172 WATER FLOWING IN A STREAM, PUBLICT JURIS. 



And per Lo Blanc J. : " The true rale is that after the erection of 

 ■works, and the appropriation by the owner of the land of a certain quan- 

 tity of the water flowing over it, if a pro}n-ietor of other land afterwards 

 take what remains of the water before unappropriated, the first-mentioned 

 owner, however he might before such second appropriation have taken 

 to himself so much more, cannot do so afterwards" (6 East. 215). 



This rule was cited by Holroijd J., in Saunders v. Newman, which 

 decided : That the occupier of a mill may maintain an action for forcing 

 bacJc water and injuring his mill, although he has not enjoyed it precisely 

 in the same state for twenty years. And therefore it was holden to be 

 no defence to such an action, that the occupier had within a few years 

 erected in his mill a wheel of different dimensions, but requiring lesg 

 water than the old one, although the declaration stated the plaintiff to 

 be possessed of a mill, without alleging it to be an ancient mill. It 

 was laid down in Williams v. Morcland, that flowing water is publici 

 juris, and that an individual can only acquire a right to it by appro- 

 priating so much of it as he requires for a beneficial purpose, and that 

 therefore the plaintiff could not recover damages for the mere erection 

 of a dam higher up the stream, which prevented the water from run- 

 ning smoothly in its usual course, and caused it to run in a different 

 channel, and with greater violence, though it did not, according to the 

 finding of the jury, cause any damage to the banks and premises of the 

 plaintiff. Lifllcdale J. said : " Water is of that peculiar nature that it 

 is not sufficient to allege in a declaration that the defendant prevented 

 the water from flowing to the plaintiffs premises. The plaintiff must 

 state an actual damage accruing from the want of the water. The mere 

 right to use the water does not give a party such a property in the new 

 water constantly coming, as to make the diversion or obstruction of 

 the water, per se, give him any right of action. All the king's subjects 

 have a right to tlic use of flowing water, provided that in using it they 

 do no injury to the rights already vested in another by the appropria- 

 tion of the water." 



Tindal C.J. said in his judgment in Liggins v. Inge, " Water flowing 

 in a stream, it is well settled, by the law of England is jwhlici juris. 

 By the Roman Law, running water, light, and air, were considered as 

 some of those things which had the name of res communes, and which 

 were defined ' things the property of which belong to no person, but 

 the use to all.' And by the law of England, the person who first 

 appropriates any part of the water flowing through his land to his own 

 use, has the right to the use of so nmch as he thus approju-iates, against 

 any other {Bealeg v. Siuiw). And it seems consistent with the same 

 principle, that the water after it has been so made subservient to 



