30 proceeding for breach of duty, would, as against a | In the year 1830, H., being occupier of certain clay works, public body, probably be of little practical avail. We are, on reflection, so much impressed with a sense of the mischief which might arise from our pronouncing in favour of either of these views, as likely to lead to such a course of conduct as we have suggested, that we have deemed it better, finding, that in our judgment the third ground of objection was fatal to the rate, to abstain from pronouncing an opinion on this part of the case, so as to leave the question an open one. We think the decision of the court of quarter sessions in holding the want of the seal of the local board to be fatal to the validity of the rate, was right. It has been urged against it that the 149th section does not apply to acts done by the board itself, but only to acts done (that is, as is contended, done by others) without the authority of the board, its sanction, approval, or authority. But the section provides, that whereon the approval of the board is required by the provisions of the act, such approval shall be in writing, under its seal, and under the hands of five members of it; and the fact that the 98th section expressly provides that the estimate shall be approved by the local board, and entered in the rate book, as the basis of the rate, seems also to imply that the rate itself shall be so approved. Besides, the making of the rate is clearly a thing for which the "sanction" and "authority" of the local board are required, and is, therefore, within the express enactment of the 194th section. We cannot doubt that it was the intention of the Legislature, in this section, that the power intrusted to the local board, of rating the inhabitants within its district, for the purposes of this act should not be exercised without observance of the formalities which are necessary to give security to the ratepayers; that the estimate and the rate are the result of a deliberate exercise of judgment and discretion on the part of those, who being elected members of the board under the provisions of the act, are empowered by it to make the estimate and rate. Our judgment, therefore, is, that the order of quarter sessions, quashing the rate, be confirmed. Bovill afterwards applied for leave to reargue the case, on the ground that he had been stopped by the Court, as to the point arising upon the absence of the seal, on which judgment had been given against the validity of the rate. Leave being granted, the case was reargued in Easter Term, before Cockburn, C. J., Blackburn, Mellor, and Shee, JJ., by Bovill, for the respondents; and in Trinity Term, by Cur, adv. vult. June 14.-COCKBURN, C. J.-The Court seems to have acted somewhat hastily in stopping counsel as to the point arising upon the absence of the seal, but we are, nevertheless, all of opinion that the objection taken by the appellants on this ground was a valid one, and that the rate must be quashed. Our reasons for coming to this conclusion were sufficiently expressed in our former judgment, and inasmuch as they have been adopted by the full Court, it is unnecessary to repeat them.-Order of sessions confirmed. COURT OF COMMON PLEAS. [Before ERLE, C. J., WILLES, BYLES, and KEATING, GAVED v. MARTYN.-June 2, 3, and July 10. entered into an agreement with the owner of the adjoining land, to permit H. to cut a watercourse from a brook on the adjoining land, to carry water from the brook on the adjoining land to the clay works. The plaintiff succeeded H. in the clay works in 1835, and enjoyed the uninterrupted use of the water for more than twenty years:-Held, that the question was properly left to the jury, whether the uninterrupted enjoyment of the use of the water for more than twenty years was of right, or by virtue of the agreement with H. Held also, that the plaintiff acquired no right to an artificial stream, raised to the surface by the operation of miners, who had not permanently abandoned the right to control it. Held further, that the fact of the water being within the tin bounds of Cornwall, does not prevent the operation of the Prescription Act. Declaration, for that before and at the time of the grievances hereinafter mentioned, the plaintiff was possessed and occupied certain lands and premises, called Carrencarrow, in the parish of St. Austell, in Cornwall, and was entitled to have the water of a certain stream or watercourse flow, by the aid and means of a launder or water carrier of the plaintiff, part of which launder or water carrier was, and of right ought to be and remain, and which the plaintiff was entitled to have, and to have remain upon, certain premises of the defendant, towards, to, through, over, and along the said land and premises of the plaintiff, without being diverted or obstructed by the defendant as hereinafter mentioned; yet the defendant, on divers occasions, took, removed, and carried away the said launder or water carrier, and diverted and obstructed the water of the said stream or watercourse from, and prevented it from flowing through, to, over, and along, the said land and premises of the plaintiff; whereby the plaintiff was deprived of the use of the said water, and was prevented from using the same in divers lawful ways, and for the purpose of working certain clay works of the plaintiff in and upon his said land, in the way of his business as a clay worker, and was greatly damaged in the way of his said business, and in the enjoyment of his said land; and the said launder or water carrier of the plaintiff was also greatly injured. Second count, for diverting the water of a stream from flowing, by means of another launder, over the plaintiff's land. Third count, for diverting part of the water of the Coxbarrow brook from flowing along a certain leat or channel over the plaintiff's land. There were other counts in trespass. Pleas to the counts, not guilty, and traverse of the plaintiff's right to the flow of water in those counts mentioned, and paid money into court on the trespass counts. At the trial, before T. Chambers, Esq., Common Serjeant of the city of London, and a Commissioner to try causes in the county of Cornwall, it was proved that the plaintiff became tenant of certain clay works, called Carrencarrow, under the Earl of Mount Edgecombe, in the year 1835: that prior to the plaintiff becoming tenant, the clay works were held and worked by a person of the name of Hooper: that at the time the plaintiff became tenant of the clay works, there were two artificial leats-one called the clear water leat, and the other called the foul water leat that the clear water leat was cut in the year 1829 by Hooper, and that it extended from a point in the Carrencarrow estate, contiguous to the adjoining estate of Goonamarth, which then was occupied by a person of the name of Geach, to a brook, called Coxbarrow Brook, on the Goonamarth estate, to the clay works, the water being obtained partly from this brook, and in so doing the water was to some extent diverted from the brook. It also appeared, that a small stream, called the Tin Tie, had its source in the Goonamarth estate, and that in the year 1842 the plaintiff himself carried this stream into the clear water leat; but it was proved, that by a custom in Cornwall, the owners of tin bounds have the right to use the water within the tin bounds for the purpose of working tin. It appeared, that the land in which this stream was, was within the tin bounds, and that the tin bounds had been worked by the owner, and the water had been so used, and that a rent of 41. per annum had been paid by the plaintiff for the use of the water, as the defendant contended; but the plaintiff contended, that this rent was paid in consideration of his not breaking the tin statutes. It was further proved, that at the time the clear water leat was made, a verbal agreement was entered into between Hooper and Geach, that Hooper should be permitted to use the water from the brook for the purpose of the clay works, and should pay for the same an annual rent of one furze prickle; but it did not appear that the plaintiff was acquainted with the fact of this agreement. It was further proved that the defendant became the owner of the adjoining estate of Goonamarth in the year 1855, and that the plaintiff enjoyed the two leats uninterruptedly from the year 1835, when he took the clay works of Hooper, until the year 1855, when the defendant repeatedly removed the leats, and destroyed them. The judge left the following questions to the jury1st. Was the foul water leat cut from the brook with the consent of Geach, or was it cut by Hooper as of right, without any agreement? The jury found that it was cut by consent of Geach. 2ndly. Was there a cutting off of the water from the leat, on one or more occasions, when water in the brook was scarce; and if so, was that done in virtue of the conditions to that effect originally imposed, or done in assertion of the general right to have the water flow down the brook? Answer: For both reasons. 3rdly. Is the water in the part of the leat above the lower launder derived altogether from the sources of supply above the upper launder, or is it partially so derived, and partially derived from springs and sources of supply between the upper and lower launder? Answer: Partially from both sources. 4thly. Have the plaintiff, and those through whom he claims, had the uninterrupted enjoyment of the two leats, or of either of them, as of right, for more than twenty years without interruption? Answer: They have had uninterrupted possession of the clear water leat, but have not had uninterrupted possession of the foul leat too. 5thly. Was the payment of 47. a year to Hooper a payment made for the right to have the water, or was it a payment only in consideration of Hooper not fouling it, by using it for streaming of tin? Answer: Only for the purpose of preventing Hooper from fouling it. On these findings a verdict was entered for the plaintiff on the first and second counts for 1000l., subject to a reference to an arbitrator to assess the real amount of damages; and a verdict was entered for the defendant upon the third count. Both parties had leave to move. Montague Smith, Q. C., for the plaintiff, obtained a rule calling on the defendant to shew cause why the verdict found for him on the third count of the declaration should not be set aside, and instead thereof a verdict entered thereon for the plaintiff, on the ground that the agreement proved with Geach, and the cutting off the water, found by the jury, do destroy or affect the enjoyment of the plaintiff since 1835; or why there should not be a new trial on the ground of misdirection, in directing the jury on the effect of the agreement, and in direct them that the agreement, if believed by them, would under the plaintiff's enjoyment an enjoyment not of g On the same day, Karslake, Q. C., for the defendant, obtained a calling on the plaintiff to shew cause why the verde found for him on the first and second counts of the declaration should not be set aside, and instead thereof a verdict entered for the defendant on the grounds— first, that the plaintiff was a mere licensee, and had a sufficient possession of the water to enable him to maintain this action: secondly, that the user of the water by the plaintiff was continuous since 1855; the no proof was given by him of any enjoyment of the water for twenty years as of right; thirdly that the watercourses in question being altogether artificial ne right to continue to receive their flow could be argued by the plaintiff: fourthly, that the plaintif under the circumstances, able to acquire a night to the water in the Tin Tie, as against the tin bound, as incapable of acquiring the right at all; or why th should be a new trial, on the ground that the verdan was against the evidence. Karslake, Q. C., and Pinder now shewed cause against the plaintiff's rule, and contended that there was misdirection; that the question as to the nature of the plaintiff's enjoyment was properly left by the judge to the jury, and that the finding of the jury was righ. (Tickell v. Brown, 4 Ad. & El. 369; 2 & 3 WIL 4 c. 71, s. 2; Gale on Easements). Coleridge, Q. C., and Bullar, in support of the ru contended that the plaintiff's enjoyment was of righ that he knew nothing of the agreement entered in between Hooper and Geach, and that the plaintifi right was not affected thereby. ERLE, C. J.-I am of opinion that the rule ough to be discharged. The action was brought by t plaintiff to establish his right to the use of certa water; and the question really is, whether the pla tiff, or those through whom he claims, has enjo the uninterrupted use of the water as of right, for s period of twenty years. Now the evidence is, that person of the name of Hooper was tenant of Carre carrow in the year 1830, and about that time be obtained leave of Geach, who was tenant of Go marth, to cut a water channel from a brook on the Goonamarth estate to the Carrencarrow clay wh It is clear, therefore, that, as between Hooper m Geach, the use by Hooper of the water was not right within the meaning of the Prescription Ac In the year 1835 the plaintiff became tenant of th clay works, and enjoyed the use of the water uninter ruptedly, till the year 1855, in which year the defen ant claimed a right to stop up the water channel, did, in fact, cut off the water; and the question, there fore, is, whether the use of the water for more than twenty years by the plaintiff gives him an indefashi right by reason of the Prescription Act. The qu tion, whether the plaintiff's enjoyment was the se as Hooper's, was not left to the jury; and, as the fact of enjoyment was not itself sufficient to establish the right until the passing of the Prescription Act, less it dated back to the time whereof the memory man is not to the contrary, viz. Richard L. But b the 2nd section of the Prescription Act, 2 & 3 W 4, c. 71, it is provided, that no claim by custom prescription, or grant to any watercourse, or the of any water over any land, when it shall have be enjoyed by any person claiming a right thereto fr Dec. 30, 1863. twenty years and upwards, shall be defeated or destroyed, by shewing only that such water was first enjoyed at any time prior to such period of twenty years. The question, then, is, was there any evidence to go to a jury, that the plaintiff continued to use the water upon the terms which Hooper did? The stream was cut by Hooper about five years prior to the plaintiff's coming into possession; and it was certainly a question for the jury, whether the plaintiff had uninterrupted enjoyment of the water for a period of twenty years. WILLES, J.-I am of the same opinion. We are asked to enter a verdict for the plaintiff on the third count, or to grant a rule for a new trial, on the ground that the judge misdirected the jury in leaving the question with respect to the agreement entered into between Hooper and Geach to the jury. The first question left to the jury certainly looks as if the judge had directed the jury as a matter of law, that the agreement between Hooper and Geach rendered the use of the water precarious, but the fourth question shews that this was not so. The question was, do the jury think the plaintiff, or those through whom he claimed, had uninterrupted enjoyment of the water for a period of twenty years? The two questions are nearly the same. The question really was, whether the enjoyment of the plaintiff was precarious? The plaintiff is not required to prove that he had the enjoyment of the water before legal memory, but that he had had uninterrupted use of the water for more than twenty years. The agreement was certainly evidence of the precariousness of the plaintiff's tenure. It was a question for the jury, whether the enjoyment of the plaintiff was by reason of the agreement with Hooper. Rights of water are difficult questions; and it may well be, that the plaintiff thought that it was permissive, whether originating by agreement or not. I am certainly of opinion that there was evidence for the jury. A question somewhat similar arose in Taymbee v. Brown (3 Exch. 117), and the question was put by counsel in arguing the case-"Suppose an agreement by a tenant for life, that he and his successors, the owners of certain property, should allow the use of light, could that agreement be set up to defeat the title of a party who had subsequently acquired a right to the use of the light by twenty years' uninterrupted enjoyment?" And Baron Alderson said, “If the parties had gone on acting upon the agreement, that would be evidence from which the jury might negative an adverse enjoyment, which is the foundation for such a right." So the agreement here, and the other circumstances, has led the jury to find that the plaintiff's use of the water was not as of right. BYLES, J.-I am of the same opinion. The origin of the enjoyment is admitted. Hooper had no right to the use of the water, and the plaintiff succeeded to Hooper, and used the water in the same manner. The 2nd section of the 2 & 3 Will. 4 provides, that enjoyment must be by a person claiming right thereto. The question was left by the judge to the jury, whether the enjoyment was an enjoyment of a person claiming right thereto; and the agreement between Hooper and Geach was given in evidence; and the jury find that there was not uninterrupted enjoyment of the use of the water as of right by the plaintiff. I certainly think the evidence was properly left to the jury.-Rule discharged. Coleridge, Q. C., and Bullar then shewed cause against the defendant's rule, citing Major v. Chadwick (11 Ad. & El. 571; 4 Jur. 482). Karslake, Q. C., and Pinder, in support of the rule, contended that the plaintiff had only an incorporeal right; that he was a mere licensee, and consequently could not maintain this action. As to the upper laun der, the tin bounders might at any time have diverted the stream. Its origin was artificial, its nature temporary. [They cited Harker v. Birkbeck (3 Burr. 1556); Doe v. Wood (2 B. & Al. 724); Mason v. Hill (5 B. & Ad. 1); Laing v. Whaley (3 H. & Norm. 675; 4 Jur., N. S., 930); The Stockport Waterworks Company v. Potter (3 H. & C. 300; 10 Jur., N. S., 1005); Rogers v. Brenton (10 Q. B. 65; 12 Jur. 263); Arkwright v. Gell (5 M. & W. 203); Greatorex v. Hayward (8 Exch. 291); Wood v. Waud (3 Exch. 748; 18 L. J., Ex., 305; 13 Jur. 472); Beeston v. Weate (5 El. & Bl. 986; S. C., 25 L. J., Q. B., 115); and Gale on Easements, 263 et seq., 3rd ed.] With regard to the lower launder, the water which supplied it came from within the district of the tin bounds, and no right could be acquired to it as against the tin bounders. June 3.—ERLE, C. J.-With respect to the claim of these parties relating to the water carried over the upper launder, upon the argument, I am unable to give a confident judgment at the present moment, without further consideration. With respect to the claim as to the lower launder, it seems to me that the verdict ought to stand. The water has been brought to the clay works of the plaintiff, and I take it, upon the evidence, that the plaintiff was in the occupation of, and had an interest in, the clay works, that is, the clay yard, and the place where the works were carried on; and that he had such an interest as would entitle him to maintain this claim to water flowing to the tenements in his occupation. I think that his being in the occupation of the clay yard, and all the premises required for the clay works, was perfectly consistent with his having an easement to dig and search for clay all over Hooper's Farm. With respect to the one, he was occupier; and with respect to the other, he might well have an easement, so as to be able to maintain this claim in respect of the corporeal hereditament, although not in respect of the incorporeal hereditament. I think, therefore, he can claim the water by prescription. Then, does the evidence shew, that as to the lower launder, although he has had it for twenty years, and enjoyed the flow of the stream for twenty years, without interruption, and as of right, that he could not acquire a right to take the water, by reason that that water was collected in land, or was found in land, which was subject to the tin bounds? It appears that the water flowed in a channel through land which was subject to tin bounds, and that that channel brought down a quantity of water that flowed in a mead, and fell from above into the land, and so was collected, and then flowed down from thence to the clay works occupied by the plaintiff. If he cut that channel, and had conducted water down through the channel to the clay works for twenty years, under circumstances to which the statute applies, he would acquire a right to it. But it is said that he could not have a right to the present water, because the channel down which it flowed was within land which was within the boundary of tin bounds, and that it was subject to the contingent right of bound owners, if they chose to work it; and it is said that the water subject to those contingent rights cannot become vested in any other person absolutely as against all the world, being within the tin bounds, and the tin bounders being able to exercise their right at any time. I do not think that that argument is tenable. If the rights of the tin bounder are in operation, and he claims to exercise those rights, that which is called at common law the "corporeal rights" of the tin bounder may operate in respect of that water; but if the tin bounder is not acting, then in my opinion, the general law of the land applies to Cornwall as much as to other places; and though the land is within the boundary of tin bounds, yet there being no tin boun ders at work, or claiming to work, or setting up any right to water, the man who dug the watercourse within the land, and conducted the water for twenty years to his clay works, has a prior right to that water, notwithstanding the water originally flowed and was, within the land, subject to tin bounds. This will give the plaintiff the verdict with respect to the count founded on the lower launder. As to the count relating to the upper launder, I think I must take time to consider. stances, and one of a permanent character. In this BYLES, J.-I agree in all that has been said by my Brother Willes and my Lord Chief Justice; and with respect to the upper launder, it requires further consi WILLES, J.-I am of the same opinion. With respect to the first question, whether the plaintiff can maintain his action in respect of the possession of the china clay works, I am clearly of opinion that he can; because he was the occupier in possession of the land through or by which the water flowed; and the occupier, the person in possession, as a rule, may maintain an action for the diversion of water which ought to flow through the land of which he is in possession. He also has the additional right, by deed, of searching the land of which he is in possession at the time, and through and by which the water flowed, and on other land in respect of which he had a right to take possession, when he has exhausted the land of which he is in possession, for the purpose of getting minerals there. If such an occupation, ancillary to the enjoyment of mineral rights, were not sufficient to maintain this action, the effect would be, that we should be saying that there never could be a right of the kind acquired by occupiers within Lord Tenterden's Act. With respect to the second question, whether the user of the water was contentious, and, therefore, not as of right, since the year 1835, I confess I was not impressed by the argument which has been addressed to us by the defendant. It must always be a question for the jury to determine, which they have decided in this case, by saying that the enjoyment of right was not sufficient, in their judgment, notwith-deration. standing the evidence. With respect to the third question, namely, whether the artificial origin of the watercourse prevented it from being of such a character, that a right to it might be acquired by prescription, a very different question arises with respect to the upper launder, the water flowing over which was supplied altogether from an artificial opening made with a view to tin streaming, and the lower launder, the water to supply which comes in part from an adit driven, not by the tin bounders, but by the person who claims the right to water over the lower launder, or the person under whom he claims, for the purpose of supplying water to the launder from that adit, which was originally made for the purpose of supplying the works, and through which it comes. That water, in one sense, may be artificial, with an artificial opening through which it flows, but in every other sense natural, because it is supplied by springs coming out of the land, and would flow on for ever, unless interrupted. With respect to the second supply of water over the lower launder, no doubt, the flow of it was originally intended to be permanent. Though derived before the Prescription Act, it was originally of a permanent character, and therefore was subject to the law of prescription. That is the distinction which was pointed out in the case of Wood v. Waud, upon a consideration of the case of Arkwright v. Gell, from which it was inferred by some that the artificial water was not the subject of prescription; and the case of Major v. Chadwick, in which it was laid down that the law of watercourses is the same whether it be natural or artificial. In the case of Wood v. Waud the two cases were reconsidered, and the distinction was pointed out between an artificial watercourse, where, from the nature of the case, it is obvious that the enjoyment of it depended on temporary circum WILLES, J.-The point that the payment to Hooper was like a contentious payment, was not much die cussed in the argument, because, in truth, upon the finding of the jury, there was no payment for the use of the water. The payment was for not throwing dirt into the water; and the right to throw dirt into the water may be considered as established by the cas of Carlyn v. Lovering (26 L. J., Ex., 251).-Rule diecharged as to lower launder-Cur. adv. vult, as to uppe launder. July 10.-ERLE, C. J., now delivered the judgment of the Court.-The point remaining for discussions the right of the plaintiff to maintain his action on the count for removing the upper launder. The facts for the plaintiff are, that this launder was placed in 1849 to convey water in the leat to the plaintiff's works: and notwithstanding the evidence of contention be tween the parties, we take the jury to have decided the question of fact rightly, that the enjoyment of this water by the plaintiff was as of right, without inter ruption; but their verdict was taken subject to the leave reserved to the defendant's counsel to move to reverse that verdict, if the facts relied on for the de fendant negatived, in point of law, the existence of the right claimed by the plaintiff. The result of these facts was, that the water in the stream in question was brought to the surface artificially, by the opera tion of miners, and conveyed in the tie or open adit to the place in the brook where the upper launder w afterwards placed, so as to receive it, and that the use of the stream, which might include a change of its direction, had not been abandoned by the miners. It appeared that the land where the facts relevant to the right to the stream in the upper launder took place was within the tin bounds, which, at the earliest period mentioned, belonged to Mr. Hooper, and had passed 30 for which the party causing it so to flow is liable. If there is a grant by the neighbour, the terms of the grant regulate the rights and liabilities thereto. If there is uninterrupted user of the land of the neighbour for receiving the flow as of right for twenty years, such user is evidence that the land from which the water is sent into the neighbour's land has become the dominant tenement, having a right to the easement of so sending the water, and that the neighbour's land has become subject to the easement of receiving that water. But such user of the easement of sending on the water of an artificial stream is, of itself alone, no evidence that the land from which the water is sent has become subject to the servitude of being bound to send on the water to the land of the neighbour below. The enjoyment of the easement is, of itself, no evidence that the party enjoying it has become subject to the servitude of being bound to exercise the easement for the benefit of the neighbour. A right of way is no evidence that the party entitled thereto is under a duty to walk; nor a right to eavesdropping on the neighbour's land, that the party is bound to send on his rainwater to that land. In like manner, we consider that a party, by the mere exercise of a right to make an artificial drain into the neighbour's land, either from mine or surface, does not raise any presumption that he is subject to any duty to continue his artificial drain by twenty years' user; although there may be additional circumstances by which that presumption would be raised, or the right proved. Also, if it be proved that the stream was originally intended to have a permanent flow, or if the party by whom, or in whose behalf, the artificial stream was caused to flow, is shewn to have abandoned permanently, without intention to resume the works by which the flow was caused, and given up all right to and control over the stream, such stream may become subject to the laws relating to natural streams; but the facts here do not raise either of these points. rom him through mesne assignments to the defend- | land of a neighbour without his consent, it is a wrong -nt. The mouth of the adit, from which the stream of the tie flowed, the course of the stream from thence over the surface in the tie, either to the tin stream works, or to the Cawn clay works, or to the brook, or to and beyond the upper launder towards the Carencarrow clay works of the plaintiff, were all within the limits of the tin bounds above mentioned, and so were subject to the rights of the owner thereof. It appeared also that the owner of the tin bounds had worked for tin, and had de facto exercised his right over the waters from time to time, during all the time to which the evidence related. In 1826 and 1827, one Vivian had paid the bound owner 4l. a year for taking the water from the tie to the Cawn clay works. One Highman had paid annually 107., first to Hooper, the father, and afterwards to Hooper, the son, for taking the water of the tie, down to 1851; and the plaintiff himself, in 1852, agreed to pay the bounder 47. annually, and did pay for three quarters. It is true that these payments were made to the bounder to induce him to omit the exercise of his right to use the stream for tin, whereby the water would have been fouled; that the water itself was not the subject of the agreement. But the point to be ascertained is, whether the miners had abandoned the rights and interests in I the stream brought to the surface by mining operations; and if the tin bounder claimed and exercised the right of using the stream within the bounds when, where, and how he chose, he had not abandoned his right thereto. It is not necessary here to consider further the rights of owners of tin bounds; but it is not superfluous to add, that the right to tin bounds is most clearly a part of the law and privilege of the stannery, and, as such, part of the law of England (Co. Litt. 11. b.); and that a judge administering the law of England is as much bound within the stannaries to protect rights derived from the stannary laws, and to learn from those laws what those rights are, as in Kent he is bound to know what is the tenure of land there, and what are the rights incidental to that tenure. The antiquity and the operation of the stannary laws, both generally and also in relation to tin bounds, are considered, and the authorities are collected, in the report of Vice v. Thomas, published by Mr. Smike, Vice-Warden of the Stanneries, in 1843. These being the facts relating to the streams, the question remains, whether the plaintiff, by turning that stream from the brook over the upper launder into the leat leading to his works, and enjoying the use thereof without interruption for more than twenty years, acquired a right thereto under the Prescription Act. Although the jury have found that he did this of right, that must be taken to be a finding of the fact of the enjoyment, subject to the point reserved for the defendant, whether such enjoyment of a stream of this character could be by law as of right, within the meaning of the Prescription Act; and we are of opinion that the plaintiff acquired no right to this stream by the user, though for twenty years; because the stream was an artificial stream, made to flow over the defendant's land by the operation of miners, who had not permanently abandoned their right of control over the water in the stream where the plaintiff diverted it by the upper launder to his works. Rights and liabilities in respect of streams flowing on the surface are entirely distinct from rights and liabilities in respect of natural streams so flowing. The water in an artificial stream flowing in the land of the party by whom it is caused to flow is the property of that party, and is not subject to any rights or liabilities in respect of other persons. If the stream so brought to the surface is made to flow upon the The law relating to natural streams is entirely different. 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. These mutual rights and liabilities may be altered by grant, or by user of an easement to alter the stream, as by diverting, or fouling, or penning back, or the like. If the stream flows at its source by the operation of nature-that is, if it is a natural stream-the rights and liabilities of the party owning the land at its source are the same as those of the proprietors in the course below. If the stream flows at its source by the operation of man-that is, if it is an artificial stream- -the owner of the land at its source on the commencement of the flow, is not subject to any rights or liabilities towards any other person in respect of the water of that stream. The owner of such land may make himself liable to duties in respect of such water by grant or contract; but the party claiming a right to compel performance of those duties must give evidence of such right, beyond the mere suffering by him of the servitude of receiving such water. The rights of the plaintiff in respect of the two launders exemplify this distinction. For the lower launder, the plaintiff had made a watercourse on the defendant's land, and collected the water of natural springs within, and brought it to, this launder. For the upper launder, the plaintiff had gone to the edge of the defendant's land, and received there into the launder the water of the tie, where it would have flowed into the natural stream, and become part thereof. In respect of the lower launder, there was |