]U0 WATER ESCAnXG INTO A MTXE FROM RAILWAY CUTTINGS. 



ihe defendant has boen beyond his natural riglit, it matters not how 

 much the phiintill" lias used the water, or whether he has used it at all. 

 In either case his right has been equally invaded, and the action is 

 maintainable. 



" The question between the parties is thus reduced to this single 

 point — has the defendant used the water as any riparian proprietor 

 may use it, or has he gone beyond that ? The general principle 

 of law may be deduced from the decision of Embrey v. Owen; and 

 the authorities cited by Parlce B., in delivering judgment in that 

 case, is that every proprietor of lands on the banks of a natural stream 

 has the right to use the water, provided he so uses it as not to 

 wo7'k any material injury to the rights of other proprietors above or 

 below on the stream. In the present case it appears to us, on the 

 evidence, that the detention by the defendant, under the circumstances, 

 of the water of the river Yeo, for the purposes of irrigation, was a use 

 of it which in its character was necessarily injurious to the natural 

 rights of the plaintiff as the proprietor of land lower down the stream. 

 The effect was obviously the same as if the defendant had placed a bar 

 or weir across the river, and by that means had wholly prevented its 

 natural course for a certain number of hours. And it appears to us 

 that there is neither authority nor principle for contending that such an 

 act can be justified on the ground that it was done for improving the 

 adjacent land of the defendant, whether by irrigation or otherwise." 

 The judgment of the Court of Common Pleas was finally entered for 

 the plaintiff, as to such part of his complaint as related to the river 

 Yeo, and as to the rest of the alleged causes of action, for the de- 

 fendant (26 L. J. C. P. 148). 



Water escaping from railivaij-cuttings into a mine. — A railway company 

 is responsible for injuries sustained by reason of water escaping from a 

 stream in flood-time, or collected from rain falling on the railway, and 

 flowing along a cutting of the railway, and percolating through the 

 substratum into mines beneath, although such mines had not been 

 worked at the time of the formation of the railway ; and such damage 

 is the subject of an action, and not the subject of compensation under 

 the compensation clauses {Bagnell v. London and Norlh-Western Rail- 

 tvag Company). 



WorJcing mines under water-course. — The owner of freehold lands 

 and his lessee will be restrained from working mines under a water- 

 course, otherwise than in a manner not likely to prevent the plaintiff 

 from enjoying an uninterrupted flow of water to his works {Elwell v. 

 Croictluir). 



Siq'jjtying horses ivith water from a imltic fountain. — A local board of 



