BY DIVEETING STREAM. 195 



only three or fonr acres of tlie plaintiff's water-moads could be watered 

 at a time ; and in winter it was often dark, and therefore too tate to jnit 

 the water over the plaintlfTs meads at all. 



There was evidence that in consequence of the defendant's watering 

 his new water-mead in the autumn and winter of 1854 the plaintiff's 

 tenants could only water some of their meads, and lost some spring feed 

 of the mead ; but there was also evidence on the part of the defendant 

 that the hay crop in the Dairyman's Mead was as good as ever; and it 

 was an admitted fact that the defendant irrigated his land properly 

 without excess or unnecessary waste, and that the mill and wheel were 

 used for agricultural purposes, for threshing, and grinding barley, for 

 the purposes of the defendant's farm only ; and if right existed, there 

 was no abuse or excess. The injury to the plaintiff's reversionary in- 

 terest in his ancient water meadows was stated to be that they were 

 deprived of the first catch or use of the water, the fertilizing sediments 

 or properties of whicli were deposited on the defendant's new water- 

 mead ; secondly, that as such new water-mead was very porous upper 

 soil, consisting of a layer of gravel and a subsoil of clay, the whole of 

 the river was insufficient, except in a flood, to water even the plaintiff's 

 ancient meadows ; thirdly, that it was penned on this new water-mead 

 so late, that plaintiff's tenants could not watch and attend to the 

 watering of the ancient meadows, as they were prevented by the pen- 

 ning of the water at the West Mill from using it at night. A verdict 

 was taken for the plaintiff for .£200 damages, subject to a special case. 



Cresswell J. said, in delivering the judgment of the Court, " that 

 all persons having lands on the margin of a flowing stream have 

 by nature certain rights to use the water of that stream, whether 

 they exercise those rights or not, and that they may begin to exercise 

 them whenever they will. By usage they may acquire a right to use 

 the water in a manner not justified by their natural rights ; but such 

 acquired right has no operation against the natural rights of a land- 

 owner higher up the stream, unless the user by which it was acquired 

 affects the use that he himself has made of the stream or his power to 

 use it, so as to raise the presumption of a grant, and so render the 

 tenement above a servient tenement. If the user of the stream by the 

 plaintiff for irrigation was merely an exercise of his natural right, such 

 user, however long continued, could not render the defendant's tene- 

 ment a servient tenement, or in any way affect the natural rights of the 

 defendant to use the water. If the user by the plaintiff was larger than 

 his natural rights would justify, still there is no evidence of its affect- 

 ing the defendant's tenement, or the natural use of the water by the 

 defendant, so as to render it a servient tenement. But if the user by 



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