if it come or be sent, to have it come or sent without pollution (e), would be such a watercourse; and polluting water is a species of injury differing from that of abstracting the water itself (d), for which injury the owner of the right may maintain, against a mere wrongdoer, an action (e), or a suit for an injunction to restrain the pollution (ƒ). Where the occupier of the servient tenement is himself also entitled to use the water, that use of it on such tenement, regard being had to the acts done in the enjoyment, in respect of it, of the easement, does not take away from the effect of the use of it for the dominant tenement (g). Riparian rights are derived entirely from the pos- Riparian session of land abutting on the river, and a riparian rights. proprietor cannot retain such land and at the same time transfer those rights or any of them, and they cannot be acquired by the grantee of land not so abutting, by virtue merely of his occupation, but only by express grant from such proprietor, and the grantee cannot sue in his own name for any infringement of the rights so granted (h). The easement of the use of water may be of water The use of flowing from a natural source through or along as well water. an artificial (¿) and permanent, as distinguished from a mere temporary channel (k), as a natural channel (1); Co. v. Potter, 3 Hurl. & C. 320- (i) Beeston v. Weate, 5 Ell. & (k) Arkwright v. Gell, 5 M. & W. 203; Wood v. Waugh, 3 Ex. 748; Greatrex v. Hayward, 8 Ib. 291; Ivimey v. Stocker, 11 Jur., N. S. 775; Gaved v. Martyn, 19 C. B., N. S. 732; Broadbent v. Ramsbotham, 11 Ex. 611. (1) Mason v. Hill, 5 B. & Ad. 1; 2 Nev. & M. 347; 3 B. & Ad. 304; Embery v. Owen, 6 Ex. 353. Of water of canals. Easements not within c. 71. . and where the water is obtained from a natural source and flows through or along an artificial cut (m), and not where the water is obtained artificially by the owner of the servient tenement (n), and as well when the water is subterraneous and flows in a known and definite channel as when superficial and so flowing (o), but not where the water merely percolates through the strata of the earth in no known channels (p). In short, as respects artificial waters of an ordinary character the purpose for which they have been collected is to be regarded in determining whether rights or interests have been or can be acquired in them by other persons than those who collected them. But the water of canals, so far as respects the capacity of other persons to acquire a right and interest in them, stands upon a different footing both from waters flowing in their natural course, and from artificial waters of an ordinary character. For the persons claiming rights in the water of a canal have to meet, not only the difficulty arising from the special purpose for which the water has been collected, but the difficulty arising from the water having been devoted by the legislature to that special purpose. To such water, therefore, the rule just noticed appears to apply with greater force than to artificial waters of an ordinary character (9). But notwithstanding the words" or other easement" in the section 2 of this statute, not every sort of enjoyment which may be classed under the general term easement is within this statute; as a claim to the free passage of air over the land of another person (r); or (m) Beeston v. Weate, supra. See also Irimey v. Stocker, 12 Jur., N. S. 419. (n) Arkwright v. Gell, Wood v. Waugh, Greatrex v. Hayward, supra. (0) Wood v. Waugh, supra. H. of L. Cas. 349. (g) The Staffordshire and Worcestershire Canal Co. v. The Birmingham Canal Co., 13 W. R. 358; 11 Jur., N. S. 71; 11 L. T. R., N. S. 647. (r) Webb v. Bird, 10 C. B., N. S. 268. customs for mere pleasure, recreation and amusement, as to enter on land to enjoy rural sports (u), to dance upon a green (x), to hold horse races (y), and the like. The statute embraces those rights only which consist of something to be exercised upon or over the soil of the adjoining owner, analogous to a right of way, or a right of watercourse (z), and are rights of utility and benefit incident and annexed to property for its more beneficial and profitable enjoyment (a), and capable of interruption; and has been hitherto confined to rights in their nature of a perpetual and permanent character, and the ownership of which is in fee simple (b). The section 2 also points to a right belonging to an individual in respect of his land, not to a class, such as freemen or citizens claiming a right in gross wholly irrespective of land (c). A pew, or rather the right of sitting in a pew, in a Pew. church, is said to be an easement (d). This right, however, strictly speaking, is not within either of the definitions given above (e) of an easement, and cannot be said to be claimed as accessory to a tenement and upon another tenement (f); for although the right must be claimed in respect of a house (g), and the house may be regarded, in some sense, as a dominant tenement, yet neither the church nor the pew in it, independent of the right of sitting in the pew, can be considered as a servient tenement. The right is, at (u) Millechamp v. Johnson, Willes, 205, n. (b). (x) Abbott v. Weekly, 1 Lev. 176. (y) 6 M. & W. 542; Mounsey V. Ismay, 3 Hurl. & C. 486; 3 B. & C. 340; Arkwright v. Gell, 5 M. & W. 203; Chasemore v. Richards, 7 H. of L. Cas. 349; 10 C. B., N. S. 282. (2) 10 C. B., N. S. 268; 3 Hurl. & C. 486. (a) Mounsey v. Ismay, 3 Hurl. & C. 486. L. (b) Solomon v. The Vintners' Co., 4 Ex., N. S. 585. (c) 3 Hurl. & C. 497. (d) See Gale on Easements, (e) Vide ante, pp. 230, 364. (g) Co. Litt. 121 b, 122 a; By- BB Right to support from adjoining land. Easements as to buildings. No distinction between easements ac ... most, and seems to have been considered by the courts (h), quasi an easement, or an easement operating as a licence, but is neither a tenement nor an office, nor a profit à prendre (i); and conveyed in terms to create a fee simple estate, and although of the annual value of forty shillings and upwards, does not confer the elective franchise (j). But this right, even if it were an easement, is not an easement within the 2 & 3 Will. 4, c. 71. For an easement within the section 2 must be one analogous to a right of way, which precedes the term easement, and to a right of watercourse, which follows that term,-something that is to be exercised upon or over the soil of the adjoining owner (k); and that section refers to easements properly so called, and in some way appurtenant to a dominant tenement (7), which implies the correlative, a servient tenement (m). The right to support from adjoining land is not a natural right (n), but is merely an incident to the ordinary enjoyment of the land having such support, and not, in any sense, an easement (o), and not within this statute (p). The ways or other easements, watercourses and the use of water are also to be upon, over or from land; but in this case not necessarily land only, which term, as to them, may extend to houses or buildings generally (9). This statute makes no distinction between easements acquired by grant, and those acquired by long enjoy (h) See 5 B. & Ald. 356; 8 B. & C. 294. (i) Per Byles, J., Hinde v. Chorlton, 15 L. T. R., N. S. 472. (j) S. C. (k) 10 C. B., N. S. 286. (1) Mounsey v. Ismay, 3 Hurl. & C. 486; Bailey v. Stephens, 12 C. B., N. S. 91; Shuttleworth v. Le Fleming, 19 Ib. 687. (m) See 19 C. B., N. S. 696. (n) Solomon v. The Vintners' Co., 4 Ex., N. S. 585. (0) Backhouse v. Bonomi, 9 H. of L. Cas. 503. See also Richards v. Harper, 1 L. R., Ex. 199. (p) Solomon v. The Vintners' Co., supra. (q) Sect. 2; Co. Litt. 4 a. ment; and as before the act the former might have been quired by presumed from the latter, and as the act has substituted grant and those acquired fixed periods of enjoyment for such presumption, the by enjoyment. enjoyment of an easement for the requisite period is legalized not only between the immediate parties, but as between the claimant and all other persons (r). Since the 2 & 3 Will. 4, c. 71, all easements claimed by virtue of it, except light (s), to be valid against any person, must be valid against all who have any estate in the land (t). Must be valid persons having any estate in against all the land. "accessories Both profits à prendre and easements, when claimed Profits and as an accessory to a tenement (u), cannot in general (v), easements as but sometimes may (x), be claimed as an accessory to a thing of the same nature and quality. But the true test seems to be the propriety of relation between the principal and the adjunct, or in other words whether they so agree in nature and quality as to unite without incongruity (y). nant tene The profits à prendre, and the easements within the -to a domi2 & 3 Will. 4, c. 71, must be connected with the enjoyment of a dominant tenement, have some natural connection with it, as being for its benefit, or inhere in the estate, be capable of being annexed to land, and of the ordinary and usual kind (z). The profits à prendre and the easements within the -and not in 2 & 3 Will. 4, c. 71, when claimed by prescription, must gross. be claimed in respect of some tenement (a), and may be in respect of land in which the claimant and other per (r) Rolle v. White, 16 W. R. 593; 8 B. & S. 116. (s) Frewen v. Phillips, 7 Jur., N. S. 1246; 11 C. B., N. S. 449. (t) Bright v. Walker, 1 C. M. & R. 220; Monmouth Canal Co. v. Harford, Ib. 614; Wilson v. Stanley, 12 Ir. L. Rep., N. S. 345. (u) 21 Edw. 3, 2, pl. 5; Bract. Lib. 4, fo. 220; Gale on Easements, p. 8. (v) Co. Litt. 121 b. See also Mill v. The Commissioner of the New Forest, 18 C. B. 60. (a) Co. Litt. 120 b. (y) Co. Litt. 121 b, n. 7; 1 Ventr. 386. (2) Keppell v. Bailey, 2 Myl. & K. 517, 535; Hill v. Tupper, 2 Hurl. & C. 121; The Stockport Waterworks Co. v. Potter, 3 Ib. 300; Ackroyd v. Smith, 10 C. B. 164; Bailey v. Stephens, 12 Ib. 91. (a) Vide sect. 5; Shuttleworth v. Le Fleming, 19 C. B., N. S. 687. |