Diverting water for extraordinary use. tenement; he may take the water for domestic use, as for drinking, washing, and the like purposes; also he may take water for watering cattle. The extent of his right is limited in general by what is reasonable under the circumstances, regard being had to the similar rights of all other riparian owners. A riparian owner is entitled to take and consume sufficient water for ordinary domestic purposes, of washing and drinking, whatever quantity of water may be thereby exhausted (g). A railway company, as riparian owners, may take the water in reasonable quantities for supplying locomotive engines and other requirements of a railway station; leaving sufficient for all other uses of the stream (h). But a railway company was restrained from taking the water of a river for the use of a large station in quantities which in the judgment of the conservators of the river impeded the navigation (i).—A riparian owner is not entitled to take water for purposes not connected with his own land; as in the case of a waterworks company taking the water of a stream for the supply of a neighbouring town (k), or riparian owners taking water for the supply of a county lunatic asylum (7). A riparian owner may divert the water of a stream for extraordinary uses, provided he returns it to the natural stream before it leaves his land, not materially diminished in quantity, or affected in quality, or delayed in delivery, to the sensible injury of the other riparian owners. He may thus divert and use the water for irrigating the land, or for working a mill or factory (m). Nor does the diver (g) Cairns, L. C., Swindon Waterworks v. Wilts Canal, L. R. 7 H. L. 704. See Roberts v. Richards, 50 L. J. C. 297; Norbury v. Kitchin, 9 Jur. N. S. 132; 3 Fost. & F. 292. (h) Sandwich v. Great N. Ry. Co., L. R. 10 C. D. 707; 49 L. J. C. 225. (i) Att.-Gen. v. Great Eastern Ry., L. R. 6 Ch. 572. (k) Swindon Waterworks Co. v. Wilts & Berks Canal, L. R. 7 H. L. 697; 45 L. J. C. 638. (Medway Co. v. Romney, 9 C. B. N. S. 575. (m) Embrey v. Owen, 6 Ex. 353; Sampson v. Hoddinott, 1 C. B. N. S. 590; 26 L. J. C. P. 148; Kensit v. Great Eastern Ry., L. R. 27 C. D. 122; 54 L. J. C. 19; L. Blackburn, Orr-Ewing v. Colquhoun, L. R. 2 Ap. Ca. 856; Cairns, L. C., Swindon Waterworks Co. v. Wilts & Berks Canal, L. R. 7 H. L. 704. sion and use of the water on his own land disentitle him from discharging it as before, provided he does not alter the mode of discharge, or increase the obligation of the other riparian owners in receiving it (n).-The rights of a riparian owner are summarily stated as follows: "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land; for instance, to the reasonable use of water for 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 he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition he may dam up a stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept 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" (0). excess of rights. A riparian owner may acquire rights in excess of his Rights acnatural riparian rights, by grant or prescription. He may quired in thus acquire the right to divert the stream wholly or in natural part from some or all of the lower riparian owners, and appropriate the water to his own use. "The general rule of law is that every man has a right to have the flow of water in his own land without diminution or alteration. But an adverse right may exist founded on the occupation of another. And though the stream be either diminished in quantity or even corrupted in quality, yet if the occu (n) West Cumberland Steel Co. v. Kenyon, L. R. 11 C. D. 782; 48 L. J. C. 793; Frechette v. St. Hyacinthe Co., L. R. 9 Ap. Ca. 170 (0) L. Kingsdown, Miner v. Gilmour, 12 Moore P. C. 156, adopted by the Court in Nuttall v. Brace- Rights acquired by owner. pation of the party so taking or using it have existed for so long time as may raise the presumption of a grant, the other party whose land is below must take the stream subject to such adverse right" (p). But such occupation and use of the water in excess of riparian rights has no operation against other riparian owners, unless it obstructs or interferes with the actual exercise of their rights in a manner to raise a presumption of a grant; for the other riparian owners, though they may grant away or release their rights, do not lose them by mere non-exercise, and they may abstain or begin to exercise them whenever they please (7). A riparian owner who thus acquired the right of diverting the stream adversely to other riparian owners becomes absolute owner of the water pro tanto and may appropriate it to any new use; and in an action for obstructing the natural stream he may claim damages in respect of the extended use of the water, "for it is the necessary effect of every appropriation of running water to a new and more beneficial use that a wrongful diversion or abstraction entails a larger measure of liability" (r). The rights of a riparian owner as such, are so insepanon-riparian rately incident to the possession of the land that they cannot be granted to a non-riparian owner separately from the land, so as to give the grantee any rights of taking water as against other riparian owners; such a grant would be valid only against the grantor himself (s). But where a riparian owner has diverted the stream through an artificial watercourse for working a mill or other extraordinary use (which he is entitled to do subject to the rights of other riparian owners as to the return of the water,) he may grant and convey the mill and watercourse to another, who will thereby acquire a position similar to that of a (p) Ellenborough, C. J. Bealey v. Shaw, 6 East, 214; Leach, V.-C., Wright v. Howard, 1 S. & S. 190. (9) Sampson v. Hoddinott, 1 C. B. N. S. 611; Roberts v. Richards, 50 L. J. C. 297. (r) Holker v. Porritt, L. R. 10 Ex. 59; 44 L. J. Ex. 52. (s) Stockport Waterworks v. Potter, 3 H. & C. 300; Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. D. 155; 52 L. J. Q. B. 445. riparian owner with the same rights (t). And a nonriparian owner who can obtain access to the stream by means of a pipe or watercourse through riparian land may draw water from the stream and use it, provided that he returns it to the stream in the same place, quantity and condition so as not sensibly to interfere with the rights of any of the riparian owners; though he may have none of the rights of a riparian owner entitling him as against them to complain of an interference with the stream (u). bed of stream The property in the bed of an inland river or natural Property in stream presumptively belongs to the owner of the banks through which it flows. Where the property in the opposite banks is in different persons, each of them is presumptively the separate owner of the bed of the stream on his side, usque ad medium filum aquæ (r). This presumption of ownership may be displaced by evidence of exclusive ownership of the whole bed of the river in the owner of one of the banks; and acts of ownership in other parts of the bed of the river similarly situated, of such a kind as to raise a reasonable inference of one ownership of the whole, are admissible evidence (w). In a case where the land in question was originally manorial land, and the fishery of the river had from time immemorial been let to tenants as a separate tenement distinct from the riparian land, the tenants of which had never exercised any right of fishing or other proprietary rights in the river, it was held that the presumption of ownership of the bed of the river in the riparian grantees was rebutted (r). A like presumption applies in the construction of conveyances. (t) Nuttall v. Bracewell, L. R. 2 Ex. 1; 36 L. J. Ex. 1; Swindon Waterworks Co. v. Wilts and Berks Canal, L. R. 7 H. L. 697; 45 L. J. C. 638. (u) Kensit v. Great Eastern Ry., L. R. 27 C. D. 122; 54 L. J. C. 19; Ormerod v. Todmorden Mill Co., L. R. 11 Q. B. D. 155; 52 L. J. Q. B. 445. (v) Hale, De Jur. Maris, Hargr. Tracts, pp. 5, 12; Bickett v. Morris, L. R. 1 Sc. Ap. 47. (w) Jones v. Williams, 2 M. & W. 326. (x) Devonshire v. Pattinson, L. R. 20 Q. B. D. 263; 57 L. J. Q. B. 189. Change of bed. Where the land conveyed is described as bounded by a river, the presumptive construction is that the bed of the river to the mid le line passes with the land; and this presumption prevails although the land is described by reference to a map in which it is marked or coloured exclusively of the river, and although it is further described by measurement excluding the river. The presumption may be rebutted by circumstances showing a contrary intention at the time of the conveyance, but not by subsequent circumstances (y). It is said that the riparian rights in a stream are not a mere incident of the property in the bed, but attach also to a riparian owner who has no property in the bed of the stream; and that "the water may be lawfully appropriated by every one having a right of access to it. It is of course necessary for the existence of a riparian right that the land should be in contact with the flow of the stream, but lateral contact is as good, jure naturæ, as vertical" (-). But the right to take water from a stream flowing over a bed which is exclusively the property of another seems rather to be an acquired easement than a natural incident of the property in the bank (a). If the banks of an inland stream change by imperceptible detrition or accretion the property in the bed and the rights of riparian owners change with the course of the stream; but if the change be made perceptibly then the ownership of the soil remains according to the former bounds (6). Accordingly the right of fishing which is presumptively incident to riparian property ad medium filum aquæ shifts with the medium filum upon a gradual accretion to one of the banks (c); and an exclusive right of fishery over the whole bed of a river shifts in the same way (d). "The law is based upon the impossibility of identifying (y) Micklethwait v. Newlay Bridge Co., L. R. 33 C. D. 133. (2) L. Selborne, Lyon v. Fishmongers' Co., L. R. 1 Ap. Ca. 683. (a) See post, p. 226. (b) Hale, De J. Maris, Hargr. Tracts, p. 5. (e) Zeiland v. Glover Incorp. Perth, L. R. 2 Sc. Ap. 70. (d) Foster v. Wright, L. R. 4 C. P. D. 438; 49 L. J. C. P. 97. |