in front of his wharf about twenty feet; that a collier belonging to the defendant was moored to the adjoining wharf, and so placed as that her bowsprit projected over the river fronting the plaintiff's wharf and over the plaintiff's mast; and that the tide falling caused the defendant's bowsprit to descend upon the plaintiff's mast and break it.

The jury having returned a verdict for the defendant, and leave having been reserved to the plaintiff to move to enter a verdict for him for the value of the mast (357.) if the court should be of opinion that the defendant was under the circumstances liable,

Hawkins now moved accordingly, submitting that the defendant had been guilty of negligence in so mooring his vessel as to project over the front of the plaintiff's wharf, or in omitting to keep a look out and to move her when the state of the tide rendered it necessary.

PER CURIAM. The plaintiff's choosing to occupy the waterway of the river by suffering his mast to project over it, imposed no duty upon the defendant, whose bowsprit had as much right there as the plaintiff's mast had. Rule refused.

*MOORE v. WEBB. Jan. 27.

[*673

To an action for polluting a stream, and impregnating it with noxious substances, whereby the plaintiff's cattle were unable to drink the water, the defendant pleaded an immemorial right to use the water of the stream for the purposes of his trade of a tanner and fell-monger, and returning it polluted to the stream when so used, and also prescriptive rights for twenty and forty years respectively.

The plaintiff new assigned "that he sued not only for the grievances in the pleas admitted and attempted to be justified, but for that the defendant committed the grievances over and above what the defences justified."

At the trial, it appeared that the defendant and his father and grandfather had for a long series of years carried on the business of tanners at the place in question, using the water of the stream as they wanted it; but that, within the last twelve years, the tannery business had been considerably enlarged, and the business (and consequently the pollution of the stream) increased fourfold.

Without leaving any thing to the jury, the judge ruled that the defendant was entitled to a verdict on all the issues except the first and second:--

Held, that, whether the pleas were to be understood as claiming an immemorial or a prescriptive right, not limited to the purposes of the tannery, or the more limited right to use the water for the purposes of the business as carried on more than twenty years age, the verdict was not warranted by the evidence.

And held, that the new assignment was well pleaded.

THIS was an action for polluting a watercourse.

The declaration stated that the plaintiff was possessed of a farm at Badeley, in the county of Suffolk, through which flowed a stream or watercourse; that the plaintiff ought to have had, and still ought to have, the use and benefit of the water of the said stream for his cattle and other purposes; yet that the defendant, on the 1st of July, 1856, and on divers other days, wrongfully polluted and disturbed the water of the said stream, so that it became foul and impregnated with noxious

substances, and the plaintiff's cattle were unable to drink it, and the plaintiff had been compelled to drive his said cattle to a distance for water, and had lost the use and benefit of the said water of the said stream, whereby his farm was greatly deteriorated: And the plaintiff claimed 1001.

The defendant pleaded,-first, not guilty.

Secondly, that the plaintiff ought not to have had, or to have, the use and benefit of the said stream, as in the declaration alleged.

Thirdly, that the defendant was, and still remained, seised in his

demesne as of fee of and in a tan-house *and premises for carry

*674] ing on the business of a tanner and fell-monger, adjoining the

said stream, and higher up than the plaintiff's farm, and that the defendant and all those whose estate he then had, from time whereof the memory of man was not to the contrary, had been accustomed to and ought to take the water of the said stream and use it in the said tan-house and premises, and to let off and empty into the stream all the water used in the said tan-house and premises, and which was and is made foul and impregnated with noxious substances necessary for carrying on the said business, and thereby to pollute and disturb the stream; and that the defendant, being so seised, and carrying on his business, used the water of the said stream at the said several times for the purposes of his said trade, and did let off and empty into the said stream the water necessarily used, and did thereby render foul and polluted the water so used, and the water so polluted passed through the plaintiff's farm, &c.

Fourthly, that the defendant was and still remained occupier of the tan-house and premises in the third plea mentioned; and that the occupiers of the said tan-house and premises, for twenty years before this suit had without interruption, and of right, taken the water and used it in the said tan-house and premises, and let off and entered into, and so polluted, &c. the water of the said stream, wherefore he did as he lawfully might, and the water so polluted ran through the said farm, &c. Fifthly, a similar plea, setting up a forty years' user.

The plaintiff joined issue on all the pleas; and as to the third, fourth, and fifth, new assigned, that he sued not only for the grievances therein admitted, and attempted to be justified, but for that the defendant committed the grievances over and above what the defences justified.

*675]

*The defendant pleaded not guilty to the new assignment. Issue thereon.

The cause was tried before Coleridge, J., at the last Summer Assizes at Ipswich. It appeared in evidence that the plaintiff was the occupier of a farm called the Holy Oak Farm, at Badeley, in the county of Suffolk, through which a stream or watercourse ran, the water of which had immemorially been used by the tenants of the farm for watering their cattle and for other purposes; that the defendant and his father and

grandfather successively had for at least thirty-six years carried on the business of tanners (and more recently that of a currier also) upon premises adjoining the stream, and higher up than the plaintiff's farm; that the waste water from the tan-yard had been accustomed to flow into the watercourse, though down to the year 1842 not to such an extent as to prevent the water from being used by the plaintiff; but that, since that time, the defendant's premises had been enlarged by additional buildings, and his business had been increased about fourfold, and the water of the stream had in consequence become so polluted and impregnated with noxious substances from the tannery that the plaintiff's cattle refused to drink it, and he was obliged to have them driven some distance to water, and was unable to use his farm adjoining the stream so beneficially as he had been accustomed to do.

On the part of the defendant it was submitted that the second, third, and fourth pleas were proved, and that there was no evidence to support the new assignment, which was limited to purposes ultra the trade purposes.

On the part of the plaintiff, it was admitted that the defendant was entitled to use the water of the stream for the purpose of his trade of a tanner and fell-monger, and to pollute the stream for that purpose to the extent to which it had been used twenty years ago, but to that extent only; and it was insisted that the pleas only *justified the immemorial user, and did not apply to the trade of a currier.

[*676 To this it was answered that there was no evidence of any pollution of the stream, arising from the carrying on the trade of a currier.

The learned judge,-after giving the plaintiff an opportunity to amend the new assignment, which was ultimately declined,-directed a verdict to be entered for the defendant upon all the issues except those upon the first and second pleas, which were found for the plaintiff.

The Attorney-General, in Michaelmas Term last, obtained a rule nisi for a new trial on the ground that the learned judge misdirected the jury in directing them to find for the defendant upon the issues joined on the third, fourth, and fifth pleas, and upon the new assignment, or for judgment non obstante veredicto on those issues. He submitted that the defendant had in effect converted a limited into an unlimited right.

Byles, Serjt., O'Malley, Q. C., and Couch, now showed cause.-The third, fourth, and fifth pleas afford a complete answer to the complaint in the declaration; and that defence is not removed by the new assignment, which, if it means anything, means that the plaintiff charges a user of the stream beyond the purposes and the necessities of the defendant's business. It is not said, that, within the twenty or forty years, the actual user of the stream had been greater: that might have raised a question which does not appear to have been raised in any of the cases. [CRESSWELL, J.--The twenty and forty years depend upon

actual user. If a man has gone on increasing the user every year, he has not actually used the stream for the whole period in the manner he claims.] The stream was used at all times as it was wanted for the *677] purposes of the trade. It will be enough for the *defendant to establish his right to an immemorial user under the third plea. Can there be such a grant as that a man shall use the water of a stream to the extent needed for the purposes of his trade? Suppose a man has a grant of an easement for washing all his sheep levant and couchant on certain lands, could it be said that he was restricted from increasing their number to any extent? As far back as living memory went, it was shown that the ditch had been used for the discharge of the waste water from the tannery, as the exigencies of the business required. [CRESSWELL, J.-It is quite clear that my Brother Coleridge did not understand the plea in the extended sense now contended for. If it means what you say it does, the plea was not proved: there was no such extensive immemorial user; and it is impossible to suppose that the plaintiff's counsel would have declined to have the question put to the jury. And, if you read the plea in the more limited sense, it lets in the new assignment. WILLIAMS, J.-Assume that the learned judge ruled that it was opened to the defendant to show an immemorial grant, or right under Lord Tenterden's Act (2 & 3 W. 4, c. 71), to carry on the trade, and to make the water of the stream subservient to the exigencies of the trade for twenty years,-was that proved? It clearly was not admitted; and it was not put to the jury.] It is submitted that the pleas cover any extent of pollution that the plaintiff complains of. In Manning v. Wasdale, 5 Ad. & E. 758 (E. C. L. R. vol. 31), 1 N. & P. 172 (E. C. L. R. vol. 36), it was held, that the privilege of washing and watering cattle at a pond, and of taking and using the water for culinary and other domestic purposes, is not a profit a prendre, but a mere easement; and that such a right may be claimed by reason of the occupation of an ancient messuage, without any limitation as to the quantity of water to be taken. [WILLIAMS, J., referred to Bowen v. Jenkin, 6 Ad. & E. 911 (E. C. L. R. vol. 33), 2 Nev. & P. 87.] This is rather like the case of *Allan v. Gomme, 11 Ad. & *678] E. 759 (E. C. L. R. vol. 39), 3 P. & D. 581. And see Luttrel's Case, 4 Co. Rep. 87 a, cited in Gale on Easements, 2d edit. 368. The third plea being proved, the question is as to the meaning of the replication. [CRESSWELL, J.-The first question is as to the meaning of the plea. Does it mean any more than a continuous user of the same character and to the same extent ?] The case of Wright v. Williams, 1 M. & W. 77,† is very analogous, and it was never suggested that the pleas were bad on the ground of the extensive character of the right claimed. The true meaning of the new assignment is, that the defendant has used the stream for other purpose than those of his business. [WILLIAMS, J.-I understand it to mean that the pleas do not cover the

extent of pollution of which the plaintiff complains. The case of The Rochdale Canal Company v. Radcliffe, 18 Q. B. 287 (E. C. L. R. vol. 86), shows, that, if the plaintiff meant to rely upon an excessive user of the water, he was bound to new assign. I must confess I do not see how the plaintiff could have new assigned in any other manner than he has done here, if he meant to say that the user has gone beyond the limits of the grant.

Knowles, Q. C., Prendergast, Q. C., Wells, Serjt., and Honyman, in support of the rule.-The learned judge was clearly wrong in holding that the plea was proved: and, even if that were not so, the plaintiff would be entitled to succeed upon the new assignment, which follows the form given in the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), sched. (B.) 55. The declaration complains that the plaintiff was possessed of a farm through which of right flowed a stream which was used by him for watering his cattle, &c., and that the defendant wrongfully polluted and disturbed the stream, so that the plaintiff's cattle were unable to drink it. To the grievance so complained of, the defendant pleads, *that he was seised of a tanhouse and premises adjoining the [*679 stream, and higher up than the plaintiff's farm, and that he and all those whose estate he had, had immemorially used the water of the stream in the said tanhouse and premises, and returned the water so used therein into the stream, and thereby polluted it. All that is traversed. What the defendant had to prove, in order to sustain his plea, was, not that the owners of the tannery had at all times been accustomed to use the stream for the purposes of their business, but that the owners of the tannery premises of which he was possessed at the time of the committing of the grievances complained of had been so accustomed. That was not proved. A large portion of the tannery premises were erected about twelve years ago: the immemorial right claimed clearly could not apply to those. The only mode in which the plaintiff could meet that enlarged claim, was, by new assigning as he has done,-not, as the learned judge seems to have supposed, that the defendant committed the grievances complained of for other purposes than those alleged in the plea, but that he did it in excess. [WILLIAMS, J.-Do you admit that twenty years ago the occupiers of the tannery took and fouled as much of the water as they wanted for the purposes of their trade?] It may be assumed that the fact was so: but that would be no evidence of a right on their part to throw in any quantity of filth that might arise from the extended premises. Either the plea must be taken in the sense suggested, and then it is not proved, and the plaintiff is entitled to a verdict upon the traverse; or the plaintiff is entitled to a verdict upon the new assignment, as in a case of Wood v. Ripley, where a similar question arose with reference to certain dye works in Yorkshire a short time ago. In Gale on Easements, 330, 332, it is said," As every easement is a restriction upon the rights of property of the