17-i WATER NOT IN A FLOWING STllEAM. 



each bank of a stream is the proprietor of half the land covered by 

 the stream ; but there is no property in the ^vate^. Every proprietor 

 has an eqnal right to use the water which Hows in the stream, and con- 

 sequently no proprietor can have t/ie ritjlit to use the water to the prejudice, 

 of anil other proprietor. AVitliout the consent of the other proprietors, 

 who may be affected by his operations, no proprietor can either diminish 

 the quantity of water which would otherwise descend to the pro- 

 prietors below, or throw the water back upon the proprietors above. 

 Every proprietor, who claims a right either to throw the water back 

 above, or to diminish the quantity of water which is to descend below, 

 must, in order to maintain his claim, either prove an actual grant or 

 licence from the proprietors affected by his operations, or must prove 

 an uninterrupted enjoyment of twenty years, which term is now adopted 

 on a principle of general convenience, as affording conclusive evidence 

 of a grant. An action will lie at any time within twenty years, when 

 injury happens to arise in consequence of a new purpose of the party to 

 avail himself of his common right." 



Lord Dcaman C.J. (who expressed himself as entirely concurring in 

 Lord Tenterden's judgment), after reviewing Bealey v. Shaiv, Saunders 

 V. Kewman, Wittiams v. MoreJand, and Liijejins y. Inge, thus remarked 

 on those cases in Mason v. HiJl: " Xone of these dicta, when properly 

 understood with reference to the cases in which they were cited, and 

 the original authorities in the Roman Law, from which the position 

 that water is jmltici juris is deduced, ought to be considered as autho- 

 rities that the first occupier, or first person who chooses to appropriate 

 a natural stream to a useful purpose, has a title against the owners of 

 land below, and may deprive him of the benefit of the natural flow of 

 water." 



In Dickinson x. Grand Junction Canal Gompany (which, with Balston 

 V. Benstead, arc the only two cases in the books which supjjort a claim 

 to icater not in a ftowing stream) the Court of Exchequer decided in 

 favour of the plaintiffs, the owners of ancient mills, who were entitled 

 to the use of two streams for the working of their mills, against the 

 defendants, who had abstracted subterranean water, wliicli had ncA'cr 

 reached the streams, but would have done so in its natural course but 

 for the excavation of a well and pumping from it ; and whether such 

 water was part of an underground watercourse, or percolated through 

 the strata, the Court held that the abstraction Avas equally actionable. 

 Awd per Poltock C.B. : " We consider it as settled law, that the right to 

 liave a stream running in its natural course is not by a presumed grant 

 from long acquiescence on the part of the riparian proprietors above 

 and Ijelow, but is ex jure natures {Shurey v. Piyyot, Tyler v. Wilkinson), 



