Is a vendor of land entitled to a right to take forever so much water from a spring?

British Columbia, Canada


The following excerpt is from Harrison v. McMahon, 1982 CanLII 293 (BC SC):

In Goodrich v. Burbank, 12 Allen 459 (Mass.), referred to in Angell in A Treatise on the Law of Watercourses at p. 246, a vendor of land reserved to himself the right of taking forever so much water from a spring situated on the land from which water was then taken in a pipe so long as the same pipe should last, together with the right to replace the same with a pipe of a certain size, and thereupon to take so much water as would run through the substituted pipe. It was held that: Where there is a grant of a right to take water from an aqueduct in actual existence and use at the time, the capacity of which is limited to a certain volume, the right of the grantee must be construed with reference to that limit. Within that limit it is to be exercised only as a right in common with the grantor. It is not a general right in the spring; but a right to share in a limited supply of water brought from the spring by an aqueduct. Here, although the water in question is ground water, the principle is similar. The “easement” does not give the plaintiff the right to use all the water in the well to the exclusion of the defendants, but at best requires that the water must be available in the water-line leading from the well to the plaintiff’s property. The plaintiff cannot insist that all the water in the well is for his use only. He has the right only to share in the well water. His share is that quantity of water which at any given time will fill his water-line.

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