Water And Watercourse - Definition - Law Dictionary Home Dictionary Definition water-and-watercourse

Definition :

Water and watercourse. In the language of the law the term 'land' includes water, 2 Bl. Com. 18. An action cannot be brought to recover possession of a pool or other piece of water by the name of water only, but it must be brought for the land that lies at the bottom, e.g. 'twenty acres of land covered with water.'-Brownl. 142. See POOL. By granting a certain water, though the right of fishing passes, yet the soil does not. Water being a movable, wandering thing, there can be only a temporary, transient, usufructuary property therein. Consult Coulson and Forbes on the Law of Waters, Gale on Easements, and Angell on Watercourse. 'Water' does not include the land on which it stands, unless perhaps in the case of salt pits or springs, where the interest of each owner is measured by builleries, ballaries or buckets of brine, Burt. Comp. pl. (550), and see Co. Litt. 4 b.

The (English) Waterworks Clauses Act, 1847, and the Waterworks Clauses Act, 1863 (see Chitty's Statutes, tit. 'Water,' and Michael and Will on Gas and Water Supply), each of them consolidate in one Act provisions usually contained in special Acts authorizing the construction of waterworks by companies for the supply of water to the public at a limited profit to the shareholders by means of water rates. By s. 68 of the Act of 1863 these rates are payable according to the annual value of the tenement supplied with water.

London.-The (English) Metropolis Water Act, 1902 (2 Edw. 7, c. 41), and the rules made thereunder (see Chity's Statutes, tit. 'Metropolis'), established a Metropolitan Water Board consisting of members appointed by the London County Council, the Metropolitan Borough Councils (the County Council appointing fourteen, and the borough councils appointing one each), and other Councils (the quorum being one third of the whole number), to manage the supply of water within London and certain adjoining districts. The Act effected a transfer to the Board of the Undertakings and liabilities of each of the Metropolitan water companies, at a price to be agreed on between the Board and the companies, or in default of agreement by Sir Edward Fry (formerly Fry, L.J.), Sir Hugh Owen, and Sir J.W. Barry.

The supply of water to their districts by local authorities was provided for by the (English) Public Health Act, 1875, ss. 51-68, and as to obligation of owners of houses to provide water supply, see (English) Public Health (Water) Act, 1878. Both these Acts have been repealed and replaced by Part IV. of the Public Health Act, 1936, ss. 111 to 142; and see also Rural Water Supplies Act, 1934, enabling the Minister of Health and the Health Department for Scotland to contribute towards the expenses of any local authorities for water supplies; the Water Supplies (Exceptional Shortage Orders) Act, 1934, enabling the same Minister and Department respectively to provide against exceptional deficiencies of water due to drought; and other statutes. See RESERVOIR.

Watercourse, an incorporeal hereditament, being a natural right which a man has to the benefit of the flow of a river or stream, such right commonly referring to a stream passing through a man's own land, and the banks of which belong either to himself on both sides, or to himself on one side, and to his neighbour on the other, in which latter case (unless the stream be navigable, for then the bed of it, so far at least as the tide of the case flows, presumably belongs to the Crown) the proprietor of each bank is considered as prima facie the proprietor also of half the land covered by the stream, i.e., usque ad medium filum aqu'. A pre-scriptive prima facie right affecting watercourses or waterways (q.v.) is gained by twenty years' un-interrupted enjoyment, and an indefeasible right after forty years; and when the land over which such rights as these are claimed has been held for term of life, or a term exceeding three years, such term shall be excluded from the computation of the forty years, in the event of the person who may be entitled in reversion resisting the claim within three years after the term determines, 2 & 3 Wm. 4, c. 71.

A right of the public to enter upon land belonging to another to take water is not a profit a prendre and is not, apparently, a subject of prescription, but it may be acquired by custom or usage. See Halsb. L.E., tit. 'Customs and Usages,' and Gateward's case, (1607) 6 Rep 59.

So, also, a prescriptive right to a watercourse is not lost by unity of possession (see EASEMENT) because the right begins ex jure natur' and cannot be averted. See Gale or Goddard on Easements and Angell on Watercourses; and WAY (Waterway).

Flow of Water.-Every riparian owner has a right to the uninterrupted flow of water, McCartney v. Londonderry Ry., 1905 AC 301, and may be liable for damage caused by neglect which prevents the free flow of water, Finch v. Bannister, (1908) 2 KB 441; he is also entitled to receive the water in its natural character and quality, Young v. Banker Distillery Co., 1893 AC 691. Any one who interferes with the natural channel of a stream must see that the works which he substitutes are sufficient to carry off the water, even in the case of extraordinary rainfall, Corp. of Greenock v. Caledonian Ry. Co., 1917 AC 556. The above rights apply to water flowing in known channels whether above or below ground.

A distinction must be drawn, however, in the case of water which merely percolates through the soil: see Chasemore v. Richards, (1859) 7 HLC 349; Bradford Corporation v. Pickles, 1895 AC 587; and Acton v. Burnell, (1843) 12 M&W 324. As to nuisances, cleansing, etc., in connection with watercourses, see Public Health Act, 1936, ss. 259 to 267.