Odger's English Common Law

RIGHT TO THE FLOW OF WATER. 591
tl Every proprietor of lands on the banks of a natural stream
has a right to use the water, provided he so uses it as not to
work any material injury to the rights of other proprietors
above or below on the stream." 1
The soil of the bed of a river is not the common property
of the respective owners on the opposite sides of it ; the share
of each belongs to him in severalty and extends usque ad
medium filum aquae ; but neither is entitled to use it in such
a manner as to interfere with the natural flow of the stream.
A fence or bulwark on the bank is allowable, but any
permanent encroachment on the bed of the river by one
proprietor is actionable, as in time of flood it may cause
destruction of the opposite bank ; and the onus of proving
that the act is not an encroachment falls on the party doing
it, who is prima facie held responsible. Mere apprehension
without some show of injury will not ground a complaint,
but it is not necessary to show that any damage has been
sustained. 2
Every riparian proprietor—and indeed every p erson who
lives on the banks of a natural stream 8—is entitled in his turn
to have the water of a natural stream transmitted to him
without sensible alteration in its character or quality. Any
substantial invasion of this right entitles the party injured to
the intervention of the Court. 4 An action will also lie for
fouling the water to the use of which the plaintiff is entitled, 5
unless a right to pollute the stream has been acquired by
prescription or custom. 6 And if a stream be diverted by
altering its course or cutting down its banks, or if the water
be abstracted from it for unauthorised purposes, the owner
1 Per cur. in Sampson v. Hoddinott (1857), 1 C. B. N. S. at pp. 611, 612 ; and
see Emorey v. Owen (1851), 6 Exch. 353, 369 ; Orr-Eicing v. Colquhoun (1877),
2 App. Cas. 839, 855. As to what is a reasonable use of the water, see McCartney
v. Londonderry, $c, By. Co., [1904] A. C. 301 ; John White % Sons v. White, [190B]
A.