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Decisions of the Superior Courts of New South Wales, 1788-1899

French v McHenry [1832] NSWSupC 46

trespass to land - river, rights to - water, rights to - riparian rights - locus standi

Supreme Court of New South Wales

Dowling J., 9 July 1832

Source: Sydney Gazette, 10 July 1832[1 ]


The plaintiff in this case was Charles French; the defendant John M'Henry. The declaration stated that the plaintiff was lawfully possessed of a corn and flour mill situate near a certain stream, of which he had, and ought to have, the right and benefit for the use of his mill, but of which he was deprived by the act of the defendant, who cut certain sluices, dams, channels, &c., by which means he caused the water to flow in a different direction for the purposes of the plaintiff's mill, thereby depriving him of the use and enjoyment of his mill, and of the benefit of the profits arising from its uses.

A second count briefly stated, that the plaintiff being in possession of a certain mill, &c., the defendant seeking to deprive him of the benefit and use of the water, directed and turned divers large quantities of water from the stream, to the damage of the plaintiff of £500.

The defendant pleaded the general issue.

Dr. Wardell stated the plaintiff's case, and called the following witnesses:-

William Dawes, examined by Dr. Wardell - I was a settler at the Nepean; I know the plaintiff; he was a miller at the Neapean; he occupies a mill on a piece of ground belonging to Pierce Collett; Mr. Kinghorne erected the mill, and sold it to man named Jackson; it was erected by the side of a cut from the river, divided from it by a bank; the mill was worked by Kinghorne, by Jackson, and by the plaintiff, by means of that hole of water; the defendant has erected another mill about three quarters of a mile higher up the river; there are several falls of water between the two mills, and, among others, one called William Clarke's fall, where people cross at; defendant made a weir on another fall just above Clarke's fall, by means of which all the water was stopped from above, until the rain came and broke the weir down, and then the water flowed as usual, and the mill could be worked; this was in December last; after that, men were set to work to stop up the dam again; I was in the habit of grinding at the plaintiff's mill; after the new mill was built, I took three or four bushels of wheat to the plaintiff's mill, but it lay there a fortnight, and I then took it away to Sir John Jamison's windmill; this was in December last.

Cross-examined by Mr. Wentworth - The dam at Jackson's mill is now in the same state as it was in December last ; I know that Mr. M'Henry's mill stopped the water; it was after I brought the wheat to be ground at Jackson's mill that the rain came and broke through the defendant's weir; defendant was about fifteen months building the mill; I can't say how long he was making the weir; the weir was formed of loose stones, gravel, and straw; I know the Nepean river; there is not water there in dry seasons to turn two such mills as Jackson's; the lower part of defendant's mill-race is about half a mile above Jackson's; I think it was on the 4th of December I took my wheat to Jackson's mill; defendant was not grinding then; it was between that and the 24th of December the flood came; some of the water would always pass through the defendant's weir, but not enough to turn the plaintiff's mill; I can swear that, for a full fortnight, there did not come water enough down to turn the plaintiff's mill; at that time there was a great quantity of water at the defendant's weir.

Re-examined - I swear it was owing to the weir erected by the defendant, that the water was prevented from flowing to the plaintiff's mill.

Richard Clarke - I know the plaintiff's mill; I have worked at it; I know the defendant's mill; I was at work at plaintiff's mill when defendant's was being erected; I saw the dam, the race, and the tail-race; before the new mill was erected, Jackson's mill was constantly going; after defendant's mill was erected, plaintiff's mill could not work for want of water; defendant built his dam so high above Jackson's mill, that the water could not come down; when the heavy rains came, in December last, the plaintiff's mill worked a little, but only for a short time; when there was no water to work plaintiff's mill, defendant's was going; defendant's dam was swept down by the flood, but was immediately put up again.

Cross-examined - I can't say how long defendant's dam stopped the course of the water; I think about two months; the defendant's dam was erected very high, and I do not think it was filled for a space of two months; after the water leaves the defendant's tail-race, it comes down the river to Jackson's mill; it is an under-shot mill; the wheel is higher than the water; the water that turns the one mill will turn the other; defendant's is the largest mill; the water that turns it will not turn the plaintiff's; plaintiff rented his mill in January last; his mill-head is in very good order, and was when I saw it last January; I can walk over the weir now, but could not do so before the defendant's mill was built; I swear the water that turns the larger mill will not turn the smaller.

Re-examined - Defendant's mill is breast-shot high, and requires a dam considerably higher than the other mill ; the water is backed up by the defendant's dam.

By Mr. Wentworth - The water so backed up does not overflow the banks of the river ; it remains in the bed of the river.

Stephen Denbigh - I am a miller; I have worked Jackson's mill about three years ago; I think it had then been built about two years or two years and-a-half; it was a well constructed mill; when water was plenty I could grind six or seven bushels an hour; when moderate, from three to five; I have never had to stop for want of water more than an hour or an hour-and-a-half at a time; the dam was injured by the flood, but repaired again, not so well as before, but still fit to turn the mill at the rate of five bushels an hour; had not the defendant's dam been erected there would have been plenty of water to turn the mill; we always worked night and day, except in flood times: we earned nearly £500 in eleven months by the mill; I was at the plaintiff's last January; the mill was then stopped owing to defendant's mill-dam.

Cross-examined - Defendant's weir is, to the best of my opinion, about 6 or 7 feet high, from the bed of the river; I do not know how long it was making; it is built of round pebbles; Jackson's, when first I went to him, was formed of posts and palings, backed with pebbles; in the April after I went there, a flood took part of it away, and Jackson was at great expense in repairing it; I could not work so much at the mill after that as before; there were also floods while plaintiff held the mill, every one of which would naturally injure the dam more or less, but the mill could still be worked had it not been for the defendant's dam; I am sure that dam was four or five weeks filling; when the water ran over, it went down the river to plaintiff's mill; when once full the same quantity of water would run down to plaintiff's mill as usual, but I think it was four or five weeks before the defendant's dam was filled.

Re-examined - It requires ten or twelve feet of water for defendant's mill, and only about four for plaintiff's, which is an under-shot mill, both might have worked; the water frequently broke through the defendant's dam, and, on these occasions, the water was completely stopped, until it was repaired again, and full.

Charles Mimes - I am a millwright, and have erected a great number of mills in this colony; about 18 or 20 months ago, defendant took me to see his mill, and asked my opinion of his plan of it; I told him he had been led into a great error, and he said he thought so himself; I told him he ought to be content with such a mill as Jackson's; Jackson's mill is driven by impulse, M'Henry's by gravity, which takes a considerable quantity of water to act upon the wheel, which is sixteen feet in diameter, and would require a depth of 10 feet of water at the sluice, besides which he must make a very strong dam to turn the water on the side of the bank; it is possible for both mills to work with the quantity of water the Nepean is capable of supplying, but they must wait until defendant's dam is full before Jackson's mill can work.

Cross-examined - The same quantity of water would turn Jackson's mill as would turn the defendant's mill, when the dam became full.

Alexander Kinghorn, Esq. - I had a great deal of experience as a civil engineer; I know Jackson's mill; my son erected it; it was on a simple principle, but the best we could make out to answer the fall of water; there was no express permission to erect it, but it was erected under the eye of the Government, and the machinery made on the establishment at Emu Plains, where another son of mine was superintendent of agriculture; Captain Dumaresq, then civil engineer, was very anxious that it should be erected in order to get the wheat ground; I have not seen defendant's mill, but I know the situation in which it is erected, and if it had been constructed on the same principle as Jackson's, there is sufficient water in that part of the river to turn both; there is not more than four or five feet fall on the river, for thirteen or fourteen miles in that part; the defendant, unless he could raise the water a considerable height above its natural level, could not, at the place where his mill is erected, turn either a breast-mill or an over-shot mill.

Cross-examined - The length of the mill-race at Jackson's mill is about half a mile long, which had to be cut, and a weir thrown across the river from two feet six to three feet, above the surface of the water, before the mill could be driven; this was done by my son; between the mill and the natural cause of the river is about 200 feet; I do not know the height of the dam at defendant's mill, but if it be a breast-mill, the dam must be of a considerable height; the only damage the plaintiff could sustain is during the time the defendant's dam is filling; in certain seasons, however, defendant would require all the water than he could get to turn his mill; in ordinary seasons, Jackson's mill would not do so much work, but I never knew it stand still for want of water.

Re-examined - I don't know the rent of Jackson's mill; the rate of charge for grinding is one shilling a bushel, and three-pence for dressing.

William Dawes, recalled. Plaintiff's mill, to my knowledge, was stopped for twenty of twenty-one days; I do not know the rent of the mill; plaintiff and a man named Lewis, paid the rent; Lewis was bound for plaintiff.

Cross-examined - I don't know whether plaintiff and Lewis were partners.

This was the plaintiff's case.

Mr. Wentworth, before entering upon the merits, would submit that the plaintiff ought to be non-suited, even upon the case which he had make out before the Court. It was in evidence that the mill in question, at the time of the commencement of this action, had only been erected about four or five years, and, therefore, not long enough to give the plaintiff that exclusive right to the use of the water, for diverting the course of which he claimed damages. The allegation in the declaration, that the plaintiff, "of right," enjoyed the use and benefit of a certain stream of water, was, in fact, an allegation that he was seized in his demesne, as in fee. But to establish such a right, it required - as laid down by Lord Ellenborough, in the case of Beely against Shaw [6 East] - at least a possession of twenty years, to raise the presumption of a grant. An attempt had been made to supply this part of the case by the testimony of Mr. Kinghorne, that the erection of this mill was not opposed by that Government, and therefore it was to be assumed that Government sanctioned it. But what right, he would ask, had the Government Engineer to sanction it? The only permission he could give was a promise not to bring an action for running the dam on Government ground on the other side of the river. But the rights of parties met on the centre of rivers, and what right had the Government to interfere with the rights and privileges of parties living on that side of the river at which this mill was erected. The learned Counsel therefore submitted, without proceeding further, that the plaintiff ought to be non-suited.

Dr. Wardell was about to reply, when

Mr. Justice Dowling said, "If the objection had come on the part of the Crown, I should consider I had a right to nonsuit. The question in this case, however, is, whether the plaintiff has a locus standiin-curiæ to maintain this action for a tort. I shall not nonsuit, but reserve the point for further consideration, should it become necessary."

Mr. Wentworth then addressed the Assessors at great length on the part of the defendant, and called the following witnesses :-

George Monteny - I know Jackson's mill; I have known it since the plaintiff has had it; I remember the time defendant was building the dam; on New Year's eve I was passing the river by a tree near Jackson's mill, and I asked French why the mill was not going? A man named Smith was present, and replied, "M'Henry has stopped all the water;" "stop h--l." said I, "who are you telling that story to?" French said, "my time is up on the 24th of January, or I would keep the mill going;" I looked at his dam, and saw the water running through it, and nearly two feet of sand in the mouth of his mill-race, which prevented the water from running down to the mill; I told the plaintiff there was more water in the river than would work both mills; I also said that, if Jackson had the mill, it would never have stood still  plaintiff said it had cost him £20 for gravelling the dam across, and I told him that I and another man, whom I named, had gravelled it across in two days; I swear, had the dam been in order, there was plenty of water in the bed of the river to have worked both mills; the tree by which I was then crossing the river was six inches under water; I always crossed the river in that part by the same tree, when Jackson's mill was going, and the water used then to run under it.

Cross-examined - I don't remember whether there had been much rain about the time I speak of; I can't say that defendant's dam had burst about that time, and was being repaired.

Re-examined - My reason for making use of the expression I did was because I was confident Smith was not speaking the truth.

W. M'Cready - I am overseer to the defendant; I can't particularly say how long it took to erect his dam across the river; it might be about two months; we set about it be throwing round stones into the water; we found it almost impossible to stop the course of the water with such materials; the water used to run over and through the dam according as the dam rose; in the course of a day or so after the dam was finished, the water ran continually over; plaintiff came to me on the 25th of December, and asked me if I thought defendant would rent his mill to him; I asked why he would rent a mill and have a mill lying there? he said the shortness of the time he had to run would not pay the expense of repairing the dam; the dam was then in a very bad state.

This witness was cross examined by Dr. Wardell, but nothing material was elicited. He could not recollect whether the defendant's dam was broken by floods, about the latter part of December ; thinks it occurred about the month of February following.

This was the defendant's case.

Dr. Wardell replied to evidence.

The learned Judge in summing up the evidence, told the Assessors that this was an action of unusual occurrence in this colony - the first of the kind, he believed, at least since he had the honour of a seat on the Bench. Possibly, coming as it did by surprise, he having had no previous knowledge of the case before coming into Court, he might not be prepared to lay before the Assessors so clear and comprehensive a view of it as he could desire; but, as then advised, he was of opinion that the action was maintainable. It had been objected on the part of the defendant, that no proof had been offered of an ancient right of possession in the plaintiff, from which a grant from the Crown might be presumed; but if the Assessors should be of opinion, as the declaration averred; that the plaintiff came lawfully into possession - and certainly, according to the evidence, if it were believed, he was in lawful possession, then he was entitled to one. With respect to the question of an ancient right of possession, therefore, without which, it was contended that the plaintiff could not maintain the action, His Honor directed the Assessors, in point of law, that in the absence of any claim of right by any other person, the plaintiff had a right to the use of this stream of water ; but to such extent only as should not injure or prejudice the rights of others, which were coeval with that of the plaintiff. The question in this case was, whether the parties had done any more than use their own rights, without prejudice to the interests of their neighbours. It appeared to His Honor, that the plaintiff had a locus standi in the Court, inasmuch as he came into lawful possession of the premises in respect to which he claimed the use of the water; and if the use were abridged by the unlawful act of another, he had a right to come into a Court of Justice to seek redress. The learned Judge was about to read over the whole of the evidence, when

The Assessors intimated that they were satisfied, and found a verdict for the plaintiff, - damages£21.

Counsel for the plaintiff, Dr. Wardell and Mr. Stephen ; for the defendant, Mr. Wentworth.



[1 ] See also Sydney Herald, 16 July 1832; and Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 71, Archives Office of New South Wales, 2/3254, p. 59.  At pages 92-93, Dowling J. recorded that he said: "By law, where a river parts lands as a boundary, the filiun [?] aqua is the line between the parties.  By law running water is originally public juris, [?] and an individually can only acquire a right to it, by applying so much of it as he requires for a beneficial purpose, leaving the rest to others, who if they acquire a right to it by subsequent appropriation, can lawfully be disturbed in the enjoyment of it.  The utmost that the deft can have is an equal enjoyment with plf   He has no right to abridge the Plf's right.  He cannot take advantage of his own wrong.  He has no right to exercise his right in such a way as shall prejudice his neighbour."  He cited Williams v. Morland [?] 4 D & R; 2 B & C 910, for this statement of law.

Published by the Division of Law, Macquarie University