The  judgment  of  the  Court  was  founded  on  the  principle
that  where  compensation  is  given  for  damages  done  from
works  authorized  by  an  Act  of  Parliament,  such  compen-
sation can  only  be  claimed  where  the  damage  would  have
been  ground  of  action  if  arising  from  the  act  of  a  private
individual,  and  that  as  the  abstraction  of  underground
percolating  water  was  not  actionable,  compensation '  could
not  be  claimed.  Cockburn,  C.  J.,  dissented  from  this
judgment  on  the  ground  that  under  the  50th  section  of
the  Act,  which  provided  that  compensation  should  be  given
"where  any  work  shall  interfere  with  or  prejudicially
"  affect  any  ancient  mill  or  any  right  connected  therewith,
"  or  other  right  to  the  use  of  water,"  the  plaintifE  was
entitled  to  compensation;  for  though  he  might  have  no
legal  right  to  the  water  till  it  had  risen  into  the  pond,  the
defendants  by  preventing  the  water  from  rising  and  be-
coming the  subject  of  legal  right,  had  prejudicially  affected
the  plaintiff's  right  to  it.
I  7  H.  L.  369.  2  3  B.  &  S.  710  ;  9  Jur.,  N.  S.
1008  ;  32  L.  J.,  Q.  B.  105.
0   2


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196  OF    NATURAL   EIGHTS    OF    WATER.
So  in  Brain  v.  Marfdl^  where  defendant  sold  to  plaintifE
a  well,  and  the  right  of  conveying  water  therefrom  through
defendant's  land  without  interruption  or  disturbance;  the
Court  of  Appeal  held  that  defendant  had  only  conveyed
the  flow  of  the  water  after  it  had  risen  in  the  well,  and
that  no  action  would  lie  for  the  interception  of  percolating
water  before  it  reached  the  well.
