WATER RIGHTS. By the law of England the property in the bed and water of a tidal river is presumed to be in the Crown or as a franchise in a grantee of the Crown, and to be extra parochial. The bed and water of a non-tidal river are presumed to belong to the person through whose land it flows, or, if it divide two properties, to the riparian proprietors, the rights of each extending to midstream (ad medium filum aquae). In order to give riparian rights, the river must flow in a defined channel, or at least above ground. The diminution of underground water collected by percolation, even though malicious, does not give a cause of action to the owner of the land in which it collects, it being merely damnum sine iniuria, though he is entitled to have it unpolluted unless a right of pollution be gained against him by prescription. The right to draw water from another's well is an easement (q.v.) not a profit a prendre, and is therefore claimable by custom. As a general rule a riparian proprietor, whether on a tidal or a non-tidal river, has full rights of user' of his property. Most of the statute law will be found in the Fishery Harbours Act, 1915, and the Salmon and Freshwater Fish eries Act, 1923. In certain cases the rights of the riparian pro prietors are subject to the intervening rights of other persons. These rights vary according as the river is navigable or not, or tidal or not. For instance, all the riparian proprietors might combine to divert a non-navigable river, though one alone could not do so as against the others, but no combination of riparian propri etors could defeat the right of the public to have a navigable river maintained undiverted. We shall here consider shortly the rights enjoyed by, and the limitations imposed upon, riparian pro prietors, in addition to those falling under the head of fishery or navigation. (See also FORESHORE.) The right of use of the water of a natural stream cannot be bet ter described than in the words of Lord Kingsdown in 1858: "By the general law applicable to running streams, every riparian pro prietor 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, or 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 pur poses 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" (Miner v. Gilmour, 12 Moore's P.C. Cases, 156). The rights of riparian proprietors where the flow of water is artificial rest on a different principle. As the artificial stream is made by a person for his own benefit, any right of another person as a riparian proprietor does not arise at common law, as in the case of a natural stream, but must be established by grant or prescription. If its origin be unknown the inference appears to be that riparian proprietors have the same rights as if the stream had been a natural one (Baily v. Clark, 1902, I Ch. 649). The rights of a person not a riparian proprietor who uses land abutting on a river or stream by the licence or grant of the riparian proprietor are not as full as though he were a riparian proprietor, for he cannot be imposed as a riparian proprietor upon the other proprietors without their consent. The effect of this appears to be that he is not entitled sensibly to affect their rights, even by the ordinary as distin guished from the extraordinary use of the water. Even a riparian proprietor cannot divert the stream to a place outside his tene ment and there use it for purposes unconnected with the tene ment (McCartney v. Londonderry and Lough Swilly Rly. Co., 1904, A.C. 301).