LORD o, SYDNEY ~ ~ o M ~ ~ ~ s ~ ~ o ~ ~ R s FOR CITY OF) [I8591 XII IOORE, 47%
lants was more than the sum prescr~bed by the Order in Council, and that the
Sudder Court proceeded upon an erro~~eous ground, taking the value by the stamp
required by Reg. X. of 1829, which they submitted was only for fiscal purposes, and
also that the Sudder Court was wrong in not, adding the mesne profits; and the
Petitioners further submitted that the words ‘‘ the value of the matter in dispute
in any such appeal to Her Majesty in Council” related t o the whole matter in-
volved in the suit which wa3 the subject of judicial inquiry in the Court below.
That the right of possession of the Respondent in re-spect of his ancestral Zemindary
was one of many questions in the suit and appeal, and that the sum of Rs. 14,325.
1. 3., the estimated value of the Zemindary as stated in the plaint, and not merely a
propor-[4~~]~t~onate part thereof, ought to have been adopted by the Court in
est~mating the appealable value.
This petition was heard e;7: parte.
Mr. K. Palmer, Q.C., and Mr. Leith, in support of the petition, urged the same
The Right Eon, Dr. ~ u s h ~ i ~ ~ o n . - ~ a ~ e to sppeal will be granted, subject, hot\--
ever, to this reservation, that i f the facts contained in the petition are not correct,
the petition i s to be dismissed. Security for B O O i o be lodged with the ~ ~ ~ i s t r a i .
of the Privy Council within six months froui the date of their Lordships’ report.
[Mews’ Dig. tit. COLONY ; 111. APPEALS TO PRIVY COUNCIL ; 2. Bppealable value.
grounds as those contained in the petition.
[$73] ON APPEAL FROM TEE S ~ P ~ ~ ~ E COUET O F XEW SOU223 WALES,
NARY L O R ~ , - ~ ~ z ~ Z ~ ~ ~ ~ ; THE ~ O ~ I S S I ~ ~ ~ R S FOR TEE CITY OF S ~ ~ ~ ~ S ,
- ~ e ~ ~ ~ ~ ~ ~ ~ e ~ t ~ [Feb. 7, 18591.
A right to the use of flowing water does not necessarily depend upori tlze o ~ ~ ~ e ~ s ~ i i ~ ~
of the soil covered by such water.
In 1810, the Crown made a grant to ft. of 135 acres of Iand in Kew South Wales,
described as bounded on the west by N. farm, on the north by an east, line of
thirty chains, on the east by a south line to a small creek, and on the south
by that creek and the water of Botany Bay a t the mouth of Cook’s river. I t
was not necessary to include any portion of the creek to make up the quantity
of land specified in tlie grant. In 1823, the Crown made a ~ r a i ~ t of 600
acres of land higher up the creek, to L., in nrhich the Iaiid was described as
hounded on the north-Kest by a line from the south-east corner of R.’s farm
to the south-we~t corner of W,”cj farnx; on the north-east by W.’s farm, on the
south-east by a line bearing west, south to Botany Bay a creek and R.’s farnr.
This grant contained a reserva~~on, that the Crown was to be entitled to
(‘ any quantity of water and any quautity of land, not exceeding ten acres,
in any part of the said grant, as might be required for public purposes.”
I*. afte~.wards became owner of *he Iand c o ~ ~ r i s e d in the grant to R. The
water of the creek was used for turiiiiig a rnifl erected on R.’s land, arid f o r
other beneficial purposes.
On resumption by the Crown, under the powers of an Act of Council of Ken.
South Wales, 17th Vict., NO. 35, of a ~ o r t ~ o ~ of such lands, and diversion af
the stream flowing in the creek-Held : -
First. That the grant by the Crown in 1810, to R., of land bounded by the creek,
passed the soil of the creek ad ? ~ e ~ ~ i ~ r ~ filum aqzlue, as the description of
boundaries in the grant did not exclude from it that portion of tile creek,
* Present : The Right Eon. Lord ~ i n ~ s d o w i ~ , the Right Eon. Dr. LushingtoI~~
the Right Eon. The Lord Justice ~ n ~ ~ h t Bruce, the Right Ron. Sir Edward Ryan,
and the Right Eon. Sir John Taylor Coleridge.
991
- __I_-- ~ I -II-_ - - ~ I _ _ _ _ - - _-I_- _____-- 11”11 ---__-
ILII ~OORE, 676 LORD P. SYDNEY ~ ~ O ~ ~ ~ r I S S l O ~ ~ R S FOR CITY OF) 1118593
which by the general presuniptioxi of law, would go along with the ownership
of the land on the banks of it, [I2 MOO. P.C. 4981.
Second. That the right to the use of the flowing water of the creek in respect of
the land ‘Itelow, o r i ~ i n a ~ y granted to R,, was not lost by the acceptance of
L. of the land above, although in the latter grant the Crown had reserved
tile right to take the water, the only effect of the reservation being that 2.
waived his own rights as riparian owner to the use of the water as it flowed
past his land [ l a Moo. P.C. 499, 5001.
In construing grants, the words used must be taken in the sense which the conk-
riion usage of mankind has applied to them as well in reference to the context
in which they are found, as the circumsta,nces in which they are used [12 MOO.
P.C. 4971.
This rule of construction equally applies, whether the subj~t-matter be a grant
from the Crown or a subject [12 HOO. P.C. 4971.
This was an action brought by tehe Appellant against the Respondents, to recover
cwnpensation in E4741 respect of certain lands and tenements of the Appellallt
resumed by the ~ r o w n , and taken and used by the ~espondents, the ~ o ~ r ~ ~ ~ i s s i o n e r s
of the City of Sydney, under the powers of an Act of the Council of New South Wales,
l?th TTict., No. 35, entitled I‘ The Sydney Water Act of 1853.” The legality of the
resu~~iptioii was not at issue, the only question raised by the appeal being the right
of the Appellant to compensation by reason of the Respondents subtracting the
water of a creek above the Appellant’s lands, which diminished the quantity of
water below, which water the Appellant claimed to have the undisturb~d use of.
By tlie above Act, it was (among other things) enacted, that tlie Respondents
sliould be ~omrn~ssioners for the purpose of providing a ple~itif~il supply of pure?
and wholcsorne water for the City of Sydney and the suburbs thereof, and for the
shipping in the port of Sydney, and for carrying into effect the whole of the pui.-
poses of the Act : and that it &ould l ~ o lawful for the Governor of New South Wales,
bs and with the advice of the Executive Council, if the Governor and Executive
Council should think fit so to do, at any time, and from time to time, in the name of
Her [47Fi) Majesty, to resume and take into Her ~ ~ a ~ e s t y ‘ s hands either the whole or
such parts of the watercourse or streain therein mentioned, with its tributaries and
amuents, and also such parts of the alienated lands adjacent thereto, as he and they
should think it expedient to resume, for the purpose of carrying the Act and the objects
thereof fully into effect ; and upon any such resumption being notified by order of the
Governor, in the New South Wales Government Gazette, the watercourse and stream,
with its tributaries and affluents, or such part OY’ parts thereof as should be notified
as having been so resumed, and also all such parts of the adjacent Iarids as should
be notified as having been resumed, slxould i ~ ~ r n e d i a ~ e ~ ~ , and w i t ~ o u ~ any deed or
i x ~ ~ t r u ~ e n t of eoI~veyance os surrender thereof, become- and be vested in Her.
Majesty, Her heirs and successors, for the uses of the Government of the Colony of
Netv South Wales. And the Co~~i i ss ioners were thereby authorized and empowered
for the supply of water to the City, suburbs, and shipping, to divert, take, and use,
not only the waters arising from or flowing through the lands in the possessiotz of
the CTrorrn, then known as the “ Sydney water reserve,” but also the waters arising
froin or Bowing into or from the stream or watercourse extending from the reserve
to the shore of Botany Bay, and all the tributaries and affluents of the stream or
~~,atercourse, and all swamps, n~orasses, or other sources of water in the n e i ~ ~ ~ b 0 7 ~ r -
hood of tlie stream or watercourse, and its tributaries and affluents, or SO much
tliereof as n~ight, from time to time, be necessary fo r the purpose. And it was
provided that a11 persons whose lands should have been so resumed f476] and takett
into Her Majesty’s hands, or whose lands might have been taken, used, or pre-
judiced by the Carnmissioners, under any of the provisions therein contained, or
nho should h a w sustained any loss or damage whatever in or by the e ~ e c u t i o ~ ~ f
the Act, should be entitled to reasonable compensation for the loss or izljury
sust aincd by themi, and such c o ~ p e ~ s a t i o n should be ascertained, assessed, or
awarded, as therein mentioned, and that in fixing the amount of su& colnpensation,
seference should be had to any reservation contained in the grants by which the
tatids of the parties claiming such compensation were alienated by the Crown. B~ the 16th. section it was further provided that in all cases in which c o ~ i i ~ ~ e ~ ~ s a t i o n was
992
LORD ‘U. SYDNEY ( C ~ ~ ~ ~ I S ~ ~ O ~ ~ ~ S FOR CITY OF) 118591 XU ~ O O ~ E , 477
claimed, in case the ~onimiss~oners and claixnant should not agree, the a ! ~ ~ o u i ~ t to
be paid should be d e t e ~ ~ n e d in the Supreme Court, by an action for damages, to
be brought by the claimant agairist the ~ o ~ r ~ i s s ~ o n e r s , or upon an issue agreed
to by the elainicut an
The lands in ~uest ion were c ~ ~ p r i s e d in a grant by Mr, ~ a c q u a r ~ e , the ihen
~~overnor-in”Chief o New South ~ a l e s , dated the 1st of Januai*y, 1810, io ~ d ~ ~ ~ a ~ ~ d
~edniond, his heirs and asRigns, under the description of all those ‘‘ 135 acres of
land, lying and situate in the District of Sydney, bounded on the west sido by Mary
Lewin’s Newcastle farm, bearing north thirty-seven chains, 01% the north side by an
east line of thirty chains, on the east side by a south line Lo a ~ r ~ i a ~ l creek, and on
the south side by that creek and the water of ~ o t a n y Bay a t 11ie mouth of Cook%
Eiver, a road of one chain reserved on the west side, to be known by the name of
John’s Town, cond~t~oned not io sell or alienate the same for the space of [a771 five
years from the date hereof, and io cultivate twenty acres within the said period, and
reserving to ~ o v e r ~ ~ ~ e n t the right of making a public road ~ h r o u g ~ the sanw, nvd
also reserving, for the use of the Crown, such timber as may be deemed fit. for nasul
~~ur~oses . ”
The creak r~ie~~tioned in the grant was an un~av~gabIe stream of fresh warc~’
which flowed into Botany Bay. R ~ ~ o n d entered into ~ o s ~ e ~ s i o n , and af te r~va~d
sold the lands, the subject of his grant, io one Simeon Lord. P o ~ s e ~ a ~ o i ~ was iakeu
by Lord, but the lands were not conveyed to him until after the date of the grant
by the Crown ~ ~ e r e ~ f t e r n~ei~t~oned.
0x1 the 27th of May, 1823, the then Goveriior-in-~~ef of New South Wales
granted unto Siraeon Lord, his heirs and assigns, “ AI1 those 600 acres of land
&uat,e, lying, and k i n g in the ~ o u n t ~ of Cu~ber l and and ~ i s ~ ~ ~ c t of Sydiiey,
bounde~ on the no r th“we~ side by a line from the south-east corner of ~ e d n ~ u n d
~ohnston~s farm, to the s o u ~ ~ ~ e s t corner of ~ i n d e ~ ’ s farm, on the norih-east by
~ ~ i n d e r ’ s farnz, bearing east 404 degrees south, 67 chains on the sout~-east by a
line bearing west, 25 degrees south to Botany Bay, and on the south-west and weat
sides thereof by Botany Bay, a creek, and R e d ~ n d ’ s farm, saving and reserving
to His ~ a j e s t y , his heirs and successors, suck timber as might be growing or to
grow thereafter upon the said land which might be deemed fit for naval purposes,
atso such parts of the said land as were then or should t~ereaf ter be required by the
proper officer of Eis ~a jes ty’s ~ v e r ~ n i e ~ ; t for a h i ~ h ~ a ~ OF h ~ g ~ w a y s ; and further,
any ~ u a r ~ t i t y of water and any ~ u a n t ~ t ~ of land no% exceeding ten acres of land, in
any part of the said graui, as ~ i ~ ~ ~ ~ i t [4?83 he required for public purposes: Pro-
vided always, that such water or land so required should not interfere with, or in
a,ny manner injure or prevent, the due working of the water-mills erected or to he
erected on the lands and ~Tatercourses thereby granted; and to ~ ~ i ~ l d , w i t h i i t the
term of five years, a w ~ t e ~ - i ~ ~ i ~ l of a 12-horse power. To have and to hold the land
to Siriieon h r d , his heirs and assigns for ever.”
After Sitneon h r d had taken. possess~on of this grant from the Grown, nnd also
of ~ e d i n o i ~ d ’ ~ land, he h i l i a flour mill, with an undershot ~ ~ a t e r - ~ ~ l ~ e e l , at the
Routh end of Red~kion~s grant, the wate~.~power being derived from the creek, a
part of which creek was the bour~dary, on the south side, of ~ e d n ~ o i ~ d ’ s grant. Sinieon
h r d by his Will devised the lands eon.tained in Red~nond’s grantr io his widow, the
A ~ ~ e l ~ a ~ t , and his other land, being his own grant from the ~ro~yx3, to his 8011,
Edward Lord.
On the 16th of July, 1855, Sir Senry Young, the then Governor of New South
Wales~ with the advice of the Exeoutive & m c i l of the Colony, arid under the
authority given Lo hini by the above-mentioned Act, 17th Qict., resumed a.nd took
into Her Majesty’s hands part of the lands belonging to Mary Lord, the subject of
the original grant of the 1st of January, 1810. We also resumed on behalf of Her
Majesty cert.aiii lands b e ~ o ~ ~ i n ~ to ~ d w a r d Lord, for^^^^ partp of the grant to
Simeon Lord, which adjoined the Appe~lant’s lands and were bo~nded by the saxlie
creek, but situated higher up its course. The C o ~ ~ ~ s s i o n e r s fo the City of Sydliey
(the ~ e s p o n d e n ~ ~ , ap~ropriated the water of the creek for the purposes of the
Act, and by diverting the waier as it Bowed by ~ d w a r d Lord’s lands, ~ ~ ~ a t e r i a l ~ y
E4791 diminished the quantity~ w i t ~ d r a w i ~ g the supply by which the mill was
worked7 and the stream in genera1, which was used for woolwash~ng and other
P.C. III. 993 32
~ o ~ ~ s s ~ o n e r s respect iveiy.
*
=I XOORE, w LORD v. SYDNEY ( C O ~ ~ ~ I ~ S ~ O N ~ R S F R CITY OF) ClS591
purposes besides that of t ~ i r n i ~ i g the mill. No question was raised as to the necessity
or formality of the resumption of the lands, the dispute being as to the rigtlt to
eo~Ipensation for taking the water.
In accordance with the provisions of the Act, the Appellant brougllt an action
against, the ~ s p o n d e n t s , in the S ~ p r e ~ ~ e Court of New South Wales, for danrages
sustained by the taking and resuming of the lands in question and subtracting the
water. The aotion was tried by a speuial jury. At the trial, evidence was given
of the value of the property resumed. By the Judge’s direction the jury made
several assess~ents. For conlpensatior~ for the loss of her land the sun1 of 34860;
for the buildings and machinery, $3600 ; for so much water and use of macbiiiery
a s would be left to the Appellant’s Iand, after the ~ o m ~ i s s i o n e r s had taken away
Edward Lord’s property, ~ 3 0 0 0 ; and for the water and use of i n a c h ~ n e r ~ lost by
taking away water from Edward Lord‘s land, the jury awarded $7200 conditionally.
The jury found a verdict for the Appel~ant on all t‘he issues, and assessed the d a ~ a g e ~
at ~ ~ 1 , ~ 6 0 ; with the reservation, that if $he Court should be of opinion that the
A p ~ e ~ l a ~ t was entitled to the ui~disturbed use of the water in the creek n ~ e n t ~ o ~ ~ e d
in Redmond’s grant, on the Jands and hereditmnents taken and used by the Re-
spondents, for other purposes than its use as a motive power, then and in such
case the jurora contingent~y assessed tbe damages of the Appellant, over and above
her costs, a t 61~,660, being &7200 in addition to the fore-i~lent~oned damages
of 611,460.
14801 The Appellant afterwards moved the Supreme Court for leave to increase
the darnages by the sum so contingently assessed, t o 218,660, upon the ground that
&e was entitled to the u K ~ d ~ s t u r ~ d use of the water in the creek ~ ~ i e n ~ i ~ i ~ e d in
Redniond’s grant. The sum of &11,460 found for the Appellai~t i iduded the sum
of ~ ~ 3 0 0 0 awarded as conipeiisat~o~ for the loss of the motive power aforesaid. A
CIWS motion was also made by the Respondents that the verdict be set aside, and far
a new trial, or iiew assessuent, or that the amount of damages absolutely awarded
to the App~llant~ for the u~itcr taken and used by the Respo~~denta might: be reduced
by the s u m of &3000, or such less aniount aa the Court should think 6%.
Mr. Justice Diekinson delivered the , j u d g ~ e n t of the Court upon these niot~ons.
After stat in^ the facts of the case, he proceeded as follows :-Ii We have considered
this case, and are of opinion, that the lai in tiff i s not entitled to the d a i ~ ~ a ~ e s con-
tingently assessed. We are of opinion, that the Plaintiff is not entitled to compensa-
tion for the subtraction by the Defendants of any water from that part of the creek
which formed a portion of Redmond’s boundary; for the Plaintiff had only the same
right in the land that Simeon Lord had, from whom he derived it, and his privileges
against the Crown couId have been no other than those which Redmond enjoyed.
AS the grant to Redmond stated his land to be ~ounded by the creek, we think that
he had no possession of such boundary, and, therefore, was not entitled to the land
over which. the creek flowed. The ~ l a ~ n t i f f , t h ~ r e ~ o r e , not having even the p r ~ ~ ~ ~ ~
fac ie right to die Iand aver which the creek flowed ad ~~e~~~~~~~ @tm c t y ~ a e , we
think has no [4$1] riparian right to use the water which flows by her land, and
is, therefore, entitled te no damages for its appropriation by the ~ e f e n ~ a n t ~ ~ For
we think the law on this point is correctly propounded by Mr. Justiee Story, in his
judgment in Tyler v.- ~~~~~~~~n (4 Mason’s U.S. Reps. 397), cited in Gale and
hatl ley On ~asements, IS1 : - - ‘ ~ ~ ~ ~ , facie, every proprietor upon. each bank of a
river i s entitled to the land covered with water in front of his bank, to the lniddle
thread of the stream; or, as it is commonly expressed, ad ~~~~~ (ilunz ugucte. In
virtue of this o w ~ e r s h i ~ he has a right to the use of the water flowing over it in its
natural current, without diminution or obstruction,’ We are of opinion also,
that the Plaintiff is not entitled to eompensation for the ~ e f e n ~ a n t s ’ disturbance
of the water which flowed over her land. For thougb she derives her title to it from
Redmond, in whose grant there was no power reserved to the Crown to withdraw
water from. off it, she also claims it from Simeon Lord, who accepted a grallt of the
land next above it, in which such a power wag reserved to the Crown for the public
purposes of this City. That reservation could not be exercised by the Crown, with-
out disturb in^ the water in ~ e d m o n ~ s land. Simeon Lord, by assenting to the
reservation in the Crown grant to himself, assented, as far as he was concerned,
to the erom doing e v e r ~ h ~ n g without whieh. that reservation eould not be affected,
Nis assent to the reservation in his own land could not, of course, be binding upon
994
LOR0 V. SYiMEP ~ ~ ~ ~ I l S ~ I O ~ ~ ~ S FO8 CITY OF> [1859] XI1 BOOBE, 482
1~edmond as long as the latter retained his rights in the land granted to him. But
after Simeon Lord beeanie possessed of the two properties he had no right to corn-
plain of the withdrawal of water from the land
the Crown’s exercise of a reservation to which he had assented in other land derived
from the Grown. The iaaxim, ‘ wolenti 9z0n fit itzjuria,’ would have applied to him
iE the ~ o ~ n n ~ i s s i o n e r ~ had exercised their powers while he was possessed of the said
p~opert~es . We vould, therefore, have been entitled to no c o n i p e ~ ~ s a t ~ o ~ ~ for the
disturbance o f the water which had been Redmond’s, even had it been Redinond’s,
and the Plaintiff who elaims under him can be in no better position. We are of
opinion, ttiat the s la in tiff is not entitled to retain the sum of S3000 awarded to
her for so much of the water, and of the use of the machinery, as would be left to
the Fla~nt,iff’s Iand after the Co~Ilissioners had taken away the water front. Edward
Lord’s land. For i f the ~ o ~ i s s i o n e r s took away all the water in Edward h r d ” ~
land, though they would be liable to compensate him for so much water as would
be a v a ~ ~ a b ~ e for his will, by reason of the s t ~ p u ~ a t ~ o i ~ to tbat effect in the grant to
Simeon Lord, nevertheless, as Sirneon Lord would not, had the ~ e f e n d a ~ ~ t ~ s taken all
the water in his time below his mill before it arrived a t Redmond’s land, have been
entitled to any further comFensation for the w i t h d r a ~ a l from the land which had
been R e d ~ o n d s , of the water, it is clear that the Flainti-tP; who claims under Simeon
Lord, cannot be entitled to such last-me~itioued compensation, which the jury
e~timated at L3000. Unless, therefore, the P~aintiff consents that her c o r ~ ~ ~ e i i s a ~ ~ o n
shall be reduced to $8460, there must be a new trial.”
From the Order discharging the motion to increase the damages, the present
appeal was brought.
Mr. Rolt, Q.C., Mr. M. Smith, $.e., and Xr. Homersham Cor, for the
Appellant.-According to the true construction of the grant of 1810, the A p ~ e ~ l a n t
is owner of the bed of the creek, mentioned in the grant, up to the middle thread of
the stream, or in the alternative, to the common riparian rights, as proprietor of
the banks of the stream in respect thereof, and is consequent^^? entitled to the un-
disturbed use and enjoyme~t of the water of the creek for all purposes, subject
to the rights of other riparian proprietors.
The land
in question i s there described as bounded on the south side by the creek; no exception
i s made regarding the creek or the water in it, nor i s there any reservation of the
water of the creek as is conta~ned in the grant of 1823. The land, thorefore,
covered by water in the creek ad medi?6m filum aquae passed by the grant, and ie
the property of the Appellant. As a general rule, the owner of land on the banks of
a stream i s entitled to a moiety of the bed of the stream. The law upon this point
is a c ~ n o ~ ~ e d g e d by the Court below to be correctly stated by Mr. Justice Story in
Tyler v. ~~~~~~~~ (4 Mason’s US. Reps. 39?), and i s relied upon In Gale and
~ a t 1 e y On ~aseinents, p. 131, lu i l ~ u ~ r a t i n ~ tbat rule of law; yet the judgment of
that Court i s in direct contradiction of such rule. The Court blow was mistaken
in supposing that the question was confined to one of property dependent upon the
right to the Iand over which the water flowed. If a man has lands
adjacent, he is entitled to the use of the water, E4841 so that bw
does not interfere with the rights of others. In B n t b ~ e y v. Omen (6 Ex&. Rep. 369),
Baron Parke states it as a clear propositi~n that (‘ The right to have the stream to
flow in i t s natural atate without diniinution or alteration, is an incident to the pro-
perty in the land through which it passes; but owing water i s ~~~~~c~ jw&, not
in the sense that it is a b o m m vacyw128, to which the first occupant may acquire an
exclusive right, but that it is public and cornmon in this sense only, that all may
reasonably use i t who have a right of access to it, that none can have any p r o ~ e ~ ~
in the water itself, except in the p a r t i ~ u ~ a r portion which he may choose to abstract
from the stream and take into his possess~on, and that during the time of his posses-
sion :” and he refers to 3faso9t v. l’litl(5 Barn. and Ad. 24) and proceeds, ‘‘ But each
proprietor of the adjacent land has the right to the usufruct of the stream whictl
flows through it.” So in Sa7n;osol~ v. ~ 0 ~ ~ ~ ~ 2 0 t t (I Com. Ben. X.S. 590) tile Court
of ~ o m ~ o n Pleas held that every prop~ietor of land on the banks of a natural
stream has a right to the use of the water, provided he so uses it as not to .work any
material injury to the rights of the proprietors above or below him on the strean1.-
[Lord ~ ~ ~ ~ s ~ o ~ ~ n : In Il iker v. ~~~~~~~ (2 Moore’s P.G. Cases, 131) the sanle doctrine
995
The first question turns on the co~s t ruc t~on of the grant of 1810.
XII XOORE, +811 LORD ‘0. SYDNEY ( ~ o ~ ~ ~ I ~ s I o ~ ~ ~ s FOR C ~ T Y OF) [E3591
x a s upheld h e r e . ~ ~ o ~ ~ v. W a d (3 Exch. Rep. 775) also recogni~es the right a
riparian proprietor has to the stream of water Bowing through the land in its state.
The Chief Baron Follock in his ~udgment (;b. 714-8) in that case refers with appro-
bation to ~ a ~ o ~ v. HG& and Tyler v, ~ ~ ~ ~ u ~ , and quotes Kent’s Comms. Vol.
III. p. 439, [w] to the effect that “ every proprietor of lands an the banks of %
river has naturally an equal right to the use of the water.” In Rex v. Th’e Zn-
habitunts of Lu.duEph (1 Moo. and Rob. 393) it was held by Mr. Justice
Patteson, that where two parishes are separated by a river, the ~~~ $vm is the
presu~~ptive boundary between them, We have also the right by user for twenty
years, and if the Appella~t should be held not elktitled to the soil of the bed of %he
creek up to the middle thread, under the grant we certainly have an easement in the
water by prescript~on. Long pre-
viously to the resumption by the Crown, there was upon the land coi~prised in the
grant a mill erected on the banks of the creek worked by the water thereof running
in its natural course, and by other water d i v e ~ e d from the creek so as to run
wholly through the Appell%nt’s land to the mill. It was also used by the several
persons in possession of the land, uot only as s source of motive power, but also for
ind~s t r ia l and beneficial purposes. The d~vers~on f the water in the creek renders
the mill useless. Is not that a ground for compensation anticipated and provided
for by the Act?
But, secondly, the Appellarnt’s right to the water of the creek was not affected
by the acceptance by Simeon Lord of the grant of the land above, with the reserva-
tion of the Crown’s right to take the water in that grant, as was erroneously sup-
posed by the Court below, as that grant had nothing to do with the right to the
water contained in Bedmond‘s grant, Lord was the owner of Redmond’s grant,
and had a ~ i g h t to the water pr~v~leges under that grant c o ~ o n with other riparian
owners. The rese~at ion in the [4@J ~ r o ~ n ’ s grant of the right to take any
quantity of water, did not a t all alter the rights of Lord under Redmond’s grant, or
of any other ~ r o ~ r ~ e t o ~ ~ of land below. The assent by Simeon Lord t o the Crown’s
reservation in the graat to himself could not affect rights under ~edmond’s, the
subject of which he was not then in possess~on of, so as to give the Crown a right
to the water in the creek below the land granted to him, a l t h o ~ ~ h that land after-
wards became veated in hiax by a different title. Had he been in possession of the
subject of both grants, he would have been entitled to compensation in respect of
the water taken from Redmond’s land, and the A~pellant, as his devisee, is entitled
to the same right. The damages ought to have comprised compensation for loss of
water rights, which were properly ~ t i ~ a t e d by the jury a t %7200, above the value
of the property resumed.
Mr. B. Palnzer, Q.C., and Mr. Stammers, for the Eesponden~.-~his case is to
be considered under two heads. First, we contend that the Appe~an t had no title
to the bed of the creek, or to the water flowing therein ; and, secoizdly, if she had such
a right, we submit that the acceptance of the grant from the Crown in 1823, pre-
cluded Simeon Lord, and all persons c~aiming under him, from objecting to any-
thing that might be done by the Crown in conforniity with the reser~ation in that
grant.
Firfit, As this i s a Crown grant, it cannot be coiisti,ued by i n ~ ~ i ~ d ~ ~ e n t , but
according to the express terms of the grant, for nothing can pass by ~mpl ica t i~n i
B Crown grant. The ease of the ~ o y d fisherg of [48’?] the 13ann.e (Sir 3. Davies’
Eeps. 157). The l a n ~ a g e of the grant, ‘ I bounded on the
south side by that creek,” is positive, and being a Crown grant, must be construed
strictly against the grantee, and ~ ~ e c 0 a ~ a r i ~ y excludes the right ta any part of the bed
or water of the creek. It is nowhere shown that the quantity of 135 acres is made
up by the soil of the creek. With respect to rivers on borders of States, AngelX,
On tide waters, lays it down, p. 7, that “ The well-settled rule of the law of nations
is, that where an arm of the sea or a river is the boundary between two nations or
States, if the original right o f jurisdiction is in either, in the absence of any con-
vention r e s p ~ t ~ ~ ~ ~ i , each holds to the middle of the stream. But where one State
$8 the original proprietor, and grants the ~ r r i t o r ~ on one side only, it retains the
river within its own domain, and the new~y-estab~i6~ed State extends to t iy river
only, and the low-water mark i s its boundary.’’ This W86 held by the Supreme
996
Statute, 2nd and 3rd Will. IV., c. 72, sec. 2.
~ ~ u ~ l i n Edit. 1762.)
LORD ‘U. SYDNEY ~ C O M M I S S I ~ ~ ~ ~ S FOR CITY OF) [1859] XI1 XOOEE, 488
Court of the United States in reference to the river Ohio, of which the State of
Virginia was the original proprietor, and had granted the territory on one side
only to Kentucky. So with respect to navigable rivers. Where the terms of a grant of a
several fishery are unknown, the owner of the fishing may be presumed to be the owner
of the soil ; but where those terms appear, and are such as to oonvey an ~ncorporea~
hereditament only, the presumption i s destroyed. The &he of Somerset v. ~o~~~~~~
(5 Barn. and Cr. 875). In Res v. Yhe I e ~ a ~ ~ ~ a ~ ~ t s of ~ a n ~ ~ h (1 Moo. and Rob.
393), cited by the Appellants, Mr. Justice Patteson held, in reference to the question
of boundary, that where two [488] parishes are separated by a river, and there was
no positive evidence of the boundary line between them, i t was to be presumed to
coincide with the middle line of the channel. But the presumption in that case
only arose in the absence of a grant, and is rebuttable. The proposition of the hppel-
lant upon this point, that the oimers of the land on either side of a stream are
entitled to the soil ‘‘ ad m e ~ i u ~ ~~r~ aguae,” cannot be sustained, as it is only a
presumption of law, which ceases where ail express grant exists, even in the case of a
subject, (4. ~ ~ r ~ ~ ~ r ~ as regards the Crown. Best, On principles of evidence, a t p.
492, clearly puts it so; he says, “ So the soil a t the bottom of a navigable river is
presumed to be in the Grown ; but where the river is n d navigable it is presumed to
be the property of the owners on each side, ‘ a d r ~ e ~ ~ ~ ~ ~~~~ aquae,’” and he
refers to Res v. The I ~ ? ~ i t ~ n € s of ~ a ~ ~ ~ ~ h (I Moo. and Rob. 393). The same rule
holds in the case of a highway, the soil of which la taken, p.;lrta facie, to belong to
the owners of the adjo~ning lands, mpue ad medium via. Berry and Goodman’s
Case ( 2 Leon. 147)) Grose v. West (7 Taunt. 39), Anon. (Lofft, 35%)) Cooke v. Green
(11 Price 736) . Lord Cranworth, in Wishart v. WylEie (1 Macqueen’s Sco. App.
Cases, 389), lays it down, “ that if a stream separates properties A and 13, ljy’kna
facie, the owner of the land A, as to his land on one side, and the owner of the land
3, as to his land on the other, are each entitled to the soil of the stream z t s p r nd
~ ~ e d i ~ r ~ a ~ ~ a e - t h a t is, p r i m facie so. It may be rebutted, but, gener~lly speaking,
an ~ ~ a g ~ n a r y line running through the middle of the stream is the bou~dary, just
as if a road separates two [489J properties, the ownership of the road belongs half-
way to one, halfway to the other. It may be rebutted by circumstances, but if not
rebutted, that is the legal presumption.” Again, Phear, On rights of waters, p.
12 (Edit. l859>, says, “ This presumption of the me^^^^^ filum being the boundary
line bebeen two riparian proprietors presupposes that the land upon which the
water fies or flows is shared between them; it cannot, therefore, arise at all in those
cases where there is an antffiedent p r e s u ~ i ~ t i ~ K ~ of law that the bed of the streaiii,
or piece of water, belongs to a third party.” Wright v. Eozr~ard (1 Sim. and Stu.
203) is one of the earliest decided authorities upon this branch of the case. The
Vice-Chancellor, Sir John Leach, held that, prima facie, the proprietor of each
bank of a stream was the proprietor of half of the land covered by the water, but
that there was no proljerty in the water. This case was followed by Lord Tenterden
in &!asom v. NiEl (3 Barn. and Ad. 304). The soil of the creek in question is cleurly
in the Grown, as the alveaa, or bed of a public n ~ v ~ g a b l e river is deter r e ~ a ~ ~ a .
The Lord Advocate f o r ~ c o ~ ~ ~ ~ ~ v. ~~~~~t~ (1 ~acqueen’s Sco. App. Cases, tt6j.
Now, riparian rights depend solely upon the right to the soil; and if there is no
right to the bed of the river, no riparian rights exist. Lord Ellenborough, in Benley
v. S?haw (6 East, 2141, distinctly lays it down that the general rule of law, as ap~)Iied
to this subject, is that, ‘‘ independent of any particular enjoyment used to be had by
another, every man has the right to have the advantage of a flow of water in his
own lend without d~minution or alteratio~.” So in ~~~~ v. I m p (7 Bingh. 695),
Chief Justice Tindal says, “ By the law of [490] England, the person who first appro-
priates any part of the water flowing through his land to his own use, has the right
to the use of so much as he thus appropriates against any other.” The principles
enunciated by these cases apply only to water which Bows over the p r o ~ r i e t o r ’ ~
own land. Where there is no right to the bed of the river no riparian rights exist,
This is, however, a novel case. New South Wales being a newly-settled country,
where $he whole of the territory or igi~al ly b0lon#ed to the Crown, the land and
rivers were in the Crown, and it i s moreover a creek with a running stream, so that
there is strictly no parallel with the cases relating to navigable rivers in this country.
It i s no% in dispute that parties may be entitled to the river only, and the banks on
997
X I X ~ O O ~ ~ , *Sl
troth sides belong to other p r o p r ~ e t o ~ , as in tbe case of the New River.--/The Lord
Justice ~ r ~ i g h t Bruce : That i s only an artificial canal.]
Secondly. Evcu if Redmond was entitled either to the soil of the creek, ad
~ e ~ ~ u ~ ~ ~ filum ~~~~, or as a riparian proprietor to the use of the water, yet, after
Sirneon Lord became the purchaser of Ltedrnond’s grant, and while Simeon Lord
w8s possessed thereof, he accepted a grant from the Crown of the land next above
~ e d ~ ~ ~ u n d ’ s grant, in which grant to Simeon Lord there was reserved to the Crown a
power to resume and withdraw any quantity of water that might be required for
public purposes. Now such reservation could not be effectually exercised by the
Crown without, disturbing the water on the boundary of bdmond’s land in the
creek. Sixneon Lord accepted his grant with the reversion of the Crow~~’s right
to take any quantity of water, and. as a ~iecessary incident, the righk to take water
from R e d n ~ o ~ i ~ s land was i ~ ~ c ~ u d e d . Sirneon Lord having conceded the [491]
right to take the water on his land, which could not be taken away without d i ~ i n ~ s ~ -
ing the flow of it lower down, could not, therefore, claim cornpelisation for an act
which was necessary to the cornp~eteness of his own grant. The ~ p p e ~ ~ a n t , as his
devisee, i s bound by his acts. It is laid down, in Shep. Touch, (At~~er~ey’s Edit.)
P. 100, that ‘‘ when anything i s excepted, all t ~ i ~ n g ~ that are depend~ng on it, and
neccssary for the obtaining of it, are excepted also: as if a lessor except the trees,
he may bring his chapman to view them if he desire to sell them ; and he and the
vendee may cut them, and take them away. And by such exception, the lessor Till
have the boughs, fruit, herons, and hawks that breed in them.” Again at P. 89, he
says, ‘‘ Wheii anything is granted, all the means to attain it, and all the fruits aiid
effects of it are granted also, and shall pass inclusive, together with the thing, hy the
gram of the thing itself, w~thout words ‘CUM& ~ r t ~ e ~ ~ ~ ~ , , or any such like
words. C ~ i . ~ ~ ? a ~ ~ e f f ~ ~ u ~ ~ c o w e ., c ~ ~ ~ ~ e ~ ~ t ~ ~ et& et id sine quo res ipsa
?amt ease ~ o ~ u ~ ~ . , ” The same principle i s found in 1 Saund. 322, b., and 2 Roll.
A h . N. pl. 1, 2, 3. Roberts v. l i c c ~ i . (I Taunt. 495), itfO&.v v. ~ ~ g ~ ~ ~ o ~ (3 Taunt.
24), Abson v. Pelztvn (1 Barn. and Cr. 195), € ~ o ~ g s ~ ~ v, P&M (7 East, 613), err^^^
77. Coo& (2 Ros. and Pul. N.R. log), are authorities in support of this doctrine.
Baron Parke, in delivering the judgment of the Court of Exchequer in Dam$ v.
~ ~ & ~ s c o ~ e (6 Mee. and Wels. 174.), speak~ng of a r ~ s e r ~ a t ~ o n in a deed, says i b . p.
197),’“ This reservation is to be construed, according to the r u b laid down in Shep
pard’s Touchstone, [492] 100, in the same way as a grant by the owner of the soil
of the like liberties : for what will pass by words in a grant, will be excepted by like
words in an esception.” Upon the same principle are ways of necessity. It is a
principle of law that the grant of a thing shall carry all things included, without
which the thing granted c a i i n ~ t be had. ~ a o l r y c h , On ways, 29, citing Bob, 234.
~ ~ i e ~ ~ ~ o r e , if A. have an acre of ground in the middle, and surround~d by other
of his lande, and enfeft B. of that acre, here of necessity a convenient way arises
on R‘s behalf to go over A ’ s ground ria a n ~ ~ s a r y incident. O~d~e~ld’s case (Ycy,
123) The strongest case upon this point i s ~ ~ ~ ~ c ~ ~ ~ ~ e v. E d of ~~~~~0~~ (6 Scott,
650. S.C. 5 Bingh. N.C. 1). There Chief Justice Tindal (6 Scott, 675) says, “ The
question which arises, and that upon which the determinatio~~ of the present case
rests, i s whether the right of passing and re-passing over the soil of the passage,
and using it for the purposes above ment~oned, did also pass to the lessees under this
lease, and we are of opinion that upon the facts found in this special verdict, such
riglit did pass a% a ~ ~ e ~ e s s a ~ ~ i ~ ~ c d e ~ t to the subj~ct-~iiatter actua~ly de~k~sed, though
not speciaIly named in the lesse.” The ruIe laid down in Plo~den’s Comms. (26 a)
is, that by the grant of anything, conceditur et id s i m quci reg ipsa hahere non pattst,
as if one grants his trees, the grantee niay enter upon his land for cutting down and
carrying them away, for which a ~ ~ t l ~ o r i t y the Pear Book, 2 Ric. IT., i s cited. Again,
Justice ~ ~ ~ s d e ~ i , in Pornfret v. ~~~~~~~ (1 Setund. 323), lays down the rule of law t5
be, ‘I When the use of a thing is granted, e v e r y t h ~ n ~ is granted by which the grantee
may have and enjoy [493] such use, as if a man gives me a license to lay down
pipes of lead in his land to convey water to my cistern, I niay afterwards enter and
dig the land to mend the pipes, though the soil belongs to another and not to me.”
Mr, Justice Bayley in The Duke of , ~ ~ t ~ ~ ~ s e ~ v. ~#~~~~~~ (5 Barn. and Cr. 885), puts
this question in the true light. He says, ‘‘ This i s the case where the grant i s made
between subject and subject, and, ~ o ~ ~ s e ~ u e n t l ~ , i s o be con~trued against the
grantor, a principle ~na~pIicable to grants mtide by the Crown, whereby nothing
998
IXfRU ‘U. SYDNEY ( ~ ~ ~ ~ ~ I I S ~ I ~ ~ ~ R ~ FOR CITY OF) [1857]
LORD t i . SYDNEY ( ~ O ~ ~ I S S I O ~ ~ R S F R CITY OF) [lS59] XII MOORE, 494
passes, unless the i n ~ r I t i o ~ 1 that it should pass is manifest.” Lastly. The reserva-
tion in Simeon Lord‘s grant was not in derogatioIi. But if so it is not bad as against
the Crown. After an e~sement has been e~~inguished by unity of p06-
session, a new ease~nent is not created by a grant of a messua~e and
land with a common a p p u r ~ n a n t . ~ ~ e ~ ~ e ~ ~ s v. n e r ~ (1 Taunt, 205), ~ ~ ~ e h ~ ~ a s v.
~ ~ ~ , ~ e r ~ ~ (Cro. Jac. 121). So in a Court of Equity, where a condition is an-
nexed to a grant or a bequest. The Att.-Cea. v. Chrisfs Kosetal (3 Bro. C.C. 165),
Messefiger. v. Aiadrews (4 Russ. 478), E g g v. Devey (10 Beav. 444). These authorities,
though analogous to, are not in reality cases of election, the principle enunciated
in those cases being equally applicable to a grant by deed, in which anything in the
nature of a condition annexed, or stipulation of reservation, is implied. Under the
circumstances, we submit, that the Appellant was not entitled to have the damages
increased by the amount contingent€y assessed.
Xr. Smith, &.e., in repIy.-There is no case which has expressly
turned upon the fact of the bed of a river being in one person,
and [494] the soil of the adjoining land beIonging to another, If it
had been copyhold^ the Lord of the Manor would have been entitled to the river
and the c w s t i s ~ ~ ~ ~ ~ ~ ~ ~ 5 . The authoritie~ relied upon by the ~ e s o n d e ~ ~ t s relating
to a navigable river do not apply. C‘pon the true coristruction of the grant to Red-
mond, the boundary of the lands must be held to extend to the middle titiread of the
stream. Failing that, as a common riparian proprietor, the Appellant was en-
titled to compensation for loss of the water. Again, the parties have enjoyed the
use of this water for twenty years, and consequently have an easement, which, by the
Statute, 2nd and 3rd Wm. IV., c. 71, sec. 2, binds the Crown equally with the sub-
ject.-[The Right Ron. Sir John Coleridge : Does that Statute extend to the Colony?]
-The Colony adopts the English law.
Jud~inent having been reserved, was now delivered by
The Right Hon. Sir John Coleridge (Feb. 12, 1859~.-~~is appeal arises out of
a claim for compensation for the alIeged loss of certain valuable water-rig~ts,
occasioned by the aots of the ~ o m ~ ~ s s i o n e r s fo the City of Sydney, under a Colonial
Act, the 17th Bict., No. 35, entitled, ‘ I An Act for s u p p l ~ n g the City of Sydney, and
portions of the suburbs thereof, with water.” No question arises upon the nature
of the acts done, nor on the power of the Commissioners ; but the Respondents deny,
first, that. the Appellant had any such rights as she alleges; and, secondly, they insist
that even if she had, she cannot, under the particular circumstances hereinafter
detailed, claim any compensation for the deprivation of them.
Under the Colonial Act, questions of disputed compensation are tried in the
form of an action [495] brought against the Commissioners. The Appellant accord-
ingly sued them, and her claim substantially embraced three matters ; compensation
for Iand and buildings taken ; for the deprivation of water used as the motive power
to a mill, which stood on her land; and for the depr~vat~on of water for the use
of machinery, and other purposes, in consequence of the ~ o m n ~ ~ s s i o n e r ~ having
taken away the water from the land of one Edward Lord, higher up the stream.
The jury found for the Plaintiff on all these claims, and separately on each by
direction of the learned Judge who tried the cause, The ~espondents do not ques-
tion the verdict on the first claim, and the Court below having directed a new trial,
unless the Appellant would agree to reduce the amount of the damages by the sum
awarded on the second, has consented to that reduction : the only question, therefore,
which remains, is, as to a sum of $7200, which has been awarded by the jury con-
ditionally, on the last head.
The property now belonging to the Appellant, and in respect of which this claim
is made, was originally granted on the 1st of January, 1810, by Mr. Macquarie, then
the Governor of New South Wales, to one Edward Redmond. It is described as
‘‘ 135 acres of land lying and situate in the district of Sydney; bounded on the
west side by Xary Lewin’s Xewcastle farm, bearing north 37 chains ; on the north
side by an east line of 30 chains; on the east side by a south line to a small creek;
and on the south side by that creek and the mater of Botany Bay, a t the mouth of
Cook‘s River.” It thus appears, that partly on the east, and partly on the sout,k, the
land is bounded by the creek, and it i s as riparian owner that the appellant'^ claim
is made. The argument in opposition to this [496] was, that in respect to wter -
999
X I X MOORE, 497
rights, a riparian owner was only one who was also the owner of the soil ud
~ ? ~ e ~ z f ~ ~ ~ f i l ~ ~ ~ npztae; but that by the terms of this grant, the creek, which bounded
the land, was necessarily excluded from the land itself comprised in the grant. It
was urged that grants from the Crown were to be construed strictly against the
grantee, and that nothing would pass under such a grant by mere inference; that
here 138 acres of land specifically were granted, and that it had not been shown
that it was necessary to include any portion of the soil of the creek in order to make
out that quantity.
Their Lordships do not think it necessary to express any opinion on the first step
in this argument. They desire only that it may not be taken for granted that they
accede to it. Zt is a question of some nicety, and it so constantly happens that the
owner of the bank is also the owner of the land ad ~ ~ e d ~ z & ~ f i lu9~, that it is dangerous
to attribute too much i ~ p o r t a n ~ e to the language either of judicial decisions or
text-books, which seem to define the right, where the foundation of it has not come
specifically in question.
Mr. Chancellor Kent, in his ~ommentaries (Ed. 1840), part 6, Lect. 52, p. 438,
writes thus :-“ Every proprietor of lands on the banks of a river has naturally
an equal right to the use of the water which Aowr in the stream adjacent to his
lands ’ ’’ ; and a few lines lower down, speaking of the same person, he adds, “ Though
he may use the water while it runs over his land, he cannot unreasonably detain it.”
N u t it is unnecessary for their Lordships to say more on this point, because they
are clearly of opinion, that upon the true construction of this grant, the creek where
it bounds the land is, nd medium filum, 14971 included within it. In SO holding
they do not intend to differ from old authorities in respect to Crown grants; but
upon a question of the meaning of words, the same rules of common sense and jus-
tice must apply, whether the subject-matter of construction be a grant from the
Crown, or from a subject : it i s always a question of intention, to be collected from
the language used with reference to the surrounding €ircumatances.
The learned Counsel for the ~ e s ~ n ~ e n t s con ended that, accord~ng to the plain
and literal ~iieaning of the words, which must alone be looked to, that which was
described as bounding the s u b j e c ~ m a ~ e r of a grant, must be something beyond the
limits, and excluded from it. But this will not be found to be a test which can be
practically applied. Words in an instrument of grant, as elsewhere, are to be
taken in the sense which the common usage of mankind has applied to them in
reference to the context in which they are found. If lands granted were described
as bounded by a house, no one could suppose the house was included in the grant;
but if land granted were described as bounded by a highway, it would be equally
absurd to suppose that the grantor had reserved to himself the right to the soil
ad medi.unt f i l m , in the far greater majority of cases wholly unprofitable.
This consideration shows that it never can be a question to be determined by
the literal nieaning of the words, without reference to the circumstances in which
they are used. The same learned author who has been already cited, and who may
be safely relied on in any question of general principle, lays it down (vol. iii. p. 433,
part 6, h c t . 52), that ‘‘ it may be [/i98] cansidered as the general rule, that a grant
of land bounded upon a highway or river, carries the fee on the highway or the
river to the centre of it, provided the grantor at the time owned to the centre, and
there be no words or specific description to show a contrary intent.” Tried accord-
ing to these principles, it appears clear to their Lordships that the description of the
boundaries in this grant does not exclude from it that portion of the creek which,
by the general presumption of law, would go along with the ownership of the
land on the bank of it. The Crown had the power of granting i t ; no reason can
be assigned why it should have reserved what might be directly and immediately
useful to the grantee, and could scarcely have been contemplated as of any probable
use to the Crown, and this too in an infant Colony, where it was the manifest and
avowed policy to encourage settlement and the cultivation of land by grants on the
easiest and most favourable terms.
It may not be ~mmaterial to refer here, by way of ~ l l u ~ r a t i o n , to another &?Own
grant, shortly to be noticed more fully, of lands on the opposite side of this same
creek. The boundary on the south-west and west sides is there described as being
“ hv Botanv Bay, a creek, and Redmond’s farm.” It is obvious how differently the
LORD ‘U. SYDNEY ( C O ~ ~ I S ~ I O ~ E ~ S FOR CITY OF) L18591
1000
LOBD V. SYDNEY ~ ~ O ~ ~ i ~ S ~ I O N E ~ S FOR CITY OF) [I8591 XI1 XOORE, 489
word '' bouI~dary " may be understood with reference to these three things. But
in this latter grant the Crown expressly reserves to itself a power of taking any quan-
tity of water which may be required for public purposes. If the creek had been
escluded from the grant, the resorvation would not ham been requisite; and if i t
be ekcluded, and be also escluded from the grant to Eedmond, the argument founded
on the iIriproba1~~~ity and ueelessnesb of such a r ~ s c r ~ ~ a t i o i i s so iauch the stronger.
[@9] Rut, it is nest to be seen wlrether, if the Ap~3el~ant had the ~ r d i n a r y rights
of a riparian owner, there is anytliing in the circ~n~stancee of lier title to exclude
her from coriipensation, as alleged. It appears that soiiie little time before the
date of the grant last referred to, which was the 27th of May, 1823, Simeon Lord,
the grantee under that grant, had contracted for and become the equitable owner
of ~~ed~1io~id 's grant; s u ~ s e q ~ e n ~ ~ y he became tlie legal owner, and Mary Lord, the
~ ~ p e ~ ~ a I ~ t , i s his devisee of that grant. In the grant of 1833 there is a saving
and reserving to tlie Crown of any quaniity of water, and any quantity of land
riot esceedirig ten acres, in any part of tlie grant, as may be required for public
purposes. The Coruniissioners hare acted o n this reserration, arid it is in so doing
that tlie-y have necessar i~~ abstracted the water from the Appellant, and done her
the injury for which she seeks c o r ~ ~ ~ e ~ ~ s a t i o i ~ . But it i s said that Sirueon Lord could
have claimed no compensation for an act tr-hich xTas necessary to the c o ~ p l e t e n ~ s s of
his own grant : that, as he had conceded the right to take the water on this land,
.ivhic+r could riot be talren tlreiice without intcrruptiiig the tiow of i t by the land on
the upposite side, and lower clowlr, of wi~iclt h ( 3 \vas then the equitable owner, be
must be taken to have conceded it equally in respect of those lands, and, if so, that
the Appellant is hound by clie same presumption, havirig taken tlierit as his deviset..
It appears tu tbeir Lordships that this argument is founded on a nikapplicat iorr
of a x~ell-known and a d i ~ i t t ~ d ~ ~ r ~ ~ ~ ~ p ~ e of law. If you grant ~ n ~ h i ~ g , you are
~ ~ r e s u i ~ ~ e d to grant, to the eitent ctf your power, that also without wtzicli the thing
granted can-[~O~]-~~ot be enjored. But what i s the effect of this reservation 1 Tcn
acres of land in any part of tlie grant are reserred, at the election of the Crown, if
require4 for public purposes ; these are not to be granted to the Crown by Lord, I ~ i t
are i ~ r o ~ r i s i ~ ~ ~ a ~ l y saved out of the grant fx hint. As to the water, Lord, as oalier
of the land, had no power to grant i t to the Crown; the Crown could not grant any
property in it to Biixi, nor he to the Crowi : the effect of the saving i s only that lie
vaives Ilia own rights as riparian otvncr to the use of it as it flowed. If the Xaiids
below or opposite bad been otined by a stranger, this saving would have had its full
effect, a l t ~ ~ ~ i ~ g l ~ the stranger had insisted upon ~ o ~ ~ ~ p e r ~ s a t i o n for the ~ ~ i ~ s e ( ~ u e i i t ia2
loss to liimself ; and so it would hare he11 if there had been sny nuniber of lower
proprietnm, all of whom were to bo compensated; for the intention and effett of
i t was only to enahle the Crotsn to take the water a t any t h e , % T i t h u t ~ o ~ i ~ ~ ~ c n s a t i o ~ ~
t u Lord in respect of the injuip to that Innd. Ilord's insisting upon ~ , ~ ~ ~ ~ ~ p e ~ ~ s a t ~ o ~ ~
in respect of other land would not have nnterfered with the operation, or the com-
bteteness of the saving in respect of this land : but for the satTing, the Crown niust
hare paid two CompeI~sations, or made ~ ~ r e e x ~ ~ e ~ ~ t s in respect of tn-o rights; IIOW
it IS free as to the one, and has only to c t ~ ~ ~ p e n s a t e the other.
On these ~ r ~ ~ u ~ i d s the r fiordships Kill advise Her Xajesty that the judgment of
the Court below ought to be reversed, in respect of the sun1 of $7200, by ahicfl
ainount the damages of the Appellant ought to be increased ; and they will furtrier
r e c o ~ i ~ ~ e ~ ~ d that sim be allowed the costs of this appeal.
Jlllews' Dig. tit, CNOWN, D. CROIVN GRANT ; tit. REED AND BOKl), C , ~~~~~~~~~-
TIoN, I . I n G r n e m l ; tit. WATER, C . STBEB~\IS, BTC., 1. Rights and I.nc*&lants of,
a. CFftiPrnlly, 2. Acquisition o/ R&hts, 11. Graiit. S.C. 33 L.T. (0.S.) 'I : 7 l$r.R.
167. See RecX-att v. ~ ~ r ~ ~ ~ ~ ~ ~ ~ [ ~ n of L~eds , 1873, L.R. 'i Ch. 424 ; B
. ~ e ~ ~ ~ ~ ~ ~ ) ~ ~ ~ a ? ~ ~~~~~~ nf Wo&s, 1872, Z.R. 9 R.L. 492 : ~ ~ 7 c ~ ~ a j ~ ? / , ~ ~ ~ v. .\rew&rij
N I &Jgp Co., 1586, 33 (3i.D. 146 j ~ ~ o ~ ~ e ~ 7 . 8frrtrrf, 1839, 11 A.C. 294.1