1805. BEALEY against SHAW. [ 211] largement of their sluice was made, to keep the plaintiff quiet. The defendants called no witnesses; but it was contended on their behalf that they and the persons from whom they claimed, having since the year 1724, down at least to 1787, had the free and exclusive enjoyment of so much of the river as they thought proper to appropriate to themselves, increasing the quantity from time to time as their occasions. required, it was not competent to the plaintiff at the latter period to abridge their right by the erection of new works and making a new weir and sluice; but having placed himself between their weir and their mill-goit, he must take the river subject to the defendants' use of it. That the plaintiff could acquire no right to the use of any part of the riverwater adversely to the defendants, by any enjoyment short at least of 20 years; and here they had only bad an enjoy ment for less than four years of the superfluous water, which the defendants had then no occasion for and they, having had an unlimited use of the river for so long before 1787, could not lose that right by a non-user for so short a period; but were at liberty to appropriate to themselves as much more as they wanted, in the same manner as they had several times done before the plaintiff's works and sluice were erected and made. But that if any action lay, it should have been brought against Potter and Crompton by whom the increased quantity of water had been ori ginally taken in 1791, which the plaintiff had acquiesced in, and not against the defendants who had purchased under such acquiescence. The learned Judge however considered that the important period for the jury to attend to as to the question of right, was in 1791, when it was clear that an increased quantity of water had been drawn by the defend ants from the river by means of the then newly enlarged and deepened sluice; before which time the plaintiff's works had been erected; and he was in the enjoyment of so much of the water as had not been before appropriated by those under whom the defendants claimed. That persons possessing lands on the banks of rivers had a right to the flow of the water in its natural stream, unless there existed before a right in others to enjoy or divert any part of it to their own use. That every such exclusive right was to be measured by the extent of its enjoyment; and if Potter 1805. BEALEY against SHAW. Potter and Crompton had in 1791 taken more water from the river than had ever been done before by themselves or those under whom they claimed, after the plaintiff had appropriated what was before left to himself, by means of which his works were injured, this was a damage to him, and the *[212] continuance by the defendants, who succeeded to the premisses, of the sluice so deepened and enlarged was a continuance of the injury, for which an action lay. That the applications by the plaintiff's foreman for leave to take the water, and the defendants having kept the key of the clough which regulated the supply of it, though strong, were not conclusive evidence against the plaintiff, but might have been done under an ignorance or misapprehension of his rights at the time. Under this direction the jury found a verdict for the plaintiff, with nominal damages; which was moved in last Hilary term to be set aside, upon a supposed misdirection of the Judge, in point of law, upon the evidence; the grounds being, 1st, That the evidence of exclusive enjoyment by the defendants, and those from whom they claimed of as much of the water as they had occasion for, increased from time to time as more was wanted from 1724 downwards, was evidence to be left to the jury of their exclusive right to the whole of the river water; and that any other person erecting a mill afterwards on the same stream, must take it subject to the defendants' prior right to use the whole, and could not acquire any adverse title against it under 20 years quiet enjoyment. 2dly, That here was evidence of an acquiescence on the part of the plaintiff in the defendants' claim. Cockell, Serjt. Topping, Wood, and Richardson, were to have shewn cause against the rule; but after hearing the two former, the Court called on the other side to support the rule. The principal part of the contention arose on the facts given in evidence, and the manner in which the question was left to the jury, both of which were satisfactorily explained; and the propriety of the doctrine above stated, to have been laid down by the learned Judge at the trial vindicated. And as to the plaintiff's enjoyment of the water being for so short a period only as four years before the new diversion by the defendants in 1791, they contended that it was immaterial as against the defendants; for that he had the same right to appropriate [213] 1805. BEALEY against SHAW. [ 214 ] appropriate to his own use so much of the stream as was not before enjoyed by another, as the former owners of the defendants' premisses had to appropriate in 1724 the quantity they had hitherto enjoyed. But they referred to a case of Prescott v. Phillips, before the late Mr. Serjt. Adair, Chief Justice of Chester, in 1798, where he had ruled that nothing short of 20 years undisturbed possession of water diverted from the natural channel, or raised by a weir, could give a party an adverse right against those whose lands lay lower down the stream, and to whom it was injurious; and that a possession of above 19 years, which was shewn in that case, was not sufficient. And here the last increased diversion made by the defendants was much within that time; and that it was made to the prejudice of the plaintiff could not be doubted, after his appropriation of the former surpluswater to his own works. Erskine, Park, Holroyd, and Scarlett, argued in support of the rule on the grounds before stated, and commented at length on the evidence; relying particularly on what some of the witnesses had said, that at times, within their memory, so much of the water had been drawn off by the old sluice belonging to the works now occupied by the defendants, that the natural bed of the river was left nearly dry (a). They also referred to Cor v. Mathews (b), where Lord Hale said, "If a man have a watercourse running through his ground, and erect a mill upon it, he may bring his action for diverting the stream, and not say antiquum molendinum: and upon the evidence it will appear whether the defendant hath ground through which the stream runs before the plaintiff's, and that he used to turn the stream as he saw cause; for otherwise he cannot justify it, though the mill be newly erected." And they argued that the evidence here proved that the defendants had been used to turn the stream as they saw cause, and to take as much water as it was convenient for them to have. And they denied the authority of the case of Prescott v. Phillips to the extent it appeared to go, as it was in common experience that juries were directed to presume a grant within 20 years under circumstances. (a) It appeared, however, that this circumstance could only have occurred in very dry seasons, and that for a very short period, as the generality of the wit-. nesses had never observed it in this state, though living near the spot. (2) Ventr. 237. Lord Lord ELLEN BOROUGH, C. J. I see no ground for disturbing the verdict. If the whole evidence were left to the jury as stated by the learned Judge, there can be no question upon it; and if the verdict had been for the defendants, I think it could not have been sustained. The general rule of law as applied to this subject is, that, independent of any particular enjoyment used to be had by another, every man has a right to have the advantage of a flow of water in his own land without diminution or alteration. But an adverse right may exist, founded on the occupation of another. And though the stream be either diminished in quantity or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it have existed for so long time as may raise the presumption of a grant, the other party whose land is below, must take the stream, subject to such adverse right. I take it, that twenty years exclusive enjoyment of the water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of parliament. But less than twenty years enjoyment may or may not afford such a presumption according as it is attended- with circumstances to support or rebut the right. Here it appears, that from 1724 downwards, there has been a partial enjoyment of the water of this river by those occupying the defendants' premisses, by means of a weir of a given height, and a sluice of given dimensions. In this state of things, the plaintiff in 1787 comes to a spot lower down the stream, and erects a weir, mill, and other works on his own land, and enjoys the rest of the water which the defendants had not been accustomed to divert; and this he does for four years, without ob jection from any person. Supposing the question had arisen then on that enjoyment by the plaintiff of what I may say was less than his natural right, of a right abridged by the de fendants' prior occupation of a part of the river for their own purposes, what objection could have been made to it? How could it have been shewn that the occupiers of the defendants' premisses were then in possession of all the water, when it is apparent that their use of it was not increased so as to deprive the plaintiff of the benefit of it till 1791, when they enlarged their works, and for the very purpose of appropri ating to themselves more of the water they enlarged their VOL. VI. sluice? M 1805. BEALET against SHAW. [215] 1805. BEALEY against SHAW. sluice? After this enlargement was made of the defendants' sluice in 1791, complaints began; and in order to avoid* dispute it was agreed that the fender should be kept by a man who was employed for that purpose by both parties, and paid *[216] by both and it appears that he was privately directed by one of the deferdanis to keep the plaintiff quiet during the time. But why keep the plaintiff quiet if he had no right? which it was apprehended he might assert. It is enough however to say, that after the enlargement of the defendants' sluice, it was a disputed right of enjoyment of the water; and no grant could have been presumed by the jury on such a contested enjoyment. It amounts to no more than this, that the plaintiff, to avoid litigation, agreed during that time to receive his right in a manner more abridged than he need have done; but afterwards, when the attempt was made to take all the water from him, he stood, as he lawfully might, upon his strict rights, and brought his action for the obstruc tion. Upon the whole therefore it is evident, that down to 1791, the defendants' right to the water had only been exercised in a limited manner; and no objection can be made to the direction of the learned Judge: and as to their enjoy ment between 1791 and 1803, there was nothing to leave to the jury on which to presume a grant. [217] GROSE, J. The verdict is neither against law nor fact. The plaintiff had a right to all the water flowing over his own estate, subject only to the easement which the defendants might have in it in respect of the premisses which they occupied higher up the river. To what extent then did that go? It appears that prior to the year 1791 the occupiers of the defendants' premisses exercised the right of having a weir in the river of a certain height, and diverting the water from the natural channel by means of a sluice of certain dimensions. The plaintiff, on the other hand, had a right to all the water coming over that weir, which had aot been carried off by such sluice. Then, in 1791 Potter and Crompton convert the sluice, which was before a narrow channel, into what some of the witnesses call a canal, made both wider and deeper than before, and thereby prevented the plaintiff from taking the water in the same manuer that he had done for four years before, and as he was entitled to take it: by so doing they encroached on his right, and deprived him of a benefit |