]90 RIGHT TO WATER BY DEED. 



" This deed, in our judgment, operates as a grant of the easement of 

 the watercourse therein described ; and inasmuch as the channel is 

 specified with a right to enter and cleanse it, we are of opinion that 

 Sjdvanus Fox, and those claiming under him, acquired a right in 

 respect of that channel ; and that a change of the channel would be an 

 injury to this right. And as the plaintitf claimed under Sylvanus Fox, 

 and the defendant claiming under the owners of the First, Second, and 

 Third Tanner's meadows had diverted the stream from the specified 

 channel, though without damage to the plaintiff, we think there was a 

 cause of action for injury to the right. Our judgment is founded on 

 the eflfect of the deed which governs the rights of the present parties ; 

 and in so deciding we do not intend at all to limit the salutary principle 

 laid down in Emhrcy v. Owen, to the effect that the superior riparian 

 proprietors may use the stream for all reasonable purposes, while in 

 their land, provided they send it on, without material diminution or 

 alteration, to inferior proprietors. It was further objected that if such 

 was the case the plaintiff could not recover for it under the present 

 declaration, claiming the right by reason of possession, without men- 

 tioning or referring to the deed. But this objection we think unten- 

 able. If the easement was granted to the owners of Fourth Tanner's 

 meadow, we think the precedents are clear that it may be described in 

 a declaration as an easement to which the plaintiff is entitled by reason 

 of his possession of that meadow" (22 L. J. Q. B. 183). 



The above case, which established that where the rights of the far ties 

 are derived from a deed or other instrument, their rights must he ascertained 

 from the instrument atone, and that general doctrines of law are not aj)j)li- 

 cahle, laid down the principle on which Whitehead v. Paries was decided 

 (27 L. J. Ex. 1G9). In this case, by lease dated 1827, Lord Derby 

 demised to one "Woodcock a dwelling-house and fifteen closes of land, 

 and granted all streams of water that might be found in four of those 

 closes, called The Clough, The Moorin Clough, The Brow, and The 

 Marleds, excepting out of the demise all timber and other trees, &c., 

 mines and minerals, <tc., stone, gravel, sand, and clay, &c., and all 

 streams of water, except those above granted, then being or thereafter 

 to be found in or upon the premises demised, with power for Lord Derby, 

 his heirs and assigns, and his and their servants and workmen, from 

 time to time " to enter upon the premises, and to crop, fell, search for, 

 &c., and make marketable all or any of the before-mentioned articles; 

 to make any clay into bricks or tiles on the premises, &c., and to divert 

 or alter the course of any river, brook, spring, or water, &c." There 

 was a plan annexed to the lease showing a stream of water on the north 

 side of the demised premises, and flowing through their whole extent 



