Riparian Rights Case Summaries.

1875: Swindon Waterworks v. Wilts and Berks Canal.

A 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 of Swindon.

            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 criterion:

[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 stream.

            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.

 

 

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