v. Higginson, 4 M. & W. 245; see Dare v. Heathcote, 25 L. J. Ex. 245; 26 Ib. 164; Hawkins v. Carbines, 27 L. J. Ex. 44; Ballard v. Dyson, 1 Taunt. 279; Jackson v. Stacey, Holt, N. P. C. 455; Higham v. Rabbett, 5 Bing. N. C. 622). When a way to a dwelling-house had been acquired by user, it was held there was no excess of user by reason of a small shop having been opened in the house (Sloan v. Holliday, 30 L. T. 757). The defendant, being entitled by user to a right of way over the plaintiff's land from field N., used the way for the purpose of carting from field N. some hay stacked there, which had been grown partly on the land adjoining. The jury found that the defendant had used the way bona fide, and for the ordinary and reasonable use of field N. as a field. Held, that there was no excessive user (Williams v. James, L. R. 2 C. P. 577). A person having a private way over the land of another cannot, when the way is become impassable by the overflowing of a river, justify going on the adjoining land, although such land, as well as the land over which the way runs, belongs to the grantor of the way (Taylor v. Whitehead, 2 Dougl. 475; Bullard v. Harrison, 4 M. & S. 387; 1 Wms. Saund. 322 a, n. (3); Duncombe's case, Cro. Car. 366; see Robertson v. Gauntlett, 16 M. & W. 289). But where a private way has been obstructed by the grantor, the grantee may deviate over the grantor's land (Selby v. Nettle fold, 9 Ch. 111). The grantee of a way has a right to repair it, as incident to the grant (Com. Dig. Chimin (D. 6); Godb. 53; Gerrard v. Cooke, 2 Bos. & P. N. R. 108; Vin. Abr. Incidents (A.); Newcomen v. Coulson, 5 Ch. D. 143), and the grantor is not bound to repair (Com. Dig. Chimin (D. 6)), unless by prescription or stipulation, express or implied (1 Saund. 322 a, n.; Rider v. Smith, 3 T. R. 766; Miller v. Hancock, 1893, 2 Q. B. 181). The grantee of a private way is to make it (Osborn v. Wise, 7 C. & P. 764). By common law he who has the use of a thing ought to repair it, unless the grantor has bound himself to do so (Taylor v. Whitehead, 1 Doug. 720; Pomfret v. Ricroft, 1 Wms. Saund. 557; Miller v. Hancock, sup.). Although at common law the grantee of a way ought to repair it, that is not a condition incident by law to the grant of a right of way; it is not even an obligation to which the grantee is subject; it is no more than this, that if he wants the way to be repaired he must repair it himself (Duncan v. Louch, 6 Q. B. 909, 910; see Ingram v. Morecraft, 33 Beav. 49). As to rebuilding a bridge, see Campbell Davys v. Lloyd, 1901, 2 Ch. 518. Where an owner of the soil permits others to pass over it, he is liable for an accident caused by the negligence of himself or his servants to a person lawfully availing himself of such permission, though he would not be liable for an accident caused by the ordinary risks attaching to the nature of the place, or the business there carried on (Gallagher v. Humphrey, 10 W. R. 664). Where an owner of land, having a private road to his house, gave permission to a builder to place materials upon the road, and the builder placed a quantity of slates there in such a manner that the plaintiff in using the road sustained damage: the builder was liable to an action (Corby v. Hill, 4 C. B. N. S. 556; Belch v. Smith, 7 H. & N. 736). The possessors of a cutting, and a bridge over the cutting, who allowed the public to use the bridge, were held not liable for the death of a person who fell into the cutting through the defective condition of the bridge (Gautret v. Egerton, L. R. 2 C. P. 371; see Gwinnell v. Eames, L. R. 10 C. P. 658; Tarry v. Ashton, 1 Q. B. D. 314). Where a person having a right of way over the land of another purchases such land, the right of way is extinguished by the unity of seisin and possession (Heigate v. Williams, Noy, R. 119; see James v. Plant, 4 Ad. & El. 761, ante, p. 62). A long forbearance to exercise a right of way may reasonably be accounted for by supposing a release of the right (Doe v. Hilder, 2 B. & Ald. 791; see Moore v. Rawson, 3 B. & C. 339). But a mere suspension of the exercise of a right is not sufficient to prove an intention to abandon it (Crossley v. Lightowler, 2 Ch. 482; James v. Stevenson, 1893, A. C. 162). It is the nature of the act done, or of the adverse act acquiesced in by the owner of the easement, and the intention thereby indicated, which are material (R. v. Chorley, 12 Q. B. 519; Mulville v. Fallon, I. R. 6 Eq. 458). It was laid down in another case, that where a right of way has been once established by clear evidence of enjoyment, it can be defeated only by distinct evidence of interruptions acquiesced in; an unsuccessful attempt on the part of the occupiers of the land, over which the way ran, from time to time to interrupt such right, will not be sufficient to get rid of it (Harvie v. Rogers, 3 Bligh, N. S. 444–447; see Hillary v. Waller, 12 Ves. 265; Norbury v. Meade, 3 Bligh, 211, 241). The discontinuance for upwards of twenty years of the use of an immemorial right of way to a close, because the occupiers had a more convenient access to it over another close, is not evidence of an intention to abandon the right (Ward v. Ward, 21 L. J. Exch. 334; cf. Cooke v. Ingram, 68 L. T. 671). In the former case Alderson, B., observed, "The presumption of abandonment cannot be made from the mere fact of nonuser. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something which is adverse to the user." A parol agreement for the substitution of a new way for an old prescriptive way, and the consequent discontinuance to use the old highway, afford no evidence of the abandonment thereof (Lovell v. Smith, 3 C. B. N. S. 120). In this case Willes, J., said, "I do not think that this court means to lay down that there can be an abandonment of a prescriptive easement like this without a deed or evidence from which the jury can presume a release of it" (Ib. pp. 126, 127). A right of way may be abandoned, and it is always a question of fact, to be ascertained by a jury or by the court from the surrounding circumstances, whether the act amounts to an abandonment or was intended as such (Cook v. Bath, 6 Eq. 179). The right to use a level crossing was abandoned by severance of ownership of land on either side of the line (Midland R. Co. v. Gribble, 1895, 2 Ch. 827). Rights of by abandon ment; Where the mode of enjoyment of an easement has been more or less by alteration altered, and where an attempt has been made to usurp a greater right of dominant than the party was entitled to, it appears that in the case of those ease- tenement; ments which depend upon repeated acts of man and require no permanent alteration in the dominant tenement as rights of way, the previouslyexisting right will not be affected by acts of usurpation (Gale on Easements, 514, 6th ed.; and see Luttrell's case, 4 Rep. 86 a). There does not appear to be any direct authority to show whether, if the use of a place, to and from which a way is by express words reserved or granted, be completely changed, the way can still be continued to be used. It has been held, that if a man has a right of way to a close called A., he cannot justify using the way to go to A., and from thence to another close of his own adjoining to A. (1 Roll. Abr. 391, pl. 3; Howell v. King, 1 Mod. 191; Lawton v. Ward, 1 Ld. Raym. 75; and 1 Lutw. 111; Skull v. Glenister, 16 C. B. N. S. 81). If a right of way be granted for the purpose of being used as a way to a cottage, and the cottage is changed into a tan yard, the right of way ceases; but if there is a general grant of all ways to a cottage, the right is not lost by reason of the cottage being altered (Henning v. Burnet, 8 Exch. 192; see Sloan v. Holliday, 30 L. T. 757). By the 10th section of the Inclosure (Consolidation) Act, 1801, the by statute. commissioners are directed to set out private roads; and by the 11th section of that act it is declared that all roads, ways, and paths, over, through and upon such lands and grounds, which shall not be set out, shall be extinguished. Where a private inclosure act does vary Rights of (8) the terms of the above act, if the commissioners in their award do not notice a road running over the inclosed lands, it is, by the operation of that act, extinguished, and the proprietor of the lands over which it runs may stop it up (White v. Reeves, 2_B. Moore, 23; Holden v. Tilley, 1 F. & F. 650); compare sect. 68 of the Inclosure Act, 1845, Turner v. Crush, 4 App. Cas. 221. As to the construction of local inclosure acts giving powers to stop up roads, see Logan v. Burton (5 B. & C. 513); Harber v. Rand (9 Price, 58); R. v. Hatfield (4 Ad. & Ell. 156). Remedy for It would seem that the owner of a right of way may, after proper notice disturbance: requesting the removal of an obstruction, himself remove it, even if the by abatement. obstruction is a house which is inhabited (Lane v. Capsey, 1891, 3 Ch. 411). The refusal by the court to grant a mandatory injunction would not interfere with such a right (Ib); and leave was given to exercise the right where the house was in the possession of a receiver appointed by the court (Ib). It is doubtful whether the right to abate exists in the case of nonfeasance (Campbell Davys v. Lloyd, 1901, 2 Ch. 518). Remedy by action; action by reversioner; companies; pleading; actions in the Chancery Division. An action lies for the disturbance of a right of way, created either by reservation, grant, or prescription (Com. Dig. Action on the Case for Disturbance (A. 2); 1 Roll. Abr. 109); and such disturbances may be either by absolutely stopping up the way, or by ploughing up the land through which the way passes (2 Roll. Abr. 140), or by damaging the way with carriages, so that it is of no use (Lawton v. Ward, 1 Lutw. 111). A reversioner cannot sue for the obstruction of a right of way unless the obstruction be such as either permanently injures the estate, or operates in denial of the right (Hopwood v. Scholfield, 2 M. & Rob. 34; see Young v. Spencer, 10 B. & C. 145; Baxter v. Taylor, 4 B. & Ad. 72; Jackson v. Pesked, 1 M. & S. 234; Alston v. Scales, 2 M. & Scott, 5; Mott v. Shoolbred, 20 Eq. 22; Kidgill v. Moor, 9 C. B. 364). Where the plaintiff had, under the special act of a railway company, acquired the use of a siding, which he leased to tenants, and the company denied the plaintiff's right, and obstructed the siding by carriages constantly kept there, the obstruction was sufficiently permanent to give the plaintiff a right of action as reversioner (Bell v. Midland R. Co., 10 C. B. N. S. 287). The Railway Clauses Act, 1845, s. 53, takes away the common law right of action for an interference by a railway company under its powers with a private right of way, except when special damage has been sustained (Watkins v. G. N. R. Co., 16 Q. B. 961). As to compensation under the Lands Clauses Act, 1845, see London School Board v. Smith, 1895, W. N. 37. In all cases for disturbance of a way, the obstruction ought to be alleged as occurring in the way itself to which the party has a right (Tebbutt v. Selby, 6 Ad. & Ell. 786). Where in an action for wrongfully stopping up a way the precise locality of the way is material to the defence, the defendant is bound to show it in his pleadings (Ellison v. Iles, 11 Ad. & Ell. 665). In an action brought since the Jud. Acts for obstructing a private way the pleading should, under the R. S. C., show the termini of the way and its course; and whether the plaintiff claims by prescription or grant (Harris v. Jenkins, 22 Ch. D. 481). And where the defendant in an action of trespass pleads that the locus in quo was a highway, he must now state how it became a highway (Spedding v. Fitzpatrick, 38 Ch. Div. 410; see under the old law, Williams v. Wilcox, 8 Ad. & El. 331). As to variances under the old law, see Duncan v. Louch (6 Q. B. 904); Colchester v. Roberts (4 M. & W. 769). Where a bill was filed by a lessee to establish a right of way, an objection for want of parties, because the plaintiff's lessor was not before the court, was allowed under the Chancery practice before the Jud. Acts (Poore v. Clark, 2 Atk. 515). As to the certainty required in such bills, see Gell v. Hayward (1 Vern. 312); Cresset v. Mitton (3 Bro. C. C. 481; 1 Ves. jun. 449). Agreements as to right of way were enforced by injunc tion in Newmarch v. Brandling (3 Swan. 99); Phillips v. Treeby (3 Giff. 632); Collins v. Slade (23 W. R. 199). As to the remedy in equity, in the case of a licence for a right of way which has been executed, and where expense has been incurred, see Mold v. Wheatcroft (27 Beav. 510), and the cases quoted ante, p. 23. As to the obstruction of a right of way by the acts of several persons, see Thorpe v. Brumfitt, 8 Ch. 650, and other cases quoted p. 108, post. Injunctions have been granted to restrain interference with the private access of the owner of property abutting on the highway to and from the highway (Lyon v. Fishmongers' Co., 1 App. Cas. 662; Original Hartlepool Co. v. Gibb, 5 Ch. D. 713; see Fritz v. Hobson, 14 Ch. D. 542). In a proper case a mandatory injunction will be granted (Krehl v. Burrell, 7 Ch. D. 551; 11 Ch. Div. 146). The remedy of a parishioner in respect of a churchway is in the Ecclesiastical Court (Batten v. Gedye, 41 Ch. D. 507). See further the forms of injunctions, Seton, 6th ed. 585 et seq. Rights of V.-WATERCOURSES AND RIGHTS IN RELATION TO WATER. (1) Natural Rights in Natural Streams...71. (2) Natural Rights in Subterranean Water...73. (3) Natural Rights to divert Flood Water, and to purity of (4) Acquired Rights in regard to Natural or Artificial Water courses... 74. (5) Modes of acquiring Right in regard to Water...77. (6) Extent of Rights in regard to Water...78. (7) Alteration of mode of enjoyment...79. (8) Repair of Drains...80. (9) Extinction of Water Rights...80. (10) Remedies for disturbance of Water Rights...81. (11) Action for Pollution...83. (12) Action for Escape of Water...85. (13) Action when Rights arise from Contract...85. (14) Statutory powers to interfere with Water Rights...86. (15) Navigable Rivers and Rights of Navigation...86. (16) Ownership of the Soil of Tidal and Non-Tidal Waters...89. (18) Alluvium...91. (19) Ferries...92. (1) The ground and origin of the law which governs streams running in Origin of law their natural course would seem to be this, that the right enjoyed by the governing several proprietors of the lands over which they flow is, and always has natural been, public and notorious: that the enjoyment has been long-continued streams. -in ordinary cases, indeed, time out of mind-and uninterrupted; each Inan knowing what he receives and what has always been received from the higher lands, and what he transmits and has always been transmitted to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages, or perhaps it may be considered as a rule of positive law (which would seem to be the opinion of Fleta and of Blackstone), the origin of which is lost by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, in his judgment in the case of Tyler v. Wilkinson (4 Mason's American Rep. 401), in the courts of the United States, as an incident to the land; and that whoever seeks to found an 66 Of Watercourses. the flow of water in natural streams. exclusive use must establish a rightful appropriation in some manner known and admitted by the law" (Acton v. Blundell, 13 M. & W. 349, 350). "Primâ facie, the proprietor of each bank of a stream is the proprietor of Natural right half the land covered by the stream, but there is no property in the water. of riparian Every proprietor has an equal right to use the water which flows in the proprietor to stream; and consequently no proprietor can have the right to use the the use and to water to the prejudice of any other proprietor, without the consent of the other proprietors, who may be affected by his operations. No proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above" (Wright v. Howard, 1 Sim. & Stu. 203; adopted by Lord Tenterden, C. J., Mason v. Hill, 3 B. & Ad. 312, 313; and see Mason v. Hill, 5 B. & Ad. 18; Ennor v. Barwell, 2 Giff. 426, 427; Embrey v. Owen, 6 Exch. 369). Nor is he entitled to increase the flow of water except by reasonable drainage operations (Young v. Bankier Co., 1893, A. C. 697). "The flow of a natural stream creates mutual rights and liabilities between all the riparian proprietors along the whole of its course. Subject to reasonable use by himself, each proprietor is bound to allow the water to flow on without altering the quantity or quality" (Gaved v. Martyn, 19 C. B. N. S. 732). "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land; for instance, to the reasonable use of the water for domestic purposes and for his cattle; and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, for what may be deemed the extraordinary use of it, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up a stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury" (Per Lord Kingsdown, Miner v. Gilmour, 12 Moo. P. C. 156; adopted in Nuttall v. Bracewell, L. R. 2 Ex. 1; see A. G. v. G. E. R. Co., 6 Ch. 572; Buccleuch v. Metropolitan Board, L. R. 5 H. L. 418; Young v. Bankier Co., 1893, A. C. 696, 699). The question what is an "extraordinary use" may depend on the development of trade in the neighbourhood, and on the use to which the water of rivers is put in the adjoining district (Ormerod v. Todmorden Co., 11 Q. B. Div. 168). As to "sensible injury "see the case p. 81, post, deciding that proof of actual damage is not necessary in actions for diversion and obstruction. Every riparian proprietor is entitled to the water of his stream in its natural flow without sensible diminution or increase, and without sensible alteration in its character or quality; any invasion of this right, causing actual damage or calculated to found a claim which may ripen into an adverse right, entitling the party injured to the intervention of the court (Young v. Bankier Co., 1893, A. Č. 698). Appropriation not necessary. In Williams v. Morland (2 B. & C. 910), Bayley, J., said: "Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it: subject to that right, all the rest of the water remains publici juris. The party who obtains a right to the exclusive enjoyment of the water, does so in derogation of the primitive right of the public." The same doctrine of appropriation was laid down in the earlier cases (Rutland v. Bowler, Palm. 290; Bealey v. Shaw, 6 East, 208; Saunders v. Newman, 1 B. & Ald. 258; Liggins v. Inge, 7 Bing. 692; Frankum v. Falmouth, 6 C. & P. 529). Lord Denman, however, said: "It appears to us that there is no authority in our law, nor, as far as we know, in the Roman law (which, however, is no authority in ours), that the first occupant, though he may be the proprietor of the land above, has any right by diverting the stream to deprive the owner of the land below of the special benefit and advantage of the natural flow of water therein " (Mason v. Hill, 5 B. & Ad. 24). In Arkwright v. Gell (5 M. & W. 220), Parke, B., |