AND DOCUMENTARY EVIDENCE,-SURVEYS, -NATURAL AND ARTIFICIAL SPRINGS,ORDINANCE No. 35 OF

"SOURCES 1863,-ART. 641 OF THE CIVIL Code.

Held by the Court that certain springs, arising on defendant's Estate, were natural and not artificial ones, and that those springs, although natural ones, were not the sources of the "Belle Eau River, in the sense of Article 21 of Ordinance No. 35 of 1863, which enacts that "all springs which are the sources either of any River, of any tributary of a River, or of any Stream, are public property as such River or Stream itself."

The Court, further, intimated its opinion that the defendants, after having thrown into the River and permitted to be enjoyed by the lower riverains" the overplus of the water from the innumerable springs on their Estate, for a very long period, and during which prescriptive interests had grown up, had no right to take as their own, without the authority of the Executive Council, from the River itself any portion of the water whether it had been contributed from the springs on "Gros Cailloux" Estate or from the ancient bed above the springs. The defendants, in consequence, were ordered, forthwith, to remove the dam or construction complained of, and to leave the to have a free water of the "Belle Eau " course towards the property and canal of "Albion", without diverting any quantity of the said water into irrigation canals, or otherwise.

CHAUVIN & OTHERS,-Plaintiffs,

versus

MÉRANDON & OTHERS,-Defendants.

Before

G. GUIBERT,-Of Counsel for Defendants. J. GUIBERT,-Attorney for the same.

11th February 1874.

This is an action by which Chauvin and others, proprietors of the "Albion" Estate, in the District of Black River, complain against the defendants that they have unlawfully obstructed the bed of the River "Belle Eau ", and praying the Court to decree 1o. that the defendants have no right to have or keep the dam, of which they complain, across the River, and to divert the water thereof from the bed of the River, or from the Canals of the plaintiffs; 20. to order the defendants to break and remove the dam altogether within eight days after judgment, and, in default thereof, to authorize the plaintiffs to remove the same, and 30. to condemn the defendants to pay to the plaintiffs the sum of $ 4000, as damages with costs.

The defendants plead that the dam complained of is not such a dam as the plaintiffs represent it to be, but that it is constructed of loose stone, and has remained in the same But they place for more than thirty years. raise the separate issue that they are owners "Gros Cailloux " Esof certain springs on tate, the water from which, after serving to put in motion the water-wheels on their Estate, falls into the bed of the River "Belle Eau ", and that the defendants, at a point a little lower down than their last water wheel, take back the water for purposes of irrigation by means of a canal which has existed for more than thirty years, without hindrance or opposition from the lower "Riverains". They further plead that they have caused no damage to the plaintiffs.

The parties having produced evidence, oral and documentary, they were heard by their Counsel, Chastellier and Guibert, on the 5th and 7th of November last.

The plea of the defendants that no alteration had been made in the position of affairs for thirty years was not seriously maintained, and the fact was taken as admitted that the River, at a point marked on the plan of Mr. Reid, the Government Surveyor, one of the witnesses, was at the time the action was instituted, either constantly or periodically more completely dammed than formerly, for the purpose of withdrawing the greater portion of the water into irrigation canals of the defendants.

Indeed, if this were not the fact, the contention of the defendants that the springs on "Gros Cailloux" are his private property, and that he only takes out of the River the water belonging to himself which he had voluntarily permitted to fall into it, would have no meaning; for, whatever may have been the exact amount of water taken hitherto, he has joined issue with the plaintiff upon the point that he is entitled to take as much out of the River as falls into it from the overflow of his last mill wheel, and that practically means that he has the right to the whole water in the River.

The defendants contend that the springs are their private property, on the ground, first, that they are artificial and not natural springs; second, that if natural, the law of 1863 has not altered the law of the Code which recognized natural springs as belonging to the proprietor on whose ground they arose; and third, that even if the recent law can be construed as altering the ancient law on this respect, that the rights of the defendants must be tested by the law which existed when he and his predecessors dealt with the water, erected the mills, and constructed the basins, and not to ruin him by a retroactive application of a law which was only made for the future.

Mr.

The plaintiffs deny that these springs are artificial. On this point we have had evidence from two very competent authorities, Mr. Reid and Mr. Vandermeerch, that the springs are natural springs, and that where any artificial work has been done it has been for the purpose of leading the water into the artificial paths or canals made for it, in order to draw it off towards the reservoirs. Connal is of the same opinion, but, as he carefully pointed out in his evidence, his attention had been directed on the spot more to the direction of the flow of the waters to ascertain whether they were natural feeders of of the River" Belle Eau," and he could not speak with the same positiveness of the amount of artificial work done to the springs. Mi de Joux, the Surveyor called by the defendants, gave evidence which is opposed to that of the gentlemen above named. On their attention being called to a spring in the neighbourhood which is admittedly artificial, called Emeric's spring or well, they were quite clear that the" Gros Cailloux" springs were something different; whereas Mr de Joux believes them to be of the same nature. He speaks of them being dug and blasted out of the rock He only finds one natural spring in the three groups. But we regard as much more trust-worthy the evidence of Mr. Cummins, one of the former proprietors, who was also called for the defendants, who said that

in certain seasons of the year the water of all the springs came to the surface, that the digging and blasting were to cause the flow of water to be more rapid, that these operations were not so deep as at Emeric, and that where the proprietors found the water oozing. through the rocks they blasted the rocks to make the flow easier.

It results from the evidence of all the witnesses that the ground in the neighbourhood was of a marshy nature, full of springs, and that proprietors of "Gros Cailloux,' most properly and industriously, in place of leaving the water, as it was in a state of nature, to be a nuisance and fruitful source of disease, collected it into numerous little canals, or runs of water which they directed towards basins, or mill-dams, and stored it there until it was needed for the purpose of turning the wheels of the Flour Mills which continue to exist on the property.

We are accordingly satisfied that these springs are natural springs, or in the language of the Code, "sources," and that they rise on the property of the defendants.

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The next question, for consideration, is what is the law of the Colony in regard to springs of such a nature. It is to be found in Article 21 of the Ordinance 35 of 1863: "Any one (except as after provided) who has a spring in his ground, may use it, in or upon his ground, in whatever way he thinks proper, saving and reserving any right "which any inferior proprietor shall have ac"quired by title or prescription. This Ar"ticle is subject to the following exceptions "and provisions, viz: 1o. All springs which are the sources either of any River, of any "tributary of a River, or of any Stream are public property as such River or Stream itself."

The plaintiffs maintain that the Ordinance of 1863 made a change in the law that by the Code, Article 641, the proprietor of the ground where a source was found could use it at his pleasure, but that now springs which are the sources of any River, of any tributary of a River, or of any Stream are public property as such River or Stream itself. The words "Rivers and Streams" by the interpretation clause (Art. 84) are held to include all natural rivers of water or watercourses, and do not include any artificial water-courses. Hence, as the proof went to shew that the natural springs on "Gros Cailloux" would have found their natural outlet by the

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"Belle Eau " River, the plaintiffs came to the conclusion that they are public property as the River itself. The argument was based, at least partly, on a misconception of the meaning of the exception to Article 21, and this doubtless arose from the use of the English word "source" in connection with a subject, where the old law dealt with the French word source." In French the word has two senses, one technical which we would translate by "spring," the other figurative signifying a beginning which we would translate by the English word "source." The word in English is not usually applied when speaking of the particular fountain from which a stream may issue; the word "spring" is employed in preference, but it is often employed in a general sense, such as would include all the head-waters of a stream, however numerous the springs might be from which they issued, according to the figurative meaning of the French word "source." Now, it is in this general sense that the word is used in the exception to Article 21. By stating that all springs which are the sources of any River,Tributary, or Stream are public, the Legislator means that the head-waters, or head springs of the River, Tributary, or Stream, are public, even though these should be on the private property of an individual; but it does not mean that all springs which naturally belong to the water-shed of any River or Stream are public property, because then Article 21 would have no meaning, as all springs must belong, in one sense or other, to the general water flow of a country or locality.

We must point out, however, that our meaning does not go to the extent of holding that no springs whatever, occurring lower down a river than its own origin or fountain head, are public. Many springs are to be found in the actual beds of rivers. These, of course, cannot belong to private proprietors, and there is a test for those also which emerge lower down than the fountain head, but not in the actual bed, viz; whether these springs are the sources of any Tributary of the River, or of any Stream; keeping in view that "Rivers include all natural Rivers of and Streams water and water-courses. The plaintiffs attempted to give the latter words such a sense as to include in water-courses, the courses of natural infiltration of the water below the soil, if it could reasonably be concluded that the River would be the ultimate destination of the water when left to itself. We think, however, water-courses" must be held to mean, in the general case, the courses of water visible to the eye in which the infiltrations of the soil assume a tangible shape above ground; a stream or run of water, great or small, but at least a visible flow and not a

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subsoil percolation. We do not, of course, profess to deal, at present, with such cases as occur both here and at Rodrigues, where veritable streams have found an underground channel. With these, and indeed necessarily with all cases, we can only deal upon their own special merits. Marshes, for example, may, in some special cases, be in such a position towards a river, as to be not only the feeders of the river, but possibly the course by which the water reaches the river. We give no opinion upon general cases not now before us; but in this case, while we are quite satisfied from the evidence, that the springs belong to the general water-shed of the "Belle Eau," that is, that left to themselves the water, not absorbed by evaporation, would filter by innumerable veins into the "Belle Eau" directly or indirectly, we are also satisfied, indeed there was not a point upon which the evidence was more consistent, that this is no natural water-course, that the runs which now exist leading the water to the mill-dams are artificial, and that the marshy ground from which the springs originate is not in such a position towards the river as to require us to consider whether a natural water-course, in the meaning of the Ordinance, does not exist through the marsh itself.

The position in which the plaintiffs stand in that respect is that they are now the proprietors of three properties, all of which had rights to water from the "Belle Eau ; two of the properties from "prises d'eau" above the defendants' mills, and one of them, "Albion ", from a canal below the mills. In addition, as lower riverains," the plaintiffs have a right, by the special terms of the Ordinance, to a fair share of the water for irrigation and other purposes.

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The history of the springs on "Gros Cailloux", as developed before us both by the witnesses and the documents produced, shows that for a time much beyond the prescriptive period the water of the springs, after having been used by the proprietors for their own purposes, had been left to flow into the river and that this was taken into account by all concerned, when dealing with the water higher up the river. Almost the total quantity of water in the channel of the "Belle Eau had been granted by lawful authority to the canal "Belle Eau ", and to the canal "Belle Vue", at the time when the surplus from the "Gros Cailloux" springs, after serving the purposes of the property, was cast into the bed of the river. The proprietors of "Gros Cailloux," when resisting efforts which were made to declare the springs public proper ty, treated in their pleadings of the rights of the lower "riverains to the surplus water as well understood and acknowledged by them. This is proved by document of date 19th March 1869, given in by them to the Land Court in defence of their rights.

Such was the state of affairs before 1856; but after that date, which is given by Mr. Cummings as the time when the third mill was built, the defendants by their own acts brought the water by canals down to the very brink of the bed of the "Belle Eau ", where for their own convenience the third mill was placed, and there they threw the overplus of the water which moved the third wheel into the bed of the river itself,-and this continued till 1863 when the Ordinance was passed. The defendants had enjoyed the innumerable springs upon the property of "Gros Cailloux" for their own purposes; but, after that was accomplished, they had thrown into the river and permitted to be enjoyed by the lower riverain" the overplus of the water for a very long period, during which prescriptive interests in the person of the plaintiffs or their predecessors, and interests, recognized by public authority, had grown up and been sanctioned, upon the footing, that the surplus of the "Gros Cailloux " springs formed part of the water of the "Belle Eau" below the point of junction.

By the Ordinance the Rivers and Streams of the Colony are declared to be public property, and no one is entitled, without the authority of the Executive Council, to turn aside any portion of the water. The defendants had clearly therefore no authority to take at their own hand from the river itself, even had these prescriptive rights not existed, any portion of the water, whether it had been contributed from the springs on "Gros Cailloux,

or from the ancient bed above the springs. They have, however, as borderers, a

As to the damages due by the defendants for their illegal dealing with theters, we in the meantime suspend consideration thereof, for the purpose of affording both parties an opportunity of applying to the proper authority for a division of the river; and, on its being reported to us that a satisfactory scheme of division has been accepted and is in operation to regulate the rights of parties for the future, we shall be prepared to decide the question of damages, the " "of quantum which, if not necessarily, at least, in part, equitably, depends not merely upon the fact of the illegal damming of the river, but on the quantity more or less than their proper share which the defendants took possession of. We order that an account of the costs of the plaintiffs be given in, the whole question of costs and damages to be finally decided when we have before us a scheme of division, with the expense of putting it into execution.

In this case it was contended, on behalf of the appellant, that the Estate" Clarifond" had not been put in to the partnership by the two co-owners of the said Estate, but simply the working of it, so that each of the partners, as a joint-owner "pro indiviso," could legally mortgage his own share; and 20. that, if the mortgage given by one of the co-owners was ineffectual "per se," it had been ratified and confirmed by the other partner and that this would cure all defects. The Court, however, ruled that a mortgage given by one partner over partnership property was null and

In this case there was a previous appeal bringing up the question whether the appellant, Charles Rougé, had a "locus standi," at all, in this case, and could, in any way, interfere in the distribution, by way of "Ordre," of the sale price of the Sugar Estate "Clairfond." His opponents maintained that he was in no respect a creditor of Alfred Besnard the seller of the Estate to Ernest Duval, who, in his turn, sold it to Charles Mauvis,

and could not therefore interfere in the "Ordre." This question, though envolving enquiries into the merits of the case, was pressed upon the Master's notice as a PRELIMINARY point. He dealt with it as such, and, on the 6th of May last, issued a jugdment ruling that Rougé was in a position entitling him to discuss the collocations in the "Ordre." The case was then appealed to this Court. But it was ordered that it should be remitted back to the Master to exhaust the case by disposing of all questions, before a final appeal.

This has been done, and the case has returned to us under the present appeal, in which we have heard a very full argument

from the bar.

The questions between the parties arise, as we have seen, in the distribution by way of "Ordre" of the sale price of the Estate "Clairfond." This property was sold by Ernest Duval to Charles Mauvis, on the 15th of December 1870, but the circumstances, out of which the disputes have taken their rise, are of a far earlier date.

It appears that in the year 1852, one Isaïe Duval was owner of this Estate "Clairfond." On the 20th of September of that year he sold, to Ernest Duval and to Alfred Besnard, two undivided thirds of the property. In the year 1863 (1st June) he sold the remaining third to the same parties, as "acquéreurs con"jointement et indivisément pour un sixième "chacun." By the same deed the purchasers entered into a partnership in the following terms: "Ernest Duval et Alfred Besnard ac"tuellement propriétaires par moitié indivise "chacun, du domaine de "Clairfond," ont "déclaré former entre eux une société civile "et particulière pour en faire l'exploitation ;" the partnership was to last eight years.

On the 21st November 1871, Besnard sold to Duval his undivided half of the Estate. This put an end to the partnership. It has been shewn that in the interval, and while the partnership was in existence, Besnard had made himself a party to an Act, by which a credit was opened by Messrs. A. Edwards and J. Rougé fils, merchants of Port Louis, in favour of one Mélidor Chércn for the working of two Estates belonging to him called "Bon Accord " and " Mon Repos Giblot." In this deed it was set forth that Besnard had intervened and granted a special mortgage to the amount of $68,000 over his half of Clairfond," in guarantee of the advances to be made, under the opening of credit. Much of the discussion in the present case has turned upon this deed of opening of credit. Its special terms and the precise in