186 SURFACE WATER. 



water has no defined course, and the supply is not constant, therefore 

 the plaintiff is not entitled to it. The case of Dickinsoji v. Grand 

 Junction Canal Compani/ does not apply ; and the defendant is entitled 

 to get rid of this also, for the purpose of cultivating his land in any way 

 he pleases. 



" With respect to the last and most important part, which relates to 

 the interference with the flow of the water to Lower Gin Bank, we 

 must look to the deed, for the plaintiff's right to that water depends 

 solely upon the deed. By that instrument the defendant conveys to 

 the plaintiff the Gin Bank, together with all ways, waters, water- 

 courses, liberties, privileges, rights, members, and appurtenances' to 

 the same close and piece of land belonging or appertaining. Now this 

 right to this water could not pass independently of the deed, as the 

 plaintiff could have no right to water in alieno solo. Natural water- 

 courses are like ways of necessity. The right to have a stream running 

 in its natural direction does not depend on a supposed grant, but is 

 jnrc naturcB {Skury v. Pigott). But if the stream is artificial, no such 

 right exists. This is not a natural watercourse ; but the plaintiff is 

 entitled to the flow of this water under the conveyance which gives 

 it to him by the terms of the grant. It is necessary to say whether 

 the right passed under the proviso, which, however, throws light 

 upon the grant, and shows that this water was intended to be con- 

 veyed. The proviso is for the benefit of the defendant, and gives him 

 the right to apply any water flowing through his land for certain 

 specified purposes ; but when he has taken such water, he is bound to 

 return the surplus into its usual channel in the watercourse at a certain 

 place. 



" And I am of opinion that the defendant has no right to make any 

 permanent diversion of the water. He may take away the water in 

 buckets, or by any other mode of conveyance, for domestic, agricultural, 

 or manufacturing purposes ; but when he has taken what he wants, he 

 is bound to return the surplus into its usual channel at the place men- 

 tioned in the plan for the use of the plaintiff, and he cannot divert the 

 water. It seems to me clear, on looking at the proviso, what the de- 

 fendant grants to the plaintiff by the conveyance ; and the defendant is 

 not entitled to more than what is reserved to him in the proviso. He 

 has permanently diverted the water by placing it under lock and key, 

 and by so doing has deprived the plaintiff of the use of it. I am there- 

 fore of opinion that the verdict ought to be entered for the defendant 

 as to the two first causes of action ; and as to the third, that the 

 verdict entered for the plaintiff should stand." Piatt B. observed, 

 •' As to the two first points, th§ defendant is clearly entitled to succeed, 



