APPROPRIATION OP RUNNING WATER. 173 



private uses by ai^propriation, should again become puhlici juris by the 

 mere act of relinquishment. There is nothing unreasonable in holding 

 that a right which is gained by occupancy should be lost by abandon- 

 ment. Suppose a person who formerly had a mill upon a stream 

 should pull it down and remove the works, w'ith the intention never to 

 return. Could it be held that the owner of other lands adjoining the 

 stream might not erect a mill and employ the water so relinquished ? or 

 that he could be compellable to pull down his mill if the former mill- 

 owner should afterwards change his determination and wish to re-build 

 his own?" (7 Bing. 082). 



In Mason v. Hill (5 B. &, Ad.), the proposition for which the plaintiff 

 contended was, that the possessor of land through ivMch a natural stream 

 runs, has a rigid to the advantage of that stream ftoicing in its natural 

 course, and to use it when he pleases, for any purposes of his own, not 

 inconsistent with a similar right in the proprietors of land above and 

 below — that neither can any proprietor above diminish the quantity or 

 injure the quality of the water which would otherwise descend, nor can 

 any proprietor below throw back the water without his licence or grant ; 

 — and that whether the loss by diversion of the general benefit of such 

 a stream be or be not such an injury in point of law as to sustain 

 an action without some special damage, yet, as soon as the proprietor of 

 the land has applied it to some purpose of utility, or is prevented from 

 so doing by the diversion, he has a right of action against the person 

 diverting. The defendants, on the contrary, maintained that the right 

 to flowing water i&puhlici juris, and that the first person who can get 

 possession of the stream, and apply it to a useful purpose, has a good 

 title to it against all the world, including the proprietor of the land 

 below, who has no right of action against him, unless such proprietor 

 has already applied the stream to some useful purpose also, with which 

 the diversion interferes ; and in default of his having done so, may 

 altogether deprive him of the benefit of the water. 



The Court of Qaeen's Bench held that the defendants did not acquire 

 a right hy their appropriation, against the use which the idaintijf after- 

 wards sought to make of the under ; and hence the proprietor of lands 

 contiguous to a stream may, as soon as he is injured by the diversion of 

 the water from its natural course, maintain an action against the party 

 so diverting it ; and it is no answer to the action that the defendant first 

 appropriated the water to his own use, unless he has had twenty years' 

 undisturbed enjoyment of it in the altered course. Lord Tenterden C.J. 

 rested the decision of the Court mainly on the judgment of Sir John 

 Leach V.C, in Wright v. Howard: "The right to the use of water 

 rests on clear and settled principles. Prima facie, the proprietor of 



