MIN JUIS, JUIS, HTE

within the fief, and, in order to accumulate a sufticient supply of water, to work then, he caused a dam to be thrown across the river, at a point above the mills. In 1831, appellant, Augustin Gadioux St-Louis, erected a saw-mill, upon the same river, at a point higher up than respondents’ mills ; and, for the purpose of working this mill, he caused x channel or canal, to be made from «x point on the river above respondents’ dam, to a point below such dam, wherehy a portion of the water was diverted from its natural course, and from fowing over respondents’ land, which impeded and, at timss, actually stopped the working of respondents’ inills. In conse. quence of this encroachment, upon their rights, respondents, oi: the 22nd of september 1832, instituted an action in the Court of King's Bench for the district of Three-Rivers, against appellant, Augustin Gadioux St-Louis, for the purpose of having the canal made by him stopped up, and for a prohibition against any future diversion of the water, with damages and costs for the injury already done. Appellant, Pierre Benjamin Dumoulin, intervened in the cause as ax person in whose name and right, in his character of seigneur primitif, the canal and mill mentioned in the declaration had been made, Appellants then filed their peremptory exception perpétuelle en droit, et défense au fond en fuit, by which they insisted that appellant, Damoulin, was seigneur of the greater part of the fief Gros-Bois, through which the river Yamachiche flows, and that the saw-mill and canal in question were constructed in the fief which was the undivided property of appellant, Dumoulin and others, of whom respondents perhaps formed a part, but at the most a very small undivided part; that the river not being a navigable river, appellant Dumoulin had the sole right to the use and enjoyment of the water within

the Court of Appeals with the clerk of Your Majesty’s Privy Council, and William Wilson hath not since taken any further proceedings to prosecute his appeal, or lodged his printed case ; that petitioner humbly submits that the appeal of William Wilson having been delayed in manner aforesaid, and the petition and appeal not having been lodged with the clerk of Your Majesty’s Privy Council within 15 months from the time of the allowance of the appeal, the same ought to be dismissed, and humbly praying that the appeal of William Wilson to Your Majesty in Council, against the judgment of the Court of Appeals in favour of petitioner may be dismissed with costs, or for other relief in the premnises.

The Lords of the Connnittee, in obedience to Your Majesty’s order of reference, this day took the petition into consideration, and having heard counsel for petitioner, and also for appellant, William Wilson, thereupon ; their Lordships do agree humbly to report, as their opinion to Your Majesty, that the appeal of William Wilson should be dismissed : His Majesty having taken the report into consideration, was pleased by and with the advice of bis Privy Council, to approve thereof, and to order, as it is hereby ordered, that the appeal of William Wilson be, and the same is hereby dismissed, this Board, whereof, &c.

his segniory, und to make, or cause to be made, the mill and canal in question ; and they insisted that respondents had not even had the right of banalité further back than the yeur 1820; that the mill could never have been considered banul by the censitaires of the fief, and still less by the coseigneurs, to whom this undivided right appertained, because, since the yeur 1820, and several ÿeurs before, there existed another grist-mill within the seigneurie, and that, even, should respondents have acquired the right of bandalité in the fief, and and the right to work their mill by means of the waters (which appellunts denied), they could not have any right to more than would be necessary to work their own mill, where. as, there was more than sutficient to work respondents’, us well as appellants” mills, all the year round. Appellants moreover, denied that they had ever exercised their right but with the greatest cure, and had only taken the surplus water which respondents had no need of, and had cut their canal on à level with respondents’ dam, without making, as they were entitled, a dam head for themselves. To this exception respondents tiled special answers, insisting that the grist-mill was erected by Antoine Gadioux St-Louis, seigneur, at the instance and request of the tenants censitaires of the fief 1ros-Bois, by reason of the neglect and refusal of all the other coseigneuwrs to erect and provide à good und sufficient mill in the fief, as appeared by several protests from the tenants, copies of which were appended thereto. Respondents also produced various documents to prove their copartnership of the seigneurie, and their several rights therein. Witnesses were examined on both sides, to prove the relative situations of the nills, and to show in what respect respondents ere injured by appellants’ use of the water. The cause was fully heard in the King's Bench, and the following judgment pronounced :

“The Court, considering that Antoine Gadioux, surnamed St-Louis, one of plaintiffs, and through whose rights the others act in this cause, has and could transmit to the other plaintits, only a right of copartnership in the great river Yamachiche; considering that, in erecting a mill on this river, Antrine Gadioux could only acquire, at the most, the right of banalité, but not at all, either the possession or the exclusive proprietorship of the river Yamachiche, which is seigneuriule and not navigable ; considering, lastly, that the intervening party, Pierre Benjamin Dumoulinu, being a coseigneur of the seigneurie of Yamachiche, or Gros-Bois, of this river which runs through it, has the right to use and enjoy the river, according to his share and portion in it, the court has dismissed, and now dismisses, plaintiffs action, with costs, sav-

ing to course manne for tne Frot Appeul 1834, 1 Hcre f of App SEW cannot This is it,in à claim :

chiche us is nt within ed to tt by this which which from ot tor. In right o before 1 which e of it for divert t propriet portion his pro] the lan stream | (1), In sion of before it is the su estate F and this a tongue certain the serv without

(1) 4 Fr tit. 2, cap.

44; Grain:

| and Ad not year banul Leurs, *e the other | l'esf, and raters ht to here.

LS", us morek with water canal they ‘ption t-mill + the 16 Jef I the icient e tendents ship 1esses itions syere

rhich ver, dissav-

ing to plaintiff and to the intervening party their legal recourse to regulate and determine for what parts and in what manners, they shall use, jointly or severally, the said river for tne future.”

From this judgment, respondents appealed to the Court of Appeuls for Lower Canada, and this court, on the 30th april 1834, reversed the judgment of the Court of King's Bench. Hcre follow the remarks of the Chief Justice of the Court of Appeuls. |

SEWELL, Ch. J.: The general course of a river or rivulet cannot be diverted or altered without competent authority. This is the general rule, and he that claims a right to change it, in any respect, must show his title to do s0, because his cluim is an exception to the general rule. The river Yumachiche whose waters have given rise to the action now before us is not a navigable river. Itis, however, a rivulet included within the limits of the seigniory of Famachiche, and granta to the seigneur by the Crown of France. Bat, although by this grant, the seigneur acquires a title to the soil over which the rivulet in question flows, yet, of the runniag water which constitutes the rivulet and is perpetually changing from one moment to another he is not and cannot be proprietor, In that he has and can have by law, no more than a right of usufruct or servitude, while it passes through or before the land which he retains in his possession, à right which enables him to make use of as much as he may require of it for all necessary purposes, but does not authorize him to divert the stream or to use the water to the prejudice of other proprietors above or below him. He can even conduct such portion of the stream as he requires for the amelioration of his property, by canals or otherwise, through the extent of the land which he occupies, but he must return it to the stream before it reaches the contines of his neighbour's estate. (1). In the present case, the act complained of is the diversion of the water from the natural channel of the river before it has passed the lands possessed by appellants, which is the superior estate, and before it reaches the contines of the estate possessed by respondent, which is the inferior estate, and this respondents have eftected by digging a canal across à tongue of land which withdraws from the superior estate à certain portion of the water in its passage, and applies it to the service and benefit of the inferivr estate of respondents, without the possibility of returning it to the channel of the

(D 4F reminville, 513, Arrêt, 12 septembre 1671 ; Boniface, tom. 4, liv. 9, tit. 2, cap. 4; 5 Pandectes Françaises, 376 ; 7 Merlin, Questions de Droit, #4; Grainville’s Arrêts, 231, 232 ; 2 Henry’s, 825 ; 3 Kent's Comment, 353.

river in any way that can render it of use or benefit to and co appellants. It is manifest, therefore, that the legal right of mencec usufruct or servitude to which appellants are entitled, as to in the all the water of the river in its natural course through or court « before the land which they occupy, has been infringed. It future has, however, been urged in argument, that appellants and enjoym respondents being coproprietors par indivis of the seigniory conde of Yamachiche, this action cannot be maintained, but this damag objection is not founded. Whatever the rights of coproprie- reason tors may be par indivis, they cannot justify the use of the soon as common estate by one to the prejudice of the others, and ated in there is a case in the Journal des Audiences in which this sidered

principle is thus stated: “L'un des deux copropriétaires min D “ par indivis peut bien se servir de la chose commune entre costs.”

“eux, suivant l'usage auquel elle paraît naturellement desti- Appe

“ née, pouvant même l'appliquer généralement à toutes sortes that th

“ d'usages licites, que l’autre propriétaire n'a pas intérét 1. Beca

o “ d'empécher. Un copropriétaire par indivis ne peut donc a fief a

mi constituer ni acquérir par cette raison sur la chose fowing commune aucun droit de servitude, qui en diminue l'uti- monopo ° ‘“ lité avec la Liberté de l'autre copropriétaire. Et conformé- Dumoul “ment au méme prineipe, celur à qui appartient un héri- E, through “taye voisin d'un autre héritage, qui lui appartient en the mill

“commun et par indivis, n'a pas droit de faire écouler les within “eaux du premier de ces héritages en celui-ci, au préjudice right to “ du copropriétaire”. (1) For these reasons we are of opinion and tot that the judgment of the court below must be reversed and appellan ù judgment entered up in favor of the appellants according to Because the conclusions of the declaration, with costs. without Here follows the judgment of the Court of Appeals : by a pre “ It is considered and adjudged that the judgment of the lants he Court of King's Bench for the district of Three-Rivers in this dents to cause, be, and the same is hereby reversed, with costs, and waters this court proceeding thereupon, doth adjudge, condemn and enjoy th order Augustin St-Louis, within fifteen days from and after inconvet " service and signification of a copy of this judgment, to fill up refused and close the canal in question, and to restore the land practical ; through which the canal has been cut to the same situation pondent; v | and ano | (1). Les rives des rivières navigables appartiennent aux personnes ‘ont les within à | terres joignent ces rivières, sujettes cependant à la restriction, en faveur des grist-mil : ” sujets de Sa Majesté, de la communication libre avec ces rivières pour toutes Respo

F tins d'utilité publique ; et un propriétaire riverain peut intenter une acticn ; CL en complainte contre celui qui le trouble dans la possession de sa grève. Art. ed from 400 C, C. (Fournier et Oliva, Cour d’Ap., Québec, 17 novembre 1830, 1 R. J. Because R. Q., 341 et 517.) . rêt s is not or Boissonnault et Oliva, 11 R. J. R. Q., 191 ; 4 Jour. des Aud., 198, arrèt 3

4 août 1689 ; Merlin, Questions de Droit, vo. Dénonciation de nouvel œuvre, Was cons

à $ 6, p. 177, ed. 1828. cutting :

fit to ht of as to oh or ed. It s and niory t this oprief the s, and h this taires entre destisortes ntérét done chose l'utiorméhérimt en Ler Les jucdice pinion 1 and no to

+ toutes action Art.

arrêt 3 œuvre,

and condition in which it was before the canal was commenced, so that the waters of the river Yamachiche may run in the natural course and channel of the said river; and this court doth hereby enjoin Augustin St-Louis not to molest in future Antoine Gadioux St-Louis, in his lawful usufruct and enjoyment of the water af the river of Yamachiche, and doth condemn Augustin St-Louis to pay to appellants all such damages as appellants have sustained, or may sustain, by reason of the cutting and making of the canal, when and so soon as the amount of such damages shall have been liquidated in due course of lay ; and, lastly, it is, by this court, considered and adjudged, that the intervention of Pierre Benjamin Dumoulin be, and the same is hereby dismissed, with costs.”

Appellants then brought the present appeal, submitting that the decree ought to be reversed for the following reasons : 1. Because by the law of Lower Canada, the cosewneurs of a fief ave entitled to use the waters of unnavigable rivers flowing through their fief, and one coseigneur has no right to monopolize the same. 2. Because appellant, Pierre Benjamin Dumoulin, was one of the coseigneurs of the fief Gros-Boïs, through which che unuavigable river Yamachiche flows and the mill complained of was erected on the waters of the river within tue fief aforesaid. 3. Because appellant had a legal right to erect the saw-mill in the place where it is situate, and to use the waters of the river for the working thereof, appellants not claïming any exclusive right to such waters. 4. Because it was proved” that appellants’ mill might be worked without inconvenience or injury to the mills ot respondents, by a proper use of the waters of the river. 5. Because appellants had always been willing, and had proposed to respondents to adopt such regulations with respect t" the use of the waters as might enable both appellants and respondents to enjoy the use of the waters for working their mills, without inconvenience or injury to either. 6. Because respondents had refused to assent to any such arrangement, though easy and practicable. 7. Because the grist-mill, in respect of which respondents claim, was not entitied to the privileges of banalité, and another grist-mill, situate higher up the river, existed within the fief long previous to the erection of respondents’ grist-mill, and still continued to exist.

Respondents, however, contended that the decision appeuled from was just and proper, for the following reasons: 1. Because the maxim “sie utere tuo ut alienuwm non laedas,” is not only founded upon principles of natural justice, but Was consonant to the laws of the province. 2. Because, by the cutting and use of appellunts’ canal, the waters of the river

Yamachiche were to à considerable extent diverted from their natural course, which is over or by respondents’ land, and by such diversion respondents were prevented from having the full use and enjoyment of the waters of the river in the manner in which they and their predecessors, owners of the land in respect of which respondents’ action was brought, were accustomed to use and enjoy the same previously to the cutting and use of the canal, and, by such diversion of the water, respondents had sustained considerable damage in respect of their aforesaid mills and lands on the said river. 3, Because the respondents grist-mill was à banal mill, grinding the corn of that part of the fief Gros-Bois, in which such mill is situate, and respondents were entitled to the full use of the waters of the river, for the purpose of working the same mill. 4. Because, for a period of ten years and upwards, before the commencement of -appellants” canal, respondents had had the uninterrupted enjoyment of their mill, with the full flow of the water of the river for the working thereof. 5. Because, according to the evidence in the action, and the law of the land, no other than the judgment now appealed from could have been given, or would have been proper.

BURGE, Q. C., for appellants, and KINDERSLEY, Q. C., and REXNSHAW, in support of the judgment of the court below. In the course of the argument, the following authorities were referred to: Merlin’s Rép. J'urisp., tit. Cours d'Euu : 3 Partida, L. 15 & 16, tit. 32; Dig., lib. 39, tit. i, 1. 3: Code Civil, art 644: Denisart’s Coll, 4 vol., 294; 2 BI Com., 90.

The right honorable Dr LUSHINGTON : The present appeal relates to the right of the contending parties to the use of the waters of the river Yamachiche, a river not navigable, and flowing through the seigneurie of Gros-Boiïs, in Lower- Canada : of that seigneurie, Dumioulin, one of appellants, and respondents, are coseigneurs. In the year 1820, Antoine Gadioux St-Louis, with the consent of all the proprietors, as well as tenants, and at the instance of at least some of them, erected à grist-mill on his own land ; in 1821, a carding and fulling mill, and a dam was thrown across the river, for the purpose of supplying the mills with a sufficient quantity of water; until the month of november 1831, these mills continued to be worked without any obstruction or diminution of the ordinary supply of water. At that period, Augustin Gadioux St-Louis erected a saw-mill on a point higher up the river, and, for the purpose of supplying such mill with water, caused a canal to be made. Respondents, conceiving that such canal intercepted the accustomed flow of water to their mills, thereby preventing them from being worked so beneficially and conveniently as before, in september 1932,

brought Rivers, this act restorec the loss ing hit saw-mil COseiyne ed, amo 1820 w mill of lants, Ww were on that, if would b entitled parol, w and the Bench, v the acti enjoy t that pla reserved liberty richts.

Court, tl decree 0!

ing to th Their L any suff first the:

dence, tt divertin, use of t, age has this app shown tl standing loss occa the erect or intere erected some yet the wate to consis banal m ofthe su

from land, havrer in Ts Of ught, o the f the we in rer. 3.

rindsuch 1] use g the vards, dents sh the of. 5.

Le law from

)., and ww. In were

s, and toine

rs, AS them,

with iving ter to ed s0 1832,

brought an action in the Court of King's Bench of Three- Rivers, against Augustin Gadioux St-Louis. The object of this action was to have the canal stopped up, and all things restored to their former state, and to recover damages for the losses sustained. Dumoulin intervened in this suit, alleging himself to be a partner with appellant, St-Louis, in the saw-mill, and also interested and entitled, as one of the coseigneurs of the fief. Respondents in their pleadings alleged, among other things, that the corn-mill by them erected in 1820 was a banal mill, and entitled to all the privileges of a mill of such character. This averment was denied by appellants, who further stated, that, if it were true, respondents were only entitled to a sufficiency of water to work it, and that, if the waters of the river were properly managed, there would be an overplus of water, to which appellants would be entitled for the use of their mill. Evidence, both written and parol, was produced on behalf of both the litigating parties, and the cause was first heard before the Court of King's Bench, which court, on the 30th september 1833, disinissed the action, on the ground that Dumoulin was entitled to enjoy the river according to his share as à coseigneur, and that pluintiffs had claimed an exclusive use; the court also reserved to plaintiffs and to Dumoulin, the intervening party, liberty to resort to the court for the arrangement of their rights. An appeal having been presented to the Provincial Court, that tribunal, on the 30th of april 1834, reversed the decree of the Court of King's Bench, and pronounced according to the prayer of present respondents in their declaration. Their Lordships have now to determine, whether they see any sufficient cause for reversing this last judgment, and first they would observe, that they are satisfied by the evidence, that respondents have suffered some damage by the diverting the waters through the means of the canal for the use of the mills erected in 1831. To what extent that damage has proceeded, they are not called upon to determine in this appeal. The question then is, has appellant Dumoulin shown that he has any right so to use these waters, notwithstanding the loss to respondents? Has he proved that the loss occasioned is damnum absque injuria ? At the time of the erection of these mills, in 1820 and 1821, he had no right or interest in the waters of the river at all; the mills were erected and worked with the consent of all interested, for some years before Dumoulin acquired any title to the use of the waters. The defence of Dumoulin may be shortly stated to consist— First, of a denial that the mill of respondents is n banal mill; second, a justification of his carrying off a part obthe supply of water from respondents’ mills, on the ground

that he is a coseigneur of the fief, and as such entitled to share in the use of the waters, even to the extent of depriving respondents, his coseigneurs, of the use of a part of their accustomed supply. Now, leaving out of consideration the question of banal mill or not, and what was the privilege of banalité, it is evident, that if appellant cannot support his latter justification, he must fail altogether. The position he must mnaintain is this, that as coseigneur he has à right to divert the waters, aceustomed for eleven years to supply the mills of one of his coseigneurs, for the purpose of working his own newly erected mill, and this to an extent to which it is not easy to fix a limit. The proposition carries with it some extraorcinary consequences, for, if the low be as stated,

another coseigneur, having property higher up the river,

might build à new mill, and divert the waters from all the

existing mills: he is in turn to suffer the saine loss, if there should be any coseigneur, having land situate still higher up the stream. We are of opinion that appellants have failed to show that the law prevailing in Lower Canada supports any

such proposition, and that, therefore, the decree of the Court of Appeals must be affirmed. It may be that appellants have, by the law of Canada, some claim to have the use of the waters regulated by the courts of that country, so that all the coseigneurs may have the most beneficial use of the

same. If this be so, our judginment will not deprive appellants of any right they may possess to resort to the tribunals of their country for such purpose. AÏl we affirm is, that appel-

lants had no right to take the law in their own hands, inflict-

ing a loss and injury on respondents. Decree affirmed with costs, (Stuart’s R. 575; 3 R. de L, 329 ; 3 Moore’s P. C, R.

BURGE, Q. C., for appellants.

KINDERSLEY, Q. C., and RENSHAW, for respondents.