What is “Right to water” in easements?

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[/B]General: Illustration (f), (g) ; (h), (i) and (j) are some examples of the natural rights to water. “Water cannot in general from the subject matter of property. A man cannot bring an action to recover possession of a pool or other piece of water as such, for water is a movable wandering thing which must of necessity continue common by the law of nature. No action can be supported merely for taking water unless the water is contained in a cistern or some other vessel in which the person brining the action has placed it for his private use. So, long however as water remains upon the land where it first rises from the earth, the owner of that land along has right to appropriate it, for no one else can do so without committing a trespass. When, however it has left that land the owner has no more power over it or interest in it than a stranger.
(2) Surface water: There are two types of natural rights in regard to surface water. Firstly, as pointed out in illustration (g) to section 7, every owner of land has a right to collect and dispose within his own limits of all water under the land which does not pass in a defined channel. And secondly, as shown in illustration (i) of section 7, every owner of upper land has the natural right that water naturally rising in, or falling on, such land, and not passing in define channels shall be allowed by the owner of adjacent lower lands to run naturally thereto. The owner of land has a natural right to collect and retain on his own land the surface water not flowing in a defined channel or discharge the same, on the neighbouring land at a lower level according to his choice. AIR 1956 Ori. 89.
(3) Right to drainage: The natural right for the flow of the water from a higher ground to the lower one is confined to the flow of the natural water generally through the natural streams or drains and under some very special circumstances through artificial stream or drain. It can never extend to the discharge of artificial water brought upon the higher land by artificial means, especially to the discharge of all kinds of water from a house. Even though in certain circumstances a natural right can be claimed to the flow of natural water in a defined channel like a drain. Such a right cannot be claimed for the discharge of artificial water such as water used in a house for domestic purposes either through a defined channel like drain or otherwise, except by way of easement. AIR 1963 Pat. 76.
(4) Subterranean water: Illustration (g) to section 7 speaks of the natural right which every owner of land has to collect and dispose of all water under the land which does not pass in a defined channel. The natural rights of the owner of land extend over the percolating water in his land provided it does not flow in a defined channel. The owner by tapping such water does not infringe any right of his neighbour even if the effect of his action is to affect the quantity of water in the neighbour’s land. AIR 1946 Mad. 334.
(5) Water in unascertained or definite channel: Different considerations apply to the cases of water flowing in an unascertained channel, or water percolating through the earth in an indefinite channel. In theses cases a land-owner has no right at common law to the continuance of the flow.(1902) 2 Ch. 655 DC. Consequently if a land-owner does any act upon his own land which results in preventing the access to his neighbour’s land of water which formerly came there by an uncertained channel or by mere percolation he has committed no actionable wrong. (1902) 2 Ch. 655 DC.
(6) Rights of upper and lower owners: One of the natural rights arising from situation is the right of every owner of upper land that water naturally rising in or falling upon, such land, and not passing in a defined channel, shall be allowed by owners of adjacent lower and to run naturally thereto. [Illus. (i)]
According to the case of Ihsanullah Khan v. Noor Jehan, the owner of dominant has natural right to discharge, on serivent tenement, water rising in or falling on his tenement. Section 7 applicable only if servient owner claims right of easement in restriction of such right of dominant owner. PLD 1962 Pesh. 98.

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