Rights of riparian proprietors. above, or transmitting it altered in quality or quantity to an extent not justified by natural right, is an easement (1). The law with reference to the rights of upper and lower riparian proprietors is summed up in Swindon Waterworks Company v. Wilts and Berks Canal Navigation Company (2), where it is regarded as so well settled in its general aspects as not to require the citation of authorities. After speaking of the ordinary rights of the lower riparian proprietor, viz. that he is entitled to the accustomed flow of the water for the ordinary purposes for which he can use the water, if it be quite consistent with the right of the upper owner also to use the water for all ordinary purposes, namely, as has been said ad lavandum et ad potandum, whatever portion of the water may be thereby exhausted, and may cease to come down by reason of that use, the Lord Chancellor (Cairns) proceeded as follows:"But, further, there are uses no doubt to which the water may be put by the upper owner, namely, uses connected with the tenement of that upper owner. Under certain circumstances, and provided no material injury is done, the water may be used and be diverted for a time by the upper owner for the purpose of irrigation. The exhaustion of the water which may thereby take place may be so inconsiderable as not to form a subject of complaint by the lower owner, and the water may be restored after the object of irrigation is answered, in a volume substantially equal to that in which it passed before. Again, it may well be that there may be a use of the water by the upper owner for manufacturing purposes, so reasonable that no just complaint can be made upon the subject by the lower owner. Whether such a use in any particular case could be made for manufacturing purposes connected with the upper tenement would, I apprehend, depend upon whether the use was a reasonable one. Whether it was a reasonable use would depend, at all events in some degree, on the magnitude of the stream from which the deduction was made for this purpose over and above the ordinary use of the water." In an important case which came before the Court of Appeal in 1884, the owner of land not abutting on a river with the license of a riparian owner, took water from the river, and after using it for cooling certain apparatus, returned it to the river unpolluted and undiminished, and it was held that a lower riparian owner could not obtain an injunction against the landowner so taking the water, or against the riparian owner through whose land it was taken. (1) Gale on Easements, 6th ed. p. 212. (2) L. R. 7 H. L. 702. Lord Justice Lindley, in delivering judgment, said that an Riparian argument had been put that a man who was not a riparian proprietor. proprietor had no right to take water from a stream at all, and that if a riparian proprietor found any one who was not a riparian proprietor taking water from the stream, although he was not damnified, he might maintain an action. This, he said, would lead to the absurd consequence that if there were a riparian proprietor near the mouth of the Mississippi, and somebody a thousand miles up diverted the water, an action might be maintained, although there was no damage. Finally, the Court declined to agree to the proposition that riparian proprietors in a stream were a class of persons in the nature of a close borough, and that any one of them had a right to object to the introduction, into that class, of persons who had got no property bordering on a stream (1). The right to light will be hereafter considered (post, p. 592), Air. but a few words may be said with regard to the right to air. It is now settled by modern decisions that the right of user of air must be confined to that which comes through a definite aperture. The leading authority of modern times is the case of Webb v. Bird (2), where it was held that an action did not lie for obstruction of the currents of air to a windmill. A right to lateral support from adjoining land may be Lateral acquired by twenty years uninterrupted enjoyment for a support. building proved to have been newly built, or altered so as to increase the lateral pressure at the beginning of that time; and it is so acquired if the enjoyment is peaceable and without deception or concealment and so open that it must be known that some support is being enjoyed by the building (3). "Rent" may be defined generally as a fixed tribute, issuing Rent. out of lands and tenements corporeal, as part of their actual or possible profits. It is usually, though not necessarily, payable in money (4). There were, at common law, three kinds of rents: rentservice, rent-charge, and rent-seck, but the last-mentioned is (1) Kensit v. Great Eastern Railway Co., 27 Ch. D. (C.A.) 122: see as to rights of riparian owners, Bourke v. Davis, 44 Ch. D. 110; Booth v. Ratte, 15 App. Cas. 188. (2) 10 C. B. (N.S.) 268; 13 C. B. (N.S.) 841; and see Bryant v. Lefever, 4 C. P. Div. 172; Harris v. De Pinna, 33 Ch. Div. 238; Bass v. Gregory, 25 Q. B. D. 481. (3) Dalton v. Angus, 6 App. Cas. 740. Support may be lateral or (*) Burton's Compendium. As to Rent. of Convey: ancing Act, charges. now obsolete. Rent service is the rent due from a tenant to the person of whom he holds his land. Such, for instance, is the ordinary rent due from a tenant to his landlord. This rent was originally called rent-service, as being a service incident to the tenure of land. A right of distress for the rent is inseparably incident to rent-service (see as to distress, ante, p. 116). A rent-charge is a rent granted by an owner of land to be payable out of his land, with a power of distraining for the same. A rent-charge may be granted for a term of years, for life, in tail, or in fee simple. At common law a power to distrain for rent, thus granted, was not incident thereto unless an express power of distress accompanied the grant of the rent. But by a statute of George II. (1), a power of distress was made incident to this Provisions and other kinds of rent. Moreover, the Conveyancing Act, 1881 (2), gives to the person entitled to a rent-charge a power of distraining where the rent, or any part of it, is in arrear for twenty-one days; and where the rent, or any part of it, is in arrear for forty days, a power to enter on the land and receive the rents and profits thereof, until the arrears of the rent, with all costs and expenses occasioned by non-payment, are fully paid; and in the like case also a power to demise the land by deed to a trustee on trust, by mortgage, sale, or demise, for the whole or any part of the term, or by receipt of the income thereof, or by all or any of those means, or other reasonable means, to raise and pay the annual sum and all arrears thereof due, or to become due, with costs and expenses, and the surplus, if any, of the money raised is to be paid "to the person for the time being entitled to the land therein comprised in reversion, immediately expectant on the term thereby created." Common. A rent-seck, or bare rent, was nothing more than a rent for the recovery of which no power of distress was given either by common law or agreement of the parties. But by the statute of George II., already mentioned, a power of distress is made incident to all such rents. Common is a right that one or more persons may have to take or use a portion of the lands, waters, woods, or produce of the lands of another (3). (1) 4 Geo. 2, c. 28. (2) 44 & 45 Vict. c. 41, s. 44. See as to rent-charge, Re Wall, 59 L. J. Ch. D. 183. (3) As to commons generally: see Tyrringham's Case, and notes thereto, ch. v. Common is chiefly of four sorts: common of pasture, of Common. piscary, of turbary, and of estovers. Common of pasture is a right of feeding one's beasts on another's land. piscary is the right of fishing in another's waters. turbary is the right of cutting turf on another's land. of estovers is the right of cutting wood on another's land for certain purposes. Common of Common of pasture over the waste lands of manors is appendant by law to estates held by freehold tenants of manors; and by special custom copyholders may have the same right. A right of common of any kind may be acquired as appurtenant to an estate in land, either by express grant or by prescription; and common "in gross," that is, not attached to the ownership of land, may be acquired in the same way. The common law as to acquisition by prescription (see post, p. 208) has been altered by the Prescription Act (2 & 3 Wm. 4, c. 71), as regards rights of common. By this Act a right of common or other profit or benefit from or upon land (except tithes, rent, and services) may be acquired by thirty years' enjoyment, in some circumstances, and, under other conditions, by sixty years' enjoyment. Various provisions have been made by statute for the enclosure of waste lands, over which rights of common are enjoyed by persons. The principal statutes dealing with the subject now in force are the Enclosure Act, 1845, and statutes amending that Act (1). The reader who desires further information on the subject of easements is referred to Gale on Easements, 6th ed. by G. Cave, notes. Sury v. Pigot, Tudor's Real Property. 66 It has been decided that grants by way of sale of rights and easements of laying and maintaining pipes in land, are not conveyances of property" within Sched. I. Part i. of the Conveyancing Act, 1881 (post, p. 845), and consequently the scale is not applicable to solicitors' charges in respect of such grants (2). The following cases may be usefully consulted:-Barkshire v. Grubb, 18 Ch. D. 616 (Right of way-where the previous authorities are considered); Hollins v. Verney, 13 Q. B. D. 304 (Question of uninterrupted enjoyment of right of way); Bayley (1) 8 & 9 Vict. c. 118. (2) In re Stewart, 41 Ch. D. 494: see as to production of documents, v. Great Western Railway Co., 26 Ch. D. 434 (Right of way); Serff v. Acton Local Board, 31 Ch. D. 679 (Way of necessity); Lemaitre v. Davis, 19 Ch. D. 281 (Right to support from buildings); Birmingham, Dudley and District Banking Co. v. Ross, 38 Ch. D. 295 (Light); Brown v. Alabaster, 37 Ch. D. 490 (Right of way-Implied grant); Russell v. Watts, 10 App. Cas. 590 (Light-Implied reservation). |