DATE DOWNLOADED: Tue Mar 7 04:31:45 2023

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Herbert F. Blaine, Water Rights, 2 CAPE L.J. 1 (1885).

ALWD 7th ed.

Herbert F. Blaine, Water Rights, 2 Cape L.J. 1 (1885).

APA 7th ed.

Blaine, H. F. (1885). Water rights. Cape Law Journal, 2(1), 1-11.

Chicago 17th ed.

Herbert F. Blaine, "Water Rights," Cape Law Journal 2, no. 1 (1885): 1-11

McGill Guide 9th ed.

Herbert F. Blaine, "Water Rights" (1885) 2:1 Cape LJ 1.

AGLC 4th ed.

Herbert F. Blaine, 'Water Rights' (1885) 2(1) Cape Law Journal 1

MLA 9th ed.

Blaine, Herbert F. "Water Rights." Cape Law Journal, vol. 2, no. 1, 1885, pp. 1-11.
HeinOnline.

OSCOLA 4th ed.

Herbert F. Blaine, 'Water Rights' (1885) 2 Cape LJ 1

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 CAPE LAW JOURNAL.
WATER RIGHTS.

In a country like this, where water is extremely scarce and

consequently every drop of value, it is by no means strange that
the question of water rights should prove a vexed one, and fre-
quently require decision in courts of law.
But not-withstanding that all appertaining to water is, and
always must be, of burning interest to a large proportion of our
population, still the law dealing with rights over water is not as
familiar to the public at large as the importance of the subject
deserves. For these reasons it has been thought advisable to treat
briefly-not of the whole subject of water rights, which is far
beyond the scope of a paper of this nature-but of the most distin-
guishing features of the subject at Common Law upon which the
various reported decisions of the Courts of this Colony have
thrown light, and of the well established principles upon which
those decisions are based.
Now, it must be apparent to the most careless observer, and
most casfial thinker, that the difficulties with regard to rights over
water will mainly arise in cases where rivers or streams flow
through lands occupied by different persons. And, indeed, it is
solely to cases of this character that these remarks apply.
But, before treating of the rights and duties which riparian
proprietors have over and with respect to the waters of particular
rivers, it will be necessary to determine what constitutes a river,
and what varieties, if any, are recognised by the law.
For the purpose of defining the rights which persons possess
over running water, the law has divided rivers into two classes-
public and private.
This distinction is most important, and ought never to be lost
sight of, as the rights and duties connected with streams vary
VOL. II-1. B
 THE CAPE LAW JOURNAL.

greatly according to their public or private nature. The distinc-

tion between the two classes is broadly this :-The right to pri-
vate waters is primai .fmtie exclusive ; whereas that to public waters
is necessarily limited.
This distinction is very fully and clearly drawn by Dn Viimrm,s,
C. J., in the case of Van llcerden vs. Mei.e,1 where he says,
"The importance of the distinction between public and private
streams consists in this, that whereas inthe case of the former the
rights of each riparian proprietor are limited by the rights of the
public and of the different riparian proprietors jlie joathire, in the
case of the latter the rights of each riparian proprietor are only
limited by such rights as long usage may have conferred on the
remaining riparian proprietors."
The practical consequences of this distinction will be clearly
seen later on when the cases bearing on the subject are treated of.
But first, it will be necessary to understand what constitutes a
river-public or private. Burge2 says that by the Civil Law
those rivers which were dried up in the summer, or conducted by
canals into the lands of private individuals, or which arose-from a
spring on the property of a private individual, were deemed pri-
vate waters, and he quotes the Digests in support of his state-
ment. Yoet's4 definition of a private stream is qgod (esttc eectr-
escit ct ii plirati <oii io est, lic a ca, tocis p)iiatis dfteit.
Now, neither the definition of the Civil Law, nor that given
by Voet has been found satisfactory by the Courts of this Colony.
And, indeed, it is extremely doubtful if their authors would care
to support them in their entirety when applied to a country like
this where rain falls at exceeding long intervals, and running
water is rare.
For both these definitions are agreed in stating that a stream
which dries up in summer must be classed with private waters.
And if they were absolutely correct, there would be, in this Colony
at all events, very few public rivers indeed, and consequently the
upper riparian proprietors of streams of this nature might absorb
all the water, to the detriment of the lower proprietors, who would
in most cases be left without a remedy.

Buch. App. Cas. Vol. 1, p. 8. -Vol. III, p. 417. "Lib. I, lit.S. '43:8:12.
 WATER RIGHTS.

But our Judges have over and over again held that the more
fact of a stream's drying up in the summer is not sufficient to de-
prive it of its character of a perennial or public water-course.
Thus, in the case of V',mraak vs. Pyllpr, 5 Mr. Justice S--NIvu
said, "If a stream ordinarily runs in ordinary weather it is not the
less a running stream if it is occasionally dry on hot days in hot
seasons; if this were not so, then certainly there are not many
running streams in the Colony."
And the matter was subsequently and finally set at rest in the
case of Van Jh'erd'on vs. 1Vei.e, already referred to, which decided
that a river may sometimes become dry in the heat of summer
without forfeiting its character of a perennial or public stream.
And Mr. Justice Smtrnt, in the course of his Judgment in the
same case, said, "In my opinion, looking at the state of the rivers
in this country in the dry season, it is necessary in applying the
rule that a river does not forfeit its character of a perennial stream
because it becomes sometimes dry, that the Court should give a
liberal interpretation to the words sometimes dry."
These decisions therefore clearly show that the definitions
given by Burge and Voet must not be too literally interpreted, but
that something more than mere dryness at certain seasons is re-
quired by the law of this Colony to relegate a stream to the class
of private waters.
It was for a long time thought-and dicta of eminent Judges
of the Supreme Court exist to this effect-that the proprietor of
land upon which a stream took its rise had an exclusive right to
the waters of such stream ; or in other words, that such waters
were, of necessity, private.
Thus a portion of the head note to Retiy/' vs. LooU "0 runs as
follows:-" Water rising on private land (er-mpentem i' suo) is
the property of the owner of the land on which it takes its rise."
And according to the dictunl of Mr. Justice CioFTrE in the same
case, the water of certain weak springs rising above, but descend-
ing directly on the land of the plaintiff, and increased by the
water of other weak springs rising on his lands, which waters there
become intermixed and flow downward in one and the same chan-

Buch. 1876, p. 25. 1 Buch. 1874, Append, 165.

 THE CAPE LAW JOURNAL.

nel, belong to the class of private waters, and the right to their
use differs in no way from any other private right.
And in the case of Sillwprbauer vs. Breda, HoDGES, C. J., said,
"I believe the law of this Colony is quite clear-whatever may be
the case as to water running over lands-that the rights of the
freeholder to water rising from springs on his land is undisputed
and indisputable. He may use it for any purposes relating to
irrigation, or he may convey it away and use it as he pleases.
Yoet, in the passage 7 cited at the Bar during the arguments, is
very clear and distinct in this matter."
Mr. Justice WATERMEYER remarked, "It was impossible to
dispute the law that a man might do whatever he pleased with
water that rose on his own property." Opinions could hardly be
more strongly expressed than these. But, notwithstanding their
positive character, very grave doubts were thrown upon them by
the Privy Council when the case came before it on appeal, and in
consequence of the unwillingness of the Jltimate Court of
Appeal for the Colony to accept these opinions as correct
without qualification, the whole question was re-opened in the
case of Verwaak r. Paner, in which Mr. Justice SAIIrl-i decided
-and his judgment was confirmed on appeal to the Supreme
Court-that an upper proprietor is not entitled to the exclu-
sive and unlimited enjoyment of water rising on his own land,
if for so long a period as thirty years, at all events, the water has
flowed down beyond his land in a known and defined channel for
the benefit of the lower proprietors. And this is now the recog-
nized law of the Colony on that point.
The passage of Voet upon which Sir WILLIAMi HODGES and Mr.
Justice WA'TEKMjaM based their opinions was found on examina-
tion to be inconsistent with another passage in that learned
author's works, and, fhuther, it was not fully borne out by the
Civil Law, which the author quoted in support of it. Cdnse-
sequently it could not be accepted as a binding authority, except
in the case of private streams rising on a person's land, where it
would fully apply.
Enquiry is made as to the length of time the water has flowed
down to the lower proprietor, not for the purpose of ascertaining
,8, 3,6. 8 43: 12, and 43: 13.
 WATER RIGHTS.

whether a servitude has been created by prescription, but in order

to determine upon the true character of the stream.9I But if the
proprietor of a stream, of which the source is upon his own land, has
for long length of time diverted and appropriated to his own use the
waters of such stream, he cannot be restrained from so doing; for
before granting an injunction in a case of this nature the Court
will require proof that -the water has been accustomed to flow
down to the plaintiff's land in a definite channel for a long period
of time previous to the bringing of the action.10 In the case
of Aouton vs. Vao der Mence, 10° DE VILLIERS, C. J., care-
fully guarded himself against expressing an opinion as to
whether the Judgment would have been the same, assuming that
the waterrose above the defendant's land, and assuming also that
it was a public stream. And, indeed, so far as the writer is
aware there has not been any judicial decision on this particular
point.
But on applying the test, whether the stream had been accus-
tomed to flow down to the lower proprietor for a long period of
time and finding that it had not, it would appear that the charac-
ter of the water-although strictly speaking fulfilling all the con-
ditions of a public river-would have to be regarded as private in
its nature, owing to its having been generally recognized as such
by the people living near its banks, and owing to its not having
been applied to common use. If this view be correct-and as it
is merely an expression of personal opinion it is advanced with
extreme diffidence-then the proprietor of a stream fulfilling all
the ordinary conditions of a public river, and rising above his land,
but all the waters of which had been applied to his own use for
upwards of thirty years, could not be restrained from such appro-
priation. But although an upper proprietor cannot be restrained
from diverting the waters of a stream rising on his own land, pro-
vided he has been accustomed to do so for a considerable period of
time, it does not necessarily follow that a lower proprietor, who
has for thirty years enjoyed the whole of the waters of a stream,
can restrain an upper proprietor from appropriating any of these
waters to his own use. For a negative servitude cannot be
11Joydaan and othrs vs. Wtmkklmann and others and the Colonial Government.
Buch., 1879, p. 79. lu Jlono vs. Vn der Jferwo. Buch., 1876, p. 18.
 THE CAPE LAW JOURNAL.

acquired by prescription unless there has intervened some act by

which the person claiming it has asserted it and the opposed party
has yielded to such assertion. Jo(daan ad other's vs. Trh)keblwmo
and others. Consequently, unless, in a case, as above stated, there
exists the positive assertion of a right by some act by the person
claiming it, and a recognition of that right by the person against
whom it is claimed, the parties are thrown back on their ordinary
rights as riparian proprietors.
Returning to our attempt to discover a satisfactory definition
of private streams, the search for which has led us to discuss other
but incidental subjects, we find that it is easier to say what a pri-
vate stream is not, than to give an accurate definition of what it is.
However, all the authorities concur in describing a streamlet
that cannot be applied to common use as a private water. The
following is the test mentioned in the Digest 1 I and adopted by
Voet for the pu'pose of distinguishing streanlets from public
rivers: -"a river is to be distinguished from a streamlet by its size,
or by the opinion of those who dwell in its neighbourhood." And
even perennial streams, if so weak as to be incapable of being
applied to common use, were classed with private waters. So also
are what the Civil Law terms torrendia, that is, channels formed
by rain water, which, usually perfectly dry, at times of heavy
rains serve as passages for the flood. So that, in view of our.
knowledge of the existence of these prominent and undisputed
features of private streams, and in view of the information we have
as to what does not constitute waters private, an accurate definition
can very well be dispensed with, more especially as the recognized
definitions of a public river, with which we purpose dealing later on,
will supply us with whatever characteristics our previous informa-
tion as to private streams may lack. But before leaving the sub-
ject of private streams it may be as well to briefly sum up the
result of the decisions into which the case of waters of this nature
has entered. The broad rule of law is, that the right to private
waters is vested exclusively in the proprietor of the laud on which
the water is. But if it can be shown that the water has been
accustomed to flow down to the land of a lower proprietor in a
definite channel for thirty years at all events, the stream ceases to
' ' 43:12:1.
 WATER RIIGMTS.

retain its character of private, and consequently the upper pro-

prietor cannot hinder its flowing down to the lower lands in its
accustomed course. But if the lower proprietor had been accus-
tomed for the period of prescription to use the whole of the water
of such a stream, he would not, merely on that account, acquire a
right against the upper proprietor to compel him to allow the
whole of the water to flow down as usual.' In order to acquire
such a right the use by the lower proprietor must have been
adverse. The waters of streams at their source are not necessarily
the exclusive property of the proprietor on whose land they are.
This will depend mainly on their nature. If they are so weak as
to be incapable of being applied to common use, even though they
be perennial, the proprietor may deal with them as he pleases.
But if they have flowed down for thirty years at all events to the
lands of the lower proprietor in a definite channel and for his
benefit, the person on whose lands they rise will only have a
right to them, limited by the rights of the lower proprietor.
It now remains to deal with public rivers; and in treating of
this branch of the subject it is proposed to follow a similar course
to that adopted in dealing with private streams, namely, first to
enquire into the nature of a public river, and secondly to enunciate
the broad rules which govern streams of that character.
We learn from the Civil Law' I that a public river is one
which is perennial; and a perennial river is one qeod . ei)j)er .led.
And Yoet when commenting on this passage adopts the peren-
nial flow as a characteristic of a public river, but adds the words
ac ad tohm popelem perti iet. And it is this existence of a
public right, as evidenced by a common use by the people,
which more than anything else indicates the public nature of a
stream.
It is not necessary to comment on the words qeod 8e)fper fltit,
as we have already seen that the mere fact of a stream drying up
at certain times does not necessarily destroy its perennial charac-
ter. But subsequently, in the case of Dc WZe vs. fI'cock,13 a
question arose as to whether a stream which disappeared
under the ground but reappeared lower down, fulfilled the
conditions of a public river, and was subject to the same rules.
12 Digest, 43:12:1. 13 1 Buch., E D. C., p. 249.
 THE CAPE LAW JOURNAL.

In this case the lower proprietor sought to restrain the upper

proprietor from diverting the whole of the waters of a perennial
stream, which rose on the upper land and had for upwards of
thirtyyears flowed down to the lower ground. This stream sometimes
disappeared under the ground but always re-appeared in the same
place. It was urged on behalf of the defendant that the waters of this
stream were private, and that, as they were partly subterranean, no
prescriptive right to them could be acquired. But, as Ar. Justice Sr:ii-
PRu, who tried the case, pointed out, the right to running water
-ought not to be regarded as a servitude, but as a natural right;
and if this is the case in running water, much more is it in the
case of subterranean percolating'water. The learned Judge, there-
fore decided that the mere fact of the water of a perennial streal
disappearing beneath the surface of the ground was not sufficient
to deprive such stream of its character of a public river. But that
if it had flowed down to the lower proprietor in a definite channel
for thirty years, the upper proprietor could be restrained from
diverting the whole of its waters.
In the case of Soute 1/ vs. &7whobie the following exhaustive
definition of a public river was given by B]lmyu, J. P. "A public
river is a stream of water usually flowing in a definite channel,
having a bed and banks, and usually discharging itself into soine
other stream. In a public river the volume of water need not be
constant or large, but it must be something more than mere sur-
face drainage to avoid being a dry river (torrentia), and run
during the greater part of the year in a definite channel, and in
such a quantity as to be capable of being enjoyed by other riparian
proprietors in common with the one in whose land it rises. It will
be seen from this definition that our law does not require a public
river to be navigable, differing in this respect from the law of
many other countries.
The broad rules which regulate the use of the waters of public
rivers may be said to be three in number. (1) The waters of
public rivers are common to the public and the several riparian
proprietors through whose lands they flow. (2) The use which
each proprietor makes of the water must in the first instance be
only an ordinary use. (3) After all the proprietors have enjoyed
4 1 Buch., E. D. C., 286.
 WATER RIGHTS.

the ordinary use, they are each in their turn entitled to an extra-
ordinary use of the water, which must, however, be consistent with
the extraordinary use of the lower proprietors.
The Supreme Coiu-t, in the case of liou gk vs. Van der .Ierwe,'.
decided, that the ordinary use is that which is required for the
support of animal life, and in the case of riparian proprietors for
domestic pu'poses. The extraordinary use is that which is
required for any other purpose than those just mentioned.
Very little reflection will suffice to disclose the wisdom and
justice of these rules.
For having regard to the most essential featLre characteristic of
a public river, namely, the right of the public to its use, the Law
exhibits nothing more than justice and reason, in forbidding ripa-
rian proprietors to make an extraordinary use of the water
until the lower proprietors have enjoyed their ordinary use.
For to have allowed such extraordinary use without limitation
in the first instance would have been to place an artificial value
upon land through which, by mere accident of situation, the stream
first flowed, and this, too, at the expense of lower riparian propri-
etors, upon whose rights such conduct would have been a fraud.
The next question that arises is, Ihow are these uses to be
regulated? The answer to these is to be found in the very
important cases of 1?etief vs. Loiwt c and tloitgh vs. V1ia der
eicrwe. 15These cases established the following principles : Pro-
prietors are entitled to use water flowing through their land:
(1) For the preservation of animal life and domestic purposes;
(2) For the increase of vegetable life ; (3) For the promotion of
mechanical appliances. But the upper proprietor is not entitled
to use the water for irrigation if he thereby deprives the lower
proprietors of its use for their cattle and domestic purposes. And
even after the lower proprietors have received sufficient water for
their ordinary use, the upper proprietor can only use such quantity
of the remaining water for irrigation as does not prejudice similar
rights of irrigation in the lower proprietors. In other words, the
upper proprietor must only use a reasonable proportion of the water,
having regard to the rights and necessities of the lower proprietors.

Buch., 1874, p. 148.

B- '" Buch., 1874, Appen. 105.
 THE CAPE LAW JOURNAL.

Of course, the quantity which constitutes a reasonable proportion

will be dependent on the cireumstanees of each particular case.'
iiougih vs. Van der Jrirefurther decided that in making use of
the water for irrigation the upper proprietor must return it to the
public stream with no other loss than thatwhich irrigation has caused.
But this does not mean that an upper proprietor, who, in using
the water for irrigation, has deprived a lower proprietor of the full
enjoyment of its use for domestic purposes, should be compelled in
any case to restore the whole of the water to the natural channel.
Such an order would have the effect of preventing an upper
proprietor from applying any water at all to pun'poses of
irrigation, even in cases where there was a surplus supply after
the lower proprietors had enjoyed their ordinary use. The
practical result of the principles laid down in liough vs. Van
dier 316 ce is, that if an upper proprietor in the enjoyment of his
ordinary use deprives the lower proprietors of their ordinary use
he wNould not be liable to them in an action; but if in the enjoy-
ment of his extraordinary use he deprives them of their extraordi-
nary use he would be liable.
In the case of .Eramt.svs. Do J't 1 7 M[r. Justice WAI'ERIMEYEI
decided, that the upper riparian proprietor is entitled to the free
use of water flowing through and to a great extent rising on his
land, for the pun'pose of irrigation, though such use may cause
damage to lower proprietors. This decision on the face of it appears
elearly inconsistent with that of 1?ctit vs. Loiir, which preceded it;
but from the report it would appear that it was based to some
extent upon a special condition as to water leading in a title deed.
But whether this be so or not, and apart from it having been
merely a circuit court ease, it need not influence our consideration
of the Common Law aspect of water rights in the face of the sub-
sequent Supreme Court case of IHough vs. Vn der Merwe, which
followed and affirmed the principles laid down in leti'f vs. Louw.
Before closing the subject of water rights, there remains a par-
ticular class of stream which has not as yet been noticed in this
paper, but which requires consideration. That is artificial water
coa'ses. Do the same rules which regulate natural streams apply
to waters of this nature ? An accurate answer to this question
"7 Buch., 1874, p. 204.
 SOME REMARKS ON DRAFTING.

cannot be general in its character, but will depend entirely on the

circumstances connected with each particular case. But it may
be broadly stated that the principles which regulate natural streams
do not in general apply to artificial water courses. But if an
artificial water course has been made with a view to permanent use,
and has been so used for a long period of time, then it will acquire
the character of a natural streani; and if a water course of this
nature has for the period of prescription flowed down to a lower
proprietor, and for his benefit, it will, for the purpose of regulating
the use of its waters be regarded as a public river just as much as
if its channel was a natural one. iJfybuig vs. Vain de' B/. 1 8
And, consequently, in this case the proprietor on whose
land the artificial water course had its origin, would not have
an exclusive right to its water, but merely a right limited
by and consistent with that of the lower proprietor, on to whose
land the water flowed. With the consideration of this branch
of the subject we must conclude. From the cursory view of
the great question of water rights which we have taken, it will be
apparent that the chief difficulty which constantly arises in questions
of this nature is, to decide whether a stream is public or private.
But after that point has been satisfactorily determined, the ap-
plication of the rules laid down in Ioityh vs. Van der .le)hrwe will-
if the stream prove to be a public one-of necessity follow.
Such, then, briefly indicated, are the main features of the class of
waters rights to the use of which are constantly in dispute, and
such are, briefly'stated, the considerations which determine their
uses and the rules which regulate them.
IERBER' F. BLAINE.

SOME REMARKS ON DRAFTING.

A PAPER FOi AwtiCLED LELERKS.

An experience of Cape practice extending over three years has

shown me that one of its weakest points is drafting. I have seen
drafts of all sorts of documents, and I think I may safely assert
that not one in ten reaches the high water mark of the art of draft-
" 2 Juta, 360.