Odger's English Common Law

RIGHT TO THE FLOW OF WATER. 595
A. when the ground was in its natural state, and how much
to his neighbour. His neighbour has as good a right as A.
to dig a well on his own land, even though by so doing he
may drain back water out of A.'s well. 1
The plaintiff was the owner of an ancient mill on the river Wandle, and
for more than sixty years before the commencement of the action he and
all the preceding occupiers of the mill had used and enjoyed, as of right,
the flow of the river for the purpose of working their mill. The river
above the plaintiff's mill was and always had been supplied in part by
water produced by the rainfall on Croydon and its vicinity. This water
used to sink into the ground to various depths, and then to flow and percolate
through the strata to the river, part rising to the surface and part finding
its way underground in courses which constantly varied. The Croydon
Local Board of Health, in order to supply their town with water, sank a
well in their own land about a quarter of a mile from the river, and pumped
up large quantities of water from it. It was held that the plaintiff could
not maintain an action against the defendant for thus diverting the under-
ground water. 2 " In such a case as the present, is any right derived from
the use of the water of the river Wandle for upwards of twenty years for
working the plaintiff's mill ? Any such right against another founded
upon length of enjoyment is supposed to have originated in some grant,
which is presumed, from the owner of what is sometimes called the servient
tenement. But what grant cau be presumed in the case of percolating waters,
depending upon the quantity of rain falling or the natural moisture of the
soil, and in the absence of any visible means of knowing to what extent, i
at all, the enjoyment of the plaintiff's mill would be affected by any water
percolating in and out of the defendant's or any other land ? The presumption
of a grant only arises where the person against whom it is to be
raised might have prevented the exercise of the subject of the presumed
grant ; but how could he prevent or stop the percolation of water ? The
Court of Exchequer, indeed, in the case of Dickinson v. The Grand Junction
3 Canal Company,, expressly repudiates the notion that such a right as that
in question can be founded on a presumed grant, but declares that with
respect to running water it is jure natum. If so, a fortiori the right, if
it exists at all in the case of subterranean percolating water, i&jure natum,
and not by presumed grant, and the circumstance of the mill being ancient
would in that case make no difference.
" The question then is, whether the plaintiff has such a right as he claims
jure natures to prevent the defendant sinking a well in his own ground at a
distance from the mill, and so absorbing the water percolating in and into
his own ground beneath the surface, if such absorption has the effect of
diminishing the quantity of water which would otherwise find its way into
i Acton v. Blundell (1843), 12 M. & W. 324.
2 Chasemore v. Richards (1859), 7 H. L. Cas. 349. In this case 'Acton v. Blundell,
suprd, is recognised, and the authorities generally are leviewed.
8 (1852), 7 Exch. 282.
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