mately reached the plaintiff's meadows was sensibly diminished, yet the effect was, that the water was detained, by the process of irrigation, and did not arrive till so late in the day that the plaintiff was deprived of the power to use it fully.

The question is, whether such a diversion and detaining of the water by the defendant is actionable.

It was contended, on his part, that it was not, because he had a right by law, as a riparian proprietor, to apply the water of the stream to irrigate his adjacent land, provided he did so (as it was admitted he did) in a careful and proper manner.

On the part of the plaintiff, it was denied, generally, that a riparian proprietor has any such right: and it was also contended, that, at all events, in this case the plaintiff had gained a title to the uninterrupted flow of the stream by immemorial enjoyment.

*As to the latter proposition, it appears to us that all persons [*611 having lands on the margin of a flowing stream have, by nature, certain rights to use the water of that stream, whether they exercise those rights or not; and that they may begin to exercise them whenever they will. By usage, they may acquire a right to use the water in a manner not justified by their natural rights: but such acquired right has no operation against the natural rights of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tenement. If the user of the stream by the plaintiff for irrigation was merely an exercise of his natural right, such user, however long continued, would not render the defendant's tenement a servient tenement, or in any way affect the natural rights of the defendant to use the water. If the user by the plaintiff was larger than his natural rights would justify, still there is no evidence of its affecting the defendant's tenement, or the natural use of the water by the defendant, so as to render it a servient tenement.

But, if the user by the defendant has been beyond his natural right, it matters not how much the plaintiff has used the water, or whether he has used it at all. In either case, his right has been equally invaded, and the action is maintainable.

The question between the parties is thus reduced to this single point, -has the defendant used the water as any riparian proprietor may use it, or has he gone beyond that?

The general principle of law which, in our opinion, may be deduced from the decision of Embrey v. Owen, 6 Exch. 353,† and the authorities cited by Parke, B., in delivering judgment in that case, is, that every *proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any mate

[*612

rial injury to the rights of other proprietors above or below on the

stream.

In the present case, it appears to us, on the evidence, that the detention by the defendant, under the circumstances, of the water of the river Yeo for the purposes of irrigation, was a use of it which, in its character, was necessarily injurious to the natural rights of the plaintiff as the proprietor of land lower down the stream. The effect was obviously the same as if the defendant had placed a bar or weir across the river, and by that means had wholly prevented its natural course for a certain number of hours. And it appears to us that there is neither authority nor principle for contending that such an act can be justified on the ground that it was done for the purpose of improving the adjacent land of the defendant, whether by irrigation or otherwise.

For these reasons, we are of opinion that our judgment must be for the plaintiff as to such part of his complaint as relates to the river Yeo, and, as to the rest of the alleged causes of action, for the defendant. Judgment accordingly.

See 3 Kent Com. 439, where the principle recognised in this case is explained and illustrated, and the leading American cases cited.

A riparian owner is entitled to all the water-power contained between the level of the surface of the stream where it first enters his land in its natural state, and the surface where it departs from his land; and such power may be occupied in whole or in part or not at all, without endangering the owner's claim, unless there has been an adverse occupancy, under the statute of limitations M'Calmont v. Whitaker, 3 Rawle, 84. The owner of land through which a watercourse passes has a right to the flow of the water in its natural course without diminution or alteration; and although his right may be qualified by the adverse use of another for the

period prescribed by statute or allowed to raise a presumption of a grant, it is not qualified or affected by the mode or extent of his own use during any period of time. Buddington v. Bradley, 10 Connecticut, 213. See Cook v. Hull, 3 Pickering, 269; Anthony v. Lapham, 5 Ibid. 175; Butman v. Hussey, 3 Fairfield, 407; Arnold v. Foot, 12 Wendell, 330; Twiss v. Baldwin, 9 Connecticut, 291; Pugh v. Wheeler, 2 Dev. & Bat. 50; Davis v. Fuller, 12 Vermont, 178; Wadsworth v. Tillotson, 15 Connecticut, 366; Hendricks v. Johnson, 6 Porter, 472; Evans v. Merriweather, 3 Scam. 492; Heath v. Williams, 25 Maine, 209; Frey v. Witman, 7 Barr, 440; Hartsall v. Sill, 12 Penn. State Rep. 248; Cowles v. Kidder, 4 Foster, 364.

*PRIDEAUX v. BUNNETT. Jan. 14.

[*613

The defendant sent to the plaintiff, the patentee of an invention called "Prideaux's Patent Selfclosing Valve," and who carried on business under the name of "The Smoke Prevention Company," the following written order,-" Please prepare us a smoke-preventing valve," giving the dimensions of the furnace-door to which it was to be applied. The plaintiff accordingly sent the defendant one of his patent self-closing valves, but it was found not to be of any use for the purpose for which it was designed. No fraud was imputed to the plaintiff; but the defendant, on being sued for the price of the article, relied on the statements contained in a circular which had been sent to him by the plaintiff,-to the effect that the patent article would consume smoke and effect a considerable saving in fuel,- -as amounting to a warranty that it should be fit for the purpose to which it was to be applied :-Held, That no such warranty could be implied; but that, the defendant having defined by the order the particular machine to be supplied, the plaintiff performed his part of the contract by supplying that machine, and was entitled to recover the price.

THIS was an action to recover the price of an article called "Prideaux's patent self-closing (or smoke-consuming) valve," for which the plaintiff had obtained a patent in the year 1854.

At the trial, before Cockburn, C. J., at the sittings at Guildhall, after the last term, it appeared that the plaintiff, who carried on business under the name of the "Smoke Prevention Company," 'issued cards which contained on the one side a statement of the price of the article and the royalties demanded for its use, and on the other the following representation or address :

"The Smoke Prevention Company are happy to have it in their power to state, that, in all cases where they have been able to procure an accurate return of the consumption of fuel, a decided saving has been admitted to result from the application of the valve, so much so that its cost becomes a profitable investment, rather than an outlay.

"In some instances, they have been much gratified at being told by those who have adopted it, that they should save the cost of the valve, together with the royalty (for the whole term of the patent), in six months, and become large annual gainers by its use for the rest of the term; and not a few have congratulated themselves at finding that the effect of the compulsory enactment against smoke, in their individual cases, would be (much against *their anticipations) to confer a

far from insignificant pecuniary benefit, which they would not [*614

otherwise have obtained.

"As far as the evidence they have been able to collect enables them to judge, the saving by the use of the valve ranges from 10 to 15 per cent. Taking the lower figure (viz. 10 per cent.) as a safe basis for a calculation, then, estimating the consumption per horse-power, to be 25 tons per year, worth at 17. per ton, 251.; the saving to a manufacturer having five boilers of 20 horse-power each, would be 250l. per annum; whilst, the total cost of the apparatus for five boilers, including royalty for the whole term of the patent, would only amount to 1077. 158., being, as before stated, less than half a year's saving from the use of the invention.

"When, however, it is imperative to consume smoke, the value of this apparatus becomes still more striking, by contrasting its saving with the loss attendant upon other plans for effecting the same object; when a difference of 30 per cent. will be found in its favour. Leaving out of view the 'feeding by machinery plans' (which have their own peculiar disadvantages), it may safely be asserted that none of the many plans,various in name, but identical in principle,-for preventing smoke by admitting a continuous supply of air at the bridge, effect this object at a less cost of fuel than 20 per cent,-an estimate the moderation of which will be confirmed by every one who has had any practical acquaintance with their action; the usual result being much worse, as many have found to their cost.

"The yield of steam from a boiler is unquestionally increased by the valve."

Circulars were also sent out, with blanks to be filled by intended purchasers of the patent article, headed "Particulars required for the application of Prideaux's Patent Valve for the Prevention of Smoke."

*615]

*The defendant, who, it appeared, had never seen the article, filled up one of the circulars, and enclosed it to the plaintiff in a note as follows:-

"Deptford, Sept. 3d, 1855. "Gentlemen,--Please prepare us a smoke-preventing valve, [giving a drawing showing the dimensions of the furnace door to which it was to be applied]. These are to your own figures; and we shall make the necessary allowances, as you state, to admit of the valve going into our frame easily. BUNNETT & Co.

"The Smoke-Prevention Company."

The apparatus was fitted to the defendant's furnace; but, from some circumstances which did not appear, it turned out a complete failure. No fraud was imputed to the plaintiff: but it was insisted on the part of the defendant that the representations contained on the card, and in the circulars and invoice, amounted to a warranty that the patent article would consume smoke, and therefore it was contended that the case differed from Chanter v. Hopkins, (a) 4 M. & W. 399† (which had been *relied on for the plaintiff), inasmuch as the article sold there *616] was a thing much in use and well known in the market. The Lord Chief Justice ruled, that the representations relied on did (a) In that case, the defendant sent to the plaintiff, the patentee of an invention known as "Chanter's smoke-consuming furnace," the following written order,-"Send me your patent hopper and apparatus, to fit up my brewing copper with your smoke-consuming furnace. Patent right, 157. 158. iron work not to exceed 57. 58.: engineer's time fixing, 78. 6d. per day." The plaintiff accordingly put up on the defendant's premises one of his patent furnaces, but it was found not to be of any use for the purposes of a brewery, and was returned to the plaintiff. It was held (on fraud being imputed to the plaintiff) that there was not an implied warranty on his part that the furnace supplied should be fit for the purposes of a brewery; but that, the defendant having defined by the order the particular machine to be supplied, the plaintiff performed his part of the contract by supplying that machine, and was entitled to recover the whole 157. 158., the price of the patent right.

not amount to a warranty, and that, this being the sale of a specific chattel, and no fraud being imputed to the seller, the plaintiff was entitled to recover.

A verdict having accordingly been found for the plaintiff, with leave to the defendant to move,

Edwin James, Q. C., now moved accordingly.-The question is whether the representations made by the plaintiff at the time of the sale, did not amount to a warranty that the article he sold as a "smoke-preventing valve" was that for which it purported to be sold. Chanter v. Hopkins was a totally different case: there, there was evidence that the patent article which was specifically ordered by the plaintiff, was in common use and was well known in the market by that description; whereas, here there was no evidence of the sort, or that the defendant had ever seen it, or knew anything of it but from the representations made by the plaintiff. [COCKBURN, C. J.-The card refers to a patent article ; and the defendant intended to purchase the very thing.] There were no representations of any kind in the case of Chanter v. Hopkins; but the defendant sent the plaintiff a specific order,-"Send me your patent hopper and apparatus, to fit up my brewing-copper with your smokeconsuming furnace." [CRESSWELL, J.-Your argument would tend to fix every patentee with a warranty. COCKBURN, C. J.-In the case of a patent medicine which is advertised as a specific for a variety of ailments,-could you resist payment because you were not cured by it of one of the diseases mentioned in the advertisement?] That is a totally different case. [CRESSWELL, J.-Taking all the evidence together, is it not clear that the order *was given for the patented, the ascertained article?] The question is, whether the contemporaneous [*617 representations ought not to have been submitted to the jury as evidence of a warranty that the article was what it professed to be.

CRESSWELL, J.-I am of opinion that this case is governed by Chanter v. Hopkins. I am utterly unable to discover a literal, much less a substantial distinction between the two cases.

The rest of the court concurring,

Rule refused.