Thompson (a), Case of Vergen's Bail (b). In Fowler v. Dunn (c), it had been refused in B. R. after conviction and sentence of transportation. He supposed that that course had not been pursued here, because the defendant was in custody on criminal matter; whereas, after being rendered in this Court, he could be committed to no prison but the Fleet (d). But that remedy not being open to the bail, was no reason why they might resort to the one proposed, for which he believed there was no precedent.

Erskine contrà, contended that the case came within the principle of those in which the Courts had granted the bail an enlargement of time to render their principal.

The Court made the Rule absolute, with costs.

(a) 15 East, 70. (b) 2 Str. 1217. (c) 4 Bur. 2034.

(d) Vide Edmunds' Off. of Pl. 177.

1824.

ASHMORE, the younger,

FLETCHER.

WINTER V. LETHBRIDGE, Bart.

February 3d; May 15th, 29th, 31st.

THIS was an action on the case for obstructing a water An award will course. The parks and lands of the parties to the cause adjoined each other, the plaintiff's lying to the south of

the defendant's. The latter contained a great number of ponds, and the contiguous grounds generally declined in a

not be set aside upon any

ground, which

in truth is a

question upon tween the par

the merits be

ties.

An arbitrator, in regulating the future use of a stream of water, the right to which was divided between the parties, interfered with the customary enjoyment by one of them of another stream, which exclusively belonged to him, and was not a matter in difference, and which joined the first; held that he had a power to do so, incidental to, and resulting from his former direct and larger power.

If an arbitrator, after regulating on the subject matter referred to him in its present state, goes on and regulates prospectively on the same subject matter reduced to a different state, and thereby in some degree altered, quære, whether that be a proceeding beyond his authority.

Though the award be bad in that respect, yet that does not vitiate those parts which are otherwise unobjectionable; and it may stand in toto, until the particular contingency arise to which the prospective regulation applies.

1824.

WINTER

v.

LETHBRIDGE,

Bart.

southern direction. Two of those, called the New Pond and the Stew Pond, communicated with one another, and were supplied by a stream flowing into the former, which was the northernmost, from certain springs, and another and a much smaller pond. The water of this stream, which was the subject of the action, was discharged from the Stew Pond by three apertures with tunnels in its southern bank, one carrying it eastward, one southward, and one westward. The middle, or southern, had a syphon attached, for the purpose of watering an adjoining close of the defendant, called Brickfield Meadow. The two others led down into a ha ha! ditch, or sunk fence, immediately to the south of the pond, running eastward and westward. This ditch communicated on the eastern side with other ponds belonging to the defendant, of which one of very considerable size, that had been recently made, was in part fed by the water carried along it. The water which passed through the western aperture was conveyed along the ha ha! westward into the channel of an ancient and natural stream, which (originally having had its head in one of the ponds) flowed in a southerly direction across the defendant's lands, and running through an underground tunnel, which was placed under the bed of the large pond before mentioned, entered into the plaintiff's grounds at their northern boundary; and passing under an old archway, at the northern end of which was a floodgate, or weir and sluice, then, if not penned back, pursued its natural course southward through and out of the plaintiff's closes. But there were two ancient carriage gutters, one on the east, the other on the west of the arch, by the former of which the water of the stream, when penned back by lowering the floodgate, might be carried out of its course eastward and southward, either for the supply of a pond of the plaintiff, called Sandy's Pond, or (through a third carriage gutter) for the irrigation of one of his closes called Sandy's Mead, or meadow. The carriage gutter on the

west was used for carrying the water, when penned back, southward, in a direction nearly parallel to its natural channel, for the irrigation of the lower parts of another of the plaintiff's closes called Long Meadow.

The plaintiff claimed a right to the stream of water flowing through and from the two ponds, except only such part of it as was necessary for irrigating the defendant's close called Brickfield Meadow, (situate to the south of the ponds, and the east of the water-course) insisting that the whole of it, with that exception, ought to run down the water-course and into his closes, for the purposes before stated; and complained that a large quantity of it, and more than was necessary for watering defendant's said close, was wrongfully diverted out of that course along the ha! ha! eastward. The plaintiff had another stream, which, issuing out of a mill-pond, called the Ash Mill-Pond, at some distance to the west of the meadows, and running through his own closes exclusively, joined the water course at the archway, and by means of the weir and sluice before mentioned, or by putting down an obstruction across the carriage gutter leading to Sandy's Pond, at a point called Brickfield Gap was, together with the water in dispute, employed in irrigating the meadows, or conveyed to that pond. On the trial of the cause at the Lent assizes for Somersetshire a juror was withdrawn ; and under an order of nisi prius, which was afterwards made a Rule of Court, it was agreed to be referred to a gentleman at the bar, who was "to settle all matters in difference between the parties, and to decide what was the right to the water claimed in the action, and to regulate the use of it in future, and to order and determine what he should think fit to be done by the parties respecting the matters in dispute." The arbitrator, assisted by professional men, having gone over the premises, and minutely investigated the use and application of the water, and examined a great number of witnesses, made a special award, and found, first, that

1824.

WINTER

V.

LETHBRIDGE,

Bart.

the right to the stream in question was a right divided between the plaintiff and the defendant; that is to say, that the defendant had a right to use the same for the watering of Brickfield Meadow, and to divert the same for all other purposes when and where he might require the same; and in so doing wholly to prevent the same, or or any part thereof, from running down to the closes of the said plaintiff; and also had a right to turn the whole of the same down to and through the said last-mentioned closes at all times of the year, at his free will and pleasure; to pass without interruption in the water-course there through and out of the said last-mentioned closes, subject only to the two following qualifications: firstly, That at the several times in every year when Brickfield Meadow should not be in watering, and when the time should be seasonable for the watering of the plaintiff's said closes, the plaintiff had a right to have so much of the water of the stream flow freely down unto and into them, as should be sufficient during such seasonable times for the watering of such parts of them, as by reason of the level of the ground therein were capable of being watered with the same, and there to use the same for that purpose: and secondly, that the said plaintiff had a right from time to time, at all times of the year, to a reasonable supply of water from the said stream, for the necessary feeding of Sandy's Pond. The arbitrator then noticing that it might hereafter become desirable for the said defendant to fill up and destroy both the said ponds; secondly, ordered and awarded, that until the ponds should be destroyed and filled up, the use of the stream of water should be regulated in the following manner:-That within one calendar month from the date of the award, the defendant should at his own costs and charges cause to be made two apertures, or channels in the south bank of the said Stew Pond, in the same places respectively in which the eastern and western apertures then were, and no more, to be each sixteen inches

wide and no more; and that the sill of each should be five inches below the sill of the then present aperture which carried the water southward, and no more; that the said apertures should be of substantial brick, stone, or wood-work, and fitted with hatches, or flood-gates, watertight; and that the defendant should at all times keep the westernmost of the two free and clear from all obstructions on both sides of the hatch or flood-gate belonging to the same, and also make a clear and free passage for the water to flow through the same, down and into the ha! ha! ditch, and thence to the head of the water-course; and also once in every year, in the month of October, cleanse out, and throw the water course down to the spot where it joined the mouth of the underground tunnel, so as to leave a free course and channel for the water to run therein. And he further directed, that from the 1st of January, to the 31st of March, 1824, and thereafter from the 1st of November to the 31st of March in every year, the defendant should securely and effectually close down the eastern, and keep open the western aperture from 9 o'clock in the morning of Monday, till 9 o'clock in the morning of Wednesday in every week; and also from the 1st day of April to the 1st day of November in each and every year, should, without closing the eastern, unless at his own free will and pleasure, keep open the western aperture from 9 o'clock in the morning of Monday to 9 o'clock in the morning of Tuesday; and from 6 o'clock in the evening of Thursday, to 9 o'clock in the morning of Friday in each and every week; and during those times respectively, suffer the water of the stream flowing from the western aperture, to have a clear and free course down to the closes of the plaintiff. The award proceeded as follows: "And I further direct and award, that whenever the said two first mentioned ponds of the said defendant, or either of them, shall be filled up and destroyed, the said two last mentioned apertures shall remain and be preserved ;

1824.

WINTER

v.

LETHBRIDGE,

Bart.