United Kingdom House of Lords Decisions

July 29.

LORD HALSBURY L.C.:-

My Lords, in this action the plaintiffs seek to restrain the defendant from doing certain acts which they allege will interfere with the supply of water which they want, and which they are incorporated to collect for the purpose of better supplying the town of Bradford. North J. ordered the injunction to issue, but the Court of Appeal, consisting of Lord Herschell, Lindley L.J. and A. L. Smith L.J., reversed his judgment.

The facts that are material to the decision of this question seem to me to lie in a very narrow compass. The acts done, or sought to be done, by the defendant were all done upon his own land, and the interference, whatever it is, with the flow of water is an interference with water, which is underground and not shewn to be water flowing in any defined stream, but is percolating water, which, but for such interference, would undoubtedly reach the plaintiffs' works, and in that sense does deprive them of the water which they would otherwise get. But although it does deprive them of water which they would otherwise get, it is necessary for the plaintiffs to establish that they have a right to the flow of water, and that the defendant has no right to do what he is doing.

My Lords, I am of opinion that neither of those propositions can be established. Apart from the consideration of the particular Act of Parliament incorporating the plaintiffs, which requires separate treatment, the question whether the plaintiffs have a right to the flow of such water appears to me to be covered by authority. In the case of Chasemore v. Richards⁽¹⁾, it became necessary for this House to decide whether an owner of land had a right to sink a well upon his own premises, and thereby abstract the subterranean water percolating through his own soil, which would otherwise, by the natural force of gravity, have found its way into springs which fed the River Wandle, the flow of which the plaintiff in that action had enjoyed for upwards of sixty years.

The very question was then determined by this House, and it was held that the landowner had a right to do what he had done whatever his object or purpose might be, and although the purpose might be wholly unconnected with the enjoyment of his own estate.

It therefore appears to me that, treating this question apart from the particular Act of Parliament, and, indeed, apart from the 49th section of the Act of Parliament upon which the whole question turns, it would be absolutely hopeless to contend that this case is not governed by the authority of Chasemore v. Richards⁽¹⁾.

This brings me to the 49th section of the statute 17 & 18 Vict. c. cxxiv., upon which reliance has been placed. [His Lordship read it.]

Whatever may be said of the drafting of this section, two things are clear: first, that the section in its terms contemplates that persons other than the company may be legally entitled to divert, alter, or appropriate the waters supplying or flowing from

(1)     7 H. L. C. 349.


the streams and springs; and, secondly, that the acts against which the section is directed must be illegal diversion, alteration, or appropriation of the said waters.

The natural interpretation of such language seems to me to be this: that whereas the generality of the language of the section might apply to any alteration or appropriation of waters supplying or flowing from the streams and springs called "Many Wells," the section only intended to protect such streams and springs and supplies as the company should have acquired a right to by purchase, compensation, or otherwise, but in such-wise as should vest in them the proprietorship of the waters, streams, springs, & c. And lest the generality of the language should give them more than that to which they had acquired the proprietary right, the legal rights of all other persons were expressly saved; and upon this assumption the latter part of the section makes penal the illegal diversion, alteration, or appropriation of any streams, & c., of which, by the hypothesis, the company had become the proprietor.

I do not think that North J. does justice to the language of the section when he says that "the section enacts that a man is not to do certain specified things except so far as he may lawfully do them." The fallacy of that observation (with all respect to North J.) resides in the phrase "certain specified things." If my reading of the section be correct, the thing that is prohibited is taking or diverting water which has been appropriated and paid for by the company; but the thing which is not prohibited is taking water which has not reached the company's premises, to the property in which no title is given by the section, and which, by the very act complained of, never can reach the company's premises at all. To use popular language, therefore, what is prohibited is taking what belongs to the company, and what is not prohibited is taking what does not belong to the company.

My Lords, I have used popular language because I have no doubt that the draftsman who drew the section was encountered with the proposition in his own mind that you could not absolutely assert property of percolating water at all. You may have a right to the flow of water; you may have a property in the water when it is collected and appropriated and reduced into possession; but, in view of the particular subject-matter with which the draftsman was dealing, it seems to me intelligible enough why he adopted the phraseology now under construction.

It appears to me that this is the true construction of the section from the language itself. But I confess I can entertain no doubt that the mere fact that the section, as construed by the plaintiffs, affords no right to compensation to those whose rights might be affected, is conclusive against the construction contended for by the plaintiffs.

The only remaining point is the question of fact alleged by the plaintiffs, that the acts done by the defendant are done, not with any view which deals with the use of his own land or the percolating water through it, but is done, in the language of the pleader, "maliciously." I am not certain that I can understand or give any intelligible construction to the word so used. Upon the supposition on which I am now arguing, it comes to an allegation that the defendant did maliciously something that he had a right to do. If this question were to have been tried in old times as an injury to the right in an action on the case, the plaintiffs would have had to allege, and to prove, if traversed, that they were entitled to the flow of the water, which, as I have already said, was an allegation they would have failed to establish.

This is not a case in which the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant. But I am not prepared to adopt Lindley L.J.'s view of the moral obliquity of the person insisting on his right when that right is challenged. It is not an uncommon thing to stop up a path which may be a convenience to everybody else, and the use of which may be no inconvenience to the owner of the land over which the path goes. But when the use of it is insisted upon as a right, it is a familiar mode of testing that right to stop the permissive use, which the owner of the land would contend it to be, although the use may form no inconvenience to the owner.

So, here, if the owner of the adjoining land is in a situation in which an act of his, lawfully done on his own land, may divert the water which would otherwise go into the possession of this trading company, I see no reason why he should not insist on their purchasing his interest from which this trading company desires to make profit.

For these reasons, my Lords, I am of opinion that this appeal ought to be dismissed with costs, and that the plaintiffs should pay to the defendant the costs both here and below.

LORD WATSON (after stating the facts given above):-

My Lords, it is clear that, apart from any privilege which may have been conferred upon them by statute, the respondent, as in a question with the appellants, has a legal right to divert or impound the water percolating beneath the surface of his land, so as to prevent its reaching Trooper Farm, and feeding, or assisting to feed, the Many Wells Spring or the stream flowing from the Watering Spot. Upon that point there can be no doubt since Chasemore v. Richards⁽¹⁾ was decided by this House in the year 1859. But the appellants pleaded at your Lordships' Bar, as they did in both Courts below, that the principle of Chasemore v. Richards⁽¹⁾ is inapplicable to the present case, because, in the first place, the operations contemplated and commenced by the respondent are by statute expressly prohibited; and, in the second place, these operations were designed and partly carried out by the respondent, not with the honest intention of improving the value of his land or minerals, but with the sole object of doing injury to their undertaking.

The statutory provisions upon which the appellants rely as supporting the first of these pleas are to be found in sect. 234 of the Act of 1842, and in sect. 49 of the Act of 1854, which is a mere repetition of the previous enactment. The clause relates to the Many Wells Springs, an expression which, as the context shews, includes the stream coming from the Watering Spot. It contains two separate enactments, the one of them prohibitory and the

(1)     7 H. L. C. 349.


other penal. First of all, it declares that it shall not be lawful "for any person other than the said company to divert, alter, or appropriate, in any other manner than by law they may be legally entitled," any of the waters "supplying or flowing from" these springs, or to sink any well or pit, or to do any act, matter, or thing whereby "the waters of the said springs" may be drawn off or diminished in quantity. That declaration is followed by the provision that "if any person shall illegally divert, alter, or appropriate the said waters, or any part thereof, or sink any such well or pit, or shall do any such act, matter, or thing whereby the said waters shall be drawn off or diminished in quantity," and shall not on being required to do so by the company, immediately restore the springs and waters to the same condition in which they were before the illegal act, they shall be liable to pay five pounds to the company for each day until restoration is made, besides compensating the company for any damage sustained through their illegal act.

The appellants endeavoured to construe the prohibitory clause as effecting a virtual confiscation in their favour of all water rights in or connected with the respondent's land lying to the vest of Trooper Farm. It appears to me to be exceedingly improbable that the Legislature should have intended to deprive a landowner of part of his property for the benefit of a commercial company without any provision for compensating him for his loss. But it is not necessary to rely upon probabilities, because, in my opinion, the language of the clause is incapable of bearing such an interpretation. I think the plain object of the statutory prohibition, which has two distinct branches, was to give protection to the supply of water which had been acquired by or belonged to the company for the time being; and that it was not meant to forbid, and does not prevent, any legitimate use made by a neighbouring proprietor of water running upon or percolating below his land before it reached the company's supply and became part of their undertaking.

The first branch makes it unlawful for any person other than the company to divert, alter, or appropriate any of the "waters now supplying" the Many Wells Springs, which appear to include sources of supply existing upon lands adjacent to Trooper

Farm. Had the prohibition been absolute, it would have struck against the operations of the respondent; but it is subject to the qualification that the respondent, or any landowner similarly situated, may lawfully divert those waters which ultimately feed the Many Wells Springs, so long as he does so in any manuer which is not in excess of his common law rights. The respondent's operations, of which the appellants complain, are within his proprietary right, and are therefore not obnoxious to that part of the prohibition.

The second branch, which prohibits the sinking of wells and other operations, has, in my opinion, no reference to outside waters more or less distant which might ultimately find their way to the Many Wells Springs. It relates to "the waters of the said springs" - an expression which can only denote the waters which have actually reached the Many Wells Springs, or some channel or reservoir which has been prepared for their reception upon their issuing from these springs. The prohibition gives effective protection against the withdrawal or diminution, either by an adjacent proprietor or any other person, of waters which have come within the dominion of the appellants. But it does not prevent the diversion or impounding by an adjacent proprietor of water in his own land which has never reached that point, so long as his operations are such as the law permits. For these reasons, in so far as concerns the. first plea urged for the appellants, I concur in the judgment of the Court of Appeal.

The second plea argued by the appellants, which was rejected by both Courts below, was founded upon the text of the Roman law (Dig. lib. 39, tit. 3, art. 1, s. 12), and also, somewhat to my surprise, upon the law of Scotland. I venture to doubt whether the doctrine of Marcellus would assist the appellants' contention in this case; but it is unnecessary to consider the point, because the noble and learned Lords who took part in the decision of Chasemore v. Richards⁽¹⁾ held that the doctrine had no place in the law of England.

I desire, however, to say that I cannot assent to the law of Scotland as laid down by Lord Wensleydale in Chasemore v. Richards.⁽²⁾ The noble and learned lord appears to have

(1)     7 H. L. C. 349.
(2)     7 H. L. C. at p. 388.


accepted a passage in Mr. Bell's Principles (sect. 966), which is expressed in very general terms, and is calculated to mislead unless it is read in the light of the decisions upon which it is founded. I am aware that the phrase "in aemulationem vicini" was at one time frequently, and is even now occasionally, very loosely used by Scottish lawyers. But I know of no case in which the act of a proprietor has been found to be illegal, or restrained as being in aemulationem, where it was not attended with offence or injury to the legal rights of his neighbour. In cases of nuisance a degree of indulgence has been extended to certain operations, such as burning limestone, which in law are regarded as necessary evils. If a landowner proceeded to burn limestone close to his march so as to cause annoyance to his neighbour, there being other places on his property where he could conduct the operation with equal or greater convenience to himself and without giving cause of offence, the Court would probably grant an interdict. But the principle of aemulatio has never been carried further. The law of Scotland, if it differs in that, is in all other respects the same with the law of England. No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious.

I therefore concur in the judgment which has been moved by the Lord Chancellor.

LORD ASHBOURNE :-

My Lords, I concur. To my mind the case is clear, and turns upon considerations sufficiently simple and far from obscure.

The plaintiffs have no case unless they can shew that they are entitled to the flow of the water in question, and that the defendant has no right to do what he is doing. Putting aside the statutes, the defendant's rights cannot be seriously contested. The law stated by this House in Chasemore v. Richards⁽¹⁾ cannot be questioned. Mr. Pickles has acted within his legal rights throughout; and is he to forfeit those legal rights and be punished for their legal exercise because certain motives are

(1)     7 H. L. C. 349.


imputed to him? If his motives were the most generous and philanthropic in the world, they would not avail him when his actions were illegal. If his motives are selfish and mercenary, that is no reason why his rights should be confiscated when his actions are legal.

It is to be noted that the defendant or his predecessors in title never parted with any of their legal rights; it is not suggested that the plaintiffs, by agreement or otherwise, ever acquired them; and no indication is given that there is any intention to compensate the defendant for his legal rights sought to be appropriated or injuriously affected by the plaintiffs.

The appellants' contention on the construction of the statutes would practically confiscate the defendant's water rights. I see nothing in the statutes to interfere with or prejudice his legal rights. Very clear words would be required to support the contention that legal rights have been swept away without compensation. Waters that have come under the control of the appellants are fully protected; but there is not a word to hinder or cramp the action of Mr. Pickles unless he acts "illegally," or proceeds "in any other manner than by law he may be legally entitled."

I therefore concur in the order proposed.

LORD MACNAGHTEN :-

My Lords, for forty years the corporation of Bradford have supplied their town with water. They were empowered to do so by an Act of Parliament passed in 1854, which authorized and required them to purchase the undertaking of a then existing company called "The Bradford Waterworks Company."

The chief source of their water supply was taken over from the company. It comes from a cluster of springs known as "The Many Wells." These springs issue from the lower slope of a hillside some distance from the town. Above them, in the immediate neighbourhood, there is a tract of land belonging to Mr. Pickles, the respondent. Owing to the fall of the ground and the nature and lie of the strata beneath the surface, Mr. Pickles' land forms a sort of gathering-room or reservoir for subterranean water. Two faults, nearly parallel to each other, run downwards through it, and there is a bottom of impermeable clay. At present there is no way of escape for the imprisoned waters except by the Many Wells Springs.

Within the ambit of his own land Mr. Pickles has set about making a tunnel or drift which, apparently, is intended to pierce one of the two faults that keep the underground water within bounds. If this is done the result, it is said, will be to allow the water to run off in some other direction.

The corporation claim an injunction to restrain Mr. Pickles from going on with the proposed work. They put their case in two ways. They say that under the circumstances the operation which Mr. Pickles threatens to carry out is something in excess of his rights as a landowner. Failing that ground, they maintain that his proceedings are in contravention of the express terms of their special Act.

As regards the first point, the position of the appellants is one which it is not very easy to understand. They cannot dispute the law laid down by this House in Chasemore v. Richards.⁽¹⁾They do not suggest that the underground water with which Mr. Pickles proposes to deal flows in any defined channel. But they say that Mr. Pickles' action in the matter is malicious, and that because his motive is a bad one, he is not at liberty to do a thing which every landowner in the country may do with impunity if his motives are good. Mr. Pickles, it seems, was so alarmed at this view of the case that he tried to persuade the Court that all he wanted was to unwater some beds of stone which he thought he could work at a profit. In this innocent enterprise the Court found a sinister design. And it may be taken that his real object was to shew that he was master of the situation, and to force the corporation to buy him out at a price satisfactory to himself. Well, he has something to sell, or, at any rate, he has something which he can prevent other people enjoying unless he is paid for it. Why should he, he may think, without fee or reward, keep his land as a store-room for a commodity which the corporation dispense, probably not

(1)     7 H. L. C. 349.


gratuitously, to the inhabitants of Bradford? He prefers his own interests to the public good. He may be churlish, selfish, and grasping. His conduct may seem shocking to a moral philosopher. But where is the malice? Mr. Pickles has no spite against the people of Bradford. He bears no ill-will to the corporation. They are welcome to the water, and to his land too, if they will pay the price for it. So much perhaps might be said in defence or in palliation of Mr. Pickles' conduct. But the real answer to the claim of the corporation is that in such a case motives are immaterial. It is the act, not the motive for the act, that must be regarded. If the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element.

On this point both North J. and the Court of Appeal decided against the corporation. And the decision, as it seems to me, is plainly right.

On the second point, on which North J. was in favour of the corporation and the Court of Appeal against them, there is certainly more to be said. I quite agree with the Court of Appeal in the result at which they have arrived. But, speaking for myself, I rather take leave to doubt whether the section of the special Act on which the question turns is so unsatisfactory, so ill-drawn, and so difficult to construe as it seemed to be to the Court of Appeal.

The old waterworks company was incorporated by an Act passed in 1842. It was dissolved and re-incorporated in 1854 in view of the immediate transfer of the undertaking to the corporation.

In the Act of 1854, the provisions of which were kept in force for the benefit of the corporation, the section in question is the 49th. But that section is merely a reproduction of sect. 234 in the Act of 1842. And it will be more convenient to deal with the earlier Act.

The Act of 1842 scheduled certain lands which the company were empowered to take. Among them was part of a farm belonging to one Seth Wright, which was known as Trooper or Many Wells Farm. By sect. 233 the company were authorized to divert or alter the course of a certain beck called Hewenden Beck, which is a tributary of the River Aire, "and also to divert and take the water from" the Many Wells Springs, described as "the springs and streams of water called Many Wells, arising or flowing in and through … Trooper or Many Wells Farm."

At the date of the passing of the Act, the waters issuing from the Many Wells Springs in Trooper Farm, and a stream which rose in the adjoining land, flowed in several defined channels through Trooper Farm into Hewenden Beck, which forms one of the boundaries of the farm. The scheduled portion of the farm comprised apparently some but not all of those channels. However, after the Act was passed, the company purchased the whole of Trooper Farm; and, as required by the Act, they made compensation to the millowners on Hewenden Beck for the loss of the waters of the Many Wells Springs.

Sect. 234 is a protective clause corresponding in the main with sect. 14 in the Waterworks Clauses Act 1847. It was to come into operation after the purchase of the Many Wells Springs.

According to the ordinary course of legislation in this country, a clause of that sort is intended to protect property, rights, and interests which have been acquired by purchase, not to transfer arbitrarily from one person to another property and rights for which nothing has been paid, and for which no compensation is provided.

In the first place, the section says that, "After the Many Wells Springs have been purchased by the company, it shall not be lawful for any person other than the said company to divert, alter, or appropriate in any other manner than by law they may be legally entitled any of the waters now supplying or flowing from the same." Both as regards the underground sources of the springs and as regards the streams flowing from them in their natural course it forbids any act by any person in excess of his legal rights. At that time it must be remembered that the rights of landowners in regard to underground water had not been finally determined. If the view which commended itself to the Court of Exchequer in Dickinson v. Grand Junction Canal Company⁽¹⁾ had been established, the proposed action of

(1)     7 Ex, 282.


Mr. Pickles would, no doubt, have been illegal. As it is, there is nothing in the first part of the prohibition to restrict or curtail his rights as a landowner in dealing with underground water percolating through his land in unknown channels.

In the second place, the section declares that no person but the company is "to sink any well or pit, or do any act, matter, or thing whereby the waters of the said springs may be drawn off or diminished in quantity." What is the meaning of the expression, "The waters of the said springs"? The natural and obvious meaning seems to me to be the waters issuing from the springs, such as they happen to be in quantity and volume, at the point of issue, or in one case at the point of entry, into Trooper Farm. The expression cannot include the underground sources which serve to feed the springs. Otherwise you would have this singular result, that things which by reason of the saving of existing rights are treated as legal and permissible in one part of the clause are treated as illegal and prohibited by another. It must mean the water which the company were authorized to "divert and take from" those springs which the section at its commencement assumes the company to have purchased - not the waters which supply the springs, but the waters which the springs supply. A comparison of other sections in the Act will confirm this view if any confirmation is required. The expression, "The waters of the said 'Many Wells'" occurs in sect. 275, and then it is evidently synonymous with the following words in a parallel passage in sect. 238: "The water issuing from the springs of water before mentioned called 'Many Wells,' and which is hereby authorized to be taken and diverted for the purposes of this Act."

After the company had compensated the mill-owners on Hewenden Beck and purchased Trooper Farm, the waters of the Many Wells Springs at and from the point of issue in Trooper Farm, and the water of the stream which rose in the adjoining land at and from the point of its entry into Trooper Farm, became the absolute property of the company, and it was the duty of the company to carry those waters to Bradford. No one was to interfere with them. Any such interference is characterised, in a later part of the section, as an illegal act.

And, indeed, it seems to me very difficult to conceive how such an act could in any case be legal, unless the company constructed their works in a perverse and foolish manner. No one from whom the company acquired land or even an easement for the purposes of their works could lawfully let down those works. No one else, it may be assumed, would be in a position to do so. No one could lawfully tap their aqueducts or conduits.

I am of opinion that the act which Mr. Pickles proposes to do is not within either of the two classes of prohibited acts mentioned in sect. 234. It is not within the first class, because at the time of the passing of the Act his predecessor was legally entitled, and he is now legally entitled, to do the thing which is complained of. It is not within the second class, because Mr. Pickles does not propose to do anything which can have the effect of drawing off or diminishing in quantity the waters of the Many Wells Springs, such as they may be at the point of issue in Trooper Farm, or as regards the stream which does not rise in Trooper Farm at the point of its entry into that farm.

It was argued somewhat faintly that sect. 49 of the Act of 1854 must have a wider meaning than that which I think ought to be attributed to sect. 234 of the Act of 1842, because the Act of 1854 incorporates the Waterworks Clauses Act of 1847, and sect. 14 of that Act covers, it is said, everything which is covered by sect. 234 of the Act of 1842 if it be construed as it seems to me it ought to be construed. There would be very little in such an argument under any circumstances, because it is only natural that the promoters of the legislation of 1854 would, on the reconstruction of the company, desire to retain or re-enact every clause in the former Act which could make for their protection. But the truth is, that the section of the Waterworks Clauses Act of 1847, which corresponds with sect. 49 of the Act of 1854, does not apply to the Many Wells Springs. They were purchased under the Act of 1842. The Act of 1854, which incorporates the Waterworks Clauses Act 1847, declares that in construing that Act the expression "the special Act" shall mean the Act of 1854. It does not mean or include the Act of 1842.

I am, therefore, of opinion that this appeal should be dismissed with costs.

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