Date: 29 July 1895

Between:

THE MAYOR, ALDERMEN AND BURGESSES OF THE BOROUGH

OF BRADFORD APPELLANTS

-v-

EDWARD PICKLES
RESPONDENT

July 29.
LORD HALSBURY L.C.:-
My Lords, in this action the plaintiffs seek to restrain the defendant from doing
certain acts which they allege will interfere with the supply of water which they
want, and which they are incorporated to collect for the purpose of better
supplying the town of Bradford. North J. ordered the injunction to issue, but the
Court of Appeal, consisting of Lord Herschell, Lindley L.J. and A. L. Smith
L.J., reversed his judgment.
The facts that are material to the decision of this question seem to me to lie in a
very narrow compass. The acts done, or sought to be done, by the defendant
were all done upon his own land, and the interference, whatever it is, with the
flow of water is an interference with water, which is underground and not
shewn to be water flowing in any defined stream, but is percolating water,
which, but for such interference, would undoubtedly reach the plaintiffs' works,
and in that sense does deprive them of the water which they would otherwise
get. But although it does deprive them of water which they would otherwise
get, it is necessary for the plaintiffs to establish that they have a right to the
flow of water, and that the defendant has no right to do what he is doing.
My Lords, I am of opinion that neither of those propositions can be established.
Apart from the consideration of the particular Act of Parliament incorporating
the plaintiffs, which requires separate treatment, the question whether the
plaintiffs have a right to the flow of such water appears to me to be covered by
authority. In the case of Chasemore v. Richards (1), it became necessary for this
House to decide whether an owner of land had a right to sink a well upon his
own premises, and thereby abstract the subterranean water percolating through
his own soil, which would otherwise, by the natural force of gravity, have
found its way into springs which fed the River Wandle, the flow of which the
plaintiff in that action had enjoyed for upwards of sixty years.
The very question was then determined by this House, and it was held that the
landowner had a right to do what he had done whatever his object or purpose
might be, and although the purpose might be wholly unconnected with the
enjoyment of his own estate.
It therefore appears to me that, treating this question apart from the particular
Act of Parliament, and, indeed, apart from the 49th section of the Act of
Parliament upon which the whole question turns, it would be absolutely
hopeless to contend that this case is not governed by the authority of
Chasemore v. Richards(1).
This brings me to the 49th section of the statute 17 & 18 Vict. c. cxxiv., upon
which reliance has been placed. [His Lordship read it.]
Whatever may be said of the drafting of this section, two things are clear: first,
that the section in its terms contemplates that persons other than the company
may be legally entitled to divert, alter, or appropriate the waters supplying or
flowing from
(1) 7 H. L. C. 349.

the streams and springs; and, secondly, that the acts against which the section is
directed must be illegal diversion, alteration, or appropriation of the said
waters.
The natural interpretation of such language seems to me to be this: that whereas
the generality of the language of the section might apply to any alteration or
appropriation of waters supplying or flowing from the streams and springs
called "Many Wells," the section only intended to protect such streams and
springs and supplies as the company should have acquired a right to by
purchase, compensation, or otherwise, but in such-wise as should vest in them
the proprietorship of the waters, streams, springs, & c. And lest the generality
of the language should give them more than that to which they had acquired the
proprietary right, the legal rights of all other persons were expressly saved; and
upon this assumption the latter part of the section makes penal the illegal
diversion, alteration, or appropriation of any streams, & c., of which, by the
hypothesis, the company had become the proprietor.
I do not think that North J. does justice to the language of the section when he
says that "the section enacts that a man is not to do certain specified things
except so far as he may lawfully do them." The fallacy of that observation (with
all respect to North J.) resides in the phrase "certain specified things." If my
reading of the section be correct, the thing that is prohibited is taking or
diverting water which has been appropriated and paid for by the company; but
the thing which is not prohibited is taking water which has not reached the
company's premises, to the property in which no title is given by the section,
and which, by the very act complained of, never can reach the company's
premises at all. To use popular language, therefore, what is prohibited is taking
what belongs to the company, and what is not prohibited is taking what does
not belong to the company.
My Lords, I have used popular language because I have no doubt that the
draftsman who drew the section was encountered with the proposition in his
own mind that you could not absolutely assert property of percolating water at
all. You may have a right to the flow of water; you may have a property in the
water when it is collected and appropriated and reduced into possession; but, in
view of the particular subject-matter with which the draftsman was dealing, it
seems to me intelligible enough why he adopted the phraseology now under
construction.
It appears to me that this is the true construction of the section from the
language itself. But I confess I can entertain no doubt that the mere fact that the
section, as construed by the plaintiffs, affords no right to compensation to those
whose rights might be affected, is conclusive against the construction
contended for by the plaintiffs.
The only remaining point is the question of fact alleged by the plaintiffs, that
the acts done by the defendant are done, not with any view which deals with the
use of his own land or the percolating water through it, but is done, in the
language of the pleader, "maliciously." I am not certain that I can understand or
give any intelligible construction to the word so used. Upon the supposition on
which I am now arguing, it comes to an allegation that the defendant did
maliciously something that he had a right to do. If this question were to have
been tried in old times as an injury to the right in an action on the case, the
plaintiffs would have had to allege, and to prove, if traversed, that they were
entitled to the flow of the water, which, as I have already said, was an
allegation they would have failed to establish.
This is not a case in which the state of mind of the person doing the act can
affect the right to do it. If it was a lawful act, however ill the motive might be,
he had a right to do it. If it was an unlawful act, however good his motive might
be, he would have no right to do it. Motives and intentions in such a question as
is now before your Lordships seem to me to be absolutely irrelevant. But I am
not prepared to adopt Lindley L.J.'s view of the moral obliquity of the person
insisting on his right when that right is challenged. It is not an uncommon thing
to stop up a path which may be a convenience to everybody else, and the use of
which may be no inconvenience to the owner of the land over which the path
goes. But when the use of it is insisted upon as a right, it is a familiar mode of
testing that right to stop the permissive use, which the owner of the land would
contend it to be, although the use may form no inconvenience to the owner.
So, here, if the owner of the adjoining land is in a situation in which an act of
his, lawfully done on his own land, may divert the water which would
otherwise go into the possession of this trading company, I see no reason why
he should not insist on their purchasing his interest from which this trading
company desires to make profit.
For these reasons, my Lords, I am of opinion that this appeal ought to be
dismissed with costs, and that the plaintiffs should pay to the defendant the
costs both here and below.
LORD WATSON (after stating the facts given above):-
My Lords, it is clear that, apart from any privilege which may have been
conferred upon them by statute, the respondent, as in a question with the
appellants, has a legal right to divert or impound the water percolating beneath
the surface of his land, so as to prevent its reaching Trooper Farm, and feeding,
or assisting to feed, the Many Wells Spring or the stream flowing from the
Watering Spot. Upon that point there can be no doubt since Chasemore v.
Richards(1) was decided by this House in the year 1859. But the appellants
pleaded at your Lordships' Bar, as they did in both Courts below, that the
principle of Chasemore v. Richards(1) is inapplicable to the present case,
because, in the first place, the operations contemplated and commenced by the
respondent are by statute expressly prohibited; and, in the second place, these
operations were designed and partly carried out by the respondent, not with the
honest intention of improving the value of his land or minerals, but with the
sole object of doing injury to their undertaking.
The statutory provisions upon which the appellants rely as supporting the first
of these pleas are to be found in sect. 234 of the Act of 1842, and in sect. 49 of
the Act of 1854, which is a mere repetition of the previous enactment. The
clause relates to the Many Wells Springs, an expression which, as the context
shews, includes the stream coming from the Watering Spot. It contains two
separate enactments, the one of them prohibitory and the
(1) 7 H. L. C. 349.

other penal. First of all, it declares that it shall not be lawful "for any person
other than the said company to divert, alter, or appropriate, in any other manner
than by law they may be legally entitled," any of the waters "supplying or
flowing from" these springs, or to sink any well or pit, or to do any act, matter,
or thing whereby "the waters of the said springs" may be drawn off or
diminished in quantity. That declaration is followed by the provision that "if
any person shall illegally divert, alter, or appropriate the said waters, or any
part thereof, or sink any such well or pit, or shall do any such act, matter, or
thing whereby the said waters shall be drawn off or diminished in quantity,"
and shall not on being required to do so by the company, immediately restore
the springs and waters to the same condition in which they were before the
illegal act, they shall be liable to pay five pounds to the company for each day
until restoration is made, besides compensating the company for any damage
sustained through their illegal act.
The appellants endeavoured to construe the prohibitory clause as effecting a
virtual confiscation in their favour of all water rights in or connected with the
respondent's land lying to the vest of Trooper Farm. It appears to me to be
exceedingly improbable that the Legislature should have intended to deprive a
landowner of part of his property for the benefit of a commercial company
without any provision for compensating him for his loss. But it is not necessary
to rely upon probabilities, because, in my opinion, the language of the clause is
incapable of bearing such an interpretation. I think the plain object of the
statutory prohibition, which has two distinct branches, was to give protection to
the supply of water which had been acquired by or belonged to the company for
the time being; and that it was not meant to forbid, and does not prevent, any
legitimate use made by a neighbouring proprietor of water running upon or
percolating below his land before it reached the company's supply and became
part of their undertaking.
The first branch makes it unlawful for any person other than the company to
divert, alter, or appropriate any of the "waters now supplying" the Many Wells
Springs, which appear to include sources of supply existing upon lands adjacent
to Trooper
Farm. Had the prohibition been absolute, it would have struck against the
operations of the respondent; but it is subject to the qualification that the
respondent, or any landowner similarly situated, may lawfully divert those
waters which ultimately feed the Many Wells Springs, so long as he does so in
any manuer which is not in excess of his common law rights. The respondent's
operations, of which the appellants complain, are within his proprietary right,
and are therefore not obnoxious to that part of the prohibition.
The second branch, which prohibits the sinking of wells and other operations,
has, in my opinion, no reference to outside waters more or less distant which
might ultimately find their way to the Many Wells Springs. It relates to "the
waters of the said springs" - an expression which can only denote the waters
which have actually reached the Many Wells Springs, or some channel or
reservoir which has been prepared for their reception upon their issuing from
these springs. The prohibition gives effective protection against the withdrawal
or diminution, either by an adjacent proprietor or any other person, of waters
which have come within the dominion of the appellants. But it does not prevent
the diversion or impounding by an adjacent proprietor of water in his own land
which has never reached that point, so long as his operations are such as the
law permits. For these reasons, in so far as concerns the. first plea urged for the
appellants, I concur in the judgment of the Court of Appeal.
The second plea argued by the appellants, which was rejected by both Courts
below, was founded upon the text of the Roman law (Dig. lib. 39, tit. 3, art. 1,
s. 12), and also, somewhat to my surprise, upon the law of Scotland. I venture
to doubt whether the doctrine of Marcellus would assist the appellants'
contention in this case; but it is unnecessary to consider the point, because the
noble and learned Lords who took part in the decision of Chasemore v.
Richards(1) held that the doctrine had no place in the law of England.
I desire, however, to say that I cannot assent to the law of Scotland as laid
down by Lord Wensleydale in Chasemore v. Richards. (2) The noble and learned
lord appears to have
(1) 7 H. L. C. 349.
(2) 7 H. L. C. at p. 388.

accepted a passage in Mr. Bell's Principles (sect. 966), which is expressed in

very general terms, and is calculated to mislead unless it is read in the light of
the decisions upon which it is founded. I am aware that the phrase "in
aemulationem vicini" was at one time frequently, and is even now occasionally,
very loosely used by Scottish lawyers. But I know of no case in which the act
of a proprietor has been found to be illegal, or restrained as being in
aemulationem, where it was not attended with offence or injury to the legal
rights of his neighbour. In cases of nuisance a degree of indulgence has been
extended to certain operations, such as burning limestone, which in law are
regarded as necessary evils. If a landowner proceeded to burn limestone close
to his march so as to cause annoyance to his neighbour, there being other places
on his property where he could conduct the operation with equal or greater
convenience to himself and without giving cause of offence, the Court would
probably grant an interdict. But the principle of aemulatio has never been
carried further. The law of Scotland, if it differs in that, is in all other respects
the same with the law of England. No use of property, which would be legal if
due to a proper motive, can become illegal because it is prompted by a motive
which is improper or even malicious.
I therefore concur in the judgment which has been moved by the Lord
Chancellor.
LORD ASHBOURNE :-
My Lords, I concur. To my mind the case is clear, and turns upon
considerations sufficiently simple and far from obscure.
The plaintiffs have no case unless they can shew that they are entitled to the
flow of the water in question, and that the defendant has no right to do what he
is doing. Putting aside the statutes, the defendant's rights cannot be seriously
contested. The law stated by this House in Chasemore v. Richards (1) cannot be
questioned. Mr. Pickles has acted within his legal rights throughout; and is he
to forfeit those legal rights and be punished for their legal exercise because
certain motives are
(1) 7 H. L. C. 349.

imputed to him? If his motives were the most generous and philanthropic in the
world, they would not avail him when his actions were illegal. If his motives
are selfish and mercenary, that is no reason why his rights should be
confiscated when his actions are legal.
It is to be noted that the defendant or his predecessors in title never parted with
any of their legal rights; it is not suggested that the plaintiffs, by agreement or
otherwise, ever acquired them; and no indication is given that there is any
intention to compensate the defendant for his legal rights sought to be
appropriated or injuriously affected by the plaintiffs.
The appellants' contention on the construction of the statutes would practically
confiscate the defendant's water rights. I see nothing in the statutes to interfere
with or prejudice his legal rights. Very clear words would be required to
support the contention that legal rights have been swept away without
compensation. Waters that have come under the control of the appellants are
fully protected; but there is not a word to hinder or cramp the action of Mr.
Pickles unless he acts "illegally," or proceeds "in any other manner than by law
he may be legally entitled."
I therefore concur in the order proposed.
LORD MACNAGHTEN :-
My Lords, for forty years the corporation of Bradford have supplied their town
with water. They were empowered to do so by an Act of Parliament passed in
1854, which authorized and required them to purchase the undertaking of a
then existing company called "The Bradford Waterworks Company."
The chief source of their water supply was taken over from the company. It
comes from a cluster of springs known as "The Many Wells." These springs
issue from the lower slope of a hillside some distance from the town. Above
them, in the immediate neighbourhood, there is a tract of land belonging to Mr.
Pickles, the respondent. Owing to the fall of the ground and the nature and lie
of the strata beneath the surface, Mr. Pickles' land forms a sort of gathering-
room or reservoir for subterranean water. Two faults, nearly parallel to each
other, run downwards through it, and there is a bottom of impermeable clay. At
present there is no way of escape for the imprisoned waters except by the Many
Wells Springs.
Within the ambit of his own land Mr. Pickles has set about making a tunnel or
drift which, apparently, is intended to pierce one of the two faults that keep the
underground water within bounds. If this is done the result, it is said, will be to
allow the water to run off in some other direction.
The corporation claim an injunction to restrain Mr. Pickles from going on with
the proposed work. They put their case in two ways. They say that under the
circumstances the operation which Mr. Pickles threatens to carry out is
something in excess of his rights as a landowner. Failing that ground, they
maintain that his proceedings are in contravention of the express terms of their
special Act.
As regards the first point, the position of the appellants is one which it is not
very easy to understand. They cannot dispute the law laid down by this House
in Chasemore v. Richards.(1)They do not suggest that the underground water
with which Mr. Pickles proposes to deal flows in any defined channel. But they
say that Mr. Pickles' action in the matter is malicious, and that because his
motive is a bad one, he is not at liberty to do a thing which every landowner in
the country may do with impunity if his motives are good. Mr. Pickles, it
seems, was so alarmed at this view of the case that he tried to persuade the
Court that all he wanted was to unwater some beds of stone which he thought
he could work at a profit. In this innocent enterprise the Court found a sinister
design. And it may be taken that his real object was to shew that he was master
of the situation, and to force the corporation to buy him out at a price
satisfactory to himself. Well, he has something to sell, or, at any rate, he has
something which he can prevent other people enjoying unless he is paid for it.
Why should he, he may think, without fee or reward, keep his land as a store-
room for a commodity which the corporation dispense, probably not
(1) 7 H. L. C. 349.

gratuitously, to the inhabitants of Bradford? He prefers his own interests to the

public good. He may be churlish, selfish, and grasping. His conduct may seem
shocking to a moral philosopher. But where is the malice? Mr. Pickles has no
spite against the people of Bradford. He bears no ill-will to the corporation.
They are welcome to the water, and to his land too, if they will pay the price for
it. So much perhaps might be said in defence or in palliation of Mr. Pickles'
conduct. But the real answer to the claim of the corporation is that in such a
case motives are immaterial. It is the act, not the motive for the act, that must
be regarded. If the act, apart from motive, gives rise merely to damage without
legal injury, the motive, however reprehensible it may be, will not supply that
element.
On this point both North J. and the Court of Appeal decided against the
corporation. And the decision, as it seems to me, is plainly right.
On the second point, on which North J. was in favour of the corporation and the
Court of Appeal against them, there is certainly more to be said. I quite agree
with the Court of Appeal in the result at which they have arrived. But, speaking
for myself, I rather take leave to doubt whether the section of the special Act on
which the question turns is so unsatisfactory, so ill-drawn, and so difficult to
construe as it seemed to be to the Court of Appeal.
The old waterworks company was incorporated by an Act passed in 1842. It
was dissolved and re-incorporated in 1854 in view of the immediate transfer of
the undertaking to the corporation.
In the Act of 1854, the provisions of which were kept in force for the benefit of
the corporation, the section in question is the 49th. But that section is merely a
reproduction of sect. 234 in the Act of 1842. And it will be more convenient to
deal with the earlier Act.
The Act of 1842 scheduled certain lands which the company were empowered
to take. Among them was part of a farm belonging to one Seth Wright, which
was known as Trooper or Many Wells Farm. By sect. 233 the company were
authorized to divert or alter the course of a certain beck called Hewenden Beck,
which is a tributary of the River Aire, "and also to divert and take the water
from" the Many Wells Springs, described as "the springs and streams of water
called Many Wells, arising or flowing in and through … Trooper or Many
Wells Farm."
At the date of the passing of the Act, the waters issuing from the Many Wells
Springs in Trooper Farm, and a stream which rose in the adjoining land, flowed
in several defined channels through Trooper Farm into Hewenden Beck, which
forms one of the boundaries of the farm. The scheduled portion of the farm
comprised apparently some but not all of those channels. However, after the
Act was passed, the company purchased the whole of Trooper Farm; and, as
required by the Act, they made compensation to the millowners on Hewenden
Beck for the loss of the waters of the Many Wells Springs.
Sect. 234 is a protective clause corresponding in the main with sect. 14 in the
Waterworks Clauses Act 1847. It was to come into operation after the purchase
of the Many Wells Springs.
Sect. 234 is a protective clause corresponding in the main with sect. 14 in the
Waterworks Clauses Act 1847. It was to come into operation after the purchase
of the Many Wells Springs.
According to the ordinary course of legislation in this country, a clause of that
sort is intended to protect property, rights, and interests which have been
acquired by purchase, not to transfer arbitrarily from one person to another
property and rights for which nothing has been paid, and for which no
compensation is provided.
In the first place, the section says that, "After the Many Wells Springs have
been purchased by the company, it shall not be lawful for any person other than
the said company to divert, alter, or appropriate in any other manner than by
law they may be legally entitled any of the waters now supplying or flowing
from the same." Both as regards the underground sources of the springs and as
regards the streams flowing from them in their natural course it forbids any act
by any person in excess of his legal rights. At that time it must be remembered
that the rights of landowners in regard to underground water had not been
finally determined. If the view which commended itself to the Court of
Exchequer in Dickinson v. Grand Junction Canal Company (1) had been
established, the proposed action of
(1) 7 Ex, 282.

Mr. Pickles would, no doubt, have been illegal. As it is, there is nothing in the
first part of the prohibition to restrict or curtail his rights as a landowner in
dealing with underground water percolating through his land in unknown
channels.
In the second place, the section declares that no person but the company is "to
sink any well or pit, or do any act, matter, or thing whereby the waters of the
said springs may be drawn off or diminished in quantity." What is the meaning
of the expression, "The waters of the said springs"? The natural and obvious
meaning seems to me to be the waters issuing from the springs, such as they
happen to be in quantity and volume, at the point of issue, or in one case at the
point of entry, into Trooper Farm. The expression cannot include the
underground sources which serve to feed the springs. Otherwise you would
have this singular result, that things which by reason of the saving of existing
rights are treated as legal and permissible in one part of the clause are treated as
illegal and prohibited by another. It must mean the water which the company
were authorized to "divert and take from" those springs which the section at its
commencement assumes the company to have purchased - not the waters which
supply the springs, but the waters which the springs supply. A comparison of
other sections in the Act will confirm this view if any confirmation is required.
The expression, "The waters of the said 'Many Wells'" occurs in sect. 275, and
then it is evidently synonymous with the following words in a parallel passage
in sect. 238: "The water issuing from the springs of water before mentioned
called 'Many Wells,' and which is hereby authorized to be taken and diverted
for the purposes of this Act."
After the company had compensated the mill-owners on Hewenden Beck and
purchased Trooper Farm, the waters of the Many Wells Springs at and from the
point of issue in Trooper Farm, and the water of the stream which rose in the
adjoining land at and from the point of its entry into Trooper Farm, became the
absolute property of the company, and it was the duty of the company to carry
those waters to Bradford. No one was to interfere with them. Any such
interference is characterised, in a later part of the section, as an illegal act.
And, indeed, it seems to me very difficult to conceive how such an act could in
any case be legal, unless the company constructed their works in a perverse and
foolish manner. No one from whom the company acquired land or even an
easement for the purposes of their works could lawfully let down those works.
No one else, it may be assumed, would be in a position to do so. No one could
lawfully tap their aqueducts or conduits.
I am of opinion that the act which Mr. Pickles proposes to do is not within
either of the two classes of prohibited acts mentioned in sect. 234. It is not
within the first class, because at the time of the passing of the Act his
predecessor was legally entitled, and he is now legally entitled, to do the thing
which is complained of. It is not within the second class, because Mr. Pickles
does not propose to do anything which can have the effect of drawing off or
diminishing in quantity the waters of the Many Wells Springs, such as they
may be at the point of issue in Trooper Farm, or as regards the stream which
does not rise in Trooper Farm at the point of its entry into that farm.
It was argued somewhat faintly that sect. 49 of the Act of 1854 must have a
wider meaning than that which I think ought to be attributed to sect. 234 of the
Act of 1842, because the Act of 1854 incorporates the Waterworks Clauses Act
of 1847, and sect. 14 of that Act covers, it is said, everything which is covered
by sect. 234 of the Act of 1842 if it be construed as it seems to me it ought to
be construed. There would be very little in such an argument under any
circumstances, because it is only natural that the promoters of the legislation of
1854 would, on the reconstruction of the company, desire to retain or re-enact
every clause in the former Act which could make for their protection. But the
truth is, that the section of the Waterworks Clauses Act of 1847, which
corresponds with sect. 49 of the Act of 1854, does not apply to the Many Wells
Springs. They were purchased under the Act of 1842. The Act of 1854, which
incorporates the Waterworks Clauses Act 1847, declares that in construing that
Act the expression "the special Act" shall mean the Act of 1854. It does not
mean or include the Act of 1842.
I am, therefore, of opinion that this appeal should be dismissed with costs.