Waterworks v. Wilts and Berks Canal.
waterworks company has no right to divert water from a stream in order
to supply a nearby town.
The Wilts and Berks
Canal Company operated a navigation canal, which it supplied with water
from Wroughton Stream, on which it owned property.
In 1866, the Swindon Waterworks Company purchased land on a
tributary of the Wroughton Stream, there building a reservoir into which
it diverted the tributary’s water, which it then supplied to the town
The canal company complained that the diversion diminished its
water supply. In a year of
drought, having had to refuse heavy barge traffic because of
insufficient water in the canal, it filed a suit requesting an
injunction. After being
heard by two lower courts, the case went to the House of Lords.
The law lords found that the canal company was entitled to the
flow of Wroughton Stream and its tributaries; it forbade the waterworks
company from diverting this flow in to its reservoir.
Lord Cairns, in a decision that was said to have settled –
indeed, almost codified – riparian law, distinguished between ordinary
uses, such as washing and drinking, and extraordinary uses.
The latter, he said, were allowed only if connected with the
riparian land. Since the
waterworks company provided water to Swindon, it did not meet this
[T]his is not a user of the stream which could be
called a reasonable user by the upper owner; it is a
confiscation of the rights of the lower owner; it is an
annihilation, so far as he is concerned, of that portion of the
stream which is used for those purposes, and that is done, not
for the sake of the tenement of the upper owner, but that the
upper owner may make gains by alienating the water to other
parties, who have no connection whatever with any part of the
Lord Cairns also noted that a riparian whose rights had been
violated need not prove damages. Whether
or not an injury had been sustained was “quite immaterial”.
A lower riparian could protect his rights in order to prevent an
upper riparian from obtaining a prescriptive right (a right to carry on
longstanding activities) to an extraordinary water use.