1. In this case the plaintiff asked for a declaration of his right to take water through a channel for the cultivation of certain land belonging to him and for an injunction restraining the defendants from obstructing the course of the channel. The lands both of the plaintiff and defendants are situated in a proprietary estate. According to the plaintiff a river channel supplied the means of irrigation for the lands of the parties and other ryots who had lands alongside the stream. A branch leading from the main channel passed through the lands of the defendants Nos. 1, 2 and 3 and then the 4th defendant's land and, according to the plaintiff, afterwards reached his own land. Defendants Nos. 1, 2 and 3, are alleged to have blocked up the channel at a point higher than the 4th defendant's land. They contended that the channel never irrigated the lands either of the 4th defendant or of the plaintiff, and that it stopped somewhere near their own lands. The 4th defendant did not contest the suit.
2. The facts found by the lower appellate Court, as we understand the judgment of the District Judge, are:-that the channel in question continued, as a definite water-course, up to the 4th defendant's lands, and that the water of the channel flowed over the bunds of the 4th defendant's fields and joined another channel which irrigated the plaintiff's lands.
3. The District Munsif held that the plaintiff was entitled to the flow of the channel water along the 4th defendant's lands to the channel which was the direct source of irrigation for his land, and that the contesting defendants were not entitled to interfere with the flow. On appeal the District Judge held that, as the water of the stream did not flow direct to the plaintiff's land in any defined course, it must be taken that it was not intended to supply water to the plaintiff's land. He regarded the water as it flowed from the 4th defendant's land over his bunds as mere surface drainage and was of opinion that the plaintiff could not claim any legal right to it. He, consequently, dismissed the plaintiff's suit.
4. The question argued in second appeal is whether the plaintiff is not entitled to the customary flow of the water of the stream A along the 4th defendant's field until it joined the channel which supplied water to his own field. There was, according to the finding of the Appellate Court, no definite water-course across the 4th defendant's field, the water-course ceasing to have any definite bed and banks after it reached the 4th defendant's field. We must also take it, on the findings, that the water in the stream was not always sufficient to irrigate the lands of the 4th defendant or to supply a flow to the plaintiff's channel. But this we regard as immaterial; such is the case with many streams and channels in this country. It is also immaterial that the water of the stream flowing through the 4th defendant's land did not reach the plaintiff's land direct but joined another channel out of which the plaintiff got his water. If the water of the stream supplied a means of irrigation to the plaintiff, it is immaterial whether it did so by directly reaching the plaintiff's land or indirectly by flowing into another channel.
5. The substantial question for decision is whether the fact that there was no defined channel across the 4th defendant's field but that the stream spread itself all along the field and overflowed the bunds to reach the plaintiff's channel, puts the plaintiff out of Court. The question is one of considerable importance in this country. It was stated by the learned vakil for the appellant, and we believe with good reason, that irrigation channels do not always go direct to every field irrigated by them and that the water often flows from one field to another, either through cuts made in the bund of the field or by overflowing the bund. And he submitted that it would be disastrous if it should be held that the owners of fields on the further side of channels could not support their right to the waters of the channels in the absence of a confined passage along each field irrigated by them.
6. The respondents' pleader contended, on the other hand, that no claim can be made by any one to a flow of water except to water flowing in a definite channel, and that all water which disperses itself over a field without a definite water-course must be regarded as drainage and surface water which the owner of the field over which it passes is entitled to appropriate or divert as he pleases.
7. After full consideration we are of opinion that the respondents' contention should not be sustained. It is no doubt true that no claim can be made, either as a natural right or as an easement by prescription except to water flowing in a definite course and that no such claim could be maintained with regard to what should be regarded as surface water or surface drainage in the proper acceptation of those expressions. Bat if this principle be understood correctly, it cannot, in our opinion, be held that the; right to the water of a stream ceases when it ceases to flow in a confined water-course. If the stream has exhausted itself as a stream and merely soaks into a field, then, no doubt, no right to the water so soaking can be sustained in the same manner as no right can be recognized to water falling on a field from the sky overhead or oozing from the soil underneath. Water of any of these descriptions cannot be the subject of any right until it again begins to flow in a definite course. The reason why no right to such water can be recognised is explained in various decided cases. In Acton v. Blundell (1843) 12 M. & W. 324 the question arose with regard to water flowing in a subterraneous course and supplying a valley, which was drained away by a land-owner who carried on mining operations in his own land in the usual manner. Tindal C.J.-explaining the ground and origin of the law which is held to govern running streams, observed as follows:
The ground and origin of the law which governs streams running in their natural course would seem to be this, that the right enjoyed by the several proprietors of the lands over which they flow is, and always has been, public and notorious: that the enjoyment has been long continued-in ordinary cases, indeed, time out of mind-and uninterrupted; each man knowing what he receives and what has always been received from the higher lands, and what he transmits and what has always been transmitted to the lower.' The right to use such water the learned Judge regards, as stated by Mr. Justice Story in Tyler y. Wilkinson 4 Mason's American Reports p. 401, to be 'an incident to the land.' He continues, 'But in the case of a well sunk by a proprietor in his own land, the water which feeds it from a neighbouring soil does not flow openly in the sight of the neighbouring proprietor, but through the hidden veins of the earth beneath its surface : no man can tell what changes these underground sources have undergone in the progress of time : it may well be, that it is only yesterday's date, that they first took the course and direction which enabled them to supply the well: again, no proprietor knows what portion of water is taken from beneath his own soil: how much he gives originally, or how much he transmits only, or how much he receives: on the contrary, until the well is sunk, and the water collected by draining into it, there cannot properly be said, with reference to the well, to be any flow of water at all.' In addition to the uncertainty and changes in the supply, his Lordship refers to two other reasons why no right to any such water should be recognized, namely, that every man, by virtue of his ownership, is entitled to abstract everything he can from his own land, and secondly, he is entitled to make the best use of his land for his own benefit. He observes, 'In the case of the running stream, the owner of the soil merely transmits the water over its surface: he receives as much from his higher neighbour as he sends down to his neighbour below : he is niether better nor worse: the level of the water remains the same. But if the man who sinks the well in his own land can acquire by that act an absolute and indefeasible right to the water that collects in it, he has the power of preventing his neighbour from making any use of the spring in his own soil which shall interfere with the enjoyment of the well, He has the power, still further, of debarring the owner of the land in which the spring is first found, or through which it is transmitted, from draining his land for the proper cultivation of the soil: and thus, by an act which is voluntary on his part, and which may be entirely unsuspected by his neighbour, he may impose on such neighbour the necessity of bearing a heavy expense, if the latter has erected machinery for the purposes of mining, and discovers, when too late, that the appropriation of the water has already been made.
8. In Rawstron v. Taylor (1855) 11 Exch. 369, the reasons why no right could be obtained over surface water were pointed out. The judgments of the court throw light also on what should really be regarded as surface water. Parke, B. said 'This is the case of common surface water rising out of springy or boggy ground, and flowing in no definite channel, although contributing to the supply of the plaintiff's mill. This water having no defined course, and its supply being merely casual, the defendant is entitled to get rid of it in any way he pleases.' Martin, B. emphasised the right of every landowner to enjoy his land as he chooses. He said ' The proprietor of the soil has prima facie the right to drain his land. He is at liberty to get rid of the surface water in any manner that may appear most convenient to him; and I think no one has a right to interfere with him, and that the object he may have in so doing is quite immaterial.' Piatt, B. observed 'The plaintiff could not insist upon the defendant maintaining his fields as a mere water-table.' In Broadbent v. Ramsbotham (1856) 11 Exch. 603, which also related to surface water, the grounds of decision were the same. The plaintiff claimed four sources of water which he said supplied the Longwood Brook on which his mill was situated. One of the sources was a swamp of 16 perches. Alderson B, observed that it was merely like a sponge fixed (so to speak) on the side of the hill and full of water. 'If this over-flows it creates a sort of marshy margin adjoining; and there is apparently no course of water, either into or out of it, on the surface of the land. As to the subterranean courses communicating with this swamp, which must no doubt exist, it is sufficient to say, that they are not traceable so as to show that the water passing along them ever reaches Long-wood Brook.' It will be observed that the learned judge considered it material that there was no course of water into the swamp. The judgment of Lord Hatherley L. C. in Grand Junction Canal Co. v. Shugar (1871) L.R. Ch. A. 483 is also important as throwing light on the nature of surface water. He observed referring to Chasemore v. Richards (1859) 7 H.L.C. 349 'Mr. Justice Wightman there laid down the law very plainly in giving the opinion of the Judges upon the subject, and the distinction was there drawn-and, I should have thought, firmly established-between water which comes no one knows exactly whence, and flows no one knows exactly how, either underground or on the surface, unconfined in any channel, either as rainfall or from springs of the earth, which may vary from day to day, or spring up from beneath the surface in a direction which no one knows-between that species of water and water once confined in a regular channel.' His lordship's description is quite inapplicable to water flowing into a field from a known channel and passing along the field onwards into another field, though not over a confined tract in the former field but along its whole area. We may refer also to the observations of Lord Watson in McNab v. Robertson (1897) App. Cases. 129, 'Water, whether falling from the sky or escaping from a spring, which does not flow onward with any continuity of parts, but becomes dissipated in the earth's strata, and simply percolates through or along those strata, until it issues from them at a lower level, through dislocation of the strata or otherwise, cannot with any propriety be described as a stream.' It is impossible to apply this description to the water of a stream flowing into it and afterwards passing out of it after irrigating it, though without making a cutting for itself, over any particular portion of the field. The true test of the existence of a common right is explained in Angell on 'Watercourses,' Section 108(o), page 137. The learned author says 'It is to by observed that it is only when the flow of water on one, person's land is identified with that on his neighbour's, by being traceable to it along a distinct and defined course, that the two proprietors can have natural relations with each other in respect of it, considered as the subject of separate existence. If the waters on the two lands do not possess this unity of character, they are in the same category as fish and birds, etc., and are only incident to, and form part of, the produce of, their respective soils, while actually resting upon them; no proprietor can make claim to water in such condition before it arrives within his own borders. Nor can any proprietor claim that another shall receive it within his borders or that he shall not take appropriate measures upon his own land, and in the reasonable use thereof, to prevent its collecting upon his soil.' The next section illustrates the real character of surface water. 'Thus water rising naturally, making land spongy and wet, and squandering itself over the surface, has no public character whatever, although it ultimately finds its way to, and feeds a stream; and therefore, before it arrives at any defined natural channel it belongs solely to the owner of the land which it covers, and he may deal with it exactly as he thinks fit, while he is making a reasonable use of his own land. Such, also, is the case with water which percolates through the porous basin of a pond, or overflows the edge of a well, or which passes or runs of the surface of the soil, before, in either instance, it make itself some natural channel. And, clearly, water severed from all other water, as in a pond or tank, and resting solely on the proprietor's own ground, must be in a similar plight.' When the flow of water on one person's land can be identified with that on another, there is no reason why right to such flow should not exist although the water may flow along an intervening piece of land. 'A mere right of drainage over the general surface of land is very different from the right to the flow of a stream or brook across the premises of another.' Farnham in his 'Law of Waters and Watercourses' Vol. III, page 2556, observes 'when water appears upon the surface in a diffused state, with no permanent source of supply or regular course, and then disappears by percolation or evaporation, its flow is valuable to no one, and it must be regarded as surface water, and dealt with as such; in Crawford v. Rambo 44 Ohio St. 287 it is said that surface water is that which is diffused over the surface of the ground, derived from fulling rains and melting snows, and continues to be such until it reaches some well defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or springs; and then it becomes the running water of a stream, and ceases to be surface water. In each case the question whether or not particular water is surface water is one of fact to be determined by the circumstances attending its origin and continued existence. If the water is spread out and flows sluggishly over the surface, losing itself by percolation and evaporation, it is surface water, although it has its source in springs. But the mere fact that the water spreads out at some places, and flows sluggishly' without sufficient force to form a channel for itself, does not make it surface water if the flow has sufficient force to maintain itself, and it is subsequently gathered together into a channel so as to form a watercourse. The chief characteristic of surface water is its inability to maintain its identity and existence as a water body.... But marsh land through which overflow water from a lake reaches a natural stream are not governed by the rules applicable to mere surface water.' Well-defined existence arising from an ascertained course appears to be the real test in coming to a conclusion against any body of water being regarded as merely surface water. See Farnham, page 2556. Angell refers to a case which throws light on what is really necessary to make a watercourse. For 7 rods the stream descended rapidly in a well defined course to a piece of marshy ground where it spread so that its flow was slight and not sufficient to break the turf but was generally sufficient to form a continuous sluggish current along; the surface in a natural depression to a watering place within the plaintiff's land. This was adjudged to be a watercourse within the meaning attached in law to that term. Domat states the rule of Civil law as follows. 'If waters have their course regulated from one ground to another, whether it be by the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds.'
9. It is quite clear that the water of the channel in dispute between the parties in the present case when it entered the 4th defendant's land could not be regarded as surface water. It came from the channel in dispute. Its origin is not on the 4th defendant's land, nor did it come upon the surface of his land through the pores of the earth. The channel did not, according to the findings, 'lose itself and get mixed up with the earth of the 4th defendant's land but continued its course along his field. The identity of the stream was preserved when it passed out of the field. It may be that the 4th defendant could, if he chose, restrict the passage of the stream along his land by confining it to a channel, occupying only a small portion of his field. It was not, however, the 4th defendant that obstructed the course of the stream, but defendants Nos. 1, 2 and 3; and the obstruction was made at a place before the stream reached the 4th defendant's land. They had no right to do so. In Dudden v. Guardians of Clutton Union (1857) 1. H. & N. 627, 'the water from a spring flowed in a gully or natural channel to a stream on which was a mill. The spring having been cut off at its source and the water received into a tank as it rose from the earth, by the license of the owner of the soil on which the spring rose:' it was held that an action would lie against the obstructor by the owner of a mill who used to receive a supply of water for his mill.
10. The obstruction in this case, according to the finding, was at a place where the channel undoubtedly existed as a regular watercourse. In our opinion, it did not cease to be such before it reached the channel which directly irrigated the plaintiff's land. It did not become surface water on reaching the 4th defendant's land.
11. We reverse the District Judge's decision and restore the decree of the District Munsif with costs both here and in the lower appellate court.
12. The plaintiff will also have the further relief of an injunction against defendants Nos. 1 to 3 from interfering with the plaintiff's rights declared and granted by the District Munsif who refused that relief of injunction on insufficient grounds and against which refusal the plaintiff filed a memo of objections in the District Courts and has also complained in the second appeal memo before us.