1S2 DIFFERENCE BETWEEN A DRAIN AND A WATERCOURSE. 



the fouling therein mentioned, yet that tlie defendant fouled the same, 

 &c. The facts only showed that plaintiffs by permission of a canal 

 company, made a communication from the canal to their own premises, 

 by which water got to those premises, and with which water they fed 

 their boilers ; and the defendant fouled the water of the canal, and by 

 the use of it plaintiffs* boilers were injured, defendant having no right 

 or permission to do this from the canal owners. The Exchequer 

 Chamber decided that the declaration disclosed no cause of action, 

 reversing the decision of the Court of Exchequer. 



According to all the authorities from the Digest downwards, there 

 is a difference in point of Jaw hetween a drain and any other tvatercoiirse. 

 Mayor V. Chadiciclc (11 Ad. & E. 571) shows that the law of easements 

 in respect of watercourses is generally the same whether they are natural 

 or artificial ; hwi that case is not altogether satisfactory, and inconsistent 

 with Arlacriyht v. Gcll (5 M. & W. 203). The latter turned upon the 

 riykt of the party receimny water drained from a mine to compel the 

 owners of the mine to continue such discharge ; and the court decided 

 that the plaintiffs never acquired any right to the artificial watercourse 

 Avhicli supplied their cotton mills, either by the presumption of a grant, 

 or by 2 & 3 117//. IV., c. 71, s. 2, as against the owner of the lower level 

 of the mineral field, or the defendants acting by their authority. 



In ^Vood V. ^Yaud (3 Exch. 7-48) the Court stated they had again con- 

 sidered that case and were satisfied that the principles laid down as 

 governing it were correct ; and that no action lies for an injury by the 

 diversion of an artificial watercourse, where, from the nature of the case, 

 it was obvious that the enjoyment of it depended upon temporary cir- 

 cumstances, and was not of a permanent character, and where the inter- 

 ruption was by the party who stood in the situation of the grantor. The 

 Court added, in reference to Mayor v. ChadwicJc, "We entirely concur 

 with Lord Denman C.J., that the proposition — that a watercourse, of 

 whatever antiquity and in whatever degree, enjoyed by numerous persons 

 cannot be enjoyed so as to confer a right to the use of the water, if proved 

 to have been originally artificial — is quite indefensible ;" but, on the 

 other hand, the general proposition " that under all circumstances the 

 right to watercourses arising from enjoyment, is the same whether 

 they be natural or artificial, cannot possibly be sustained." A riparian 

 proprietor has a right to the natural stream of water flowing through 

 the land in its natural state ; and if the irater lepollided hy a proprietor 

 hiyher up the stream, so as to occasion damage in law, though not in 

 fart, to the first-mentioned proprietor, it gives him a good cause of 

 action against the upper proprietor, unless the latter have gained a 

 right by long enjoyment or grant {Wood v. Waud). Where the owner 



