Odger's English Common Law

592 DISTURBANCE OF EASEMENTS, &C.
will have his right of action against the 'wrongdoer. The
question in all these cases is this : " Does the use which the
defendants make of the water sensibly affect, or is it . if
continued capable of sensibly affecting, the plaintiff's right
to have the stream flow down to him undiminished in quantity
and undeteriorated in quality ? " 1
loss need be proved.
If so, no actual pecuniary
"All streams are pulliei juris, and all. the water flowing down any
stream is for the common use of mankind who live on the banks of the
stream ; and therefore any person living on the banks of the stream has an
undoubted right to the use of the water for himself, his family and his
cattle, and for all ordinary domestic purposes, such as brewing, washing
and so on. . . . It has been settled that actual pecuniary damage is not
necessary to give a right of action or suit, because it is sufficient to show
that the defendants are interfering with that which is a right, and in a
mode which may give a future legal right to interfere with the stream when
it may be wanted, or may in a pecuniary point of view be useful to the
riparian proprietor below." 2
In the case of Ormerod v. Todmorden Mill Co? the jury found that
water had been abstracted by the defendants and heated', and then returned
into the stream, but that the plaintiffs had sustained no actual damage.
The learned judge held that the latter finding was immaterial, and directed
judgment for the plaintiffs on the ground that " as the defendants claim to
do this continuously as a matter of right, it is not necessary for the
plaintiffs to prove that they have sustained actual damage."
" Even though immediate damage cannot be described, even though the
actual loss cannot be predicated, yet if an obstruction be made to the
current of a stream, that obstruction is ... an encroachment which
adjacent proprietors have a right to have removed." i
" By the general law applicable to running streams, every riparian pro-
prietor hus a right to what may be called the ordinary use of the water
flowing past his land, for instance, to the reasonable use of the water for his
domestic purposes and for his cattle, and this without regard to the effect
which such use may have in case of a deficiency upon proprietors lower down
the stream. But further he has a right to the use of it for any purpose, or
what may be deemed the extraordinary use of it, provided that he does not
thereby interfere with the rights of other proprietors either above or below
him. Subject to this condition he may dam up the stream for the purpose
of a mill, or divert the water for the purpose of irrigation. But he has no
1 This was one of the questions left to the jury by Cave, J., in Ormerod v. Todmorden
Mill Co. (1883), 11 Q. B. D. at p. 158.
2 Per James, L.J., in Wilts, $c, Canal Co. v. Swindon Waterworks Co. (1874),
L. B. 9 Ch. at pp. 457, 458.
8
(1883), 11 Q. B. D. 155, 159; and see Wilts, §e„ Canal Co. v. Swindon Waterworks
Co. (1875), L. B. 7 H. L. 697, 70i..
* Per Lord Westbury in Bickett v. Morris (1866), L. R. 1 H. L. Sc. at p. 62.