176 FLOWING WATER. 



consider a correct exposition of the law. And if the right to tlie 

 enjoyment of nndergronnd springs, or to a well supplied thereby, is to 

 he governed by the same law, then undoubtedly in this case the 

 defendants could not justify the sinking of the coal-pits (which laid the 

 well dry), and the direction of the learned judge Rolfc B. would be 

 wrong. There is, however, a marked and substantial difference be- 

 tween the two cases, and they are not to be governed by the same rules 

 of law." The Court then went on expressly to state, that it intimated 

 no opinion whatever as to what the rule of law would be if there had 

 been an uninterrupted use of the plaintiff's right for more than the 

 last twenty years. But Parlce B. observed, upon Adon v. BlundcU 

 being cited in the argument in Broadhcni v. Ramshotham : " That case 

 decided that there is no right to a well unless the water has been used 

 for twenty years. This Court, and I believe all other courts, dis- 

 a])prove of that part of the judgment which denies the natural right to 

 tlie water." Coleridge J. referred to this dictum with approbation, in 

 Chasemore v. Richards, in order to show that he was not without 

 authority when he " ventured to disagree with what is laid down in 

 Actuii V. BlandeU, both as to the nature of the property in subteiTanean 

 waters, and as to the reasonableness of acquiring a right to use them, 

 as against the landowner in the way of a servitude upon his land." 



The following statement of the law with regard to the right to flowing 

 water in Emhrey v. Owen was finally ado[)ted by the Exchequer Chamber 

 in Chasemore v. Richards: " The laiv as to flowing ivater is now put on 

 its right footing by a series of cases, beginning with Wright v. Howard, 

 followed by Mason v. Hill, and ending with that of Wood v. Waud (3 

 Exch. 773); and is fully settled in the American Courts. The right to 

 have the stream to flow in its natural state without diminution or altera- 

 tion is an incident to the property, in the land through which it passes ; 

 but flowing water is 2mt)Iici Juris, not in the sense that it is honum vacans, 

 to which the first occupant may acquire an exclusive right, but that it 

 is public and common in this sense only, that all may reasonably use it 

 who have a right of access to it, that none can have any property in 

 the water itself except in the i)articular portion which he may choose 

 to abstract from the stream and take into his possession, and that 

 during the time of his possession only {Mason v. Hill). But each 

 proprietor of the adjacent land has a right to the i/sufrwf of the stream 

 which flows through it." "The right of each proprietor of the adjacent 

 land to the usufruct of the stream which flows through it is not an 

 absolute right to the flow of all the water in its natural state ; if it 

 were, the argument which has been used that every abstraction of it 

 would give a cause of action would be irrefragable ; but it is a right 



