FLOW OF WATER FROM AGRICULTURAL DRAIN. 183 



of land through which a stream flows has within 20 years built mills 

 upon its bank, and applied the water of stream to the working of 

 them, he may recover upon an issue raised by a traverse of an allegation 

 that his right to the water was " by reason of the possession of the 

 mills." (ib.) So where water has flowed in an artificial and covered 

 watercourse for more than 60 years from a colliery into an imme- 

 morial and natural stream, upon whose banks the plaintiff's mills are 

 situated, the plaintiff" in such case has no right for diversion of the 

 water of such artificial watercourse against a party through whose land 

 it passes, but who does not claim under, or who is unauthorised by the 

 colliery owners. The case, however, would be different if the water 

 were polluted ; and the abstraction of water to the amount of five per 

 cent., or its detention so as to occasion sensible inconvenience, will 

 support an action for such injury." (ih.) 



Greatrex v. Hayivard (22 L. J. Ex. 137), which was governed by the 

 above case, and ArJcivright v. Gell, decided that the flow of icater from a 

 drain made for the jnirposes of agrkidtural imiyrovements for twenty years 

 does not give a right to the neighbour, so as to preclude the proprietor 

 from altering the level of his drain for the improvement of his land. 

 Here the plaintiflF's two closes adjoined each other, and were also adjoin- 

 ing to a close in the occupation of the defendant. From the year 1796 

 till the time of the action (1852), there was a pit partly situate in each 

 of the plaintiff's closes, and during all that time the pit had principally 

 been supplied with water coming from the defendant's close. The water 

 so supplied to the pit ran through and by means of an underground sougli 

 or drain, which had before 1796 been by the owners or occupiers of the 

 defendant's close laid in, and made to run out of the same into a ditch 

 of the plaintiflF's, which bounded the defendant's close, and from and 

 out of this ditch into the pit. This sough was made for the purpose oi 

 carrying the water off" the defendant's close, and for its better cultiva- 

 tion ; and the water from the sough usually flowed in a regular stream, 

 but was subject to occasional interruptions from the sough being tem- 

 porarily choked up by the roots of trees or otherwise. The pit was an 

 open pit, and the water in it had ever been, during the above-mentioned 

 time, used and enjoyed by the occupiers of the plaintiff''s two closes for 

 watering and washing cattle and otherwise, openly and without inter- 

 ruption. The sough aided the general surface drainage of the defen- 

 dant's close, which was of a boggy nature, and the water which passed 

 through the sough did not come from any defined or ascertainable 

 source. In September, 1851, the defendant made alterations in the 

 drainage of his close, by constructing a new sough, and by deepening 

 the course of the old sough, for the purpose of more eff"cctually draining 



