Abdur Rahim, J.
1. The question referred to us is whether a river called Marudarnathi which rising in hills belonging to the Government flows through ryotwari tracts, then through the Kannivadi Zamindari and again through a Government village can be said to be a river belonging to the Government within the meaning of S.I of the Madras Irrigation Cess Act, VII 1865, as amended by Act V of 1900. The question arose in connection with the right claimed by a pattadar of the Kannivadi Zamindari to take water from this river at a place within the limits of the Zamindari for irrigating Zamindari lands, without being liable 1o a separate cess levied under the above-mentioned Act. This Act enables the Government to levy a separate cess for "water supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to or constructed by Government," subject to certain provisoes with which we are not concerned in this reference. It does not however purport to indicate the class of rivers or streams which were within the contemplation of the Legislature, but there is another Act of the Madras Legislature, the Madras Land Encroachment Act (Act III of 1905) on which considerable reliance has been placed in support of the contentions on behalf of the Secretary of State. It is enacted by its Section 2 (1):
All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks, and all canals and watercourses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property--
(a) of any Zemindar, poligar, mittadar, jagirdar, shrotriemdar or inamdar or any person claiming through or holding under any of them, or
(b) of any person paying shist, kattubadi, jodi, poruppu or quitrent to any of the aforesaid persons, or
(c) of any person holding under ryotwan tenure, including that of a jenmi in Malabar, or of a wargdar in South Kanara, or in any way subject to the payment of land revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e) of any other person holding land under grant from Government otherwise than by way of license,
and, as to lands, save also in so far as they are temple site or owned as house-site or backyard, are and are hereby declared to be the property of overnment except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land owners, and to all customary rights legally subsisting.
2. Within the last eight years these enactments have been the subject of discussion in a number of cases, but the decisions are conflicting and do not supply a clear preponderance of opinion in support of one view of the law rather than another. In the first Urlam case, Kandukuri Mahalakshmamma Garu v. The Secretary of State for India (1910) I.L.R. 34 Mad. 295. Miller and Munro, JJ. ruled on-the strength mainly of Section 2 of Act III of 1905 that the water of a stream or river belongs to the Government even though its bed or banks may belong to the Zamindar and that the Zamindar irrigating his land with such water is chargeable with a separate cess. Generally speaking this interpretation has been upheld by Oldfield, J. in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 and was accepted apparently without further discussion by Arnold White, C.J. and Ayling, J. in The Secretary of State for India v. Ambalavana Pandara Sannadhi (1910) I.L.R. 34 Mad. 366. On the other hand Sankaran Nair, J. in The Secretary of State for India v. Janakiramayya (1913) I.L.R. 37 M. 322, Sadasiva Aiyar and Bakewell JJ. in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389, the learned Chief Justice and Seshagiri Aiyar, J. in The Secretary of State for India v. Maharaja of Bobbili (1915) 30 M.L.J. 163 and myself in The Secretary of State for India v. Ambalavana Pandara Sannadhi (1917) 83 M.L.J. 415 : 1917 M.W.N. 729 have expressed a contrary opinion. The judgment of Miller and Munro, JJ. in the first Urlam case has since been reversed by the Judicial Committee of the Privy Council, (See. Kandukuri Balasurya Prasadha Rao v. The Secretary of State for India (1917) I.L.R. 40 M. 886 : 33 M.L.J. 144), their Lordships holding that the Urlam Zamindar concerned in that case was protected by an engagement within the meaning of the proviso to S. I of Act VII of 1865. But Lord Parker who delivered the Board's judgment while indicating in the passage cited in the Order of Reference the problems that might arise upon the construction of the two statutes as to the rights of the Government in the rivers and streams of this Presidency refrained from expressing any opinion on the subject.
3. In construing the words 'river or stream belonging to Government' in Act VII of 1865 it would be quite legitimate to take into consideration the state of the law in this connection as it existed at the time of the passing of the Act and we are also bound to give effect to any later statutory enactment by which the Legislature may have defined the river or stream which belongs to Government.
4. As regards the first, the learned Government Pleader at one part of his argument contended that Section 1 of Act III of 1905 was intended to clear away any doubt that might have been entertained as to the rights of the Government in the properties mentioned therein but he did not make any attempt to prove that the common law of the Presidency was in accordance with the interpretation which he sought to place on the enactment. In fact the materials available for forming a definite conclusion on the point are meagre and insufficient. In Fischer v. The Secretary of State for India (1908) I.L.R. 32 Mad. 141 : 19 M.L.J. 131 it was laid down that the Government has power by the customary law in India to regulate in the public interests the collection and distribution of water of rivers and streams flowing in natural channels provided they do not thereby inflict sensible injury on other riparian owners and diminish the supply they have hitherto utilised. This paramount right of the Government is held to be independent of the ownership of the bed of a river but for the purpose of exercising its control the Government would not be warranted in committing an act of trespass. It is not necessary for us to examine how far these propositions, beyond which it may be mentioned, the learned Government Pleader was apparently not in a position to carry the rights of the Government in so far as they were established by the rulings of this Court apart from any legislative enactment, are well founded. For it is obvious that the ruling in Fischer v. The Secretary of State for India (1908) I.L.R. 32 Mad. 141 : 19 M.L.J. 131 which is referred to by the Judicial Committee in Kandukuri Balasurya Prasadha Row v. The Secretary of State for India (1917) I.L.R. 40 Mad 886 as showing that the law of the Madras Presidency as to rivers and streams is different in some respects from the English Law, does not affect the question before us. It cannot be said that a river or stream belongs to Government because it has the power in the public interests to regulate the distribution of its water, since it is clearly recognised that this right of the Government is not in any way in supercession of the rights of the riparian proprietors.
5. As to S. I of Act VII of 1865 a Full Bench of this Court in The Secretary of State for India v. Mahadeva Sastrigal (1916) I.L.R. 40 Mad. 58:32 M.L.J. 411 (F.B.), pointed out that it goes further than the preamble, enabling the Government to levy water-cess for use of waters derived from a natural stream belonging to the Government even though the Government might not have incurred any expenditure in connection therewith. This is now placed beyond any doubt by the judgment of the Privy Council in Kandukuri Balasurya Prasadha Bow v. The Secretary of State for India (1917) I.L.R. 40 Mad 886, Therefore even if Mr. Venkatarama Sastri is right in his contention that the word 'constructed' might be applied to "river or stream" as well as to "channel, tank or work" the power of the Government to levy cess clearly extends to natural streams belonging to the Government.
6. There has been much discussion as to what the words " river or stream " in Act VII of 1865 were intended to import, whether merely bodies of flowing water or whether also the bed and the banks as forming part of a river. Jessel, M. R. in Taylor v. Corporation of St. Helens (1877) 6 Ch. D. 264. (C.A) defines a stream of water as 'water which runs in a defined course so as to be capable of division' and "a water course" has been defined by Lord Tenterdon, C.J., in Rex v. The Inhabitants of Oxfordshire (1830) 1 B. and Ad. 289 at 301: 1C9 E.R. 794 as 'water flowing in a channel between banks more or less defined'. Lord Watson in M'Nab v. Robertson (1897) A.C. 129 says "the word 'stream' in its primary sense denotes a body of water having as such a body of continuous flow in one direction. " Wensleydale's definition of a river is ' a running stream pent in on either side with walls' and banks.' But these definitions do not necessarily imply that the bed and the banks do not form part of a water-course (See Angell on Water Courses 30). Whether by a river or stream only the flowing water is intended or also the banks and the bed must depend on the context and the question therefore is, in what sense did the Legislature intend that a river or stream should be understood as "belonging to the Government" in S. I of Act VII of 1865.
7. In the absence of any indication to the contrary we must give to the expression a meaning and significance known to the law. When a river or stream rises and terminates entirely within the limits of any person's land that person is its owner in the fullest sense, just as much as he is the owner of the soil of his domain and of the trees growing thereon. If therefore any river runs in its entire course within Government land that river is undoubtedly within scope of the section.
8. But there is a qualified sense 'in which in law a natural stream flowing through the lands of a number of persons, each one of whom is entitled to use the water of the stream as it passes through his land as a natural advantage belonging to the land and as incidental to his right to the soil itself may be said to be the property of such persons collectively or individually. Lord Wensleydale in the following well known passage in Chasemore v. Richards (1859) 7 H.L. Cases, 349 at 382 observes "It has been now settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction; upon the same principle that he is entitled to the support of his neighbour's soil for his own in its natural state." The same learned Judge as Baron Parke had laid down in Embrey v. Owen (1851) 6 Exch. Rep. 353 at 369: "The right to have the stream to flow in its natural state without diminution or alteration is an incident to the property through which it passes; but flowing water is publici juris, not in the sense, that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only: See 5 B and Ad. 24. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it." Lord Selborne in Lyon v. Fishmongers' Company (1876) 1 A.C. 662 after reviewing the above and other authorities points out that it is by reason of his ownership of the adjoining land that a riparian proprietor acquires the right to the usufruct of the water, for it is that which enables him to have access to the stream and to exclude others from it. The owner of land on the bank of a river is also presumed in law to be the owner of the bed opposite to his land ad medium filum aquae. We find therefore that learned Judges having in view the nature of the rights of a riparian proprietor in the water of a stream adjoining his land, have spoken of him as owner of the stream, such as, James, L.J. in Bush v. Trowbridge Waterworks Company (1875) L.R. 10 Ch App. 459 at page 462; Cockburn, C.J., in Stone v. Corporation of Yeovil (1876) L.R. 2 C.P 99 at page 107. Except in the above sense ownership cannot be predicated of a river any more in India than in England.
9. It is not the contention of the Government that riparian rights are not recognised by the law of this Presidency, or are substantially different here from those established in England except perhaps to the extent indicated in Fisher's case, Fisher v. The Secretary of State for India (1908) I.L.R. 32 Mad. 141. That very judgment takes the right of the riparian owners to be well recognised in this Presidency. The Legislature has also assumed the prevalence of such rights (See Section 7 illustration (h) of Easements Act V of 1882 and Section 3 of Act III of 1905 itself on which reliance is placed by the Government, not as taking away riparian rights but as conferring on the Government the power to levy cess for the use of waters of rivers and streams belonging to the Government), irrespective of such rights. Riparian rights are not un often asserted and exercised by the Government itself in connection with ryotwari lands in which they claim proprietary rights analogous to those of a landlord.
10. Apart from such ownership as the possession of the banks of a river gives to a riparian proprietor I do not find that before the Urlam case the Government had even claimed any other form of proprietorship with respect to it or its waters. So far, therefore, it would seem that by 'a river or stream belonging to the Government' the Legislature prima facie intended in Section 1 of Act VII of 1865 to connote a Government ownership of the banks and the bed.
11. Has Section 2 of Act III of 1905 then conferred on the Madras Government a right of property in the water of a natural stream higher than, and different in its nature from, what the law recognises as incidental to riparian proprietorship? The history of the Act is well known. It was passed in consequence of a decision of this Court in Madathapu Ramayya v. The Secretary of State for India (1903) I.L.R. 27 Mad. 386 to legalise the practice of imposing what was known as penal assessment on lands claimed by the Government and which are encroached upon by a private individual. For that purpose Section 2 declares what shall be deemed to be the property of the Government and the rest of the Act lays down the mode of levying assessment or ejecting trespassers from Government lands. To define the incidence of water cess is clearly not within the professed objects of the Act. At the same time if by Section 2 it has designated a class of rivers or streams as belonging to the Government, the Government will be entitled to levy cess for the use of such waters under the Irrigation Cess Act. Section 2 of the Act, the language of which appears to have been borrowed from the Bombay Act V of 1879, cannot be said to be very happily worded. It is undoubtedly a wide and sweeping enactment, for there can be no question that so far as lands are concerned including those covered with water, it declares such of them as are not the property of any of the various classes of land-owners in the Presidency to be the property of the Government. At the same time every endeavour is made to make it clear that the Legislature did not by this enactment mean to deprive any private individual of his property or of any rights connected with immoveable property.
12. The contention on behalf of the Government based on this Act may perhaps be best expressed in the language of Miller, J., in the following passage in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India (1910) I.L.R. 34 Mad. 295 at page 303 "So far as this case is concerned the provisions of Section 2 amount to a declaration, that, subject to easement and natural rights of other land-holders, all standing and flowing waters which are not the property of any one else are the property of the Government. Now clearly the waters of the Vamsadhara river do not belong to any one else; the owners of land on the banks of the river do not own the water 1 their natural rights as defined by the Easements Act is saved by Act III of 1905, but it is not contended that the water is their 'property'. It follows that it is the property of the Government.
13. And if the body of the water forming the river is the property of the Government, the river, it seems to me, belongs to the Government within the meaning of Act VII of 1865, even though the bed may be vested in the owners of land along the banks, so as to give them the right to accretions or 'lankas' forming therein. The Vamsadhara river is undoubtedly a natural stream, and the definition of a natural stream given in the explanation to Section 7 of the Easements Act indicates that in the eye of the law the stream is the flowing body of water--and a stream was defined by Lord Watson in M' Nab v. Robertson (1897) A.C.129 as "a body of water having as such body a continuous flow in one direction."
14. If this interpretation be correct we must give effect to it even though the natural or prescriptive rights of riparian owners would as stated by Lord Parker be seriously diminished by the Act and where the Government have not expended money in improving the natural stream, apparently without any sort of quid pro quo.
15. In the first place it must be pointed out, though it hardly affects the question under consideration, that Section 2 cannot properly be said, as has sometimes been assumed, to have made any change in the ordinary rules regarding burden of proof for I find nothing in it which necessarily implies that whenever the Government lays claim to any land or water it lies upon the party against whom the claim is made to show that the property belongs to him quite apart from other considerations regulating the onus of proof as dealt with in the Evidence Act. Then, whether a body of flowing water can be said to be the property of the owner of the land by which the stream flows depends on the meaning to be attached to the word 'property' as vised in this section. According to the Common Law of England running water, strictly speaking, cannot be the property of any one except by statutory enactment. But a riparian proprietor, as I have stated, is in a qualified sense the owner of the stream adjoining his land. Section 2 itself proceeds on that assumption; otherwise there would have been no need to enumerate the land-owners whose property in a water-course and in flowing water among other things is left intact. Now it would be a violation of the ordinary rules of interpretation to hold that when 'flowing water' is declared by Section 2 to be the property of the Government save in so far as it is not the property of a Zemindar or other land-owner that the proprietorship in contemplation in the two cases was intended to be of a different character. That the rights of the Government in water, declared by this section are in connection with its position as a land-owner may also well be deduced from the use of the words "other land-owners" in the saving clause. Rights in water are incidental to the ownership of the land by which it flows or on which it stands so that by the conveyance of a parcel of land the rights in the water covering any portion of it will pass. This is the law not only in England but so far as I am aware in India as well. If it was the intention of the Madras Legislature to confer on the Government new rights in flowing water of a nature hitherto unknown to the general law either of India or England and which would materially diminish, if not practically destroy, extensive and valuable vested rights of riparian proprietors in this Presidency, one would have expected them to carry out such intention by a more direct and lucid process than by the introduction of certain general words capable of more than one construction in a Statute dealing with a wholly different subject. In my opinion when the Legislature says that all 'flowing water' in the Madras Presidency is the property of the Government save in so far as it is the property of a Zemindar or any other land-owner it means only to declare with respect to flowing water passing through the lands of Government as well as of a Zemindar that the Government has in them rights of the same kind as the Zemindar himself as a riparian owner enjoys under the ordinary law and not rights of a higher character materially impairing it not altogether superceding the landowner's rights.
16. The conclusion that I come to is, that where, as in the case in which the question under reference has arisen, both the banks and the bed of a river at the place at which water is taken by the Zamindar do not belong to the Government, the river cannot be said to belong to the Government for purposes of Section 1 of Act VII of 1865. The answer to the question referred will therefore be given in the negative.
17. I agree that the answer must be in the negative.
18. The main authority in support of the position contended for by the learned Government Pleader is the judgment of Miller, J., (concurred in by Munro, J.) in Kandukuri Maha Lakshmamma Garu v. The Secretary of State for India (1910) I.L.R. 34 Mad. 295. This ruling was quoted without comment or discussion by the late Chief Justice and myself in a case which came up for disposal very shortly afterwards, (The Secretary of State for India v. Ambalavana Pandara Sanadhi (1910) I.L.R. 34 Mad. 366 and relied on as one of two alternative grounds for our decision therein. We must, no doubt, be taken to have followed it: though the report of the case does not show, and my memory does not enable me to say, whether any attempt was made to question the correctness of the ruling. However that may be, sitting as a member of a Full Bench, on which the ruling is not binding and after hearing a full argument on the point, I can only come to the conclusion that the learned Judge's application of Section 2 of Act III of 1905 is one from which 1 should respectfully dissent.
19. There was considerable discussion before us as to the meaning to be attached to the word river" in Section 1 of Madras. Act VII of 1865, whether as including the bed, banks and water, or only the water flowing down the river bed, I do not think it makes any practical difference in the present connection, and the choice of meaning must always depend mainly on the context. In construing S. I, I should be inclined to interpret the word "river" as including both the bed and banks as well as the water: and 1 think the close juxtaposition of the term "work" in the same clause tends strongly to support this view. But whichever meaning be given seems to me to make little difference. The bed and banks are found as a fact to belong to the Zamindar: and I agree with the opinion expressed by the learned Chief Justice in his Order of Reference that for the purpose of construing Act VII of 1865, the ownership of the water or a river must follow the ownership of the bed and banks. In fact, no authority has been cited, nor so far as I can see, no argument has been seriously addressed to us for the proposition that, apart from the effect of Madras Act III of 1905, the water of the river while flowing through Zemindan limits was the property of Government. Some reference was made to Fischer's case (Fischer v. The Secretary of State for India (1908) I.L.R. 32 Mad. 141), but this contains nothing to support it. What has been contended is that it was the property of no one, relying on the doctrine of English Law expressed in 28 Hajsbury, Paragraph 649, that flowing water cannot be the subject of property. Construing the term "property" in the most complete and absolute sense, this, of course, commands assent. It is not suggested in the present case for instance that the Zemindar could pursue the drops of water after they had flowed out of the territorial limits of his Zamindari and claim them as his own. But as long as they are flowing within his Zamindari, they may be his and, I think, are his, in a very real and valuable sense whether we call his property usufructuary or use any other word. And this kind of ownership of flowing water is recognised in the clearest manner in the judgments of English Courts. Vide James, L.J., in Bush v. Trowbridge Waterworks Co. (1875) L.R. 10 Ch. Ap. 459, to which may be added Stone v. Corporation of Yeovil (1876) L.R. 2 C.P. 99. This seems to me sufficient legal authority for what I should be inclined to hold on grounds of common sense and equity that the owner of the bed and banks of a river is also the owner (though in a special and qualified sense) of the flowing water, so long as it passes between those banks and over that bed; and that the term 'property' may. not be inaptly applied to such ownership.
20. Now Act III of 1905 declares that flowing water (interalia) is the property of Government "save in so far as it is the property" (so far as we are here concerned) "of the Zemindar." If at the time of passing of the Act, it was already the property of the Zemindar the Act makes no difference: and the contention put forward for Government and accepted in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India (1910) I.L.R. 34. Mad. 295 is simply that because the Zamindar's property in the flowing water is not absolute, it should be treated as a nullity, and the saving clause held inapplicable, I cannot accept this. It is not seriously suggested that this Act operated to confiscate existing private rights, and, in my opinion, it was not intended to. In so far as the river, whether in the broader or narrower sense, was the property of the zamindar before the passing of the Act it remained his property afterwards: and before the Act, his rights to use flowing water and prevent others from, using it were certainly such as to make it impossible to call it the property of Government.
21. In my view therefore the enactment of Act III of 1905 does not affect the present case, and apart from its operation, the decision can only be against the ownership of the river by the Government.
22. The question whether Section 2 of Act III of 1905 involves any declaration regarding the burden of proof of the right to water or of its ownership does not arise directly in this case and I therefore think it unnecessary to express any opinion regarding the portion of the judgment of Abdur Rahim, J., in which it is considered. With this reservation I concur in the judgments just delivered and in a negative answer to the question referred.
Sadasiva Aiyar, J.
23. In the course of my judgment in the case in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 the following remarks occur at page 419. 'There were some arguments advanced at the Bar on the question whether words "river", "stream", "channel", and "tank" found in Section I (a) of the Madras Act VII of 1865 meant (1) the beds, banks and the volume of waters (all taken together) of and in the river, stream channel or tank, (2) or whether it meant the bed alone or bed and banks alone of the river, stream, channel or tank or (3) whether it meant only the collection of the waters in the river, stream, channel or tank. I think Clause (b) of Section (1) of that Act which speaks of "water from any such river stream channel or tank" clearly indicates that he words "river, stream etc.," are used in the sense of the collective body of waters which are called river, stream, channel or tank according to the respective configurations of the receptacles'. After the full arguments I have heard in the case, I feel confirmed in my view that the primary meanings of the words "river" and "stream" connote the collection of waters and exclude the bed and banks. I do not deny that by a justifiable use of words (called Jahath Latchana Vritti in Sanskrit), the words may be made to mean the bed alone or one bank alone or both banks to the exclusion of the body of water (as when we say a village on the Ganges). But the ordinary and primary meaning is clearly the collection of waters (instance--the usual expressions "water of or from a stream or river", "bed of a river", "banks of a river", "bathing' in the river", "the river is muddy" and so on). Especially the word stream" from its very root meaning primarily connotes the body of water flowing in a current and in Sanskrit also, the primary meaning of a river is the "Jala Pravaham". In Murray's Dictionary, the primary meaning of the word "river" is given as "a copious stream of water, etc.
24. At page 423 of the same judgment, I said with reference to the Madras Act III of 1905: "There can be no doubt that the Government starts with a strong presumption in their favour under Madras Act III of 1905, that all standing and flowing waters belong to them, but it is rebuttable presumption." Section 2 of the Act says that "all standing and flowing waters" (save in so far as the same are the property of others) "are hereby declared to be the property of Government". On this language I am still of opinion that the Legislature intended that when a dispute arises between Government and a private person, the burden should rest on the latter of proving that a particular water belongs to him, though of course proof by him (or admission by Government) of present use and possession will easily shift the burden on to Government. I do not think it necessary to consider at length the argument that the language of Section 2 grammatically considered does not make all standing and flowing water itself the property of Government but only the bed of all standing and flowing water. In my opinion the language could not bear such construction and the matter seems to be concluded by the following sentence in the judgment of their Lordships of the Privy Council in Kandukuri Balasurya Prasadha Rao v. The Secretary of State for India (1917) I.L.R 40 Mad, 886, 895 "Further the Madras Act III of 1905 appears to enact that (inter alia) all standing and flowing water not the property of private individuals is the property of Government but subject to the natural and easement rights of other land-holders."
25. In The Secretary of State for India v. Janakiramayya (1915) 39 M.L.J. 424 and 425, I said 'In this connection, I wish to point out that not only all "standing and flowing water" wherever situate are and are declared to be the property of Government, but the words just coming after the words "all flowing and standing water" in Section 2 (1) of Act III of 1905 are " all lands wherever situated." Thus as regards all lands also wherever situate, the presumption is created by that section that they belong to Government unless proved to belong to Zamindars, Inamdars, etc. As regards standing water in tanks, can it be reasonably argued that the ownership of the tank bed has nothing to do with the ownership of the water standing on it? 'Can it be said that even though the rain water fills the tank, the standing water in it is the property of Government?' 'The section again assumes that Zamindars, Poligars, Inamdars, etc., can have the same kind of "property" or ownership in standing and flowing waters as Government is declared to possess'. 'That flowing water by its very nature, can never be the absolute property of the Government or any body else (though the ownership in a very real sense can be predicated of it as vesting in a person so long as the water continues to be situated vertically over land belonging to that person) is clear to my mind; and when Section 2 (1) says that all standing and flowing water are hereby declared to be the property of Governments (except as may be otherwise provided for by any law for the time being in force, subject always to all public rights and natural and easement rights of other land-owners and to all customary rights) it seems to me that the Legislature did not intend to give to the Government greater rights of ownership in flowing water than the principles of general jurisprudence would allow. * * * When water flows in a river over the bed-portion belonging to one owner, that water is temporarily and usufructuarily his property (subject to well known natural rights of others). As soon as it leaves that portion of the bed and begins to flow over another bed-portion belonging to another owner, the water becomes the property of the owner of that bed portion, subject again to the same rights. * * I can find nothing in Section 2 of the Madras Act III of 1905 which was intended to give the Government greater rights over standing or flowing water vertically over their land than any other proprietor of land (like a Zamindar or Inamdar) has over water standing or flowing over his'. At pages 427 and 428 I said: There are two well known legal maxims which usually come to mind in such cases. One is Acqua currit et debet currere ut currere, solebat which signifies that water flows and ought to flow as it used to flow. Grounding on this maxim, it is usually stated that there is no property in running water, but merely a right to use it, and this right may only be exercised so as not to interfere with the use of the water by other persons similarly entitled. But the right to use it can itself be called " property" in running water, and (as I have said already) it is not wise to confuse ourselves by juggling with the word "property," or the word "owner"?
26. The other maxim is cujus est solum, etc, meaning that whoever is the owner of the soil, it is his even to the firmament and to the middle of the earth. This maxim is the basis of the rule that waters in ponds, tanks, and wells situated on land owned by a person belong to him in a very real sense, and that in the flowing water also running over his land, he has got a real right of property though of a qualified kind. How else is a Zamindar or Inamdar to prove his "property" in "standing or flowing water" except by proving his "property" in the land situated under such water it being clear from Section 2 (1) (a) itself that such "property" can exist in him? Narasimha Sastrial v. The Secretary of State for India (1891) 1 M.L.J.
27. 'There is, no doubt, a distinction in the extent of the proprietary or ownership rights of a man in water over his soil, according as the water is standing water (as in a tank) or water naturally flowing as a river (though the waters cannot be said to belong to anybody else so long as the waters are still vertically over his soil).' (The existence in a man of a very real proprietary right over even flowing water within the limits of that portion of the river-bed which belongs to him is well brought out by his power to prevent other persons fishing in that portion of the current of floating over or doing any acts in that portion of the flowing water and he can effectually exercise that power by driving stakes in the river-bed from bank to bank or drawing nets across, without interfering of course with the flow of the water down the river.)
28. I am confirmed in the opinions quoted above by the referring Judgment of my Lord the Chief Justice in this case, and by the opinion of Ayling, J. just delivered. In Kandukuri Balasurya Prasadha Row v. The Secretary of State for India (1917) I.L.R. 40 Mad their Lordships of the Privy Council state that if Section 2 of the Madras Act III of 1905 be relied on for the contention that the water of a stream belongs to Government even when the property in the bed belongs to a riparian owner, "the natural and prescriptive rights of riparian owners are seriously diminished by the Act and where the Government have not expended money in improving the natural stream, apparently without any sort of quid pro quo." I think from this sentence, a clear indication is given as to the inclination of the minds of their Lordships of the Privy Council. Their Lordships (it seems to me) suggest that the words" property of Government" in the Madras Act III of 1905 should not be given as wide a meaning as is connoted by the words " belonging to Government " in the Madras Act VII of 1865, as such a construction would lead to startling and inequitable results.
29. For the above reasons I agree in answering the question referred to us in the negative.
Coutts Trotter, J.
30. The short contention for Government is that the Act of 1905 created a property in Government in all flowing water in this Presidency, without reference to any question of ownership of the banks or bed of the river.
31. English lawyers do not ordinarily regard flowing water as the subject of property. The owners of land on the banks of the river are owners of the soil of the river-bed asque ad medium filum aquae; and by virtue of the ownership of that land, they acquire certain rights over the water flowing past the banks which they own. Those rights are known both to English and Indian law as riparian rights; and they arise as an incident of the land through which the water passes. When Judges are using scrupulously accurate language, they are careful to point out that neither riparian owners nor others have any property in the water (e.g., Embrey v. Owen (1851) 6. Exch. Rep. 353). But the rights of a riparian owner are extensive, and it is very natural that they should often be described as rights of property or ownership, the necessary qualification that the 'property' is only usufructuary being left unexpressed, see e.g., James, L.J. in Bush v. Trowbridge Waterworks Co. (1875) L.R. 10 Ch. App. 459 at page 462. Statutes sometimes use similar language; e.g., Section VI of the Water-Works Clauses Act, 1847. It is especially natural when the ownership of both banks is vested in the same person to speak of him generally as the owner of the river.
32. The material portion of Act. III of 1905 in effect declares that all flowing water save and in so far as it is the property of any one else is henceforth to be the property of Government. What the judges did in the Urlam case, Kanduhuri Mahalakshmamma Garu v. The Secretary of State for India (1910) I.L.R. 34 Mad. 295 was to apply the English Common Law conception to the saving clause, with the result that they held that no one had any property in flowing water, except perhaps in the abnormal case of a river which from source to mouth runs through one man's land. The result was that all flowing water would become automatically the property of Government. That is in itself a startling conclusion; but it involves a still more startling process. We are to suppose that the draftsman and the enactors of this short local act designed, not directly but by mere intendment, to introduce a wholly new juridical conception, viz., that of property in flowing water without reference to any question of ownership of the banks or bed of the river in which it flows. That seems to me obnoxious to all the evils pointed out by the House of Lords in the St. Andrew's Case. Nairn v. The University of St. Andrew's (1909) A.C. 147. In my opinion the Urlam case was wrongly decided, and I think the Act of 1905 when it spoke of water 'belonging' to any one, only used the term in the lax but commonly understood sense of water over which rights were exercised by virtue of ownership of bed or banks. This construction necessitates no new legal conception of property in water; for flowing water will only go to Government as a bonum vacans, when the bank or banks are bona vacantia, and it will become their property only in the sense with which every one is familiar and which is correlated to their property in the banks or bed.
33. Some attempt was made during the argument to draw conclusions from the linguistic implications of the word 'river.' I do not think such considerations go far much, but they certainly do not help the case of Government. River ' is not derived from the Latin 'rivus,' as most people would suppose off-hand, but through the French riviere from 'riparia,' i.e., the thing with banks (ripa). Nor would the case be better if the derivation was from rivus, for I find this in the Digest (43--21): rivus est locus per longitudinem depressus, quo aqua decurrat.