DIVERSION OF WATERCOUr.SE FOR IRRIGATION. 189 



land, if he returns it with no other loss than that which irrigation 

 causes. In Wood v. Waud it was observed that in England it is not 

 clear that a user to that extent would be permitted ; nor do we mean to 

 lay down that it would in every case be deemed a lawful enjoyment 

 the water if it was again returned into the river with no other dimhmtion 

 than tJmt which ivas caused hy the alsorptwn and evajmrition attendant 

 on the irrigation of the lands of the adjoining proprietor. This must 

 depend upon the circumstances of each case. On the one hand, it could 

 not be permitted that the owner of a tract of many thousands of acres 

 of porous soil abutting on one part of the stream could be permitted to 

 irrigate them continually by canals and drains, and so cause a serious 

 diminution of the quantity of water, though there was no other loss to 

 the natural stream than that arising from the necessary absorption and 

 evaporation of the water employed for that purpose ; and on the other 

 hand, one's common sense would be shocked by supposing that a 

 riparian proprietor could not dip a watering-pot into the stream in 

 order to water his garden or allow his family or his cattle to drink it. 

 It is entirely a question of degree, and it is very difficult, indeed im- 

 possible, to define precisely the limits which separate the reasonable 

 and permitted use of the stream from its wrongful application ; but 

 there is often no difficulty in deciding whether a particular case falls 

 within the permitted limits or not." " There has been no injury in 

 fact or in law in this case, and therefore the verdict for the plaintiff 

 should not be disturbed." The rule was discharged, the defendant 

 consenting that on the fourth, seventh, and tenth issues a verdict should 

 be entered for the plaintiff (20 L. J. Ex. 215). 



The facts of Northam v. Hurley may be learnt from tlie judgment of 

 Coleridge J. : " In this case the plaintiff, occupying Fourth Tanner's 

 meadow, complained that the defendant had diverted the channel of a 

 watercourse in Third Tanner's meadow ; and in support of liis case he 

 relied upon a deed between Sylvanus Fox, owner of Fourth Tanner's 

 meadow, and Edward Fox and others (whose interest in the soil had, 

 however, determined before the execution of the agreement), owners of 

 First, Second, and Third Tanner's meadows, whereby it is stipulated 

 that Edward Fox and others should have the use of a certain stream of 

 water for irrigation for ten days in every month, and that at all other 

 times the same stream should be under the control of Sylvanus Fox and 

 his assigns, and should flow in a free and uninterrupted course through 

 a channel therein particularly described, into Fourth Tanner's meadow, 

 with an undertaking that the owners of First, Second, and Third 

 Tanner's meadows should cleanse the channel, and with liberty to 

 Sylvanus Fox and his assigns to do so on their default. 



