BFJXGIXG WATER BY ArvTIFICIAL CUT FOR IRRTGATIOX. 193 



easoinent on the rlefendani's land ; and tliat for tlie interruption of 

 sucli casement plaintilT mii^ht maintain an action against defendant. 



Lord CampMl C.J. said, in delivering judgment : " The defendant's 

 counsel, in arguing that the plaintiff ought to have been nonsuited, 

 relied mainly on ArJcwright v. Goll, Wood v. Waud, and Greatrex v. 

 Hayiuard. We entirely concur in those decisions, thinking that the 

 plaintiif did not in any of them support his allegation as to the ease- 

 ment claimed. In none of them was there any reasonable ground for 

 inferring that the casement had been acquired by prescription or 

 grant. But we do not consider that the cases lay down any such rule 

 as that enjoyment and acts, which without the existence of the ease- 

 ment would be tortious and actionable, may not be evidence of the 

 right to the use of water, although it flows in an artificial cut. This 

 doctrine would destroy the right to the great majority of mill leats all 

 over the kingdom." " In the cases referred to, regard was had to the 

 water being obtained artificially by the owner of the servient tenement, 

 rather than to the water running through an artificial cut. Here the 

 water in question is part of the water of a stream which has flowed on 

 the surface of the country from the time that onr globe took its present 

 conformation. But the strength of the plaintiff's case (distinguishing 

 it from the cases relied upon by the defendant) is, that here the occu- 

 pier of the dominant tenement, for the purpose of letting in the water 

 from the natural current of the river into the artificial cut, and from 

 the artificial cut into his pond in the Cow Pasture, was constantly 

 going upon the servient tenement, with notice to the occupier of the 

 servient tenement, and doing acts which, without the easement, would 

 be trespasses. Such has been the practice as far back as living 

 memory goes, and may have been the practice from time immemorial. 

 Yet for these acts no action has been brought, nor has any complaint 

 been made. If you are to presume that they took place by the licence 

 of the occupier of the servient tenement, then by constant user ac- 

 quiesced in, no easement can be acquired. 



"But, if it were not that the occupier of the servient tenement 

 has himself used the water flowing through the artificial cut for 

 irrigation, no plausible objection could be made to the easement which 

 the plaintiff' claims, and we do not see that the use of the water on the 

 servient tenement takes away from the effect of the use of it for 

 the dominant tenement, regard being had to the positive acts done 

 by the occupier of the dominant tenement upon the servient tenement 

 for the purpose of enjoying the easement. Great stress was laid by the 

 defendant's counsel on the often-repeated assertion, that the artificial 

 cut was made for a temporary purpose. The water flowing through the 



