(a) Above, p. 419.

(b) Bristow v. Cormican, 3 App. Cas. 641, 658, 665 - 667.

(c) Shury v. Piggot, 3 Bulst. 339.

(d) Wright v. Howard, 1 Sim. & St. 190, 203; Mason v. Bill, 5 B. & Ad. 1, 17 sq.; Embrey v. Owen, 6 Ex. 353; Miner v. Gil-mour, 12 Moo. P. C. 131, 156; Chasemore v. Richards, 7 H. L. C. 349,382; Swindon Waterworks Go. v. Wilts and Berks Canal Navi-gation Co., L. R. 7 H. L. 697. 704, 709; Blackburn, L. A., Orr Ewing v. Colquhoun, 2 App. Cas. 839, 854; Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155; Roberts v. Gwyfai District Council, 1899, 2 Ch. 60S; Bradford Corpn. v. Ferrand, 1902, 2 Ch. 655, 660; Mc Cartey v. Londonderry, etc. By. Co., Ltd.. 1904, A. C. 301; John White & Sons v. J. & M. White, 1906, A. C. 72, 80. Any riparian owner may take water from the stream for his own domestic purposes, such as drinking, washing and watering his cattle, and for the reasonable irrigation of his land; and he is also entitled to divert the water from the stream for such purposes as the supply of water power to a mill erected on his land, provided always that he return the water so used to the stream and do not substantially interfere with the rights of the other riparian proprietors to the natural flow of the water: but he is not entitled to divert the water to a place outside his riparian tenement and consume it there for purposes unconnected with such tenement: see the cases above cited; Kensit v. Great Eastern Ry. Co., 27 Ch. D. 122.

(e) Wood v. Waud, 3 Ex. 748; John Young & Co. v. Bankier Distillery Co., 1893, A. C. 691, 697, 698, 701; and cases cited in previous note.

Surface or underground water not flowing in a known and defined channel.

The right to the flow of water along an artificial watercourse depends on entirely different principles; it is not enjoyed of common right as incident to the ownership of the land through which the water flows, but is an easement arising by grant or prescription (m). Where an artificial watercourse is obviously made for a particular and temporary purpose only, as for draining a mine or land or for supplying water power to a water mill, the owner of any land lower down the stream, as he takes the water with notice of such purpose, does not acquire by reason of such enjoyment, though long-continued, any right to the continuance of the flow of water (n). But where the circumstances are such that it appears that the watercourse must have been constructed for the mutual benefit of the owners of the lands, through which it flows, a right to the continuance of the water supply may be acquired, as an easement, through long continued enjoyment (o). And in the case of an ancient artificial watercourse of which the exact origin is unknown, it will be presumed in such circumstances that it was constructed on the terms that the various riparian owners should enjoy the like rights to the flow of water, and also (it seems) in the bed-of the stream, as they would have if the stream were natural (p). Of course an artificial watercourse flowing through the lands of more than one owner is in its inception a burden as well as a benefit to the landowner lower down the stream; that is to say, the landowner higher up can have no right to discharge the water on to the land lower down without acquiring an easement for that purpose (q). Where such a right exists for pure water, it appears that the landowner higher up can have no right to discharge into the watercourse extraneous matter which pollutes the water, unless he has acquired an enlarged easement entitling- him to do so (r). And if the circumstances be such that the landowner lower down has acquired the right to the continuance of the flow of water, he will have the like right to have the water come down to him unpolluted as if the stream were natural (s).

Water rights in artificial watercourses.

(f) See Wright v. Howard, 1 S & S. 190, 203; 2 E. & B. 702: Williams on commons, 305, 331, 332.

(y) See Crossley & Sons, Ltd. v. Lightowler, L. R. 2 Ch. 478; Baxendale v. Mc Mwrray, ib. 790; Mclntyre Bros. v. McGavin, 1893

A. C. 268: Williams on Commons, 336.

(h) Stat 39 & 40 Vict. c. 75, ss. 2, 3, 4: see Buttertcorth v.

West Biding of Yorkshire Rivers Board, 1909, A C. 15, 48 - 50, 54, 56, 57

(i)Rawstron v. Taylor, 11 Ex. . Bradford Corpn. v. Ferrand 1902, Ch. 655, 660.

(k) Chasemore v. Richards, 7 II. L. C. 349; Bradford Corpn. v. Pickles, 1895, A. C. 587; Bradford Corpn. v. Ferrand, 1902, 2Ch. 655.

(l) See Dickinson v. Grand June-tion Canal, 7 Ex. 282, 300, 301; Chasemort v. Richards, 7 H. L. C. 349, 374, 384; Bradford Corpn. v. Ferrand, 1902, 2 Ch. 655, 665, in which case it was held that there is no right to the flow of water along an underground channel, which may be defined, hut is not known.

(m) Rameshur Pershad Narain v. Koonj Behari Pattuk, App. Cas. 121. 126 - 128;

William.on Commons, 305, 311, 342

(n) Arkwrightv. Gell, 5 M. & W. 203; Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Ex. 291; Burrows v. Lang, 1901, 2 Ch. 502.

(o) Sutcliffe v. Booth, 9 Jur. N. S. 1037; Rameshw Pershad Narain Singh v. Koonj Behari Pattuk, 4 App. Cas. 121, 128. Such an easement may be gained either by prescription at common law alleging immemorial user, or through twenty years' enjoymenl from which a lost grant can be presumed, or through twenty or forty years' enjoyment under the Prescription Act (stat. 2 & 3 Will. IV. c. 71), s. 2; see Williams on Commons, 305 - 310.

(p) Baily v. Clark, 1902, 1 Ch. 649; Whitmores (Edenbridge), Ltd. v. Stanford, 1909, 1 Ch. 427.

(q) See Wright v. Williams, 1 M. & W. 77.

On the purchase of landed estates in the country it is of course a matter of great importance to ascertain that the title to the rights of fishing and sporting is clear. The right of fishing in all tidal waters, whether of the sea-coast or of any tidal river, estuary or inlet of the sea, is prima facie public (t), the public being entitled to exercise this right by virtue of the Crown's ownership of the soil covered by such tidal waters, which ownership is subject to the public rights of navigation thereover and fishing therein{u). But the Crown had power, until deprived of it by Magna Carta (x), to grant to any individual subject a several fishery in such tidal waters. that is, the exclusive right of fishing therein; and there are many several fisheries existing by virtue of such grants in tidal waters at the present day (y). The right of fishing in non-tidal waters is an incident of the ownership of the soil covered by them (z). If this soil belong entirely to one owner, the right of fishing is prima facie exclusively his; and where the soil belongs to more owners than one (as in the case of the opposite banks of a river and the adjoining halves of the riverbed belonging to different persons (a)), they have prima facie the exclusive right of fishing between them, each being entitled (it appears) to fish the waters covering the soil, which he owns if). The right of fishing in non-tidal waters may, however, have become vested by grant or prescription, either wholly or partially, in some other person than the owner of the soil covered by them. A right of fishing so acquired apart from the ownership of the soil is a profit a prendre (c), and may take the form either of a several fishery, which is the right of fishing to the exclusion of all others (d), or of common of piscary, which is the right to fish in common with others (e). We have seen that it is presumed that the owner of a several fishery is the owner of the soil covered by the waters over which his right of fishing extends (f'): but there is no doubt that a several fishery may also exist as a separate incorporeal hereditament apart from the ownership of the soil (g). And it appears that, where there is a several fishery severed from the ownership of the soil, there may be appurtenant thereto a right of way along the banks of the river for the purpose of exercising the right of fishing (h). The public have no right of fishing in any non-tidal river, though navigable (i), and cannot acquire such right by user, for however long a period (k). The right of sporting over land, that is, the right of killing and taking away the game and other wild animals thereon, may be enjoyed either by virtue of some franchise derived from the Crown (such as a forest, a chase,;a park, or a free warren), or as an incident of the ownership of the land (l), or as a separate incorporeal hereditament, in the nature of a profit a prendre, enjoyed through grant or prescription, independently of the ownership of the soil(m). It must not be forgotten that all rights of fishing and sporting, which are incident to the ownership of the soil of any land, are exerciseable by a lessee of the land for any term of lives or years or less in virtue of his occupation of the demised premises, unless these rights were expressly reserved to the lessor, his heirs and assigns upon the granting of the lease (n). A reservation of this kind in a lease is not an exception or a reservation in the strict legal sense of these words, but operates as a grant from the lessee of the profit a prendre specified (o); and such a" grant, being of an incorporeal hereditament, is required at common law to be made by deed (p). It is therefore necessary that the lease should be by deed, and the lessee should execute it in order that the lessor may obtain the legal right to the privilege so purported to be reserved (q): though the lessor would enjoy the like right in equity without such execution (r). And it is requisite that the privilege should be expressed to be reserved to the lessor and his heirs or to him in fee simple in order that the profit a prendre so granted shall endure beyond the lessor's own life (s).