Odger's English Common Law

594 BISTURBANCE OF EASEMENTS, &C.
would the flow of water during twenty years from a drain made for the
purposes of agricultural improvements give a right to the neighbour, which
would prevent the proprietor from altering the level of his drains for the
greater improvement of his land. In such a case the one party never
intended to give, nor the other to enjoy, the use of the stream as a matter
of right. 1
Where the owners of a canal, fearing that damage would be done to
their premises by the overflow of flood-water from a neighbouring river,
penned back the water and thus caused the plaintiff's premises above them
to be flooded, it was held that no actioii for compensation would lie,
because the water which did the damage was not brought into the canal by
the defendants, and no duty was imposed upon them analogous to that
imposed upon the owners of a natural watercourse not to impede the flow
of waters down it. 2
It has similarly been held that a man may, without
regard to his neighbour, protect himself against subterranean water, a
anal or the sea, as against " a common enemy," but not against a river. 3
The rules which regulate the right to subterranean water
differ from those applicable to the enjoyment of streams and
waters above ground. When water is on the surface, the
owner of the adjoining land has a right to use the water ;
and
so he has in the case of a subterranean stream, if its course
be well known. Thus, where a stream sinks underground,
pursues for a short space a subterranean course and then
emerges again, the owner of the soil under which the stream
flows can maintain an action for any diversion of it which
took place under such circumstances as would have enabled
him to recover if the stream had been wholly above ground. 4
v
A different rule, however, prevails where water is percolating
underground through channels which are unknown -and
possibly unascertainable.
Thus, if A . sinks a well on his own land, it is impossible
to say how much of the water which runs into it belonged to
1 Wood v. Watid (1849), 3 Exch. 748, 776 ; approved in Singh v. Pattuk (1878),
4 App. Cas. 121 ; distinguished in Beeston v. Weate (1866), 5 E. & B. 986, 995,
where there was evidence that an easement had been acquired ; and see Chamber
Colliery Co. v. Hopwood (1886), 32 Ch. D. 549.
2 Nield v. L. # N. W. By. Co. (1874), L, R. 10 Ex. 4 ; John White & Sons v.
White, [1906] A. C 72.
3 Smith v. Kenrick (1849), 7 C. B. 515 ; B. v. Pagham Commissioners (1828), S
B. & C. 355, 360 ; B. v. Traford (1832), 8 Bing. 204, 210 ; but see Whalley v.-
Lancashire and Yorkshire By. Co., (1884), 13 Q. B. D;.. 131.
4 See the remarks o£ Pollock, C. B., in fiudden v. Clutton Union (1867) 1
H. & N. at p. 650 ; and see Black v. Ballymena Commissioners (1886), 17 L. B. Ir.
459. An action will also lie against a landowner for polluting underground water,
so as to render it unfit for use i Snow v. Whitehead (1884), 27 Ch. D. 588 ; Ballard
v. Timilinson (1885), 29 Ch. D. 117.