76 rXITY OF OWNERSHIP. 



that tlie (Icctl contaiiicJ only a licence to Sharp to take or use the 

 Avatcr aud soke, and that a covenant by defendants to send down the dye- 

 Tvater and soke from their mill to the land of Sharp conld not be implied. 



In Shnry v. Pigoit the defendant pleaded that the land over which 

 the water ran to a pool in the plaintiff's close, and the close itself, were 

 both part and parcel of the manor of ]\Iarkham, and that Henry VIII. 

 being seised of the said manor in his demesne as of fee, granted the 

 hind over Avliich the water ran to one under whom the defendant 

 claimed, and the question was whether unity of ownership in the king 

 had extinguished the easement. The whole Court agreed that the water- 

 course was not extinguished ; but Doddridge J. said "that a way, if it 

 Avcre a way of convenience, is extinguished, but not a way of necessity." 

 Coihom v. Fiflr, which was one of case for diverting a watercourse, also 

 turned on a unity of ownership. Up to 1811 the plaintiff's garden and 

 an adjoining close, in which a stream took its rise and floM'ed through 

 the garden, were the property of ]\rrs. Holford, and in one possession. 

 About that time the plaintiff purchased the garden and continued to 

 use the water till the obstruction complained of. The defendant sub- 

 sequently purchased the head of water and diverted it. Garrow B. 

 thought that the unitg of oicncrship dcstrogcd the prescrqAive right, and 

 nonsuited the plaintiff, and the Court of Exchequer made a rule for a 

 new trial absolute. 



Baglcg B. remarked in the course of the argument, " A unity of pos- 

 session merely suspends : a unity of ownership would destroy a title by 

 prescription, but here the ]>laintiff had enjoyed the water since 1811." 

 His lordship also seemed to intimate that if the owner of two closes sell 

 one with a run of water upon it, the vendor or any other person claim- 

 ing under him could not obstruct or divert that water ; and in reference 

 to the remarks of the counsel that there were but three ways of acquir- 

 ing a right to the water, viz., by prescription, which is disposed of by 

 tlie unity of ownership, actual grant, which was not produced, or a lost 

 grant, he added there was a fourth, by appropriation, and t.hat according 

 to Becdey v. Shaw, if a man find water running through his land, he 

 may appropriate it, and thus acquire a title to the water. And ^;er 

 Jjord Lgndhvrsf C.B.: "As the possession of the garden had been in 

 the plaintiff since 1811, such possession was evidence of a fee which 

 could only pass by grant, and a grant of the land would carry the water. 

 If the conveyance had been produced, and had been silent as to the 

 water, still the conveyance would have passed the water which flowed 

 over the land. And are we to assume that tiie water was excepted out 

 of the conveyance, merely because the conveyance was not produced ? " 

 Baylnj, B. added, "If T build a house, and having land surrounding it, 



