Subject_River — Rights of Riparian Owner — Diversion of Water — Railway — Use for Locomotives of Water of Stream Crossed by a Railway Line.
Facts:
A railway company whose line crossed a stream
held not entitled as riparian owner to draw off by means of a pipe laid along the line the water of the stream for the use of its locomotives.
Swindon Waterworks Company v. Wilts and Berks Canal Company,
1875, L.R. 7 H.L. 697,
followed.
Headnote:
The Londonderry and Lough Swilly Railway Company raised an action against M'Cartney, a millowner, who, being a lower proprietor, had stopped up a pipe inserted by the company into a stream crossed by the railway line for the purpose of drawing off water for the use of its locomotives.
The Judge (
Holmes, L.J.) gave judgment for the defendant, but on appeal this judgment was reversed by the King's Bench Division (
O'Brien, C.J.,
Gibson,
Madden &
Boyd, JJ.), whose decision was affirmed by the Court of Appeal in Ireland (
Lord Ashbourne, L.C., and
Walker, L.J., dissenting
Fitzgibbon, L. J.).
M'Cartney appealed.
The facts are given in their Lordships' opinions.
At delivering judgment—
Judgment:
Lord Chancellor (Halsbury)—In this case the question is raised between a mill-owner and a Railway Company, the latter claiming a right to take the water of a stream which the millowner uses to supply the power for his mill. The case was originally tried before Holmes, L.J., who decided in favour of the millowner, but the issues between the parties have become a little confused from admissions made on both sides which do not appear on the pleadings, and, indeed, not by any written admission at all. The Railway Company brought an action seeking to restrain the millowner from obstructing their alleged right in what the statement of claim described as a natural stream. The mill-owner in his plea denied that it was a natural stream, and alleged that, such as it was, it was in fact an artificial watercourse. There was ample evidence of this, and the learned Judge who tried the case found as a fact that it was an artificial watercourse made by the defendant and his predecessors in title, and used by them for a long time. For some unexplained reason this finding has been got rid of, I know not how, and the case has been argued upon the hypothesis that the stream is a natural stream; and another concession, made without pleadings or written admission of any kind, is that the action of the defendant in obstructing the plaintiffs' works was justified unless they possess the right which they claimed of abstracting and using without in any way returning to the stream as much water as they require for the locomotives on their line of railway up to 15,000 gallons a day. Some effort was made during the argument to minimise the amount which the Railway Company claim a right to take, and, indeed, the Court of King's Bench in Ireland preface their judgment by a recital which is apparently intended to limit the user, but it does not do so, nor, as FitzGibbon, L. J., pointed out, is it easy to see what operation that recital can have. The Railway Company claim a right to place in the stream a pipe, which, if used to its full capacity, would take 15,000 gallons a day, but they say that their present requirements would be satisfied with a third of that quantity. Notwithstanding the recital, it appears to me that the judgment of the Court of Appeal would entitle them to take as much as they wanted up to the extent of 15,000 gallons a day. The pipe obstructed would take 15,000 gallons a day. The Railway Company claim a right to keep their pipe, such as it is, together with an admission that they may want more than they at present take, and the Court of Appeal have affirmed the judgment of the King's Bench. But Holmes, L.J., also decided that, even if the stream were a natural stream, the defendant was entitled to the verdict, inasmuch as the plaintiffs were not entitled to the use of the stream in the manner claimed. I am of opinion that Holmes, L.J., was right. It seems to me that any other decision would be in conflict with the decision of your Lordships' House in the case of
Swindon Waterworks Company v. Wilts and Berks Canal Company,
1875, L.R. 7 H.L. 697. In that case Lord Cairns, L.C., with the complete assent of Lord Hatherley
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and Lord Selborne, gave an elaborate exposition of riparian rights, which, though not a new decision, was nevertheless supposed to have settled and almost codified the law upon the subject. Now, it is necessary to consider what it is that the Railway Company do, because that is what they claim a right to do. They collect, by a pipe placed in the stream at a point where they own some land adjoining the stream, the water into a tank to be used in the boilers of their locomotive engines. The engines, of course, consume the water in the course of their journeys. The railway itself is forty miles in length, but it is connected with other railways over which the engines run for a much greater distance. If the question were the reasonableness in respect of quantity, I should think it a most unreasonable thing that the use of a stream passing through a very small area of riparian land should be made to extend to forty miles of country, or wherever else the exigencies of the railway service might require. Speaking of it simply in respect of quantity, I think it more unreasonable than supplying drinking water to an asylum built on the banks, which has been held to be unlawful. But in truth it is not a question of the quantity at all. I now apply Lord Cairns' words, which are, I think, literally applicable here. “The use which they” (in this case the Railway Company) “claim the right to make of it is not for the purpose of their tenement at all, but is a use which amounts to a complete diversion of the stream.… It is a confiscation of the rights of the lower owner.” It is to be observed that Lord Cairns used this language when a water company were riparian proprietors and had taken water to supply their customers in a neighbouring town. But in that case it was found as a fact that the plaintiffs were not damaged at all. For another reason the question of damage here has become immaterial. The Railway Company set up a right to do what they have done. It is not a question here of an injury being so trifling that a court of equity would not interpose by the remedy of an injunction. They not only set up a right, but actually ask for a declaration of their right to do what they have done. I said that the judgment of Lord Cairns codified the rights of riparian proprietors, and I used that phrase because I do not think that there is any novelty in the decision. It certainly has been the law as understood in England for more than half a century. The only part of the judgment of FitzGibbon, L.J., who has dealt admirably with every other part of the case, with which I am unable to concur is that in which he expresses the opinion that the judgment of Bacon, V.C., in
Sandwich v. Great Northern Railway Company (
1879, 10 Ch. Div. 707) was right upon the facts proved before him. I cannot agree to that. It may be that the Vice-Chancellor would have been justified in refusing an injunction and leaving the plaintiffs to their remedy at law, but unfortunately he uses language which seems to affirm the right of the Railway Company to carry the water along their line, and justifies this as a riparian use. To this I cannot assent. For the reasons which I have given I think that this is not a riparian use at all, and I must say that I think that the decision was wrong. I move your Lordship that the appeal should be allowed, that the judgment of Homles, L.J., be restored, and that the respondents do pay to the appellant the costs both here and below.
Lord Macnaghten—I prefer the judgment of FitzGibbon, L.J., and what now remains of the judgment of Holmes, L.J., to the opinion of the learned Judges from whom they differ. Holmes, L.J., who tried the case at the Derry Assizes without a jury, rested his decision on two grounds. In the first place, he came to the conclusion that the stream about which this litigation has taken place was really an artificial watercourse, and that M'Cartney and his predecessors in title had had the control and management of it from a point above the proposed intake of the Railway Company for a period beyond living memory. In the second place, assuming the stream to be a natural watercourse, he held that the thing which the Railway Company proposed to do was not within the rights attached to riparian owneship. For some reason or other which I do not understand, the first ground of decision was abandoned in the Court of King's Bench and in the Court of Appeal. I regret the course that was taken. The matter seems to me to be worthy of serious consideration, and I cannot altogether accept the view of one of the learned Judges in the Court of Appeal who dealt with the question and disposed of it summarily without argument. However, the point is not open now. The appellant must be held to the concession made on his behalf, and the case must be treated as if the mill-race were to all intents and purposes a natural stream. Even so, if it had not been for the great preponderance of judicial opinion in Ireland, I confess that I should have thought the case very plain and covered by authority. There are three ways in which a person whose lands are intersected or bounded by a running stream may use the water to which the situation of his property gives him access. He may use it for ordinary or primary purposes, for domestic purposes, and the wants of his cattle. He may use it also for some other purposes, sometimes called extraordinary or secondary purposes, provided that these purposes are connected with or are incident to his land, and provided that certain conditions are complied with. Then he may possibly take advantage of his position to use the water for purposes foreign to or unconnected with his riparian tenement. His rights in the first two cases are not quite the same. In the third case he has no rights at all. Now, it seems to me that the first question which your Lordships have to consider is, under what category does the proposed user by the Railway Company fall? Certainly it is not the ordinary or primary use of a flowing
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stream, nor is it, I think, one of those extraordinary uses connected with or incident to a riparian tenement which are permissible under certain conditions. In the ordinary or primary use of flowing water a person dwelling on the banks of a stream is under no restriction. In the exercise of his ordinary rights he may exhaust the water altogether. No lower proprietor can complain of that. In the exercise of rights extraordinary but permissible, the limit of which has never been accurately defined, and probably is incapable of accurate definition, a riparian owner is under considerable restrictions. The use must be reasonable. The purposes for which the water is taken must be connected with his tenement, and he is bound to restore the water which he takes and uses for those purposes substantially undiminished in volume and unaltered in character. What the Railway Company propose to do is to abstract a certain portion of the water of the stream, to carry it along their own property to a tank half-a-mile off, and then to consume it in working their locomotive engines. They have more than forty miles of railway of their own, and they have running powers over the lines of other companies. They have no intention of restoring to the stream a single drop of the water which they mean to abstract, nor is it possible for them under the circumstances to do anything of the kind. Is that a user which though extraordinary is yet legitimate and permissible? I should say certainly not. So far as the interests of the lower proprietors are concerned they mean to efface and blot out as it were that portion of the stream which they propose to abstract. They mean to do so for their own gain, to save themselves the expense of paying for the water required for the purpose of their business or gathering it for themselves, and they claim a right to do this. It seems to me that they might just as well claim a right to sell the water. And indeed Mr Ronan in his able argument did not shrink from that position. He boldly contended that they would be perfectly justified in selling the water or doing anything they pleased with it, provided that the lower proprietor was not practically injured. By way of clenching this argument Mr Evans pointed out that the learned Judge at the trial expressed no opinion as to the extent to which M'Cartney's water power would or might be diminished by what the Railway Company proposed to do. And he succeeded, I think, in showing that there was no reported case in which the Court had interfered where the injury complained of was so inconsiderable as that which would be likely to occur in the present case. That may be very true, but all the cases to which he referred were cases where the injury complained of was done in the exercise, or assumed exercise, of an authorised and permissible user. That seems to me to make all the difference. I said that I thought that this case was covered by authority. It seems to me to be entirely covered by the decision of this House in the case of
Swindon Waterworks
Company v. Wilts and Berks Canal Company (
cit. sup.) There Lord Cairns, L.C., gave a judgment as to the rights of riparian owners so complete and exhaustive that I venture to say that no case has since come before the courts, not excepting the case of
Kensit v. Great Eastern Railway Company (
1884, 27 Ch. Div. 122), which might not have been disposed of by the application of one or two sentences taken from it, and that perhaps without any great loss to the general stock of legal knowledge. That case presented two aspects. The canal companysued as canal proprietors with statutory powers. They sued also as riparian owners in respect of a tenement called “Wayte's tenement,” on which there had formerly been a mill. The waterworks company, who were upper proprietors, had diverted a portion of the stream for the purposes of their business. His Lordship pointed out that such an appropriation of the water did not come within the range of those authorities which deal with cases of extraordinary user permissible under certain conditions. “Those were cases,” he said, “where the use made of the stream by the upper owner has been for purposes connected with the tenement of the upper owner. But the use which has here been made by the appellants of the water, and the use which they claim the right to make of it, is not for the purpose of their tenement at all. That is not a user of the stream which could be called a reasonable user by the upper owner; it is a confiscation of the rights of the lower owner; it is an annihilation, so far as he is concerned, of that portion of the stream which is used for other purposes, and that is done, not for the sake of the tenement of the upper owner, but that the upper owner may make gains by alienating the water to other parties who have no connection whatever with any part of the stream.” Then he points out that the canal company, as riparian owners, clearly had a right to complain of what was done by the waterworks company, if what was so done by them was insisted upon as a thing which they had a right to do. After the claim of right it was impossible, he said, that the Court could do otherwise than decide the issue which was thus raised between the parties. He added—“It is a matter quite immaterial whether, as riparian owners of Wayte's tenement, any injury has or has not been sustained by the respondents. If the appellants are right they would at the end of twenty years by the exercise of this claim of diversion entirely defeat the incident of the property, the riparian right of Wayte's tenement. That is a consequence which the owner of Wayte's tenement has a right to come into the Court of Chancery to get restrained at once by injunction or declaration as the case may be.” Lord Hatherley and Lord Selborne entirely agreed. Lord Hatherley observed that enough had been made out to justify the interference of a court of equity. “A very slight amount of evidence,” he added, “of the actual amount of damage done would be sufficient to justify an injunction, and the declaration of right to be made by the Court is absolutely
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necessary in consequence of the assertion of right made by the appellants.” And so this House altered the order of the Court of Appeal by declaring the rights of the canal company as owner of Wayte's mill to the flow of the stream down to their tenement, “subject to the ordinary and reasonable use of the said stream and waters by the riparian owners higher up upon the said stream.” And then there was added an express declaration, which was not to be found in the order of the Court of Appeal, to the effect that the proposed user by the waterworks company was not within such ordinary or reasonable use. As riparian owners the canal company were not injured in the very least in present enjoyment, but yet it was as riparian owners that they were held entitled to this declaration in their favour, negativing the pretended rights of their opponents. The question in that case in regard to the rights of the canal company, as owners of Wayte's tenement, and the pretended rights of the waterworks company was precisely the same question as that which is raised in the present case. The Railway Company claim a right to do that which they propose to do. That was admitted to be the question at the trial before Holmes, L. J., and therefore it was not incumbent upon M'Cartney to do more than show a very slight case of actual or probable injury. He has shown a certain amount of injury, not very substantial I admit, but still I think quite sufficient to entitle him to damages at law when a claim of right is set up, and sufficient, therefore, to entitle him to a declaration in equity. It may well be that if the Railway Company had said, “We do not claim a right at all, but what we propose to do is such a trivial matter that it cannot do you any practical injury,” the Court might have thought fit not to interfere; but that is not the line which the Railway Company took. They claimed a right; they admitted that if that issue was found against them their whole case must fail. The question of right was not merely the sole question at issue before the Court of King's Bench and the Court of Appeal. And those Courts have made a declaration of right, but a declaration, I think, in favour of the wrong party. They have declared in effect that the Railway Company are entitled to abstract and consume, for purposes unconnected with the tenement which gives access to the stream, a portion of the water of the stream which can by no possibility be restored to it. That declaration seems to me to be contrary to principle and precedent. I do not think it necessary to say anything more, but I may venture to remind your Lordships that the law laid down in this House in the
Swindon case was no new doctrine. It is stated clearly and precisely by Parke, B., in
Embrey v. Owen (
1851, 6 Ex. 353), and by Cresswell, J., in
Sampson v. Hoddinott (
1857, 1 C. B. N. S. 590). I have only to add that in my opinion it would be extravagant to suggest that the system of the respondent company and the lines of other companies over which they have running powers form one single riparian tenement, or that the company, by virtue of contact with this stream at one point, possess throughout their system and all through the lines of other companies over which they have running powers, rights analogous to those possessed by persons who dwell on the banks of a river in respect of their riverside property. It may be difficult to say how far the lights of the company as riparian owners extend, but they can hardly go to such a length as that. I am of opinion that the judgments of the Court of Appeal and of the Court of King's Bench ought to be reversed and the judgment of Holmes, L.J., restored, and that the respondents ought to pay the cost both here and below. But in order to prevent any dispute in future I think that it would be well to preface the order by a declaration of opinion that the Railway Company are not entitled to use the stream in question for the purpose of supplying their locomotive engines with water.
Lord Lindley—It is not now disputed that the stream from which the Railway Company desire to take water is, or at all events must be regarded as, a natural and not an artificial stream, nor is it disputed that the company are the proprietors of the strip of land on which their line is constructed where it crosses the stream. For a short distance therefore they are the proprietors of a few feet of land next the stream. They put down a 3-inch pipe by which they intended to draw water from the stream in order to fill a tank some distance off, from which they could supply their locomotive engines with water. This pipe was on their own land, and the defendant had no power to interfere with it unless he was entitled to do so in order to protect his own water rights as a riparian proprietor lower down the stream, where he had a water-mill. In order, however, to protect those rights he took up the pipe, and it was admitted at the trial that he was justified in what he did if the Railway Company were not entitled to use the water in the manner proposed. Holmes, L.J., who tried the case, held that the defendant was justified in what he did. The Divisional Court took a different view and reversed his decision, and the Court of Appeal affirmed the decision of the Divisional Court, FitzGibbon, L.J., dissenting. It was proved at the trial that the defendant's mill was an old mill, and required a flow of 7000 gallons of water per minute to work it. To work for one hour, therefore, 420,000 gallons would be required. The total quantity of water reaching the mill in dry weather was about 627,000 gallons per day, and of this quantity 500,000 gallons only came down the stream as far up as the mouth of the Railway Company's pipe. The remaining 127,000 gallons entered the stream lower down. On the other hand, it was proved that the pipe would carry off 15,000 gallons a day if allowed to run unchecked. The Railway Company gave evidence that they did not want more than 5000 gallons a day, and that they
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only had ten locomotives a day to fill. But their witnesses admitted that more would probably be wanted shortly. The practical result of the evidence was that in dry weather the defendant wanted all the water he could get, and that if the Railway Company drew off only 5000 gallons a day his mill would be stopped for less than a minute a day; and that if they drew off 15,000 gallons a day it would he stopped for less than three minutes a day. Holmes, L.J., did not apparently decide the case upon the ground that the defendant would sustain serious damage, but on the wider ground that the Railway Company had no right to take water from the stream for the purpose of supplying their locomotives with water. The Divisional Court and the Court of Appeal were of opinion that the Railway Company were entitled to take water for their locomotives provided that they did not seriously interfere with the working of the defendant's mill; and they considered that the interference would be too slight to amount to an infringement of his rights. The water which the Railway Company contend that they are entitled to take is wanted for use over the whole line, including the little strip of land which immediately adjoins the stream, and is crossed by it. But the whole line cannot be regarded as riparian property; and the quantity of water required for use on the short strip which immediately adjoins the stream is too small to be of any consequence to either party. The right to take that much is not worth discussing, and may be conceded, but the concession will not decide the important question which your Lordships have to determine. Although the damage suffered, or likely to be suffered, by the millowner is small, yet it is plain that if the Railway Company are not entitled to retain and use their pipe as intended, but are nevertheless allowed to do so without interruption for twenty years, they will be infringing the millowner's rights all that time, and will at the end of the twenty years gain a prescriptive right to continue such use for ever. Such an invasion of his rights the millowner is entitled to prevent. This has been long well settled. In the note to
Mellor v. Spateman (
1 Saunders' Reports, 339, p. 612, ed. 1871) it is said—“Wherever an act injures another's right, and would be evidence in future in favour of the wrongdoer, an action may be maintained for an invasion of the right without proof of any specific injury.” This principle has been repeatedly recognised and acted upon in cases involving water rights—
e.g.,
Sampson v. Hoddinott,
1857, 1 C. B. N. S. 590;
Harrop v. Hirst,
1868, L. Rep. 4 Ex. 43. The principle must be borne in mind when reliance is placed on judicial decisions in which it was not necessary to refer to it. The principle was conceded and recognised in
Kensit v. Great Eastern Railway Company (
cit. sup.), which was decided on the ground that what was there complained of was not in excess of the defendants' rights, and could never grow into a prescriptive right, inasmuch as all the water taken from the stream was returned to it undiminished in quantity and undeteriorated in quality. This was the
ratio decidendi of that case. The question for your Lordships' decision is therefore reduced to this—Will the use of this pipe by the Railway Company infringe the millowner's rights? Or, in other words, are the Railway Company entitled to use this pipe for the purposes for which they have put it down? Two cases only have come up in which the right of a railway company to take water from a stream for its locomotive engines has called for judicial decision. One is
Attorney-General v. Great Eastern Railway Company,
23 L.T.Rep. 344, in which Lord Romilly, M.R., expressed his opinion that a railway company having a line adjoining a stream had no right to take water from it for supplying their locomotives. The other is
Sandwich, v. Great Northern Railway Company (
ubi sup.), in which Bacon, V.C., decided that they had. In the first of those cases, which was affirmed by Lord Hatherley, L.C., 1871, L.Rep. 6 Ch. 572, the abstraction of the water seriously impeded the navigation of the stream, and Lord Hatherley decided the case on that ground. In the other case no substantial damage was proved, and Bacon, V.C., considered that the railway company were entitled to take what water they wanted so long as they did not inflict any substantial damage on other riparian owners. He held, in short, that the railway company were not exceeding their own rights, and were not infringing the rights of the plaintiff. This decision is in favour of the Railway Company in the present case. I cannot, however, think it right in point of law. It is in my opinion impossible to reconcile it with the principles laid down and acted on by this House in
Swindon Waterworks Company v. Wilts and Berks Canal Company (
cit. sup.). In that case a water company had bought a mill by a stream and took water from it to supply a neighbouring town. They were held not entitled to do this, although the plaintiffs, who were lower riparian owners, were not in fact damaged by the defendants' operations. Lord Cairns, L.C., there stated the law as to the water rights of riparian owners, and it is unnecessary to do more than refer to his judgment. The Railway Company in this case became riparian owners simply by buying a small strip of land crossed by the stream. They thereby acquired the water rights, whatever they were, of the owner of the land so bought, but they acquired no greater rights than he could give them in respect of that land. These rights did not include the right to take water from the stream for consumption off the land the possession of which conferred his rights. He could not lawfully take water from the stream in any appreciable quantity and sell it for use miles away, or indeed use it himself at a distance from his riparian tenement without returning it to the stream. Such a use can only be justified by a grant from lower riparian owners or by prescription. This I take to be settled by
Stockport Waterworks Company v. Potter,
1864, 3 H. & C. 300, by the
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decisions of the Court of Appeal and of your Lordships' House in the
Swindon case (
cit. sup.), and by
Ormerod v. Todmorden Mill Company,
1883, 11 Q.B. Div. 155. The intended use of the water in this case by the Railway Company was reasonable enough from their point of view, but such use would have been in excess of their rights, and an infringement of the rights of other persons in the position of the defendant. I am of opinion, therefore, that the appeal should be allowed, and that the judgment of Holmes, L.J., should be restored, and that the Railway Company should pay the costs here and below.
Judgment appealed against reversed, and judgment of Holmes, L.J., restored.
Counsel:
Counsel for the Plaintiffs and Respondents—
S. Ronan, K.C.—
S. T. Evans, K.C.—
John Leach. Agents—
W. Webb & Co.
Counsel for the Defendant and Appellant—
M. Drummond, K.C.—
D. S. Henry, K.C.—
P. Law Smith. Agents—
Greene & Underhill.
