, as it used to be called, appropriated the water. In Miner v. Gilmour, 7 W. R. 328; 12 Moo. P. C. C. 156, Lord Kingsdown says that "by the general law applicable to running streams, every

as

riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land-for instance, to the reasonable use of the water for his domestic purposes and for his cattle-and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury."

Since these decisions, the dicta of Chief Justice Tindal in Liggins v. Inge, cited above, can no longer be regarded as law; nor can running water be properly said to be publici juris. This is pointed out in the notes to Coryton v. Lithelebye, 2 Wms. Saund. 114, note (g.), where it is said, "A mistaken notion appears to have prevailed for some time that the right to flowing water is publici juris, and that the first occupant of it for a beneficial purpose may appropriate it, and thereby gain a good title against all the world, excluding the proprietor of the land below, who may thereby be deprived of the benefit of the water, unless he has already applied the stream to some useful purpose.”

There remains, however, a more serious contention-namely, that a riparian proprietor, as a part of his right to wha: Lord Kingsdown calls the extraordinary use of the water, may sell or give it to persons who are not riparian proprietors, subject to the limitation which applies to the use of it by himself for extraordinary purposes-namely, that he does not thereby interfere with the lawful use of the water by other proprietors, and inflict upon them a sensible injury.

As to this contention, it seems to me that the decision of the majority of the court in Stockport Waterworks Company v. Potter, 3 H. & C. 300; 12 W. R. Dig. 119, is in point as expressly deciding that a riparian owner cannot, except as against himself, confer on one who is not a riparian owner any right to use the water of the stream, and that any user of the stream by a nonriparian proprietor, even under a grant from a riparian proprietor, is wrongful, if it sensibly affects the flow of the water by the lands of other riparian proprietors. The case of the Stockport Waterworks Company v. Potter, was discussed in Nuttall v. Bracewell, L. R. 2 Ex. 1; 15 W. R. Dig. 125, and also in Holker v. Porritt, 21 W. R. 414; 23 Ibid. 400; L.. R. 8 Ex. 107; 10 Ibid. 59, but is not, I apprehend, overruled by either of those cases, and is, therefore, binding upon me, and in accordance therewith I hold that the defendants have not acquired any rights as against the plaintiffs to the use of the water of the Burnley River.

There must, therefore, be judgment for the plaintiffs.

Then, as to the claim to an injunction. The defendants have offered to submit to an injunction so far as the sale of the water by them to Fielding is concerned. As regards the use by the defendants themselves, I am of opinion that no injunction should be granted. In the first place, the plaintiffs have acquiesced for a long time in the user of the water by the defendants. In the second place, the amount of water abstracted by the defendants, and the extent to which it is heated, are capable of being ascertained, and, therefore, the observations of Mr. Justice Fry in Pennington v. Brinsop Hall Coal Company, 25 W. R. 871; L. R. 5 Ch. D. 769, as to the injury varying from day to day, do not apply with the same force. In the third place, the plaintiffs have accepted compensation from Messrs. Horsfall & Stevenson, and from Messrs. Shepherd, thus showing that in their opinion it is not impossible to fix the compensation for the future injury.

I have not been asked by either of the parties to award damages by way of compensation for the future injury. Indeed, I have been asked by the plaintiffs not to do so, and, therefore, I make no such award.

If, however, I ought to make such an award, then, looking at the facts that the defendants make use of double the quantity of warter which the other two mill-owners do, but that their outlet is fifty yards from the plaintiffs' intake, while the outlet of the other two mills is only thirty-three yards from the the plaintiffs' intake, I should arrive at the conclusion that the amount the defendants ought to pay should be calculated proportionately to that which has been fixed by agreement between the plaintiffs and the other two millowners, and should, therefore, be £200. As I have said, however, I abstain from awarding this sum, and only name £200, in order that if the court of appeal should be of opinion that I ought to have awarded compensation for the future injury, they may be in possession of my view as to what the amount of the compensation ought to be.

There must, therefore, be judgment for the plaintiffs, with costs, and an injunction to restrain the defendants from continuing to convey the water to Fielding, or permitting him to take it through their pipes.

Both parties appealed.

April 9.-The defendants' appeal came on for hearing.

C. Russell, Q. C., Ambrose, Q. C., and Henn Collins, for the defendants. Gully, Q. C., Crompton, Q. C., and Aspland, for the plaintiffs.

BRETT, L. J.-I am of opinion the judgment appealed from should be affirmed, and upon two grounds. First, because there seems to have been ample evidence that the plaintiffs were riparian owners, and therefore, so far as this appeal is concerned, we must treat them as such. And, second, I think there was no evidence at all that the defendants were riparian owners. Therefore

the case must he tried on the footing that the plaintiffs were and the defendants were not such owners. Having regard to those two facts we are to determine in what way judgment is to be entered on the findings of the jury, and that will oblige us to consider what is the meaning of those findings. I should take their meaning to be that attributed to them by the learned judge. (His lordship read the questions left to the jury, and the findings upon them.) Now we have to apply these findings to the facts of this case, where the rights of the plaintiffs, who are riparian owners, have been sensibly affected by the defendants, who are not such owners.

they

The question has been raised whether, assuming the defendants to be riparian owners, nevertheless the plaintiffs would be entitled to recover in this action. It was suggested that, even though they were such owners, yet inasmuch as were using the water for manufacturing purposes, those purposes were within the proposition laid down by Lord Kingsdown, as being what he called an "extraordinary use" of the water-that is, not the original natural use of the water by the land-owner-and therefore it did not signify whether they used the water reasonably or not, but they would be bound so to use it as not sensibly to diminish it in quantity or alter its quality as it passed the plaintiffs. If I were clearly of opinion this use of the water was to be treated as an extraordinary use within that proposition, I should have thought the suggested result followed. But I am shaken by the argument of the defendants' counsel, that whether the purpose is ordinary or extraordinary must depend upon the development of the use of the water and of the land, and therefore that that which was once an extraordinary purpose may become an ordinary one. I am inclined to adopt what has been stated, that, although in an agricultural country the mere accidental use of water for manufacturing purposes may still be an extraordinary use, yet where a district has become a manufacturing district, so that the only use of the water would be for those purposes, the manufacturing purposes will become the ordinary purposes. If, therefore, the defendants were riparian owners, and the use of the water for the purposes of the mill was to be treated as an ordinary use, I am not prepared to say the findings of the jury would not in the circumstances have given the defendants the right claimed. But I desire not further to determine that question, because, as I am of opinion the defendants are not riparian owners, it does not arise for decision.

The question, therefore, is, whether the defendants must be considered to be riparian owners, or whether, if they are not, they can rely upon their rights as if they were. Whether they were so or not, seems to depend more upon the cases of Nuttall v. Bracewell, and Holker v. Porritt, than upon the case of Stockport Waterworks Co. v. Potter. In the two former cases the grounds of the decision were that both the plaintiffs and the de

fendants were riparian owners. It was held that some one had altered the condition of the river, and had made it of a new shape or form, so that, whereas it formerly ran in a single channel, it had been made to run a double channel, which was a new channel. But the court held that, inasmuch as it was still the river, so that all the water which came down the river went either down the new or the old channel, just as if they had been the original branches, the river was made to consist of a double branch, and, therefore, anyone who had ownership of the new branch was as much a riparian owner as those on the older branches. If they held that rightly, it was inevitable that they should hold that the person who had land on the new branch, was a riparian owner. To say that was not any part of the river, is to depart from the grounds of their judgment. It was contended that i was an easement. In the first place, it was not an easement. But then it was said it might have been just such a pipe as the one in question. The only answer to that is, that it might have been, but that if the judges held that, they held a very extraordinary thing. But if they did hold that, as a matter of fact, it does not alter the grounds of their judgment. They decided on the ground that it was a branch of the river. Therefore it seems to me neither of those cases establish that the present defendants are riparian owners. Whether they were or not, depends on the facts of the case.

Here, Scholfield was a riparian owner, and he granted a certain deed to the defendants. What the effect of that deed is, it is hardly necessary to consider, for it could not have given them any right to take the water at all. It was drawn in a mysterious way, because Scholfield did not want to make himself responsible for giving authority to take the water from the river. As against him I should have held that the deed did grant an easement in respect of the water. But the deed gave the defendants no ownership as to any part of the bank of the river, nor was it intended to do so. Therefore, the defendants are persons who have no property in anything which touches the bank of the river, but who have a mere easement to lay a pipe and to take the water. I am prepared to hold that does not make them riparian owners, and that they are not such, because they do not hold a single inch of the bank of the river.

The remaining question, therefore, is, whether, although the defendants are not riparian owners, they can, by reason of a grant from such an owner, assume to have the same rights as he has. That seems to me to turn upon whether the ground of the decision of the majority of the court in the case of Stockport Waterworks Co. v. Potter is good or not. In the judgment of Chief Baron Pollock, it is said: "There seems to be no authority for contending that a riparian proprie tor can keep the land abutting on the river, the possession of which gives him his water rights, and, at the same time, transfer those rights or any of them, and thus create a right in gross by as

signing a portion of his rights appurtenant. It seems to us clear that the rights which a riparian owner has with respect to the water, are entirely derived from his possession of the land abutting on the river. If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights. But if he grants away a portion of his estate not abutting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is, that he can have them against the grantor, but not so as to sue other persons in his own name for the infringement of them." Now that is the ground of the decision which was objected to by the very high authority of Mr. Baron Bramwell.

We have to determine whether we agree with the majority of the court or with the view of Mr. Baron Bramwell. The Chief Baron seems to have foreseen the case of Nuttall v. Bracewell and the other case. He says: "The case where a riparian proprietor makes two streams instead of one and grants land on the new stream, seems to us analogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river." Now it was adopting that proposition that the judges in Nuttall v. Bracewell decided the person was a riparian owner. But, looking at that case, let us see whether the judges who decided the case of the Stockport Water Works Co. v. Potter, with regard to this power of granting away the water rights while keeping the land abutting on the river, altered their opinions. Mr. Baron Channell says he should still feel himself bound by that case, even if he did not agree with it, and he gave this reason. He says, when speaking of the restrictions of the rights of riparian owners by persons who are not such owners, "It would go well nigh to destroy his rights altogether, for that can scarcely be called a right which is subject to to an indefinite restriction, unascertained and, practically, unascertainable. I consider that the rights of a riparian proprietor, with respect to the stream, are limited only by those of persons in a similar or analogous position, with respect to the stream as himself. These rights he can easily ascertain, and by that means ascertain his own. But he has no means of ascertaining who may be grantees, or what may be the value of their grant. If, therefore, a riparian proprietor grants to some one, not such a proprietor, a right to abstract water from the stream, as in the Stockport Water Works' case, I think the grantee can sue only the grantor for any interference with him." I am prepared to say, for the reasons given by Mr. Baron Channell, that I agree with the majority of the court in the case of the Stockport Water Works Co. v. Potter, and that a person who is a riparian owner can not grant water rights to a person who is not, but that he can only grant them so far as he himself is concerned, and can not give

any rights to the grantee in respect of other riparian owners.

The law with regard to running water, and to the infringment of the rights of riparian owners in respect thereof, is a part of the common law of England, which is applicable only as between riparian owners and those who are not such owners. For these reasons I consider the judgment of Mr. Justice Cave is correct, and should be affirmed.

LINDLEY, L. J.-I am of opinion that this appeal should not succeed. Upon the facts, it appears to me that the verdict was right. We must take the plaintiffs to be riparian owners, but whether the defendants are such owners depends upon the meaning to be attached to riparian owners. Had they the possession or ownership of the soil which abuts on the soil of the river? The answer is that they had not. By the deed, Scholfield grants to them the right to lay down and keep a pipe in his land. But the deed does not say in terms anything as to what the pipe is to be used for, and Scholfield did not in terms grant a right to take any water. It seems to me the deed is carefully framed to avoid giving any such right. What is material is that Scholfield can take from this river as much water as he likes. If we were to hold the effect of the deed was to make the defendants riparian owners, and to confer on them the rights of such owners, we should in fact say that the owner of the bank of a river may give the rights of riparian owners to as many people as there can be laid pipes in the bank of the river.

can not see how it is practical to limit that by the doctrine that the rights of all the grantees should not together exceed that of the grantor. It appears to me the short answer to the question is that they are not riparian owners.

But have the defendants the rights of riparian owners? The deed does not purport to grant anything of the kind. Whether it can do so depends on the cases of the Stockport Water Works Co. v. Potter and Nuttall v. Bracewell. At present I am disposed to think that the decision of the majority of the court in the former case was right, and that the view of Mr. Baron Bramwell was not correct. It seems to me the right of a riparian owner in respect to water is incident to his proprietorship and possession of the land, and can not be a right in gross. It seems to me, therefore, that the defendants are not riparian owners, and have not the rights of such owners. The jury have found that they have interfered with this water to such an extent as to affect the plaintiffs' right, and that seems to me to give the plaintiffs a right of action. I am of opinion that Mr. Justice Cave was right in holding the plaintiffs' rights had been infringed by the defendants.

BOWEN, L. J.-I am of the same opinion. The action is brought for interference with the plaintiffs' right to the flow of water, and the question arises as to what are the plaintiffs and what are the defendants. The jury have found that the plaintiffs are riparian owners, and unquestionably