Page images
PDF
EPUB

ceeds of sale of the mortgage property in his hands (Tanner v. Heard, 29 Law Tim. Rep. 257).

Landlord and Tenant—Landlord supplying timber— Non-removal by tenant.-A tenant cannot, on quitting, remove a building for which the landlord supplied part of the timber, and the tenant the remainder (Smith v. Render, 29 Law Tim. Rep. 264).

Alien-Suing.-An alien (perhaps even an alien enemy) may sue to prevent a fraudulent injury to his property (The Collins Company v. Cohen, 4 Law Chron. 42; 29 Law Tim. Rep. 245).

Life insurance-Action against company-Evidence of valid contract. In an action on a life policy granted by a company under the 7 & 8 Vic. c. 110, it is not necessary for the plaintiff to produce the deed of the company, or show that the contract was entered into with all due formality according to the deed (Charles v. National Guardian Assurance Company, 29 Law Tim. Rep. 246; 4 Law Chron. 51) Lunatic, pauper-Irremovable-Old orders-Liability of parish of residence.-The effect of the 10 & 11 Vic. c. 110, and the 16 & 17 Vic. c. 97, is to relieve the parish of settlement of a lunatic pauper of the maintenance of the pauper at the expense of the union of the parish of residence, or at the expense of the parish of residence, if it is not in a union: these acts apply not only to future orders, but to those made prior to its passing (Knowles v. Trafford, 29 Law Tim. Rep. 248).

Will-Englishman domiciled in France.-The will of an Englishman domiciled in France is invalid, though executed in the English form, if it be not conformable to the law of France (Bremer v. Freeman, 29 Law Tim. Rep. 251; 4 Law Chron. 46).

NOTE. Supposing the new bill to remedy the state of the law shown by the above decision not to pass, it will be well to bear in mind that if a British subject writes his will in his own handwriting (hence called a holograph will), and then executes it according to the English form, it will be valid in every court of every European country, whatever may be the testator's domicil, and wherever his property may be situate (1 Sol. Journ. 533).

Bankruptcy-Proof-Bill of exchange-Part payment. The holder for value of a bill of exchange, who has received part of the amount from other parties to the bill, cannot prove for the full amount of the bill against the accommodation acceptor, but only for the amount actually due at the time when the proof is tendered (Exp. Taylor, 29 Law Tim. Rep. 254).

Dismissal of bill without costs—Decisions overruled. If a plaintiff files a bill upon the authority of decisions afterwards reversed, he may dismiss his bill without paying costs (Lister v. Leather, 29 Law Tim. Rep. 255; 4. Law Chron, 47).

Evidence-Leave to file affidavits after time has expired, will be granted under peculiar circumstances, as where near the last day for closing evidence the opposite party has filed affidavits containing allegations not previously made, affecting the character and credibility of the party's witnesses, and calculated to prejudice their evidence (Scott v. Corporation of Liverpool, 29 Law Tim. Rep. 256; 4 Law Chron. 47; 5 Week. Rep. 641,669).

Manslaughter-Act of commission is not actually essential; culpable negligence, if it would, being by design and of malice prepense, amount to murder, constitutes manslaughter (Reg. v. Hughes, 3 Jur. N. S. 696; 29 Law Tim. Rep. 266).

Truck Act-Contractor by the piece.-The Truck Act does not apply to one who enters into a contract to do certain work at so much per measure, or number, or weight, &c., under which he is not bound to bestow his personal labour (Ingram v. Barnes, 29 Law Tim. Rep. 297).

Habeas Corpus.-Prisoner moving for new trial in a civil action in person is not entitled to a habeas corpus (Binns v. Moseley, 3 Jur. N. S. 694).

Attorney.-Client liable for the act of, and not the attorney himself, in obtaining evidence for a trial (Lee v. Everest, 29 Law Tim. Rep. 263), and for issuing a ca. sa. for a less debt than £20 (Collett v. Foster, 5 Week. Rep. 790; 4 Law Chron. 56).

Equity Judges' Chambers.-The opinion of the judge may be taken by any party on proceedings taken before the chief clerk in chambers (Re London and County Assurance Company, 5 Week. Rep. 794).

Mortgage Proposed mortgage going off for want of title-Mortgagee's costs of investigating title.—A mortgagee cannot recover the costs of, and incidental to, the investigation of the title of the mortgagor, with which the mortgagee has expressed himself to be dissatisfied (Melbourne v. Cotterell, 29 Law Tim, Rep. 293).

Charitable trust-Statute of Limitations.-The House of Lords has decided, in opposition to the Master of the Rolls, that charitable trusts are trusts within the operation of the 24th and 25th secs. of the 3 & 4 Will. 4, c. 27 (Magdalen College v. The Attorney-General, 3 Jur. N. S. 675; 29 Law Tim. Rep. 238; 4 Law Chron. 42, 43).

Winding-up Acts.—Building societies are within the above acts (St. George's Society, 3 Jur. N. S. 683; 4 Law Chron. 45).

Emblements.-A devisee of land is entitled to, unless they are expressly bequeathed to another (Cooper v. Woolfit, 5 Week. Rep. 790).

Life Insurance-Fraud in effecting.--Where the person insuring a third party's life merely states his belief of the correctness of the statements of the life

and his referees (the truth thereof not being the basis of the contract), he is not affected by their fraudulent statements (Wheelton v. Hardisty, 5 Week. Rep. 784).

Bankruptcy protection-Creditor's debt not provable. The protection granted to a bankrupt who has not passed his last examination extends to an arrest on the part of a creditor whose debt is not provable (Exp. Shepherd, 29 Law Tim. Rep. 298).

Payment into court.-Where a trustee admits that a trust fund is in his hands, he may be ordered to bring it into court on the application of a single cestui que trust, but where his conduct has been proper only the share of the cestui que trust will be ordered to be paid in (Hamond v. Walker, 3 Jur. N. S. 686).

Public Company.-The liability of a shareholder may be extinguished by an agreement between the directors and the shareholder that he should retire and transfer his shares for the benefit of the company, followed by an acceptance of such transfer (Plate Glass Company v. Sanley, 29 Law Tim. Rep. 277).

Vendor and purchaser. Where purchaser dies before paying purchase-money, the heir is, notwithstanding 17 & 18 Vic. c. 113 (see 1 Law Chron. p. 154; vol. 2, pp. 136, 195; vol. 3, pp. 24, 96), entitled to have the purchase-money paid out of the personal estate (Hood v. Hood, 3 Jur. N. S. 684; 4 Law Chron. p. 41).

Vendor and purchaser.-A notice to take lands by a public company, followed by a valuation, will constitute an enforceable contract for sale and purchase (Regent's Canal Company v. Ware, 29 Law Tim. Rep. 274; 4 Law Chron. 40, 41).

Surety Bill of sale of goods and distress.- A surety is discharged if the creditor takes the goods assigned by his debtor (his tenant) as a security, as a distress for rent in arrear (Pearl v. Deacon, 5 Week. Rep. 793; 29 Law Tim. Rep. 289).

Order and disposition - Previous insolvency.- A chattel reversionary interest omitted to be mentioned in an insolvent's schedule, is not in his "order and disposition" on his subsequent bankruptcy (Re Rawbone, 5 Week. Rep. 796).

Over

Attorney Taxation after twelve monthscharge Pressure. A bill containing gross overcharges will be ordered to be taxed even after twelve months from its delivery. So it seems it would in the case of pressure (Re Strother, 5 Week. Rep. 797).

Digging well-Injury to neighbour.-Any person may lawfully dig a well for water upon his own land, and a neighbour whose underground water is sensibly diminished, has no cause of action (Chasemore v. Richards, 5 Week. Rep. 780).

MOOT POINTS.

No. 6.-Illegal Pawning, &c.

D., a washerwoman, had intrusted to her household linen to wash. She pawned the linen, and was subsequently charged before the magistrates with larceny, and committed for trial at the sessions. On the trial, counsel for the defence objected that there was no larceny, as there was no felonious taking, the possession having been lawful in the first instance, and that consequently the Quarter Sessions had no jurisdiction, and D. could only be charged before the magistrates with illegally pawning. He was overruled, and the case tried, and D. was found guilty and sentenced to six calendar months, hard labour. It is apprehended the Quarter Sessions were wrong. Will some of your readers give me their opinion? INQUIRER.

No. 7.-Lease, Covenant to Repair, "Reasonable Wear and Tear" excepted.

A lease contains a covenant to keep the demised premises in good and tenantable repair, and to surrender them at the end of the term in like tenantable condition, "reasonable wear and tear excepted." At the granting of the lease the premises were in good repair, but at the end of the term, they had become out of repair, merely from the tenants not doing any repairs. There had been no act of wilful waste on his part. Is the lessee liable on his covenant, or does the insertion of the exception as to 66 wear and tear" exempt him from liability? I am told that he is not liable (see also Young v. Mantz, 6 Scott, 277; Burdett v. Withers, 7 Adol. and Ell, 136); but I can scarcely think that the exception can have such an extensive operation—nullifying, in effect, the terms of the covenant. W. H. S.

No. 8.-Sale-Leasehold-Premises out of repair. A sale by auction of a leasehold house takes place in the house, and it is manifest to every bidder that the premises are out of repair, and there can, therefore, be little doubt that the bids were affected by the state of the premises. In fact, the vendor (the assignee of the lease) purchased three years before for a much larger sum. Since the sale, the superior landlord has given notice to the vendor to repair, and the purchaser refuses to complete his purchase. Is he not bound to complete, on the grounds that he must be considered to have had notice that a breach of covenant had been committed, and that he bought the premises in their actual condition? It would require much more than the amount of the purchasemoney to put the premises into repair.

W. H. S.

[blocks in formation]

The following case, supporting the right to sink wells upon a person's own lands, though 'injurious to his neighbour's wells, is one of great importance, as well as of some interest, more particularly as the court were not unanimous, Mr. Justice Coleridge, in a very able judgment, dissenting from the majority of the court. The arguments in support of the decision were stated by Mr. Justice Cresswell, who observed that a riparian owner cannot divert the stream for any purpose whether for irrigating or draining his land, or any other purpose, to the prejudice of the riparian owner. But it has never yet been held that a man might not drain his land, and so abstract water oozing through it, although such water would have otherwise found its way to a flowing stream; nor has it been contended that an owner of land situated near a flowing stream may not make a pond for use or ornament, although water would ooze into it which otherwise would have gone into the stream. Again, the owner of land near a flowing stream has hitherto been supposed to have the right of preventing water from oozing into his land from higher ground, provided he does not throw it back upon his neighbour; but he can no longer do that if water so percolated is to be put upon the same footing as a natural flowing stream, for that he cannot lawfully divert, even for the purpose of preventing injury to his land. But if he may prevent the water from coming into his land, why should he not allow it to come, and then collect it and use it; and to allow this, would be in direct conformity with a recent decision of the Court of Exchequer, in Rawstron v. Taylor (11 Exch. 369), and Broadbent v. Ramsbotham (11 Exch. 602). The majority of the court accordingly decided, that any person may lawfully dig a well for water upon his own land; and although the consequence may be the intercepting of underground water, which otherwise would have percolated and found its way to a river, and so 'to an ancient mill, the proprietors of which have enjoyed the use of the water so percolating for more than sixty years, the mill-owner cannot maintain an action for the abstraction of such water, although of sensible value to the working of the mill. The Croydon Local Board of Health sunk a well upon their own ground within a quarter of a mile of the commencement of the River Wandle, the flow of which the plaintiff and his predecessors, who owned an ancient mill, had enjoyed for more than

sixty years for working the mill. The board, by pumping at the rate of 5,000 or 6,000 gallons daily, abstracted the subterranean supplies, which otherwise would have percolated to the Wandle, and found their way to the mill, and the water thus intercepted was of sensible value to the working of the mill Held, upon a special case (Coleridge, J., dissentiente), that no action could be maintained for intercepting, and so abstracting the water Chasemore v. Richards, 5 Week. Rep. 780). The following is the most important portion of the judgment of Mr. Justice Coleridge, and which we give, `because it will well repay perusal. His lordship, after referring to the plaintiff's sixty years' enjoyment of the flow of water, proceeded: "It is clear that the defendant, by his act, has diminished the flow of water, and that he has done so by acts of which the natural effect, to be reasonably expected, was to produce the injurious consequences which have, in fact, resulted; and although the precise or complete effect of sinking a well, or pumping from it, could not be known beforehand, nor when it would appear, yet he must be taken to have known before so continually pumping that those consequences would result. The question then is whether any action is maintainable against him for these acts; and I am of opinion that this question is to be answered in the affirmative. I suppose that if the same acts which are now complained of, in respect of subterraneous water, had been done in respect of water on the surface, the plaintiff's right, and the injurious consequences to that right, and its enjoyment being supposed to be the same as now found, no question could have been made as to the right of action. The rights of the owner of land by or through which water flows, merely as such owner, and apart from any prescriptive title, are now well settled, and I do not know where they are more clearly stated than in 3 Kent's Commentaries, 439, 441. The whole passage is extracted in the judgment of the Court of Exchequer, in Embrey v. Owen (6 Exch. 369), and, therefore, I need not repeat it. But this passage is in strict accordance with the law of this country, as propounded in Mason v. Hill (1 B. and Ad. 1), and adopted in Acton v. Blundell (12 M. and W. 349), by the Court of Exchequer Chamber; but the passage in Kent is important, because it states correctly not only the general nature of the right in the absence of all interference with it by prescription or otherwise, but the limitation in the mode and extent of enjoyment which are involved in the very nature of the right itself. There is no property in water any more than in light or air, but the right to use it as it flows, and this extends equally to all the riparian proprietors above and below; but this right involves almost necessarily the right of abstraction

and temporary diversion for the purposes essential to the enjoyment or individual use of the property through or by which the water flows. This right, however, is restrained by due consideration for the equal rights of the riparian proprietors above and below. If even the reasonable necessity of one riparian proprietor were the only limit to his right of abstraction, he might, where the supply of water was limited, exhaust the whole; but this he cannot do, for by this he would violate the equal rights of all below him. Accordingly we find, in a note to the passage in 3 Kent, 440, two cases from the American reports referred to: Arnold v. Foote (12 Wendel, 330); and Brown v. Best (1 Wilson, 174), deciding this. In the former, where a spring of water rose in the land of A., and ran as a stream into the land of B., it was held that B. had no right to divert the stream from its natural channel to irrigate his land if he thereby exhausted the running stream, though there can be no doubt that this would have been a perfectly legitimate mode of exercising his natural rights as a riparian proprietor, if he thereby did not abridge the natural or conventional rights of any riparian proprietor lower down the stream. These common and equal rights, I need hardly say, may be varied to almost any extent by usage or prescription, from which a grant must be inferred, or by express grant. It follows, of course, that any infringement of what I may call the natural rights of a co-riparian is actionable; and upon this footing, as we know, actions are very commonly maintained, the rights being extremely valuable, but much open to infringement. But in the case of Acton v. Blundell, before mentioned, the law in respect to subterranean water came to be considered, and a different principle was laid down. It is necessary, therefore, now to examine what that case decided, and what principle is laid down. If that decision govern this case, I, for one, should be of opinion that, in a co-ordinate court, we ought to act upon it, whether approving it or not, and leave it to be reviewed and overruled if thought proper in the House of Lords; but if it does not appear that that decision governs the case in hand, we are at liberty to consider its principles before we apply them to materially different facts, especially if we find that those principles have already been thought unsatisfactory, and that decisions have been come to inconsistent with them. Now, it is certain that Acton v. Blundell does not decide the point now before us. In that case the plaintiff's rights stood on no user for twenty years, and in the judgment the court expressly states that it intimates no opinion whatever as to what the rule of law might be if there had been an uninterrupted user of the plaintiff's right during the last twenty years. Here the plaintiff relies on an uninterrupted

user for more than sixty years; he stands not on what I have called his natural right as a riparian proprietor, but on the conventional rights which are to be inferred from that user. Whether this claim can be made out or not is not the question now; it is, at all events, a different one, and was not in question in Acton v. Blundell. We are, therefore, at liberty to examine the general principles laid down in that case; and in the first place, with a view again of distinguishing it from the present, I remark that in establishing the distinction for which it contends between superficial and subterraneous waters, the judgment assumes certain facts: one of the most important, it should seem, is the ignorance of the landowner as to the course of the springs below the surface, the changes they undergo, and the date of their commencement. I confess I do not see how this ignorance is material in respect of a right which does not grow out of the assent or acquiescence of the landowner, as in a question of servitude, but out of the nature of the thing itself. Whether material, however, or not, it cannot, in any material sense, be said to exist here. The course by which the diverted water here percolates is not, indeed, seen, nor has it any open channel defined by visible marks; but its direction is as well known as if it ran in such a channel on the surface, and is regulated by as ancient and well known and as universal a law as the descent of any superficial stream. Further, the act of diversion cannot be considered an act done in ignorance. The plaintiff's ancient, right the defendant must be taken to have known, and that the uninterrupted percolation of water to the stream was necessary to the fit enjoyment of it; he has diverted that percolation by a combination of continuous acts, of which the arbitrator finds the natural effect to be reasonably expected was to produce the injurious consequences actually experienced. What more could be said if he had dammed up and turned into an immense reservoir all or any material part of a stream flowing superficially to the supply of the river. Let me now examine the main principles which the judgment in Acton v. Blundell lays down in the conclusion as governing the right to subterranean waters. It is not stated very confidently, or very precisely; the words are these :- We think the present case is not to be governed by the law which applies to rivers or flowing streams, but that it rather falls within that principle which gives to the owner of the soil all that lies beneath the surface of the land in mediately below his property, whether it is solid rock or porous ground, or veinous earth, or part water and part soil; that the person who owns the surface may dig therein and apply all that is there found to his own purposes at his freewill and pleasure; and that if in the exercise of such right

he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the discription of damnum absque injuriâ, which cannot become the ground of an action.' Why water in a natural course of transit underground should as such be more a subject of individual property than water flowing above ground is not explained; but passing that by, it seems to have been overlooked, that the water draining into his neighbour's soil, as well as that collected in his neighbour's well, must, on the same principle, be that neighbour's property; indeed, independently of this, it is well established that water collected in a well is so much taken from the common stock and reduced into possession and become a subject of property. Now, it is certainly a novel principle, that by an operation on my own land I may both excusably abstract, and lawfully convert to my own use, the underground property of my neighbour. The principle to be practically consistent must go this full length: it must not merely excuse the abstractions as the unavoidable consequences of an act lawful in itself, but it must also justify the appropriation of the water abstracted, and actually make what was my neighbour's property my own by my own deliberate act done against his will, and with a full knowledge of the injury I inflict thereby. But, again, let it be conceded that this principle is a sound one, and that the landowner has a property in the water percolating through and under his land, the question still arises, and is a wholly distinct one, whether such property in the subsoil, of which the water is to be taken to be a part, may not be subjected by the owner to a servitude in respect of the millowners on the bank of the stream below. Why may not there be implied from the sixty years' enjoyment the assent and agreement of the proprietors of the bank above to permit such a transit of the water under their respective lands to the river as is essential to the further working of the mill, without which it must be taken there never could have been that usage on which the right was founded? What is there in the fact that a defined visible channel is wanting, when the existence and general course of the water is known as certainly as if seen and defined, which makes such assent and agreement an unreasonable implication? It is to be remarked, too, that such an implication is not inconsistent with the supposition that each landowner may reserve to himself the right of the reasonable and ordinary use of the water for the enjoyment of his own land and premises; it is only a limitation on the exclusive and unreasonable use which goes beyond the proper wants of the particular party, and which use I have pointed out cannot be enjoyed without an encroachment on the equal rights

of the surrounding landowners. For these reasons I venture to disagree with what was laid down in Acton v. Blundell both as to the nature of property in subterranean waters, and as to the reasonableness of acquiring a right to use them as against the landowner in the way of a servitude upon his land; and it is a great satisfaction to me to think that I ain not without authority in this disagreement. In Broadbent v. Ramsbotham (25 L. J. Ex. 521), upon that case being named, I find Baron Parke saying 'that case decided that there is no right to a well unless the water has been used twenty years. This Court, and I believe all other courts, disapprove of that part of the judgment which denies the natural right to the water.' And in Dickinson and another v. The Grand Junction Canal Company (7 Ex. 302), the very point now to be decided came before the Court of Exchequer, and that court decided in favour of the plaintiffs, the owners of ancient mills, and entitled to the use of two streams for working thei. mills against the defendants, who had abstracted subterranean water which had never reached the streams, but would have done so in its natural course but for the excavation of the well and pumping from it; and although such water was part of the underground watercourse and percolated through the strata, the court held that the abstraction was equally actionable. If in this confiict of authorities we are to decide what is most reasonable to hold, I cannot but think that the conclusion here must be in favour of the plaintiff. He contends only for the preservation of that which he, and those whom he represents, have enjoyed for sixty years and more. He does not desire to deprive the defendant of the reasonable use of any rights, which are incident to him as owner of land, necessary for the enjoyment of any habitation which may be on it for its better cultivation, and which are consistent with the same enjoyment by the surrounding owners of the land. He appeals to the maxims so invaluable to the reconcilement of conflicting rights and of such undoubted authority, sic utere tuo ut alienum non lædas. The defendant, on the other hand, maintains that as owner of one piece of land, the law allows him, if he will use the mechanical appliances necessary, to absorb the supply of water of the whole district; every well and pump in every property and messuage in it, however ancient, he may drain dry. He has only to sink his well deeper, and increase the power of his steam-engine, and he may do this and dry up the river at its source, as well as intercept the latent feeders. If the law is so for him, it must be the same for each and all of his neighbours; and his exercise of his so-called right might be put an end to to-morrow by any rival association who would sink deeper than he has done, or use more powerful

« PreviousContinue »