Londonderry and Lough Swilly Railway Co. v. M'Cartney [1904] UKHL 469 (10 May 1904)

Londonderry and Lough Swilly Railway Co. v. M'Cartney [1904] UKHL 469 (10 May 1904)

A railway company, as riparian owner, is not entitled to abstract water from a stream for use in its locomotives where such use is not connected with the riparian tenement and the water is not returned to the stream; such abstraction is an unlawful diversion and not a permissible riparian use, regardless of the extent of actual damage to lower proprietors.

Citation
[1904] UKHL 469
Parties
Plaintiff/respondent: Londonderry and Lough Swilly Railway Company; Defendant/appellant: M'Cartney
Jurisdiction
United Kingdom
Judgment Date
10 May 1904
Procedural Posture
Civil Appeal / Appeal to House of Lords From Court of Appeal in Ireland
Outcome
Appeal allowed; judgment of Holmes, L.J. restored.
Legal Topics
Riparian Rights, Diversion of Water, Railway Use of Water, Injunctions, Prescriptive Rights
Property Law Water Law Equity Riparian Rights Diversion of Water Railway Use of Water Injunctions Prescriptive Rights

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Parties

Londonderry and Lough Swilly Railway Company

Plaintiff/respondent

M'Cartney

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal to House of Lords From Court of Appeal in Ireland

Legal Issues

  1. 1 Whether a railway company as riparian owner may abstract water from a stream for use in its locomotives without returning it to the stream
  2. 2 Whether such abstraction constitutes a permissible riparian use or an unlawful diversion

Ratio Decidendi

A railway company, as riparian owner, is not entitled to abstract water from a stream for use in its locomotives where such use is not connected with the riparian tenement and the water is not returned to the stream; such abstraction is an unlawful diversion and not a permissible riparian use, regardless of the extent of actual damage to lower proprietors.

Court Disposition

Appeal allowed; judgment of Holmes, L.J. restored.

Orders

  • Judgment of Court of Appeal and King's Bench Division reversed.
  • Judgment of Holmes, L.J. in favour of the defendant restored.