RIPARIAN RIGHTS. 171 



the use of the three new ones. He did not thereby abandon his right : 

 he only exercised it in a different spot, and a substitution of that nature 

 is not an abandonment. He has a right, therefore, under this declara- 

 tion, to recover in respect to the old pond. The right alleged is a right 

 to have the uninterrupted flow of certain surplus water into a pond ; 

 and that right is equally proved, w^hethcr it be by prescription, or lost 

 grant, or under Lord Tenterden's act. The declaration means no more 

 than this, that the plaintiff" has a right to the overflow of water either 

 in one pond or three ponds." And ^m' Rolfe B. : " The declaration 

 means only that the plaintiff' has a right to have certain land covered 

 with water, and no abandonment of the right has been proved. If the 

 plaintiff had even filled up the pond, that would not in itself amount to 

 an abandonment, although, no doubt, it would be evidence of it." If 

 one has ?a\Q'\Q,\\i\y cattk i)oiHh which are replenished by a rivulet, he may 

 cleanse them, hut he cannot change or cnJarge them so as to divert the 

 water from its ancient course to the damage of another {Brown v. Best). 

 And so a person whose Jand is occasionally liable to injury hy the over- 

 floiv of river ?mi'«-,hasno right in his mode of protecting himself against 

 that injury to produce injury or damage to his neighbours in respect of 

 the course of the same water {Rex v. Trafford). And the case of {Frcmhmi 

 V. Earl Falmouth shows that Not guilty only puts in issue the actual 

 diversion of the water. 



A right to mtter is not destroyed because the plaintiff had three years 

 before slightly altered the course of the stream at a point between its exit 

 from the defendant's land, where the obstruction took place, and its 

 entrance upon his own land ; neither is the ancient right lost by desue- 

 tude, because more than twenty years before, the stream had ceased 

 to flow to the plaiutiff^'s lane, and had resumed its ancient course only 

 nineteen years before the commencement of the action {Hall v. Stvift). 

 Tindal C.J. observed that it would be very dangerous to hold that a 

 party should lose his right in consequence of such an interruption ; and 

 that if such were the rule, the accident of a dry season, or causes over 

 which the party could have no control, might deprive him of a right 

 established by the longer course of enjoyment. 



The right of landoivners on the banlcs of a stream to appropriate u-cder, 

 was first specially considered in Bealey v. Shaw. That case established 

 the principle that the owner of land through which a river runs cannot, 

 by enlarging a channel of certain dimensions through which the vrater 

 had been used to flow before any appropriation of it by another, divert 

 more of it, to the prejudice of any other landowner lower down the 

 river, who had at any time before such enlargement appropriated to 

 himself the surplus water which did not escape by the former channel. 



