Odger's English Common Law

DAMNUM SINE INJURIA. 409
may have resulted to him, it is damnum sine injurid, for which no action
would lie. 1
So, again, our law gives to the owner of land all that lies beneath its
surface; he may therefore dig beneath the surface at his free will and
pleasure ; and if, in so digging, he does an injury to his neighbour—as by
draining off the water from his well—such injury cannot, in the absence of
any prescriptive right, become the foundation of an action. Thus, in the
case of Ghasemore v. Richards? the plaintiff, a landowner and millowner,
had for above sixty years enjoyed the use of a stream, which was chiefly
supplied by subterranean water percolating through the substrata. But
the defendant, an adjoining landowner, dug on his own ground a well for
the purpose of supplying water to the inhabitants of the district, and
thereby diverted water which would otherwise have found its way into the
plaintiff's stream. Yet the plaintiff was held to have no right of action
against the defendant for thus abstracting the water, though it would have
been " of sensible value in and towards the working " of the mill.
In the case of Corporation of Bradford v. Picldes? the House of Lords
decided that the right of the owner of land to divert or appropriate percolating
water within his own land so as to deprive his neighbour of it was
not affected by the fact that the act was done maliciously. So, too, no
action lies agaiust a local authority for maliciously refusiug to approve of
building and drainage plans submitted to them. 4
It is difficult to apply the rule as to damnum sine injuria
in cases where both the plaintiff and the defendant possess
rights, which in their enjoyment encroach upon each
other, and where therefore the question necessarily arises
which of these two rights is to over-ride the other ? As a rule
the answer to this question is that the more general right,