than before. "The merely obtaining a temporary control over the water does not impose on the owner of the land the obligation of keeping it, nor prevent him from restoring it to the strata from whence it came, unless he makes it flow differently" (w). Escape by accident or superior If water collected upon land be discharged over the adjacent land by some accident or superior agency over which the owner has no control, he would not be liable for force. the consequences; as was held in the case of a reservoir of water being destroyed and washed away by an extraordinary storm of rain, which could not reasonably have been anticipated, although if it had been anticipated, the effect might have been prevented; for an extraordinary storm like an earthquake, might be called an act of God or ris major, meaning thereby some event that it was practically impossible to anticipate or to resist. "The ordinary rule of law is that when the law creates a duty and the party is disabled from performing it without any default of his own, by the act of God, the law will excuse him; but when a party by his own contract creates a duty, he is bound to make it good notwithstanding any accident by inevitable necessity" (x). Where a dock company were empowered to cut through the bank of a tidal river for the purpose of drawing the water through an artificial channel, it was held that they were bound to keep the retaining wall of their works at the regulation height of the river bank; and that they were liable for the damage caused by an overflow of water through the defective height of their wall; but that they were not chargeable with the excess of damage due to an extraordinary tide which rose above the regulation height (y). And where a reservoir was overflowed by the irruption of water from the emptying of an adjoining reservoir, the owner (w) Brett, L. J. West Cumberland Iron Co. v. Kenyon, L. R. 11 C. D. 788; 48 L. J. Č. 793. (x) Per cur. Nichols v. Marsland, L. L. R. 2 Ex. D. 1; 46 L. J. Ex. 187. L 1 Water collected in houses. Extraordinary floods. was held not to be liable for the damage; for that it was caused by the act of a stranger, which he could not anticipate or control (z).—So if the act done is ordered or authorized by Act of Parliament and done properly and without negligence, there is no liability for damage caused by it, except as may be provided for in the Act (a). Where several tenants occupy parts of the same house in which water is collected or laid on for the benefit of all, they are presumed, as between themselves, to share in common all risk of escape of the water arising from the construction or failure of the cistern or pipes. There is no mutual obligation beyond that of taking reasonable care in the use of the water; nor any liability to one another except for negligence (b). Nor has the landlord any greater liability to the tenants, in respect of the water collected in the house for the benefit of all, unless he has contracted with them for its safety; and an escape of water by the bursting of a pipe was held not to be a breach of the covenant of the landlord for quiet enjoyment (c).—Where the water from the roof of a house was collected in a cistern upon an upper storey, and the water escaped through a hole in the cistern made by a rat, and damaged the goods upon the ground floor; it was held that the owner of the house, who had let off the ground floor, retaining the upper part of the house in his own occupation, was not liable for the damage done; for that "the accident was due to vis major as much as if a flash of lightning or a hurricane had caused the rent" (d). In the case of an extraordinary flood of water, every man has the right of defending his own property, although L. J. Q. B. 270; see Sterens v. Woodward, L. R. 6 Q. B. D. 318; 50 L. J. Q. B. 231. (2) Box v. Jubb, L. R. 4 Ex. D. 76; 48 L. J. Ex. 417. (a) Dixon v. Metrop. Board, L. R. 7 Q. B. D. 418; 50 L. J. Q. B. 772; Evans v. Manchester, &c. Ry. 57 L. J. C. 153. (b) Carstairs v. Taylor, L. R. 6 Ex. 217; 40 L. J. Ex. 129; Ross v. Fedden, L. R. 7 Q. B. 661; 41 (c) Anderson v. Oppenheimer, 49 L. J. Q. B. 708; L. R. 5 Q. B. D. 602. (d) Carstairs v. Taylor, L. R. 6 Ex. 217; 40 L. J. Ex. 129. in doing so he turns the water on to the property of another. Accordingly, the proprietors of a canal were held to be justified in excluding flood water, not produced by any feeder of their own canal, which consequently flowed over the adjacent land of others. And it seems that even in the case of a natural watercourse the riparian proprietor is entitled to protect himself by keeping off extraordinary floods (e). Floods of ordinary recurrence cannot be diverted from their usual and ordinary course to the injury of others. "At common law landholders would have the right to raise the banks of a river or brook from time to time, as it became necessary, upon their own lands, so as to confine the flood water within the banks and to prevent it from overflowing their own lands; with this restriction, that they did not thereby occasion any injury to the lands or property of other persons" (f). After flood water has finally settled upon land, and no longer threatens a common danger, the owner of that land must bear the loss and has no further right to discharge the water upon the land of others. Where a flood brought down water which lodged against the embankment of a railway and threatened to destroy it, it was held that the company were not entitled to protect the embankment by cutting trenches through it and letting off the water on to the adjacent land (g). (e) Nield v. London & N. W. Ry., L. R. 10 Ex. 4; 44 L. J. Ex. 15. (f) Per cur. Trafford v. The King, 8 Bing. 211. (g) Whalley v. Lancashire Ry. Co., L. R. 13 Q. B. D. 131; 53 L. J. Q. B. 285. Property in natural streams. CHAPTER X.-continued. SECTION 2.-RUNNING WATER. Property in natural streams-remedies of riparian owner-streams below the surface. Rights of ordinary use by riparian owners-diverting water for extraordinary use. Rights acquired in excess of riparian rights-rights acquired by nonriparian owners. Property in bed of stream-change of bed-encroachment on bed. Public navigable river-riparian rights upon navigable river-obstructions to navigation-change of course-private navigable rivertowing path. Water running in a natural stream is not a subject of absolute property. A riparian land owner is entitled on the one hand to have the water flow, but he is obliged on the other hand to receive it and to let it flow, in its natural state; as expressed in the maxim "aqua currit et debet currere ut currere solebat"; and he has only a limited right to use the water as it flows (a). The rights of the riparian owner in the stream are a natural incident of his property in the land; and they pass by a conveyance of the land without express mention. Where the owner of land containing a spring and stream of water sold and conveyed the lower part of the land through which the stream flowed, it was held that the purchaser acquired the ⚫ right to the flow of the stream and the vendor retained no right to divert it at the source, although there was no mention of the water in the deed of conveyance (b). (a) Per cur. Wood v. Waud, 3 Ex. 775; Embrey v. Owen, 6 Ex. 353; Dickinson v. Grand Junction Canal, 7 Ex. 299; Medway Nav. Co. v. Romney, 9 C. B. N. S. 575. (b) Canham v. Fisk, 2 C. & J. 126. -Accordingly it is held that where a natural stream is diverted or taken for some public undertaking under the compulsory powers of the Lands Clauses Act, 1845, the claim for compensation to be made under the Act is not for land or property taken, but for "injuriously affecting" land by depriving it of the use of the stream (c). riparian owner. A riparian owner can maintain an action for any Remedies of sensible interference with the stream in its natural course, which prevents the flow to his land, or diminishes the quantity, or obstructs the discharge; unless it can be justified as a legitimate use of the water by another riparian owner. In such action he is entitled to, at least, nominal damages, and he can recover full damages for loss actually sustained by being deprived of the use that he in fact makes of the water for any lawful purpose (). He may further claim an injunction to restrain such interference in the future, although the damage hitherto has been only nominal (e). below the Water running in a natural stream below the surface of Streams the land is subject to the same rules of law as water surface. running on the surface, so far as the different circumstances permit. "The owner of the soil under which the stream flowed could maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover if the stream had been wholly above ground” (ƒ). A riparian owner has the right of taking and consuming Rights of water from a natural stream for the ordinary use of his ordinary use. (e) 8 & 9 Vict. c. 18, s. 68; Bush v. Trowbridge Waterworks Co., L. R. 10 Ch. 459; 44 L. J. C. 235; Stone v. Yeovil, L. R. 1 C. P. D. 691; 45 L. J. C. P. 657. (d) Per cur. Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. D. 159; 52 L. J. Q. B. 445; Kensit v. Great Eastern Ry., L. R. 27 C. D. 130; 54 L. J. C. 22. (e) Mellish, L. J., Clowes v. (f) Per cur. Dickinson v. Grand |