Stopping ways under inclosure acts.

lands and hereditaments, or any part thereof, to use and enjoy, with horses, carts and carriages, or on foot, jointly or in common with others the person or persons for the time being entitled to the like liberties, licences and authorities respectively, the roads or ways leading to and from the same lands and hereditaments as the same roads or ways are described in the said map or plan." At the time of conveyance the land so purchased by the company was separated from the road by a hedge, in which were two gates, one at the upper, the other at the lower end of the road. The company removed the hedge and built a wall with two gates thereon, both at the same distance from the spot where the old gates had stood. The defendant obstructed the access to these new gates by excavating the road to the depth of between four and five feet. It was held, that the defendant was liable to an action at the suit of the company, for that whether the company was justified in altering the position of the gates or not, the company was still entitled to the uninterrupted use of the way as granted to them. (South Metropolitan Cemetery Company v. Eden, 16 C. B. 42.) But it seems that the grant was a general grant of a right of way along the road and every part thereof, and was not limited to a way through the old gates. (Ib.)

The acquiring a right of way by the public does not destroy a previouslyexisting right of way over the same line; but the private way must be previously existing. A private right of way cannot be proved by evidence of a public right. A right of way had been granted in 1675; there was evidence that for ten years before the commencement of the action for obstructing the right of way, that part of the way had become public. It was held unnecessary to state in the declaration that such part had become public. (Duncan v. Louch, 6 Q. B. 904.)

By the 10th section of the General Inclosure Act, 41 Geo. 3, c. 109, the commissioners are directed to set out private roads; and by the 11th section of that act it is declared that all roads, ways and paths, over, through and upon such lands and grounds, which shall not be set out, shall be extinguished. But where a private inclosure act does not vary the terms of the above act, if the commissioners in their award do not notice a road running over the inclosed lands, it is, by the operation of that act, extinguished, and the proprietor of the lands over which it runs may stop it up. Thus it was held, that a plaintiff, to whom an allotment was made by a commissioner under an inclosure act, of land over which the defendants had a private right of way before the passing of the act, but which was noticed or described amongst those set out by the commissioner, might justify the stopping up of such way, although the award contained no declaration that the road in question was stopped up. (White v. Reeves, 2 B. Moore, 23.) As to the construction of local inclosure acts giving powers to stop up roads, see Logan v. Burton, 5 B. & Cr. 513; S. C., 3 Dowl. & Ryl. 299; Harber v. Rand, 9 Price, 58; Rex v. Inhabitants of Hatfield, 4 Ad. & Ell. 156. As to stopping up and turning highways under inclosure acts, see Shelford on the Law of Highways, pp. 212-219, 3rd ed. Where commissioners had no power under the particular or general inclosure act to stop up a way over old inclosures, but did not by their award set out any new way over the waste lands inclosed, it was held, that an old footway passing from a public highway over wastes to old inclosures, into another public highway, still existed as it formerly did over the waste lands, and over the old inclosures into the public highway. (Thackrah v. Seymour, 1 Cr. & Mees. 18.)

A private right of way over waste land, or a line between two points, is not necessarily a right over every part of the land, and the owner of the soil may inclose on each side of it, if the way can be substantially used as conveniently as before the inclosure. (Hutton v. Hamboro, 2 F. & F. 218.) The 10th and 11th sections of the stat. 41 Geo. 3, c. 109, do not extinguish a right to take water from a well which the inhabitants of a parish had immemorially exercised before an inclosure act upon land formerly common which had been inclosed, although the ancient way to the well which existed before the inclosure had been extinguished under it. (Race v. Ward, 7 Ell. & Bl. 384.)

It is an elementary rule in pleading, that when a state of facts is relied

on, it is enough to allege it simply without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation. Thus, in a case very familiar, if a trespass be justified by a plea of highway, the pleader never states how the locus in quo became a highway: and if the plaintiff's case is that a locus in quo, by an order of justices, award of inclosure commissioners, local act of parliament, or any other lawful means, had ceased to be such at the time alleged in the declaration, he simply puts in issue the fact of its being a highway at that time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such. (Williams v. Wilcox, 8 Ad. & Ell. 331.) In all cases for disturbance of a way, the obstruction ought to be charged in the pleadings in the thing itself to which the party has a right, and if charged generally, the declaration would be bad. Much more then, when the mode of the obstruction is stated, and that not in the thing where the right is claimed. (Tebbutt v. Selby, 1 Nev. & P. 717; 6 Ad. & Ell. 786.) Where in an action for wrongfully stopping up a way the precise locality of the way is material to the defence, the defendant is bound to show it in his pleadings. (Ellison v. Iles, 3 Per. & D. 391; 11 Ad. & Ell. 665.) Where in an action of trespass for disturbing a right of way the plaintiff averred that the defendant used and enjoyed the right of way mentioned in the plea, but that he did so under the plaintiff's leave and licence, the plaintiff is bound to show a licence co-extensive with the right claimed in the plea, and admitted by the replication. (Colchester v. Roberts, 4 Mees. & W. 769.) By an inclosure act, it was enacted, that all ways over a certain field, called West Field, allotted to B., should be extinguished from the time of the making and completion of a new road, as therein directed, with a proviso that nothing in the act should extend, or be construed to extend, to deprive A., his heirs or assigns, or his or their agents, &c., of the right of ingress, egress, and regress, to and from a watercourse, for the purpose of rebuilding, repairing, opening or shutting the sluices thereon, or to cleanse the same: it was held, that this reserved to A. his right of way unimpaired over West Field, for the purposes mentioned in the act. (Adeane v. Mortlock, 7 Scott, 189; 5 Bing. Ñ. C. 236; 3 Jur. 105.)

An ancient public bridle way existed for the greater part undefined over common inclosed land, the remaining part being through old inclosures. By an award of inclosure commissioners, under a local act, the road was altered in some parts, and defined throughout within narrow limits, was set out as "one public and bridle road and private carriage road for the use" of certain private individuals named in the award, and to be kept in repair by them. No order of justices for stopping up or diverting the old road or certificate of the sufficiency of the new road had been obtained: it was held, that the award did not operate under the General Inclosure Act, 41 Geo. 3, c. 109, as a diversion or stopping up of the public bridle road and setting out of a new one, but that the public had the same right of passage as before, and therefore that the parish in which the road lay remained liable to do such repairs, as were requisite to maintain it a public bridle road. (Reg. v. Cricklade, 14 Q. B. 735; 19 Law J., M. C. 169, Q. B.; 14 Jur. 690. See Gwyn v. Hardwicke, 1 H. & N. 49; 25 L. J., M. C. 97.)

An action on the case lies for the disturbance of a right of way, created Action for diseither by reservation, grant or prescription; (Com. Dig. Action on the Case turbance of ways. for Disturbance, (A. 2); 1 Roll. Abr. 109;) and such disturbances may be either by absolutely stopping up the way, or by ploughing up the land through which the way passes (2 Roll. Abr. 140), or by damaging the way with carriages, so that it is of no use. (Loughton v. Ward, 1 Lutw. 111.) But such action will not lie for the disturbance of a highway, unless the plaintiff has sustained some special damage. (Co. Litt. 56 a; Rep. 73 a; 2 Bing. 263, 266; Rose v. Groves, 5 Man. & G. 613; Dobson v. Blackmore, 9 Q. B. 1002; Blagrave v. Bristol Waterworks Company, 1 H. & N. 369.)

The Railway Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, s. 53, takes away the common law right of action for an interference under the powers of a railway company with a private right of way, except when special damage has been sustained. (Watkins v. Great Northern Railway Company, 16 Q. B. 961; 20 Law J., Q. B. 391.)

Liability of owner for negligence.

Action by reversioner.

In an action of trespass for breaking the plaintiff's close, which was set out by abuttals, and pulling down certain posts and bars then standing thereon, the defendants pleaded that there was a public footway over the said close, and that the defendants, because the posts and bars obstructed the footway, pulled them down. The replication traversed the public footway it was held, that on these pleadings the defendants were entitled to a verdict on proving a right of footway over any part of the close, and were not bound to prove a right of way over the spot where the posts and bars stood. (Webber v. Sparkes, 10 Mees. & W. 485; 12 Law J. (N. S.) 41. See Wood v. Wedgewood, 1 C. B. 273.)

In an action of trespass for breaking and entering the plaintiff's close, called, &c., and cutting down and prostrating 100 yards of his rails there standing, the defendants pleaded a public right of way over the close, and that they were using the said way, and because the said rails were wrongfully erected upon, and standing in and obstructing the said way, they prostrated the same, &c., which are the same supposed trespasses, &c. The replication was, that the said rails were not standing in the said way, in manner, &c. Issue was taken thereon. The defendants had cut down some rails of the plaintiff standing on a public highway in the close described, and other rails belonging to him, which were in the same close and not on the highway. It was held, that the plaintiff could not recover; for, by taking issue on a plea which restricted the matter of dispute to the highway, he had excluded himself from proof as to rails in any other part of the close; and, to recover for these, he should have new assigned. (Bracegirdle v. Peacock, 8 Q. B. 174.)

A public thoroughfare was stopped, whereby the plaintiff, a bookseller, whose shop was in the thoroughfare, suffered a loss of custom: it was beld sufficient special damage to entitle him to his action on the case. (Wilks v. Hungerford Market Company, 2 Scott, 446; 2 Bing. N. C. 281; 1 Hodges, 281.) In Iveson v. Moore, 1 Lord Raym. 186, it was held, that the preventing of colliers from coming to a colliery by obstructing a public highway, by which the benefit of the colliery was lost, was such a damage as would enable a man to maintain an action for the nuisance. (See Rose v. Miles, 4 Maule & S. 101; Rose v. Groves, 5 Mann. & G. 620, post.)

Where an owner of the soil permits others to pass over it, he is liable for an accident caused by the negligence of himself or his servants to a person lawfully availing himself of such permission, though he would not be liable for an accident caused by the ordinary risks attaching to the nature of the place, or the business there carried on. (Gallagher v. Humphrey, 10 W. R. 664.)

An owner of land having a private road for the use of persons coming to his house, gave permission to a builder who was engaged in building on the land to place materials upon the road. The builder availed himself of such permission, by placing a quantity of slates there in such a manner that the plaintiff in using the road sustained damage: it was held that the builder was liable to an action. (Corby v. Hill, 4 C. B. (N. S.) 556; 4 Jur. (N. S.) 512; 27 Law J., C. P. 218; Belch v. Smith, 7 H. & N. 736.)

A reversioner cannot maintain an action on the case against a stranger for merely entering upon his land held by a tenant on lease, though the entry be made in exercise of an alleged right of way, such an act during the tenancy not being necessarily injurious to the reversioner; for, in order to entitle a reversioner to maintain an action on the case against a stranger, he must allege in his count, and prove at the trial, an actual injury to his reversionary interest. (Baxter v. Taylor, 4 B. & Ad. 72; S. C., 1 Nev. & M. 11. See Jackson v. Pesked, 1 Maule & S. 234; Alston v. Scales, 2 Moore & Scott, 5.) A reversioner cannot sue for the obstruction of a right of way, unless the obstruction be such as either permanently injures the estate, or operates in denial of the right. (Hopwood v. Scholfield, 2 M. & Rob. 34. See Young v. Spencer, 10 B. & Cr. 145.) A declaration in case by a reversioner alleged that the plaintiff was entitled to a right of way for his tenants over a certain close of the defendant, and charged that the defendant wrongfully locked, chained, shut and fastened a certain gate, standing in and across the way, and wrongfully kept the same so locked, &c., and thereby

obstructed the way, and that by means of the premises the plaintiff was injured in his reversionary estate: it was held, on motion in arrest of judgment, that the declaration was sufficient, inasmuch as such an obstruction might occasion injury to the reversion, and it must be assumed after verdict that evidence to that effect had been given. (Kidgill v. Moor, 9 C. B. 364.) If a road, when made, was such as was authorized by a reservation in a lease, the intention to use it for a purpose not authorized is no ground for an action by the reversioner, though, if the intent were carried into effect, the tenant in possession may be entitled to bring an action of trespass. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 940.)

In the Schedule to the Common Law Procedure Act, 15 & 16 Vict. c. 76, Forms of pleadthe following forms of pleading are given: "That the defendant, at the time ings.

of the alleged trespass, was possessed of land, the occupiers whereof, for twenty years before this suit, enjoyed, as of right and without interruption, a way on foot and with cattle from a public highway over the said land to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use by the defendant of the said way." The form of replication to the above plea is, "That the occupiers of the said land did not for twenty years before this suit enjoy, as of right and without interruption, the alleged way."

Where the lessees of a colliery had agreed to grant to the lessees of a Injunction. neighbouring colliery licence to use a right of way enjoyed by the former, and the owner of the first colliery had granted to the second lessees the same right of way during a term of years, and afterwards by assignment from the first lessees became possessed of the first colliery and the right of way, an injunction was granted to restrain him from removing the materials and destroying the way. (Newmarch v. Brandling, 3 Swanst. 99.)

It was stipulated by an agreement between the parties to a suit that the plaintiff, his heirs and assigns, should have full and free permission" to use at all times the roads and ways in and through the defendant's estate." There were two roads traversing the estate, at a further extremity of which, where his land terminated, certain existing obstructions were continued by the defendant, so that the plaintiff, whilst he had the use of the roads over the estate, could not pass beyond it. An injunction was granted to restrain the defendant from making and continuing the obstruction at the extremity of his land. (Phillips v. Treeby, 8 Jur., N. S. 999.)

A canal act empowered the proprietors of mines and their lessees to make railways or roads across the lands of other persons intervening between the mines and the canal to convey their minerals to the canal. In 1843, an agreement was entered into between the lessees of coal mines and the owners of intervening lands to make a tramroad across them subject to an annual rent of 51. 58. The lessees afterwards abandoned the tramroad, and, without any consent except that of the tenant, made a railroad across the lands in a different direction from the tramroad. They also erected an engine-house, for which they subsequently agreed with the mortgagee in possession to pay an additional rent of 11. 158. The defendant subsequently became owner of the lands, and gave notice to the lessees that he should require an annual payment of 351., and the lessees refusing to pay that sum he gave them notice to cease the use of the railway, and subsequently he took up the rails. Upon a bill filed by the lessees, it was held, that the defendant was bound by the agreement and the acts of his predecessors, that the abandonment of the tramroad for a railway had not affected the rights of the parties, that the defendant was not justified in taking up the rails, and that the plaintiffs were entitled to restore them, the defendant being answerable in damages for the loss sustained by the plaintiffs. (Mold v. Wheatcroft, 27 Beav. 510; 6 Jur., N. S. 2.)

Since the act 25 & 26 Vict. c. 42, the Court of Chancery refused an injunction in respect of a footway, and made a reference to chambers to ascertain the amount of damages. (Wedmore v. Mayor, &c. of Bristol, 7 L. T., N. S. 459.)

Nature of the right to water.

5. OF WATERCOURSES.

The right of conducting water through one estate for the use and convenience of an adjoining estate, is an incorporeal hereditament of the class of easements, or a prædial service, which was known to the civilians under the name of service aquæ ductus (Domat's Civil Law, L. 1, T. 12), and is of use when Seius has a scarcity of water, and requires it for watering his cattle, or his lands, or for making his mill go, or for any other such advantage to his ground. (2 Frederican Code, 144.)

In Acton v. Blundell, 13 Mees. & W. 348, 349, the court considered the following to be a correct exposition of the law as laid down in Mason v. Hill, 5 B. & Ad. 1; 2 Nev. & M. 747; and substantially declared by Sir John Leach, V. C., in Wright v. Howard, 1 Sim. & S. 190. The rule of law which governs the enjoyment of a stream flowing in its natural course over the surface of land belonging to different proprietors is well established; each proprietor of the land has a right to the advantage of the stream flowing in its natural course over his land, to use the same as he pleases, for any purposes of his own, not inconsistent with a similar right in the proprietors of the land above or below; so that neither can the proprietor above diminish the quantity or injure the quality of the water which would naturally descend, nor can any proprietor below throw back the water without the licence or the grant of the proprietor above. The principles upon which the right to the use of water depends, were thus expressed by Sir J. Leach, V. C., in a luminous judgment:-" Primâ facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors, who may be affected by his operations. No proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor who claims a right either to throw the water back above, or diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or licence from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years; which term of twenty years is now adopted, upon a principle of general convenience, as affording conclusive presumption of a grant." (Wright v. Howard, 1 Sim. & Stu. 203; the foregoing remarks were adopted by Lord Tenterden, C. J., Mason v. Hill, 3 B. & Ad. 312, 313; and see 5 B. & Ad. 18; Ennor v. Barwell, 2 Giff. 426, 427.)

The ground and origin of the law which governs streams running in their natural course would seem to be this, that the right enjoyed by the several proprietors of the lands over which they flow is, and always has been, public and notorious: that the enjoyment has been long continued-in ordinary cases, indeed, time out of mind-and uninterrupted; each man knowing what he receives and what has always been received from the higher lands, and what he transmits and has always been transmitted to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages, or perhaps it may be considered as a rule of positive law (which would seem to be the opinion of Fleta and of Blackstone), the origin of which is lost by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, in his judgment in the case of Tyler v. Wilkinson, 4 Mason's American Rep. 401, in the courts of the United States, as "an incident to the land; and that whoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by the law." (Per Tindal, C. J., in Acton v. Blundell, 13 Mees. & W. 349, 350.)

In Prescott v. Phillips, cited 6 East, 213; 5 B. & Ad. 23; 2 Nev. & Man. 747, it was ruled, "that nothing short of twenty years' undisturbed possession of water diverted from the natural channel, or raised by a weir, could