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THE LLANWRDA WATER CASE. -

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THE LLANWRDA WATER CASE. JONES V. WILLIAMS. On Thursday, the 22nd inst., the Court of Appeal, consisting of the Master of the Rolls u Justices an(i Bowen, had before em this appeal of the plaintiff from the judg- ment of a Divisional Court, after a trial before Mr Justice Manisty and a special jury at the Carmarthen Assizes. The plaintiff claimed to be entitled to the flow, use, and enjoyment of a certain stream or watercourse flowing through the land of the defendaut on to the land of the plaintiff, situated in the parish of Llanwrda, in the county of Carmarthen. The defendant and the plaintiff had adjoining farms, the defendant's farm being called" Garregfechan" and the plaintiff's "Garreglefain." The water-course in question flowed through the defendant's land by means of an artificial alteration of its course it 2 *n °lan artificial embankment made by the defendant s predecessors about 40 hot^nTv.' °u Pontiff's land through a Si1? thfe V*rt{ hedse. It appeared that the irr satina hifn f°r a mil1' a,ld alao for each year l £ th"6 f0⢠December to May w* £ r n 0 months he used up all the !KSr:«rto the piaintiffa iand>wjth nlaintiff iJ ^at sometimes in February the <Uv fof tTQld get a loa" of »n fchl) for one During tl, parP°se of clearing out the pond, noma 4. 6 summer months, for over 20 years, Canie to the Plaintiff's land, and that amount, whatever it might be, subject to the defendant's right for use for his mill, and for reasonable irrigation, the plaintiff claimed in this action, and the jury found for him. The Divi- sional Court, consisting of Mr Justice Denman and Mr Justice Wills, found that the water-course through which the water flowed on the plaintiff's land was an artificial one, and that he had, in < consequence, no right in the stream, hence the ] present appeal. Mr Channell, Q.C., and Mr Wm. Evans (in- structed by Mr W. Howell, of Llanellv), appeared for the appellant, and Mr Bowen Rowlands, Q.C., M.P., Mr Abel Thomas, and 11 javid Lew,s (instructed by Messrs. Price and M nu LamPeter), the respondent. Mr Channell, in the course of his argument in support of the appellant's case, said at the trial the jury found in the plaintiff's favour after hearing the evidence of old inhabitants in the Court fifihe 8tream' but the Divisional Court set their finding aside, and gave judgment used bvdtt1a?' Tthef "aler in q-toTSS during pppi defendant for irrigation purposes aunng certain months of the year from December to May, and afterwards it was allowed hadelwd P,aiDiiffS land" ThTffl vltl JTyK i ?Ierflow for more than twenty stream h?"!?1? °*?ly clalmed the use of the £ » landtkh it defeDd,nt had «-«i "> "gate Mfter of the Rolls âYou must have a strange climate in Wales to require the water for such a purpose. H er Mr Bowen Rowlands Our climate is much better than this (laughter). fh^he °f the Rolls-«h. of courae, every- lau»hter) 8 1Q ^a^es fc^an ^ere (renewed in1HHoChfaJlnelliC0nt^nde(i that the predecessors tLf IK f PLAMTLFF and defendant had agreed that the watercourse should be made to carrv the surplus water on to the plaintiffs land. *terL°f thL6 Rolls said there was no evidence of this when the case was before the «n?hr Channe11 said the jury had reason to infer M an arran8ement in the past. Mr Evans followed on the same side. «fo7 ,exPressed a desire to have a full an^M r fche facts as disclosed at the trial, R^vlands said he would be pre- pared with them the next day. The Court then rose. tv,?"* F.riday' Mr Bowen Rowlands went through hlJt r &a Pr°ved,at the ^ial, and urged on ,u 8 CaS8 that there was no evidence that the user of the water by the plain- tiff was a user as of right. No right was claimed and a mere user of an artificially turned stream gave no right to it. inf Aiel Thomas followed on the same aide. eTMa8Kter of the Rolls, in giving judgment, saidâIn this case the plaintiff has brought an action against the defendant for taking away, as he says, from him a flow of water from the defendant's land to the plaintiffs, which he (the plaintiff) says he had a right to. The plaintiff does not claim the flow of water as a riparian owner of a natural stream. He is there- fore setting up a claim which would throw a considerable burden on the defendant if it were true. He is setting up a claim that the defen- dant should allow the overflow of water which he (the defendant) or his predecessors had brought upon his own farm, and that he (the plaintiff) has a right to have the overflow of that water after it has passed through the artificial channel which the defendant or his predecessors had made it to flow on to his land. In order to do that he relies upon the Prescription Act, that he and his predecessors had enjoyed this flow of water for 20 years as of right. It was suggested that he might make that out by reason of that doctrine of the lost grant. It was not asserted that there Was any evidence of a common law prescription by reason of user beyond the memory of man, as ll* ,r i ? eit* £ r the burden of proof twTV Pontiff.. The Plaintiff must show iSf- u u dan umnfcerrupted user of that wmch he now asserts as his right for 20 years next preceding the action. He has not proved canll f ?⢠fchat whlch> he says, gave him the of action, he even expressly asserted the rigrn. The question is whether he Kave anv evidence from which it might reasonably be inferred that he had enjoyed this as a right. I say that he never expressly claimed the right. It was argued that there was a natural stream, which was diverted to defendant's land, which landed £ diverted' would go to plaintiff's nUinHff K comPensation was given to the Pontiff by means of the cut through the bank, fand But that Wate,r S° to plaintiff's land. But that argument falls to the ground, as It was proved at the trial that the original stream would not havo gone to the plaintiff's land. This water was evidently diverted from its natural stream by the defendant, and brought on his farm solely for the benefit of his own farm. The defendant used the whole of the water solely for the advantage of his farm. He required no leave or licence from the plaintiff. There is no evi- took a"y part in what th!S ⢠T °"n infer that here was a claim of right on his part- ? When- maTter ^e^sk^lea^S h^11^7*"thiS htLuld^lholly t0g6ther' h SS find that h:h:h:z izetzn:^ ior tny as of right. There was nn y plaintiff jury in support of the claim ^^h01^6 a° g° £ t0 the of which lay on the plaintiff' "u Pro°f that the Divisional Court was r]ln. therefore, that the learned judge at the trial oUaht\Sa £ lng directed the jury to find for the de?e «dan.° ThS appeal must, therefore, be dismissed. Lord Justice Bowen-I am of the same opinion. There is a perfectly plain and simple case. The Pluilitiff seeks to compel the defendant to deliver rough a purely artificial watercourse a flow of claim ulaf land>. and it is clear he can only character ofyf.prescriPti°n at common law. The evidence from »^.a^ercourse afforded no sort of evidpnfp u inferred, but rather evidence from which you would conclude that it was nothing of the sort. The suggestion made for the plaintiff that the original KS Va run to nlaintiff'o 1 A 11 stream would coSven?enCft lllustrate3 the extreme in- client X a arSeS °l&n appeaI where the counsel a d 1? ?gt??eS to chan8e hia counsels whr. the Court of Appeal two would nevlrhrerl n0t at ,the triaK This P«int been here wh VB n ?ade lf fche counsel had we look at th ° at tria1' because when of counsel rm and hear the explanation is a configurati 16 ? Slde' ifc is obvious there that suwaeat; °n ? ground which prevented original water- 6m| properly made- The land. Thp ?,,rse does not touch defendant's made thorouuM e4.wor^ therefore, it appears, was and the mtr- y ^°r 6 benefit of the defendant, Em °f pnma facte was clearly precarious as shown by the application made by the plaintiff for the use of the water. I, therefore, think that the appeal must be dismissed. Lord Justice Fry I concur in what has been said. It is very remarkable that the plaintiff originally stated his claim as a claim to the uninterrupted flow of this water at all times. At the bar here, and in the court below, he admitted that during a certain part of the yearâfrom December to Mayâhe had no such claim. It appears to me he modified his claim simply to avoid the crushing effect of the applications which he had from time to time made to be allowed the use of the water and when you contrast the case as originally stated by the plaintiff, with the admissions he was bound to make, the applica- tions were urgent evidence of the precarious and permissive nature of the plaintiff's enjoyment. The stream will not flow through the gap unless by the intervention of the defendant's spade, and, therefore, the plaintiff is claiming that the defen- dant is obliged at certain periods of the year to erect in this water course a barrier, which shall divert the water into the plaintiffs land. Such a claim as that is not a claim which has ever been set forward by the plaintiff, and in the next place it is a claim which the whole evidence tends to contradict, because when that barrier has been erected it is dug by the defendant at the request of the plaintiff as a mere act lof neighbourly courtesy towards him. I think, therefore, the plaintiff's case entirely fails. Mr Bowen Rowlands-Then the appeal will be dismissed with costs ? The Master of Rolls-Yes.

LLANDDEWI BREFI.

.LLANFIHANGEL-RHOSY-CORN.

PENDINE.

TREGARON.

ABERGWILI.

LAMPETER.,

CAPEL TYGWYDD.

NARBERTH.

GOLDEN GROVE.

LLANYBRI.

LLANSTEPHAN.

.CILIAU AERON.

ST. CLEARS.

HIGHMEAD.

LLANWNEN-

PENBOYR.

--EMLYN.

LLANDYSSUL.

LLANSAWEL.

ABERGORLECH.

BRYNSION.

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