brown versus best b r special action for divert a watercourse refer to Rhodes  Airedaile drainage commissioner c p d this be a special action upon the case  for divert a watercourse wherein the plaintiff declare upon his own possession  of the place through which the water use to run and set out the course thereof  and that the defendant have make this obstruction videlicet that he have dig  two pit deep and wide and make two pond partly in and near the say course and  divert the water into these pit and make dam and bank to the pond by which the  water have be divert in its ancient course and a great part of it sink into  these pit and pond so that little or no water have come to the plaintiff  ground whereby the plaintiff be damage the defendant plead that all the water  spring in his ground and that the two pit have be there time out of mind for  the use of water for the meadow and cattle and that at the time when c these  pit be choke up with mud and therefore he dig two large pit and make darn and  bank which he insist it be lawful for he to do and deny that any other water  have be obstruct the plaintiff reply protest that the plea amount to the  general issue and say that the defendant do this of his own wrong and conclude  with a averment the defendant demurrer and plaintiff join in demurrer this  case be argue in Trin term geo by Mr Cox for the defendant and Mr pool for the  plaintiff and in this term the court give judgement lee c j I be of opinion  that the declaration be very good and that in the case of a watercourse which  be jure nature this be the best way of declare for the plaintiff Wilson king  bench er p be possess of the place declare that the water to run to use  through that place time out of mind and that the defendant have obstruct it  and I think the defendant by his plea have not at all deny Wilson king bench  the plaintiff have such a watercourse but say that it take its rise in his the  defendant ground that the water run through part of his ground that there be  two pit immemorially and acknowledge the have enlarge the pit and make the  obstruction lie in the declaration this real amount to a confession of the  plaintiff action for although there have be pit in the d I defendant ground  time out of mind yet be can enlarge they but they must remain as they always  have be and so be the rule both in the common and civil law hetley Duncomb sir  Edward Randall dig lib sec the defendant indeed may have cleanse the pit keep  they as they be before but can enlarge they if I have a right from usage as to  run to use I have the right in such a manner as the usage have be as to  inconvenience to defendant it be nothing and may be allege in every such case  as this and the maxim in hetley be exact applicable to the present case such  skin tuo ut ne to hurt another Dennison I whatever the precedent may be in  regard to watercourse to mill yet as to natural watercourse this be the most  proper way of declare as to the plea it seem to be calculate not to come to  the merit for I can see it be possible for the plaintiff to take a issue upon  this plea though I can proper that call it a prescription yet it have the same  effect for these pit c be say to have be time out of mind defendant say that  although there be a watercourse through your land yet in my land there have be  two large pit for water cattle c and for other purpose for the occupation of  my land the defendant ought to have say for what purpose there be a direct  allegation that these pit have be time out of mind and that all the water  except what be stop for his purpose be not hinder so that real he have in  effect allege a right to keep all the water if be please and this plea can  only amount to the general issue for if it have appear upon the general issue  that the defendant have a right to keep all the water the plaintiff must have  be nonsuit beside the defendant admit the have enlarge these pit which be  certain contrary to law and if the defendant have any prescription he ought to  have traverse the plaintiff prescription accord to the case of Murgatroyd law  Carth and a watercourse be a quite distinct thing from the land Poph wright  and foster justice of the same opinion judgement for the plaintiff