UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY OF THE UNIVERSITY OF BRITISH COLUMBIA g: U. B. C. LAW LIBRARY ARSWELL Co., RELEASED BY THE LAW SOCIETY OF B. C. 1952 THE LAW RELATING TO WATERS, SEA, TIDAL, AND INLAND, INCLUDING RIGHTS AND DUTIES OF RIPARIAN OWNERS, CANALS, FISHERY, NAVIGATION, FERRIES, BRIDGES,' AND TOLLS AND RATES THEREON. BY H. J. W. COULSON, B.A., OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW, AND URQUHAET A. FORBES, OF LINCOLN'S INN, ESQ., BAHRISTER-AT-LAW, Author of " The Law relating to Savings Banks." THIRD EDITION. LONDON : SWEET AND MAXWELL, LIMITED, 3, GHANCEKY LANE, 1910. BRADBURY, AONEW & CO. LD., PRINTERS, LONDON AND TON BRIDGE. v PKEFACE. THE Second Edition of The " Law of Waters : Sea, Tidal, and ^ Inland " was exhausted in 1909. Since its publication in 1902 Ij ^ various Acts of Parliament amongst the most important of ^ y which are the Board of Agriculture and Fisheries Act, 1903, the Merchant Shipping Acts, 1906 and 1907, and the Port of London Act, 1908 have been passed ; and more than 300 reported cases relating to the subject-matter of the work have been decided in the Courts. The authors have therefore thought that a new edition embodying these changes in the law may prove of value to the profession and the public. H. J. W. C U. A. F. 3, PAPEE BUILDINGS, TEMPLE, June, 1910. PLAN OF THE WOBK. CHAPTER I. PAGE OF THE SEA AND RIGHTS THEREIN 1 73 The High Seas . 1 Territorial Waters . 5 The Seashore 21 Ownership of the Soil and Rights connected therewith .... 23 Protection from Inroads of the Sea 43 Public and Private Rights thereon 52 Ports and Harbours 63 CHAPTER II. OP INLAND WATERCOURSES : THE OWNERSHIP OP THE SOIL THEREOF, AND OTHER MATTERS 74 127 Definition of a Watercourse 74 Tidal Navigable Rivers 81 Private Rivers and Streams 116 Lakes and Pools 123 Artificial Watercourses 126 CHAPTER III. OF NATURAL RIGHTS OF WATER, AND THEREIN OF THE DUTIES OF RIPARIAN OWNERS 128236 Riparian Rights generally 128 '1 he Right to Water in its natural Quantity, and Injuries thereto . . 139 By Abstraction and Diversion 139 By Obstruction and Overflow 155 The Right to Water in its natural Quality, and Injuries thereto by Pollution . 182 Surface and Percolating Water . . . 220 CHAPTER IV. OF ACQUIRED RIGHTS OF WATER, AND THE EASEMENT OF WATERCOURSE 237304 Easements of Water, how acquired 238 By express Grant 239 By implied Grant . . . . . 252 By Prescription 265 Vi PLAN OF THE WORK. PAGE Particular Easements of Water 276 Abstraction, Diversion, and Obstruction 277 Pollution 279 The Easement of artificial Watercourse 285 Of Drip 301 Extinguishment of Easements of Water 302 CHAPTER V. OP CANALS, WATER SUPPLY, AND DOCKS 305 380 Rights ami Duties of Bodies exercising Statutory Powers .... 305 Canals 312 Rights connected with the Ownership of the Soil 314 Duties of Proprietors to Owners of adjoining Lands .... 316 Duties with regard to Navigation 340 Water Supply 347 Companies having Parliamentary Powers 347 Companies having no Parliamentary Powers 360 Local Authorities supplying Water 362 Docks 371 CHAPTER VI. OP FISHERY 381460 The various Rights of Fishery 381 Fishery in the Sea 389 In Tidal Waters 390 In Private Streams 408 In Lakes and Pools 418 Statutory Regulations affecting Fishery . 423 As to Season 443 As to means of taking Fish 449 CHAPTER VII. OF NAVIGATION, AND THEREIN OF CONSERVANCY .... 461 567 The general Right : its Nature, Extent, and the Injuries thereto . . . 461 On the Sea 462 On Tidal Rivers 489 On Private Waters 515 The Conservancy of Navigation, and the Powers and Duties of Conservators . 520 Generally 520 On the River Thames 540 General Statutory Provisions as to Inland Navigation .... 555 PLAN OF THE WORK. vii CHAPTER VIII. PAGE OP FERBIES AND BRIDGES '. 568 614 Ferries 568 Bridges 583 Liability of the County to repair 590 Liability to repair ratione tenurce . . 607 Liability to repair by Prescription . . 612 CHAPTER IX. OF TOLLS AND RATES 615 695 Tolls . . . _ - 615 Tolls generally 615 On the Sea, Navigable Rivers, and Ports 626 Shore Duties 640 For Harbours and Lighthouses 644 For Docks and Piers . 647 On Canals 657 Rates 665 On Docks, Harbours, and Marine Property 666 On Rivers and Ferries 679 On Fisheries ' . . 681 On Canals 682 On Water Companies * - -. . . . 687 On Bridges 693 CHAPTER X. OP THE REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER 696 722 By Act of Party . 697 By Act of Law 700 APPENDIX I. THE BYE-LAWS REGULATING THE NAVIGATION OF THE RIVER THAMES 723 APPENDIX II. THE BYE-LAWS REGULATING THE FISHERIES IN THE RIVER THAMES. 742 INDEX 749 INDEX TO CASES CITED. A PAGE ABBOT of Combe's case 614 of Strata Marcella, case of... 400 Aberdeen Arctic Co. v. Sutter 389 v. Menzies 102 Abraham v. Great Northern Rail- way 77, 489,511 Acheson's Estate, In re 384, 701 Acheson v. Henry 384 Ackroyd v. Smith 237, 251 Acton v. Blundell 75, 79, 129, 221, 222, 225, 227, 228, 236 Adair v. New River Co 368 Agnew v. Lord Advocate 30, 33 Ainly v. Kirkheaton Board 208 Aironv. Stephen 55, 391,620 Aktieselskabet " Lina " v. Turnbull 656 Alabama (State of) v. Georgia ... 78, 542 Albano, The, v. Allan Co 473 Alcock v. Cooke 57 Aiders. Savile 278 Aldred's case 205, 418, 721 Aldrich v. Simmons 481 Alexander v. Shiel 453 Aliwal, The 479 Allan v. Overseers of Liverpool 671 Allen v. Donelly 55 v. Lockham 250 Allgood v. Gibson 63, 412 Allnutt v. Inglis 310, 372, 642, 650, 651 Alston's Estate, In re 32 Alstons. Scales 705 Ambler v. Bradford... 102, 172, 176, 718 Andersons. Hamlin 442 - v. Jacobs ... 27, 42, 51, 62, 68, 459, 704 v. Oppenheimer 161 Andrews v. Witts 356 Anglo-Algerian Co. v. Houlder Line 373, 377, 512 Anguish v. Ebden 582 Angus v. Dalton 266, 273, 275 Annapolis, The 12, 483 Annie, The 466,473 Anon., Durham Assizes 461, 495 - Dyer 42 - (2 Eq. Abr.) 189 Anonymous case (1 Camp. 516) 405 (6 Mod. 73) 55 (6 Mod. 149) 57 (Dyer) 42 PAGE Apollo, The 374,375 Arbutus, The 482 Arkwright v. Cell 74, 296, 297, 299, 300, 337 Aristocrat, The 474 Arlett v. Ellis 699 Armstrong and others, v 679 Arnell v. London & N. W. Railway 695 v. Regent's Canal 695 Ashworth v. Browne 396,716 Assaye, The 482 Assheton-Smith v. Owen. ..64, 65, 70, 651 Athol v. Midland Great Western Railway 290 , The 481 Athole (Duke of) r. Glover Incor- poration 457 Atkins v. Davis 687 Atkinson v. Gateshead Water Co. ... 349, 353 v. Workiugton 701 Att.-Gen. v. Acton Local Board 198, 199, 203, 283, 716 v. Barker 701 v. Basingstoke 206, 713 v. Birmingham... 134, 176, 183, 190, 192, 195, 200, 204, 205, 282, 304, 418, 571, 715, 717, 718, 719, 720, 721 v. Birmingham Drainage Board. ..192, 198, 206, 712 v. Bradford. ..201, 313,328,717 v. Bristol 354 and Bromley v. Copeland 291, 587 - v. Burridge ... 52, 99, 497, 720 -v. Ceeley 28 v. Chamberlaine 22 v. Chambers ... 21, 23, 25, 30, 39, 43, 89, 92 v. Clerkenwell 201, 208 v. Cockermouth 200, 203, 204, 206, 709, 717, 719 v . Colney Hatch... 192, 199, 200, 202, 204, 206, 718, 720 v. Constable 701, 721 v. Dorking Union ... 198, 199, 201, 208, 209, 215, 218 v. Emerson... 23. 33, 37, 56, 57, 91, 116, 385, 386, 400, 401, 416, 721 INDEX TO CASES CITED. PAGE Att.-Gen. v. Fanner 28 v. Forbes 606 v. Fnrness Railway ... 558, 600 v. Gloucestershire Water Co 347, 348 v. Grand Junction Canal... 131, 201, 242, 272, 338, 715 v. Gt. Eastern Railway ... 139, 718 t?. Gt. Northern Railway 106, 139, 143, 245, 265, 269, 528 -v. Hackney 192, 199, 202, 717 - v. Halifax.. .182, 192, 201, 202, 283, 717, 718, 720 v. Haunier 28, 32 - r. Johnson 52, 55, 99, 497, 720 - v. Jones ... 30, 33, 37, 381, 645 v. Kingston 200, 202, 204, 283, 304, 717 r. Leeds ... 182, li)2, 201. 202, 204, 206, L'83, 717, 719, 720 r. Logan 712 v. Lonsdale ... 51, 98, 101, 102, 177, 492, 501, 720 - r. Lutou ... 205, 283, 418. 719, 721 r. Mathias 63 ii. Metropolitan Board of Works 199, 200, 202 v. Mid Kent 600 v. Newcastle-on-Tyne 721 -r. Nicholl 284, 715 - v. Oxford Canal 606 - v. Pat-meter 23, 52, 55, 97, 99, 494, 497, 720 v. Plymouth 28, 641 r. Portsmouth ... 28, 30, 32, 33 r. Reeve 39, 89, 701 - r. Richards ... 26, 52, 99, 497, 720 T. Richmond 206 v. Rhymney Co 355 - v. Sheffield 192, 202, 242, 715, 717 v. Shrewsbury Bridge 712 v. Simpson 532 - v. Terry... 26, 98, 99, 101, 102, 104, 492, 501, 502, 503, 720 r. Thames (Conservators of) 54, 114, 510 - t>. Tomline 33, 46, 167 - v. Wemyss... 41, 53, 104, 109, 112, 114, 496, 708 - v. Wright 52, 98. 114, 265, 391, 493, 495 r. Yorkshire (West Riding) 590 for Ireland v. Glynn 33, 37 of Prince of Wales v. St. Aubyn 720 Aynsley v. Glover 193, 269 I', PAGE Badcock v. Hunt 3o7 Badger v. Yorkshire Railway... 106, 127, 527, 679 Bagnal v. London & S. W. Railway 172 531 Bagott'. Orr 23, 55, 62, 116 Bailey v. Clark ... 153, 185, 188, 266, 289 v. Stevens 383, 413 Baird v. Fortune 62 r. Williamson 159, 164, 165 Baker r. Greenhill 584, 607, 608 Ball v. Herbert 1, 104, 105, 491. 495, 630 Ballacorkish Mining Co. v. Harrison 226 Ballard v. Dyson 515 r. Tomlinson 153, 155, 161, 184, 185, 234, 301 Balston r. Bensted 225 Baltimore Wharf case 65, 73 Bankart v. Houghton 241, 243, 717 v. Tennaut 241, 242 Ban ne (Royal Fishery of the) 28 Barber v. Nottingham Railway 353 Barclay (case of the Barons of)... 32, 33 Barker v. Faulkner 408, 418 v. Nottingham Canal 326 Barlow r. Rhodes 253 Barnard Castle District v. Wilson ... 355 Barnard v. Roberts 460 Barnes v. Loach 252, 279 Barnsley Canal v. Twibill 318 Barraclough v. Brown 515 v. Johnson 121 Barrett v. Stockton and Darlington Railway 645, 648, 657 , Doe d., v. Kemp 410 Barry v. Arnand '. 58 Bartlett . Baker 708 Barton v. Benett 623 Bateman v. Ashton-under-Lyne. ..... 355 Bath River v. Willis 105 Batishill v. Reed 708 Batten's case 697 Battersbyr. Kirk 655 Baxendale v. McMurray 280, 284 Baxter v. Tayler 705 Bealey v. Shaw 133, 269, 277, 278, 304 Beam, The 71, 109, 157, 306, 342, 374, 375, 377, 533 Beaudeley v. Brook 252 Beaufort (Duke of) v. Aird 401 v. Patrick 241 v. Swansea 32,34, 400 Beauman r. Kiusella 409 Beaumont v. Hudderefield 351, 352 Beaver r. Manchester (Mayor of) ... 598 Beckett v. Leeds Corporation 41 v. Metropolitan Board 114 Bede Steamship Co. v. River Wear 376, 377 Beech v. Lucas .. 435 INDEX TO CASES CITED. XI PAGE Beeston v. Weate 146, 148, 150, 265, 278, 290 Belfast Dock, In re 30, 32, 33 Rope Works v. Boyd 99,101,140 Belgic,The 374 Bell v. Midland Railway 705, 706 v. Quebec (Corporation of)... 84, 490, 508, 721 v. Twentyman 161, 184, 705 Benest v. Pipon 62 Benjamin v. Storr 205, 700, 711 Bennett v. Coster 381, 388 Berridge v. Ward 118 Berwick Harbour v. Tweed mouth ... 669 Beswick v. Combdon 162 Bevins v. Bird 406 Bickett v. Morris.. .83, 97, 100, 102, 117, 120, 177, 178, 180, 408, 710, 718 Bidder v. Croydon 205, 418, 719, 721 Bilbao, The 3, 374 Binks v. South Yorkshire Railway... 328, 330 Bird v. Great Eastern Railway 384 v. Higgenson 240, 381, 384, 387, 388 Birmingham and Dudley Bank v. Ross 249, 299 Birmingham Canal v. Birmingham 683 - v. Dudley. ..229, 232, 318 - v. Hawkesford... 318 - v. Hickman 316,317 v. Swindell 232 Bishop v. Bedford 708 Black v. Ballymena Commissioners 230 v. Bateman 700 Blackburn v. Somers...l53, 279, 21, 290 Blacketer v, Gillett 572 Blackett v. Smith 651, 652 Blackie v. Stimbridge 481 Blackpool Pier v. Fylde Union ... 10. 23, 39, 667/673 Blagrove v. Bristol Waterworks . . . 353 Blake v. Land and House Corpora- tion 162 Blakemore v. Glamorgan Canal 250, 313, 334, 340, 374 Blanchard v. Bridges 241, 243, 279 Bland v. Lipscombe 63, 384, 393, 412 Blandford v. Morrison 551 Blantyre v. Babtie 351 *. Clyde Navigation 545 v. Doon 102 lilatchford v. Plymouth 245 Blewett v. Tregonning 62 Blisset v. Hart 569 Bloomfield v. Johnson. ..81, 83, 120, 122, 125, 126, 384, 385, 386, 394, 415, 416, 419, 520, 721 Blower v. Ellis 125, 126, 394, 422 Blundell v. Catteral ... 1, 22, 23, 52, 56, 59, 60, 61. 62, 97, 104, 390, 391 Blyth v. Birmingham Water Co. ... 156, 170, 360 Harbour v. Newsham 668 PAGE Booth v. Ratte* ... 99, 102, 110, 112, 129 Bootle Overseers v. Liverpool ... 356, 671 Bostock v. Staffordshire Railway ... 314, 315, 317 Boucher v. Neidstone 481 Boughton v. Midland and Great Western Railway ... 156, 170, 172, 331 Bourke v. Davis 516 Bourne v. Salmon 357 Bower v. Hill 303, 515 Box v. Jubb 156, 170 Bradbury v. Manchester, S. & L. Railway 716 Bradford Corporation v. Ferrard ... 231, 249 v. Pickles ... 75, 221, 223, 226 Bradley v. Newcastle-on-Tyne 639 v. Price 448,632 Brain v. Marfell 74, 226, 245, 247 Bramlett v. Tees Conservancy ... 46, 531 Brecknock Navigation v. Pritchard 610 Brecon Markets v. Neath and Brecon Railway 619 Breda v. Silberbauer 137, 273, 303 Brent r. Haddon 700, 708 Brett v. Beales 70, 616, 619, 659 Brew v. Haren 30, 34 Bridger v. Richardson 429 Bridges' case 109, 155, 530 v. Highton 722 Bridgland v. Shapter 569 Bridgwater v. Bootle-ciun-Linacre... 14, 22, 93, 97, 666 Briggs v. Swan wick 450 Bright v. Walker 266, 267, 273, 302 Brine v. Great Western Railway ... 311 Brinkman v. Marley 60 Briscoe v. Drought 74 Bristol City, The 482 Harbour case 720 Water Co. v. Uren 356 Bristowe v. Cormican 23, 32, 43, 81, 82, 83, 120, 122, 126, 390, 394, 409, 419, 520 Britain v. Cromford Canal ... 345, 645, 648, 657, 659 British Empire Co. v. Southwark andVauxhall 357 - Linen Co. v. Drummoud ... 483 Plate Manufacturers v. Meredith 311 Broadbent v. Ramsbotham 220, 225 Broder v. Saillard 161, 184, 705 Brook v. Harrison 358 v. Meltham Council 216 Broomfield, The 473 Brown v. Best 264, 278, 304 v. Dunstable Corporation .. 208 v.Gregg 112 v. London (Mayor of) ... 547, 624 v. Mallet 510, 512 v. Russell 708 v. Windsor 240 xii INDEX TO CASES CITED. PAGE Brownlow v. Metropolitau Board ... 312, 508, 511, 533, 535, 647 Bruce r. Willis 106, 108, 527, 679 Brune v. Thompson 73, 633, 640 Bryan v. Whistler 240 Brymbo Water Co. r. Lester's Lime Co 271, 274, 277, 286, 300, 351 Buccleucb v. Cowan 183 v. Metropolitan Board ... 113 Buckeridge v. Ingrain 346 Buckley and Sons*. Buckley ... 161, 264, 301 Bullocks. Dommit 610 Burghead Harbour v. George ... 23, 667, 673 Burling r. Read 699 Burlington, The 375 Burnis r. Brown 102 Burnley Co-Operative Society v. Pickles 599 Burrell v. Tuohy 71. 375, 377 Burrows v. Lang 252, 273, 299 Burton v. Hudson 27, 42, 62, 68, 459, 704 Burton-on-Trent r. Eggiuton 671 Bury St. Edmunds r. West Suffolk 589 Bury f. Pope Busby v. Chesterfield Water Co. 266 140, 355 Bush r. Trowbridge 349, 350, 354 Butterworth r. Yorkshire Rivers Board 214 0. Cadeby, The 482 Cairn Lines Co. v. Trinity House ... 648 Calcraft r. Guest 81 Calder and Hebble Navigation v. Pilling 345 Caldwell r. Pagham Harbour 712 Caledonian Railway v. Glasgow 606 Calmady r. Rowe 23, 32, 33, 420 Cambridge r. Harrison 451 Campbell r. Brown 22, 98 - r. Lang 519 r. London Waterworks ... 360 r. Wilson 266 Campbell Davys v. Lloyd 609 Canham t. Fisk 252 Cardiff (Mayor of) v. Cardiff Water Co 348, 355 Cardiff, The 482 Carlisle (Mayor of) r. Gruliam ... 85, 91, 99. 115, 119, 122, 390, 3S3, 403, 408, 492 Carlotta, The 467, 468 Carlyon r. Lovering...265, 267, 276, 280 Carrier Dove, The 481 Carrathere v. Sidebottom 482 Carstaire r. Taylor 162, 170 Carter r. Murcott 55, 81, 115, 117, 390, 395 PAGE Case r. Midland Railway 344 Casher v. Holmes 645, 647 Cator r. Lewisham 182, 192, 200, 205, 283, 717 Cattle v. Stockton 156, 162, 853 Cawkwell r. Russell.. .184, 265, 291, 301, 304, 698, 699 Caygill r. Thwaite 458 Cayzer r. Carron Co 482 Chad v. Tilsed 30, 34 Chadwick v. Marsden 245, 246 Chamber Colliery Co. r. Hopwood...l30, 269, 273, 285, 293, 322 Chancellor, The 484 Chang Kiang, The 472 Chapman r. Fylde A\ 7 ater Co 352 Charles v. Finchley Board 208 Charltoii, The 483 Chasemore v. Richards. ..75, 79, 80, 110, 129, 130, 131, 134, 139, 140, 185, 221, 223, 226, 227, 228, 229, 233, 235, 236, 270, 275 Cheetham v. Hampson 708 Chelsea Water Co. r. Bowley ...106, 527, 695 v. Paulet 357 v. Putney 688 Chester Mill case 417 Water Co. r, Chester Union 355 Chesterfield (Earl) v. Harris 63, 381, 383 413 Chichesterv. Lethbridge ... Ill, 26l', 508 Child v. Greenhill 385, 721 Christian Smith's case 708 Christmas, In re 645, 651 Churchman v. Tunstall 572 City of Berlin, The 473 City of Dublin Co. r. R 373, 496 Clark v. Chamberlain 58 v. Cogge 261 Clarke r. Mercer 410, 418 v. Somerset Commissioners.. 284 Clavering's case 243 Claxton v. Claxton 710 Clayton r. Corby 269, 383, 384, 413 v. Peirse 437 Cleave r. Mahony 705 Cleveland Water Co. r. Redcar 364 Clothier r. Webster 312, 535 Clowes r. Beck 63, 716 - r. Staffordshire ... 189, 194, 199, 205, 361, 710, 715 719 Clutha Boat, The .' 472 Clyde Navigation Trustees r. Blan- tyre 379, 530 Shipping Co. v. Miller 482 Cockatrice, The 469 Cockburu r. Ere wash Canal ... 155, 172, 327, 340 Cocker r. Cowper 240 Codling r. Johnson 252, 266 Coe r. Wise 305, 378 Colbeck r. Ashfield 449 INDEX TO CASES CITED. Xlll PAGE Colchester (Mayor of) v. Brooke. ..23, 52, 70, 81, 84. 98, 99, 404, 405, 461, 490, 492, 494, 496, 508, 635, 700 Coleman v. West Middlesex 356 Collins v. Middle Level Commis- sioners 172 Colne Valley v. Hall 358 Water Co. r. Treherne 357, 366 Colton t. Smith 69, 618, 628 Columbus, The 488 Compton r. Richards 254, 259 Concordia, The 467 Consett Waterworks r Ritson...319, 351 Constable's, Sir H., case 32 Sir J., case 32 Constable r. Nicholson 63, 267 Continental, The 480 Cooker. Chilcote 250 v. New River Co 358 Cooper v. Phibbs 381, 408 Coppinger v. Shehan 53, 54, 110, 496, 721 Corker v. Payne 239. 381 Cornwell v. Saunders 410. 459 Cory r. Bristow...93, 105, 526, 527, 677 U.Greenwich 677 c. Yarmouth 571 Cotching r. Bassett 241 Cotton r. Voyran 651 Coulton v. Ambler 661 Courtney r. Collett 696 Coventry (Earl of) r. Willes 516 Cowan r. Buccleuch 707 Cowes Urban Council r. Southamp- ton Co 568, 574, 575 Co wlam v. Slack 388 Cowler v. Jones 438 Cowley v. Newmarket 711 Cox F. Mathews 133, 145, 254, 259 Cracknell r. Thetford 109, 155, 307, 510, 530 Craigellachie, The 469, 473 Crease r. Saul 291 CrichtontJ. Colley 115,390, 395 Crispe r. Belwood 616, 618 Croft v. Rickmanswortfi Board... 291, 587 Cromford Canal r. Cutts...229, 318, 321, 322, 325 Crompton r. Lea 47, 165 Crossfield r. Manchester Ship Canal 545 Crossley v. Lightowler ... 136, 149, 182, 183, 188, 189, 205, 236, 252, 256, 260, 261, 280, 281, 285, 290, 303, 304. 710, 715, 719 r. Manchester Ship Canal 342 Crossman r. Bristol and S. W. Railway 700 Crump v. Lambert 705 Crystal Arrow Steamship Co. r. Tyne 515 Cuckfield Council v. Goring 608 Cunningham's case 12 PAGE Curling r. Wood 510 Curriers' Co. r. Corbett 257 Cynthia, The 374 D. Dalton F. Denton 497, 499 Daly v. Murray 33, 62, 716 Daniel r. North 269 Daniellsr. Potter 709 Dann v. Spurrier 241 Darling's Trustees v. Caledonian Railway 25, 98 Dartford Rural Council v. Bexley... 606 Dartmouth (Lady) r. Roberts 266 David, In re 651 Danes i. Evans 451 r. Jones 409 . Marshall 302 r. Sear 243, 261 F. Williams 699 Dawson v. Paver 203 De Garteig F. Mersey Docks 655 De la Vega v. Vianna 483 De Rutzen v. Lloyd 569 Denaby and Cadeby Co. r. Anson ... 66, 67, 461 Dennis v. Tovell 514 Dent r. The Auction Mart 193 Derbyshire County Council v. Derby 215,216, 218 Devery r. Grand Canal Co 135, 268, 279 Devonshire r. Eglin 241 t. Hodnett 396 v. O'Connor 381, 410 v. Pattison ... 115, 117, 118, 399, 410 Dewhurst r. Wrigley 266 Dewsbury Water Co. v. Penniston... 692 Diana, The 463 Dibden v. Skirrow 576 Dick r. Baddart 373 Dickens v. Shaw 36,57,62 Dickenson r. Grand Junction Canal 75, 129, 221, 222, 224, 225, 228 Dickinson r. Shepley Board ... 136, 185, 188 Dimes r. Grand Junction Canal ... 108, 333, 527 v. Petley 405, 461, 498, 508, 512, 700 Direct Spanish Telegraph Co. r. Shepherd 357 Direct U.S. Cable Co. v. Anglo- American Co 2, 14, 15, 20 Dixon v. Metropolitan Board ... 169, 174 Dobbs v. Grand Junction Water Co. 356 Dobson r. Blackmore Ill, 112, 721 Doddtf. Burchell 254, 264 Doe d. Reg. v. York 28, 527 Doick r. Phelps 549 XIV INDEX TO CASES CITED. PAGE Don v. Lippmann 483 Doncaster Union . Manchester, S. & L. Railway 527, 679 Donegal v. Hamilton 403, 407. 418 721 v. Templemore 33, 402 Dore v. Gray 525 Douglas, The 512. 514 Dresser r. Bosannuet 657 Drewett v. Sheard 76, 77, 267 Driver r. Simpson 45 Dublin (City) Steam Packet Co. v. R. 104 Duckham v. Gibbs 374 Dudden v. Clutton Union 75, 76, 221 Dudley Canal v. Grazebrook ... 229, 232, 318, 320, 321 Corporation, In re 352 Dukes v. Gostling 123 Dungarvan Guardians v. Mansfield 207, 276 Dunn v. Birmingham Canal ... 173, 229, 276, 325, 330 Dunwich (Bailiff of) v. Sterry 58 Durrant v. Branksome Council 203, 206 Dutton v. Taylor 261 Dwyer r. Rich 97, 118 Dyce v. Hay 519 Dyson . Collick 314, 706 E. Earl of Auckland, The 482 East Barnet Council v. Stallard ... 208 East London Harbour Board v. Cale- donian Co 375 East London Harbour Board v. Co- lonial Fisheries Co 375 East London Railway v. Thames Conservators ,.. 545 East London Water Co. v. Charles 357 v. Foulkes 357 v. Keller- man... 357 v. Kyffin ... 356 v. Leyton 695 v. St." Mat- thew ... 352 v. Mile End 695 East Molesey v. Lambeth 351, 714 Eastern Counties Railway v. Dor- ling 54, 111, 115, 497 Eastman v. Amoskeag 707 Eastwood r. Hanley 210, 217 Eaton r. Swansea Water Co. ... 274, 303 Eckroyd v. Coultard 118, 119, 381, 404, 410 Eddleston v. Crossley 101, 102, 117, " 144, 198, 204, 716 Edgar v. Commissioners of Fisheries 116, 384, 385, 396, 397, 414 Edge v. Metropolitan Board 368 Edgemore r. Colne 349, 359 Edgwater, The 482 PAGE Edinburgh Water Trustees v. Som- merville 131, 139, 171, 306, 360 Edmonds v. Watermen's Company 552 Edwards v. Hall 346 Eglinton (Earl of) v. Norman 515 Egremont v. Putnam 706 Eldridge v. Nott 266 Elliot r. North Eastern Railway ... 202, 232, 717 v. Russell 357 Ellis v. Manchester 257, 279 Ellwell v. Birmingham Canal. ..271, 329, 337 v. Crowther 141, 202, 710, 717, 718 Elmhirst v. Spencer 190, 198, 204 Elinore v. Hunter 552 Embleton v. Brown 22, 59, 93, 459 Embrey v. Owen 80, 131, 132, 134, 139, 140, 141, 144, 182, 193, 277. 709, 710 Emerald, The 515 English v. Bumell 388 Ennorv. Barwell 268 Etna, The 473 Evans v. Manchester, S. & L. Rail- way 172, 306, 328. 330 v. Owen 435 Ewart v. Belfast Guardians 221, 224, 226, 229, 230, 231, 248, 262 v. Cochrane 252, 253, 270 Excelsior, The 374 Exeter Corporation v. Devon (Earl of) 526 Exeter (Mayor of) v. Trimlett 630 v. Warren 66, 70, 71, 464, 620, 621 F. Falmouth v. George 70, 73,620, 622, 634 v. Penrose 635 Farmer v. Long 214 Farquharson's case 100, 102, 178 Fay v. Prentice 162, 705 Fenuings v. Grenville 5, 389 Fentiman v. Smith 239, 240, 282 Fen ton v. Trent and Mersey 325 Fergusson v. Malvern Council... 136, 188 Ferrandv. Bradford 348 Field v. Southwark Council 371 fielder v, Morley Corporation 177 ?ife v. George 452 ?"inch v. Bannister 155,523 v. Birmingham Canal 317 v. Resbridge 266 ""ineux v. Hoveden Ill, 275, 721 ""isher v. Lee 664 v. Moon 302 r itch v. Rawling 516 Fitzgerald v. Firbank 389, 418 "itznardinge v. Purcell 56, 62, 381 INDEX TO CASES CITED. XV PAGE Fitzsimmons v. Inglis 160 Fitzwalter's case 55, 56, 115, 390, 395, 408 Flack, Lire 356 Fletcher v. Birkenhead... 175, 233, 326, 351 v. Lancashire and York- shire Railway 318 - v. Rylands ... 165, 184, 353, 531 v. Smith 156, 165 Flight v. Thomas 280 Fobbing Sewers Commissioners v. Reg 48 Forbes v. Lea Conservancy ... 109, 341, 530, 536 Ford v. Lacy 39, 86, 88, 89, 119 Foreman v. Free Fishers of Whit- stable 65. 66, 69, 70, 71, 99, 404, 461, 492, 493, 494, 631, 635, 636 Forrest v. Greenwich 105, 676 Forwards. Pittard 169 Fosberry v. Waterford 606 Foster v. Bonner 569 v. Warblington Council ...63. 129, 136, 153, 155, 182, 185, 198. 202, 279, 282, 392. 429, 696 v. Wright 39,43,86,91,119,408 Frankum v. Falmouth 134, 139, 289 Fraser v. Cuthbertson 481 v. Swansea Canal ".... 340, 665 Fredericks. Bognor Co 355, 356 Free Fishers of Faversham, In re ... 428 Free Fishers of Whitstable v. Fore- man 631, 635. 636 French Hoek Commissioners v. Hugo 131. 137, 139, 140, 273, 303 G. Gale v. Rhymney Co 355 Galgay v. G. S. & W. Railway Co.... 221 Gammel v. Woods and Forests 9, 13 Gandy v. Jubber 709 Gaun v. Free Fishers of Whitstable... 5, 9,23,26,52,70. 72, 81,97,98, 104, 116, 130, 396, 404, 405, 461, 463, 489, 492, 493, 494, 551, 620, 626, 627, 631, 632, 635, 637, 720 Gardner v. Hodgson's Brewery... 238, 273 v. Whitford 373 Gardner, Locket & Co. v. Doe 552 Garnetta. Backhouse 443, 457 " Garstin " sailing ship v. Hickie ... 64 Gas Light and Coke Co. v. St. Mary Abbots 353 r. South Metropolitan Co 347 Gateward's case 63, 382, 383, 388 Gautret v. Egerton 328, 343 Gaved v. Martyn 269, 273, 276, 291, 293, 296 Gazard v. Cooke 451 PAGE Geddisv. Bann Reservoir... 156, 172, 306, 313, 353, 359, 530 Gellatly's case ... 102 General Steam Navigation Co. v. British Colonial Co 483 George v. Carpenter 435 Germania, The 467 Gibson v. Inglis 374 Giffordv. Yarborough 39, 92 Gildartt). Gladstone 645, 648, 654. 655, 657 Giles c. Groves 573 Gillv. Edouin 161 Gillon v. Boddington 705, 708 Gipps v. Woollicot 385, 386, 721 Glamorgan Canal v. Blakemore 313, 314 Glamorganshire Canal v. Merthyr Tydvil671, 682 v. Nixon's Co 324,326 Glaunabanta, The 480 Glasgow Corporation v. Glasgow & S. W. Railway 352 (Mayor of) v. Farie 350 Glave v. Harding 254 Glossop v. Helston Local Board 199, 201 v. Isleworth Local Board ... 215 Glover v. East London Waterworks 352 Goldsmid v. Tunbridge Wells... 182. 189. 192. 202, 204, 205. 280, 283, 715, 717, 719, 720 Goldsmith v. Slattery 552 Goodday v. Michel 291 Goodhart v. Hyett 264 Goodman v. Saltash (Mayor of). ..55, 56, 62, 237, 265, 381, 382, 383, 398, 413, 428, 583, 621 Goodson v. Richardson ... 348, 361, 716 Goody v. Penny 663 Goolden v. Conservators of Thames 542, 543, 545 Gore v. Commissioners of Fisheries 455 Graham v. Ewart 409, 410 i;. Wroughton 208 Grand Junction Canal v. Ashby 122, 410 v. Rodoca- nachi 358, 369 v. Kernel Hempstead 683 v. King's Langley... 683 r. Petty... 105, 314 17. Shugarl34,141, 228, 718 Water Co. v. Brent- ford 358, 365 v. Davies 356 Surrey Canal v. Hall 344 Union Canal v. Ashby 317, 410, 423 Grant v. Oxford 105, 677 Grantham Canal v. Hall 661 XVI INDEX TO CASES CITED. PAGE Gray v. Bond 37, 116, 270, 401, 404 Greasley v. Codling 711 Great Central Railway v. N. E. Steam Co 67 Great Eastern Railway v. Harwich 625 Greatrex v. Hayward 220, 288, 298, 299, 302 Green v. Chelsea Water Co. ... 172, 306 v. Leith 14 v. Newport Union 44, 675 v. St. Katherine's Docks 625 Greenback v. Saunderson 458 Greeuslade v. Halliday 697 Greenwich Board of Works . Maudslay 43, 45 Gregson v. Potter 622 Greta Holme, The 515 Grey's case 419 Grejv. Browii 697 Griffith'scase 50 Griffiths v. Mann ." 144, 146 Groucott v. Williams 531 Grove v. Portal 388 Grove or Grose v. West 410 Guildhall, The 473 Gwinnell v. Earner 709 H. Hadloy v. Taylor 709 Hale v. Olroyd 303 Halifax r. Soothill 361 Hallt'. Grantham Canal 661 t>. Laird 253, 263 v. Reid 436 - v. Swift 265, 279, 304 Halley, The 483, 484 Halliday v. Wakefield (Mayor of) 325, 350, 351 Hamelin v. Bannerman 109, 129 Hamilton v. A.-G. for Ireland ... 37, 39, 62. 701 v. Davies 57 v. Donegal 391 v. Eddington 102 t;. Stow 644, 647 Hammersmith v. Brand 172,175, 176,233 Hampton Urban Council v. South- wark and Vauxhall Water Co. ... 663 Hanbury v. Jenkins 385, 400. 404, 410 Handcock v. Folkestone 357 v. York and Newcastle Railway 509 Hannau Pollock 220, 266 Harborough v. Shardlow ... 108, 332, 527 Harbottle v. Terry 435 Hardcastle v. South York Railway 360 Harden v. Smith 651 Hare, The 467 Hargreavea v. Diddams 82, 115, 117, 121, 122, 385, 392, 412, 459, 527, 704 Harmond v. Pearson 512 PAGB Harrington v. Derby Corporation 182, 190, 191, 208, 215, 218, 279,702, 708,715 , The 515 Harris v. Baker 342 v. Drewe 252 v. Owners of the Franconia 3 Harrison v. Great Northern Railway 169, 170, 360 v. Parker 240, 610 - v. Rutland 57 Harrogate Corporation c. Mackay... 356 Harrop v. Hirst.. .189, 275, 710, 715, 718 Hart v. Barnett 711 Hartlepool Gas Co. v. West Hartle- pool 351 Hartley c. Rochdale 353 Harvey v. LymeRegis 650 v. Walters 302, 304 Haspurt v. Wills 70, 615, 616, 617, 618, 628 Hastings v. lva.ll 32 Hawthorn Bank, The 468 Hay r. Le Neve 481 Hayes v. Bridges ... 384, 386, 388, 397, 416 Haylock r. Sparke 216 Hayward v. East London 355 Headt>. Tillotson 451 Healey v. Thome 33, 34 Hector, The 480,483 Heddy v. Wheelhouse...73,400, 569, 625 Hedges v. London and St. Katha- rine Docks Co 373 Henry v. Newcastle Trinity House 485 Herbert v. Groves Ill Herdman v. North Eastern Rail- way 160, 184 Hertfordshire County Council r. New River Co 598, 605 Hertz v. Union Bank 254 Heshod v. Wills 617, 628 Hewlins v. Shippam...237, 239, 240, 244 Hibbsr. Ross 481 Hibernian, The 482, 483 High Wycombe f. Thames Conser- vators 211, 213, 545 Hildreth v. Adamson 349 Hill's case 700 Hill v. Cock 304, 698 v. George 451 v. Smith 70, 616, 619 v. Tupper 238, 251, 315 v. Wallasey Local Board... 352, 365 Hinchcliffe v. Kinnoul 264 Hind v. Mansfield 499 Hindson v. Ashby ... 39, 43, 78, 82, 89, 114, 115, 116, 117, 119, 125, 385, 393, 403, 409, 542 Hipkins v. Birmingham ...156, 164, 184, 210 Hobart r. Southend Corpora- tion 63, 129, 182, 191, 197, 205, 280, 430, 717, 721 TO CASES CITED. XV11 PAGE Hodgkinson v. Ennor ... 161, 184, 185, 204, 233 Hodgson v. Little 457 v , York (Mayor of)... 109, 155. 339, 530 Hogarth v. Jackson 389 Holcroft v. Keel 266 Holford e. Bailey ... 91, 122, 385, 386. 388, 402, 414, 415, 721 r. George 397. 406, 453 i. Pritchard 387, 388 Holker v. Porrit ... 79,134,135,137, 138, 146, 150, 151, 183, 194, 710 Hollands. Deakin 252 Hollisv. Goldanch 106, 108, 527 Holmes v. Seller 251 Holnafirth Local Board v. Shore 207 Holy well Union r. Halkyu... 669 Hopkins v. Great Northern Rail- way 576,581 v. Robinson 388 Hoptona. Thirlwall 446 Hopwood v. Schofield 705 Horn r. Sleaford Council 363 Home, Ex parte 346 v. Mackenzie 394 Hosk ins v. Robins 240 Hough r. Clark 63, 118, 237, 401 Houses. Chapman 346 Howard v. Ingersoll 78 v. Wright 277 Howard Smith v. Wilson 515 Howe v. Stawell 62 Hubert v. Groves 700, 711, 721 Huddersfield Canal v. Buckley 346 Corporation and Ja- comb, In re 352 Hudson v. Macrae ... 82, 122. 393, 412, 459 v. Maddisou 707 v. Tabor... 43, 46, 520, 521, 525 Hughes v. Bucklaud 458 Hull (Mayor of) v. Homer 266 and Selby Railway, In re. ... 41, 88, 89, 92 - Dock Co. v. Browne.. .644, 645, 648, 651, 657 r. Huntingdon 655 v. La Marche ... 314, 373, 620, 643 v. Priestley 651 Hume v. McKenzie 81 Humphries v. Cousins 161, 184 Hungerford Market Company v. City Steamboat Company ..: 622, 658, 662 Hunter v. Northern Marine Insur- ance Co 64 Huntingdon, Case of the County of 590 Huzzey v. Field ... 569, 572, 574, 577, 581 Hyamsv. Webster 709 L.W. I. PAGE Ilchester (Earl) v. Rashleigh...l3, 22, 23, 24, 55, 59, 81, 84, 114, 391, 404, 490 Imperial Gas Company v. Broadbent 190, 715 Industrial Dwellings Co. v. East London 355, 358 Inman v. Kirkdale 671 Insole r. James 79 Ion 17. Ashton 651 Ipswich v. Brown 404, 583 Dock v. St. Peter's, Ipswich 14, 666 Isaie Frechette v. St. Hyacinthe ... 279 Isle of Ely case 48,51 Itchin v. Southampton 535 Iveson v. Moore Ill Ivimey v. Stocker ... 265, 269, 275, 276, 291 J. Jackson v. Pesked 705 -v.Stevenson 438 James r. Hayward 700 v. Johnson 617, 618, 619 v. Plant 302 James Joicey, The 474 Jean v. Holland 45,525 Jehu Jebb's case 583 Jenkins r. Cooke 665 77. Harvey... 69, 71, 266, 620, 621, 633, 640 Joanna Stoll, The 12, 483 Johnson v. Barrett 10, 32 v. Wyatt 302 Johnstone r. Hall 705 Jolliffe r. Wallasey 511 Jones v. Bird 311 c. Chappell 705 r. Davies 450,459 v. Ffestiniog 159, 172 v. Mersey Dock 672 v. Phillips 647 v. Price 269 v. Williams 31, 699, 708 and Eastern Counties Rail- way, In re 346 Joyce r. Capel 481 Juliana, The 479 K. Kaiser Willielm der Grosse, The ... 474 Kate, The 511 Kavanagh v. Glorney 452 Kearns v. Cordwainers' Co. ... 114, 510, 546 Keighley's case 47, 48,51 Kemp v. Worthing Local Board ... 352 Kennaird r. Cory 552 Kennet and Avon Co. v. Great West- ern Railway 340 b XV111 INDEX TO CASES CITED. PAGE Kennet and Avoii Co. v. Witheriug- ton 327, 343 Kensit r. Great Eastern Railway Co.. ..136, 152, 203, 286, 288,289, 290 Keppel v. Bailey 346 Key v. Neath Council 250 Keymer r. Summers 266 Khedive, The 480 Kidgell r. Moor 705 Killaruey, The 482 Kimberley Water Co. v. De Beers. . . 361 King's County, The 474 King's Lynn (Mayor of) r. Pember- ton 329 Kingston-on-Hull Docks r. La Marche 69, 374.620, 643 Kinnersley r. Orpe 385, 414 Kinsoii Pottery Co. f. Poole Corpora- tion 208,209 Kintore r. Forbes 400, 406 Kirkheaton Board r. Ainslie ... 214, 218 Knight r. Langport Board 675 Knowles r. Lanes, and Yorks. Kail- way 320, 322 Konig Wilhelm II., The 473 Kyffin v. East London Water Co.... 367 r. Metropolitan Water Board 355 Lacon r. Cooper 389 Ladymau v. Grave 269 Laird r. Birkenhead 241 v. Briggs 60, 63, 705, 706 Lamb r. Newbiggen 122,408,410 Lancashire Canal Co., Ex parte ... 346 Lancashire, The 581 Lancaster Canal r. Paruaby 374 Laucum r. Lovell 623 Lane r. Newdigate 341 Lang r. Kerr 328, 330 Laugridge v. Levy 162 Latter r. Littlehampton Council ... 579 Laurence r. Hitch 619,622 Lawrence r. Great Northern Rail- way 172, 173 Lawson r. Duralin 481 Lawton r. Ward 699 Layburn v. Crisp 621 Lea v. Abergavenuy Commissioners 357 Lea Conservancy r. Button ... 106, 627 r. I^yton Council 213 Leader r. Moxon 311 Leath r. Vine 459 Leconfield r. Lonsdale ... 267, 391, 406, 407, 417, 418, 507, 721 Lee r. Brown 34 v. Milner 326 Leech v. Schweder 193 Leeds and Liverpool Canal v. Hustler ...314, 345, 373, 645, 648, 657,661 Worsted Dyers r. Yorkshire Kiveis Board 212, 214 PAGE Lees v. Manchester and Ashton Canal 623, 658, 661 Legge r. Boyd 58 Leigh r. Burley 1, 14 v.Jack 118 Leith Harbour v. Leith Assessment Committee 673, 675 Lemington, The 480 Letton v. Gooden 568, 573, 576, 581 Leveridge v. Hoskins 696 Lewis v. Arthur 451 v. Swansea 668 Lifford's case 404 Liggius v. Inge 131, 243, 304 Lillywhite v. Trimmer 198, 204, 718 Lingwood v. Stowmarket...203, 205, 719 Liskeard Union r. Liskeard 355 Listrage v. Rowe 33,36 Little v. Wingfield 396, 400 Littledale v. Scaith 389 Liverpool Corporation r. Birkenhead 687 r. Chorley Water Co. 172, 348 v. Llanfyllin 689 r. West Derby... 690 Docks v. Gladstone 655 (Mayor of) v. Wavertree 690 and North Wales Steam- ship Co. v. Mersey Trad- ing Co. ... 28, 52, 68, 81, 99, 490, 494, 496, 497, 628, 644 Llandudno Council v. Woods ... 60, 716 Llewelyn v. Swansea 342 Lloyd v. Iron 374 i: Jones Errata Lochibo, The 481 Lodie r. Arnold 700 London (Alderman of) v. Hastings 387, 416 Association of Shipowners v. London and Indian Docks 378, 706 Corporation v. Netherlands Steam Co 672 County Council r. East Lon- don ... 358 v. Erith 668, 671 v. General Steam Navi- gation Co.... 620 - r. L. B. & S. C. Rail- way 548 (Mayor of) r. Hunt 70, 618, 629, 634 Port Sanitary Authority v. Thames Conservators ... 27, 97, 210, 544 and Birmingham Railway v. Grand Junction Canal 313 and Glasgow Engineering Co. v. Anchor Line 482 INDEX TO CASES CITED. XIX PAGE London and India Docks r. McDou- gall ... 653 .. 653 r. Poplar... 670, 672,673,675 v. Thames Steam Co. 653 r.Woolwich 667 and North Western Railway r. Evans 323 and North Western Railway v. Fobbing Level Commis- sioners 47, 50, 265 and North Western Railway v. Ogwen 606 and North Western Railway r. Skerton 606 Londonderry Bridge r. McKeever... 569, 570 Longridge v. Domville 483 Lonsdale v. Nelson 609 Lopes v. Andrews 32 Lord v. Commissioners of Sydney ... 24, 29, 98, 118, 125 Lord Advocate v. Blantyre ... 30, 31, 32, 35 v. Hamilton 81 v, Lovat ... 35, 387, 396, 398, 400, 406 v. Sinclair... 387, 396, 400 r. Wem)'ss ... 10, 21, 29, 30, 33 v. Young 22, 30, 33, 36, 37, 39 Lord Melville, The 481 Lovettv. Wilson 266 Lowden v. Hierons 651 Lowe v. Govett 22, 62 Lowndes r. Bettle 715 Lucas v. Chesterfield Gas Board, In re 351 Lumley r. Gye 162 LuttrelTs case 265, 279, 304, 699 Lyme Regis Corporation v. Henley... 47, 714 Lyne r. Leonard 451 Lynn (Mayor of) r. Tayler 63 ?. Turner 84,490 Lyou r. Fishmongers' Co 54, 79, 82,83,90,109,110, 112 113, 128, 129, 130, 409, 495, 496, 508, 510, 544, 546, 709, 711, 721 M. Macalister i: Campbell 3C McAttee v. Hogg 448 McCannon r. Sinclair 14, 93, 666 McCartney v. Londonderry Railway 140 141, 143, 697 McDouall v. Lord Advocate 387, 400 PAGE klace v. Philcox 61 JcEvoy v. Great Northern Rail- way 77,272 klacey v. Metropolitan Board of Works 113 Mackenzie v. Stornoway Pier Co. ... 377 klackinnon v. Penson 713, 714 tfclntyre v. McGavin 281 VlcManna v. Crickett 481 Macnab v. Robertson... 75, 221, 227, 229 VlacNaghten v. Baird 238, 267 Macnamara r. Higginson 63 McTaggart v. McDowell 98 Maddock r. Wallasey Board 52 Madras Railway r. Zemindar of Carventenagarum 169, 172 Magor r. Chadwick... 150, 186, 234, 287, 296, 298, 301, 337 Malcolmson r. O'Dea ... 23, 55, 81, 115, 116, 385, 386, 390, 395, 396, 397 Maldon Corporation r. Wolvet .429 Manchester and Sheffield Railway v. Doncaster 679 Manchester and Sheffield Railway v. Worksop 184, 201, 205, 719 Manchester Ship Canal v. Rochdale 271 337 Manley v. St. Helens 109, 312/328, 598, 665 Mann, Macneal & Co. v. Ellerman 482 Mannesmain Tube Co., In re 356 Manning v. Wasdale 237, 267, 275 Manser r. North Eastern Counties Railway 600 Manuel c. Fisher 396 Margaret, The 488 Margate Local Board v. Margate Harbour Co 62, 69 Maria, The 483, 484 Marion, The 482 Marriott v. East Grinstead 172, 347, 701, 715 Marshall v. Nicholls 426 v. Richardson 451 v. Ulleswater Co.. ..54, 91, 110, 114, 120, 122, 124, 125, 126, 386, 402, 409, 414, 415, 420, 496, 518, 520 Martin v. Temperley 552 Mason v. Hill ... 80, 131, 132, 134, 135, 136, 138, 139, 144, 153, 204, 278, 710 v. Shrewsbury 110, 126, 139, 148, 155, 238, 267, 273, 277, 295, 304, 339, 708 Mathews v. Peach 573 Matson r. Scobell 645, 646 Meader v. West Cowes Board 209 Meadows r. Grand Junction Water Co 357 Medway Navigation r. Brooks 663 v. Romney...80, 138, 529, 710 62 XX INDEX TO CASES CITED. PAGE Mellor r. Walmsley 21, 25, 26, 33, 40, 58, 54, 92, 110, 114, 496 Meltham Spinning Co. *. Hudders- field 351, 352 Mentor, The 481 Menzifs r. Breadalbane ... 77, 100, 102, 117, 156, 160, 178, 180, 182 Mercer r. Denne...25, 39, 42. 55, 63, 391 Merrick r. Cadwallader 436 Mersey Docks r. Birkenhead 671 r. Cameron 624, 672 r. Gibb...71. 109,156,157, 199. 305, 310, 328, 340. 372. 374. 375, 378. 531. 533, 535. 624, 665 r. Hunter 651 r. Liver] ><>o 1 670, 674 r. Llauellan 679 Merthyr Tydfil Local Board r. Merthyr Tydfil 693 Metcalfe r. Hetherington 375, 515 Mctroitolitan Association r. Fetch... 705. 706 Asylums Board v. Hill 176, 309, 545 Board r. London and N.W. Rail- way... 199, 210. 283. 716 r. McCarthy ... 113 r. New River Co. ... 349. 358 r. Vauxhall Co. 675 - Water Board v. North- cott ... 869 v. Paine 358 - v. Solomon 367 Micklethwaite r. Newlay Bridge Co. 41, 118. 569, 598 - r. Vincent.. .125. 126, 394, 422, 520 Middletou r. Lambert 619 Midland Railway r. Checkley... 229, 318 Midlothian County Council *v. Oak- bank Co 214, 216, 218, 279 Midlothian County Council v. Pum- pherston Oil Co 214 Miles r. Rose 84, 490 Miller r. Little 402 Millingston r. Griffiths 210 Mills r. Colchester 428 Milmau r. Renwick 622, 644 M lines r. Huddersfield 355 Miner r. Gilmonr 79, 110, 180. 189, 140, 145, 289, 711 Mold r. Wheatcroft 316, 817 Monk r. Butler 240 Montuouth Canal r. Hill 313, 817 r. Kendal 661 Monte Rosa. The 488 Montreal (Mayor of) r. Drummond 112 PAGE Moorcock, The ... 71, 109, 157, 306, 342, 374, 375, 376, 533 Moore t\ Lambeth Water Co 352 - r. Webb 204, 280, 282, 283 Moorman v. Tordoff. 61 Morland r. Cooke 51 Morris r. Duncan 446 Morrison v. General Steam Naviga- tion Co 479 Mortensen v. Peters.. .14, 16, 21, 431, 449 Moses ?. J ago 435 Moss r. Mersey Docks 650 Mostyu r. Atherton ... 76, 207, 227, '229 Mott r. Shoolbred 705 Moulton v. Middle Level Commis- sioners 537 r. Wilby 453 Moxham, The Mary 483, 484 Mulholland r. Killen 34 Mulliner r. Midland Railway Co. ... 105 Mumford r. Oxford Railway 705 Murchie r. Black 254 Murgatroyd r. Robinson 280 Murphy r. Ryan 25, 81, 82, 85, 115,121,122,390, 392. 393, 395, 403. 407, 408, 412, 418 Musselburgh Real Estate v. Mussel- burgh 62, 63 Musset r. Burch...82, 115, 117, 121, 122, 385, 392, 412, 527, 704 Mussumat Iinaum Bendi r. Hergo- vindGhose 39,42 N. Nagapoota, The 473 National Manure Co. r. Donald ... 268, 271, 302, 314, 315 Plate Glass Co. r. Pruden- tial Assurance Co 279 Neath Canal r. Ynisaewed Colliery 316 Neill r. Devon shire (Duke of).. .381, 384, 392, 396 Newby r. Harrison 332 Newcastle r. Clarke.. 26, 45, 497 Pilots r. Bradley 639 r. Hammond 640 New Moss Colliery v. Manchester Corporation . . .232, 348, 350 v. M. S. & L. Railway Co 322 Newport Bridge, In re 584, 604 New River Co. v. Hereford 688 r. Johnson... 79, 227, 353 v. Mather 349, 359 v. Midland Rail. ... 350, 361 v. St. Pancras 687 New Shoreham v. Lancing 668 Newton v. Cubitt 568, 574, 577, 578, 579, 581 Nicholas *. Chamberlain... 252, 253, 259, 261, 264 INDEX TO CASES CITED. XXI PAGE Nicholl v. Allen 598. 601 Nichols r. Marsland ... 49. 156, 167, 170 Nicholson and the South West. Kail- way. In re 346 r. Williams 27, 68 Nield r. London and North West. Railway 169. 180, 182, 331 Nitro-phosphate Co. r. London Docks 48, 49. 170 Norbury r. Kitchin 139. 143 Northam r. Hurley ... 245, 246, 248. 710 Northampton Corporation r. Ellen... 356 North East. Railway r. Elliot. . .350, 360 Shore Railway r. Pion 53. 54. 79. 109. 112. 113. 114. 129. 130, 495, 615 and South Shields r. Barber... 570 Staffordshire Railway v. Hauley 595 Northumberland /. Houghton ..395. 398 Norton r. Scholetield 204 Norwich and Loxvestoft c. Theobald 346 Nottingham (Mayor of) r. Lambert 568. 615, 616, 619. 620, 625. 636 County Council r. Man- chester, S. & L. Railway 606 Nugent r. Smith 169, 581 Nuneaton r. General Sewage Co. ... 712 Nuttall r. Bracewell 135, 136, 142, 145,147, 150, 152, 153, 154, 185, 187, 238, 251, 290 O. Oakley r. Kensington 340 v. Speedy 481 Octa via Stella, the 483 Oldaker r. Hunt 199, 205, 418, 716, 719, 721 Olding r. Wild 456 Ole Bull, The 482 Oliver v. Camberwell Council ... 214, 216 O'Neil r. Johnston ... 83, 123. 126, 381, 392, 394, 396, 420 r. McElaiue 392, 403 O'Neill r. Allen 55 Only r. Gardiner 269 Oravia, The 472 Ordeway r. Onne 388 Orford (Mayor of) r. Richardson ... 55 Original Hartlepool Colliers r. Gibb 52, 98. 114, 461, 494, 495 Onnerod r. Todmorden Mill Co. ... 136, 137, 150, 155, 185, 188, 236 Orr-Ewing r. Colquhoun..83, 97, 98, 100, 101. 104,117, 120, 121, 129, 136, 138. 145. 156. 177, 178. 394,408,417, 461, 489. 492, 499, 500. 515, 516. 710, 718 Outram r. Maude 269, 270 Ovingdean Grange, The 482 PAGE Owen r. Davies 143, 241 p. Faversham Corporation ... 63, 155, 182, 279, 392, 429 Owl, The 467 Oxlade, fn re 346 P. Padwick r. Knight 391 Pagetr. Milles 387 Pain r. Patrick 711 Paley r. Birch 458 Palk r. Skinner 269 Palmer r. Conservators of Thames... 545 r. Fletcher 254, 259 v. Persse 99, 101, 102 r. Rouse 58 Paradine r. Jane 170 Parkdale (Corporation of) r. West... 113 Parker r. Lord Advocate 23, 97, 428 r. Mayor of Bournemouth ... 61 Parmeter v. A.-G 720 Parnaby v. Lancaster Canal ... 109, 310, 313, 328, 340, 512, 514, 533, 535, 624, 665 Parrett Navigation v. Robins. ..109. 155, 530, 531 Partheriche r. Mason 408 Partridge v. Bere 705 Passmore r. Oswaldwhistle Council 208 Patrick v. Beaufort 108, 333, 527 Pauline, The 58, 59 Payne v. Partridge 569,577, 581, 583 Pearce v. Bunting 78, 542, 543 v. Scotcher 82, 115, 121, 122, 385, 392, 393, 408, 704 Pearson v. Spencer 252, 254, 264 Peebles v. Oswaldwhistle Council... 208, 217, 218 Peerless, The 483 Peirce v. Fauconberg 104 Pelham v. Pickersgill 616, 619, 620 Pendjeby v. Greenhalgh 709 Penniugton v. Brinsop Hall ... 134, 182, 183, 184, 189, 190, 192, 204, 283, 710, 715, 717, 718, 719, 720 v. Galland 261 Penruddock's case 697, 699, 707, 708 Penryn (Mayor of) v. Holme 23 Perkins v. Gingell 552 Pernacott or Parnacott v. Passmore 438 Perrot v. Bryant 22 Perry v. Fitzhowe 240, 699 Pery v. Thornton 126, 422 Peter v. Daniel 265 v. Kendal 569, 572,581 v. Olsen 17, 449 Peterborough's (Abbot, of) case 39 Peterborough Corporation v. Stam- ford... 692 XXII INDEX TO CASES CITED. PAGE Peto v. West Ham 669 Petrie v. Rostrevor 53, 405, 490, 512 Pheysey r. Vicary 252 Phillips v. Eyre 483 Phyn r. Kenyon 452 Pickard r. Smith 709 Pidgeon v. Great Yarmouth Water Co 355 Pierce r. Lord Fauconberg 104 Piercy r. Pope 351 Pike r. Rossiter 457 Pilk r. Venore 481 Pirn r. Curel 669, 571 Pirie v. Kin tore 407, 418, 721 Pitman r. Woodbury 624 Pitts r. Kingsbridge 63 Plimmerr. Wellington (Mayor of) 11, 113 Polden v. Bastard 252 Pollock r. Lester 707 r. Moses 443 Pomfret v. Riecroft 161, 264, 301 Poole or Pole r. Jolmson 645, 646 Poplar Board r. Knight 521 Popplewell r. Hodgkinson 232 Portsmouth Harbour case 506 Powell P. Butler 292 r. Thomas 241 Preston (Mayor of) r. Fulwood 361 v. Norfolk R .ilway 313, 327, 708 Pretty v. Bickmore 708 r. Butler 388 Price r. Bradley 448 r. Torrington 25 & Co. r. Union Lighterage Co. 512 Price's Patent Candle Co. r. London County Council 173, 175, 198, 200, 720 Prideanx v. Warne 629 Priest v. Archer 410 Priestley v. Foulds 341 r. Manchester and Leeds Railway 558, 599 Prince Leopold de Belgique, The 467 Prior of Tynemotith's case 104 Prosser v. Cadogan 437 Pryce r. Monmouthshire Canal 615 Pullan v. Rough fort Bleaching Co. 136, 153, 252, 263 Puller r. Berry 437 Purnell r. Wolverhampton 355 Pye v. Mumford 269 Pyer v. Carter... 246, 252, 253, 254, 255, 256, 257, 259, 260, 261, 262, 264 Q- Queen of the River Co. r. Thames Conservators 375, 508, 533, 546, 547 Queensborough Corporation r. Smeed 70, 634, 645 R. PAGE Race v. Ward 63, 237, 267, 275, 393, 413 Raikes r. Townshend 697 Rameshur Pershad v. Koonj Behari 126, 130, 153, 287, 289, 300 Ramsay's (Abbot of) case 39 Ratusden r. Dyson 241 Ramsgate Corporation r. Dabling... 61, 238, 384 Randall r. Renton 482 Ranfurley, Ex parts 28, 32 Hanger, The, and Cologne 467 Ratata, The 377 Rawstorne v. Backhouse ... 398, 406, 454 Rawstron r. Taylor 76, 220, 225, 247 Read v. Brookman 266 Rebeckah.The 57, 58 Red Cross, The 473 Redler v. Great Western Railway ... 134, 325, 701 Reece v. Miller 22,81, 82, 85, 393 Reed v. Goldsworthy 482 r. Ingham 551 Reeve r. Digby 410 Regent's Canal r. Hendon 682 - v. St. Pancras 683 Reginar. Adderbury 604, 613, 714 V. Anderson 3, 463 r. Atkins 553 r. Aylesbury 695 v. Baker 50 v. Barker 607 v. Bedfordshire 584, 612, 714 v. Betts 26, 84, 492, 499, 506, 527, 720 v. Blackfriars 695 V.Bradford 200 v. Brecon 606, 607 v. Bristol Dock 71, 372, 379, 669, 694 v. Buccleuch 611 v. Bucknell 607 r. Burrow 125, 126, 395, 421, 459 v. Cambrian Railway ... 570, 576 v. Cambridge" Gas Company 689 v. Chart 595 v. Chorley 304 v. Clark 26 v. Clinton 62 v. Coventry Canal 686 v. Cubitt 427 v, Cunningham 13, 14 v.Darlington 205 r. Delamere 313, 325, 531 V.Derbyshire 77 v. Dibble 551 v. Dowlais 678 v. Downing 32, 398 v. Durham 678 v. East London Waterworks 695 v. East and West India Docks 599 INDEX TO CASES CITED. XX111 PAGE Regina v. Ely 590, 592, 595, 600 r. Eyre 693 v. Forrest 675 v. Gamble 51 r. Gee 22, 23 v. Giles 552 v. Glamorgan Canal 683 v. Gloucester 586, 602 v. Godmanchester 521 v. Grand Junction Canal ... 682 v. Railway 689 r. Great Northern Railway 570 v. Grey 435 v. Grosvenor 26 v. Hammersmith 694 v. Henley 443 r. Holme Reservoirs 687 v. Hornsea 46 v. Hull Dock 669, 670 v. Irish Fisheries Inspectors 453 v. Kentmere 690 v . Kerrison 592 v. Keyn...l, 2, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 43, 76,92, 93, 389, 404, 462 v. Kitchener 592, 598 v. Landulph 117 v. Lapley Overseers 686 v. Leach 499 v. Leeds and Liverpool Canal 332 v. Leith 676, 677 r. Lesley 463 v. Lincoln 605, 614 v. London School Board 671 v. London and South West- ern Railway 689 v. Longton 361 v. Longwood 690 c. McCann 693 r. Mathews 551 V.Merionethshire 714 v. Metropolitan Board ... 76, 114, 225, 688 v. Middle Level Commis- sioners 600, 602 v. Mile End 689, 695 p. Morrison 676, 677 v. Musson...l4, 22, 23, 59, 93, 459 v. Neath Canal Co 684 r. Newport 667 v. New River Co 690 r. New Sarum 606 v. North and South Shields 680 v. Paynter 694, 695 r. Peak 459 v . Petrie 269 v. Plymouth Corporation ... 430 v. Pomfret 456 v. Randall 492, 502 r. Rhymney Railway Co. ... 671 v. Russell : 99, 500 r. St. George the Martyr 693, 694 v. St. Mary, Islington 690 - r. Saintiff 590, 592, 598, 714 PAGE Regina t. Salisbury 619, 624. 694 v. Samuel 542 r. Sattler 3, 463 r. Simpson 621, 622, 660 v. Smith 681 v. Somerset 598 v. Southampton ... 586, 590, 598, 600, 601, 603, 607, 671, 673 v. South Staffordshire Water Co 687 r. Southwark and Vauxhall Co 695 v. Staines Local Board.. .208, 213, 279 r. Steer 419 - -V.Stephens 499 r. Stimson 390, 395, 398, 459, 704 r. Stratford 603 V.Surrey 613 v. Sutton 612 v. Thames and Isis Naviga- tion 325 v.Tibble 549 v. Tyne Commissioners 673, 675 r. Wandsworth 590 v. Wells Water Co 358 v. West Middlesex 687, 689 v. Wharton :... 50, 51 p. Wilts and Berks Canal ... 324 e. York (Archbishop of) ... 108, 315, 468, 527 v. Yorks. County Council ... 430 Reginald, The 469 Reney v. Kirkcudbright 374 Rex v. Aire and Calder Navigation 106, 527, 659, 679, 684 v. Baptist Mill 291 v. Barnes 694 v. Bath (Mayor of) 687, 688 v. Bilston 687, 688 v. Bird 714 v. Bridgwater 686 v. Bristol Dock 379, 524 v. Buckingham (Marquis of)... 593 v. Bucks 605, 713 r. Calder and Hebble Naviga- tion 684 v. Cardiugton 684, 685 v. 49 casks of Brandy 57, 58 v. 2 casks of Tallow 59 v. Chaplin 679, 685 v. Chelmer Navigation 682 v. Chelsea 687 r. Clark 26, 499 v. Coke 678 P. Crunden 60 v. Cumberland 603 r. Derbyshire ... 586, 595, 596, 602 r. Devon ...586, 592, 593, 602, 603. 605, 606 r. Dorset JJ 714 P. Douglas 84 p. Dudley Canal Co 683, 685 XXIV INDEX TO CASES CITED. PAGE Rex r. Ecclesfield 612 r. Ellis.. .37, 116, 401, 404, 416, 681 r. Essex (Commissioners of Sewers for) 48 r. Glamorganshire ... 343, 593, 660 r. Gloucester 604 r. Grand Junction Canal 682 r. Grosvenor...26, 99. 497, 502, 503 r. Hampshire 623 r. Hayman 607, 611 r. Henderson 671 r. Hendon 612,613,713 r. Hodges 458 r. Hollis 502 r. Houldgrave 714 r. Hull Dock 675 r. Hunsdon 419 v. Button 355 r. Jones 644, 646, 647 r. Kent ... 585, 592, 593, 598, 600 r. Kerrison 598, 600, 607, 610 r. Kingswinford 685, 689 r. Lancashire 586.602, 713 r. Landulph 93, 117 v, Leeds and Liverpool Canal ... 684 r. Leeke 105,314 - v. Leicestershire Canal 346 r. Leigh 48, 170 r. Lincoln 603 r. Lindsey 343, 592, 598, 600 v. London Dock Co 380 r. London (Mayor of) 105, 400 r. Lower Mittou 686 v. Macdonald 685, 687 r. Machynleth 714 v. Mallison 459 r. Manchester Waterworks ... 695 r. Marsden 568 r. Medley 711 v. Melladen 356 r. Mersey and Irwcll ... 106, 108, 527, 679 r. Middlesex 607, 611 r. Miller 688 r. Milton 684 r. Mirfield 675 r. Monmouthshire 682 -r. Montague... 84, 99, 490, 491, 494, 497 r. Nene Outfall 327 r. New River Co 688, 689 r. Nicholson 312, 680, 684, 685 r. Northampton 593, 713 r. North Duffield 582 r. Oldacre 39 r. Oswestry 613,614 r. Oxford Canal 682, 685, 686 r. Oxfordshire ... 74, 77, 592, 595, 596, 600, 607, 611 r. Page 659, 684 r. Pagham Level Commis- sioners 51, 177, 182 r. Palmer 684 r. Paul (Inhabitants of) 51 PAGE Rex r. Pease 172, 199, 311 r. Pedley 708 r. Penegoes... 610,611 v. Pettit 14, 432, 449 r. Portmore 679 r. Randall 26, 121, 499 r. Rebowe 678 r. Regent's Caual 682 r. Rochdale 687 r. Russell ... 52, 461, 494, 495, 499, 502, 503, 504, 505 - v. St. Austell 291 r. St. Mary's, Leicester 684 - r. St. Peter the Great 682 - r. Salop 592, 598 r. Severn and Wye 104 -r. Smith 81,85 r. Somerset (Commissioners of Sewers for) 48 r. Southampton 714 r. Staffordshire Canal 684 r. Stainforth 334 v. Stoughton 611 r. Stratford 613,614 r. Surrey 604 r Sutton 607,608 r. Thomas 106, 108, 527, 679 = r. Tindall 99,500 r. Trafford 177, 597 r. Trent and Mersey Caual ... 682 r. Tynemouth 678 v. Vasey 460 r. Ward 52, 499, 502, 504, 720 v. Watts 510, 512, 711 - r. Wharton 78, 117 r. White 551 r. Whitney 595, 713 v. Winstauley 651 f. Woking 689 r. Worcester Canal 347 r. Yarborough 39, 88, 92 v. Yorkshire (West Riding) ... 584, 585, 589, 592, 594, 598, 603, 611,614, 713 (Doe rf.) v. York 28 Reynolds r. Clarke 696 Rhine, Case of the Navigation of ... 78 Rhondda Council v. Taflf Vale Rail- way 606 Rhosina, The 374, 376 Ribble Navigation r. Hargreaves ... 649 River Committee r. Halli- well 213, 219 Rich r. Basteifield 708 - r. Kneeland 581 Richards r. Fry 269 v. Richards 316 r. Rose 254, 262 r. West Middlesex Water Co 357 Richardson r. Gray 404 Richmond and Suuthwark r. Rich- mond 365 Rickards v. Bennett 616, 619 INDEX TO CASES CITED. XXV PAGE Ricket v. Metropolitan Railway 711 Ridge v. Midland Railway ... 177, 179, 204 Ripon r. Hobart 322, 710, 717 Rivers (Lord) i: Adams 383 Riviere v. Bower 254 Roanoke, The 473 Robbins v. Jones 709 Roberts v. Fellowes...l34, 137, 143, 264, 267, 271, 718 v. Gwyrfai District Council 143 v.Richards 153,289 v. Rose 698 r. South Essex Water Co.... 356 Robertsons. Balmain Co 569 r. Johnson 429, 445 Robins i'. Warwick Canal. ..108, 317, 332 Robinson v. Addison 346 v. Byron 141, 715, 718 V.Warwick 527 v. Workington 208 Rochdale Canal v. King 138, 141, 155, 241, 316, 327, 339, 529, 716, 718 v. Radcliffe ... 77, 265, 271, 282, 315, 337, 339, 529, 715, 716 Rogers v. Allen 384. 385, 386, 398 v. Brenton 291 v. Oxford Railway 334 Rolfe v. Rolfe 162 Rolle v. Whyte...266, 267, 273, 406, 417, 507 Rollesv. Newell 552 Rook c. Liverpool ... 356 Rooke's case 48, 51 Rose v. Groves. ..Ill, 497, 508, 709,721 - v. Miles ... 26, 84, <>9, J97, 508, 711 Rosin and Turpentine Co. r. Jacob 512 Ross v. Fedden 162 Rossiterv. Pike 457 Roswell v. Prior 708 Rothes (Countess of) v. Kirkcaldy... 170, 242 Rothschild r. Grand Junction Canal 562 Rowbotham v. Wilson 251 Roy i'. Boston 628 Ruabon Water Co. r. Evans 357 Ruck v. Williams 312,535 Rudditnan v. Smith 162 Rugby Charity v. Merryweather ... 519 Rumsey v. Rawson 240 Russell v. Devon 713, 714 v. Harford 257 v. Shenton 708 Ruther r. Harris 446 Rutland v. Bowler 132 Rylands v. Fletcher.. .156, 157,161, 164, 165, 167, 168 Rypon v. Bowles 708 S. St. Aubin, The .., ....... 511, 546 PAGE St. Glair v. Dysart 207 St. Helens Chemical Works v. St. Helens 206 v. Tipping ... 182, 183, 184, 710 St. Louis v. St. Louis 134, 145 St. Paul, The 471 Salmon v. Bensley 708 Sampson r. Hoddinot 131, 135, 139, 144, 146, 237, 274, 277, 280, 710 v. Savage 705 Sandwich v. Great Northern Rail- way 143 Sans Pareil (H.M.S.) 482 Sargent v. Reed 69 Saunders v. Newman 132, 145, 278 Saxby r. Manchester Railway. ..700, 707 Saxonia, The 12,463,484 Scott v. Shepherd 182 v. Tylor 651 Scratten r. Brown ...22, 37, 91, 116, 401, 416 Sculcoates Union r. Hull Dock Co. 670, 671 Sea Spray, The 515,545 Seebkristo r. East India Co 39, 81 Serjeant v. Reed 632, 641, 643 Seymour r. Courteuay 385, 387, 409 Shad well r. Hutchinson 707 Shand r. Henderson ... 155, 328, 334, 340, 716 Shandrigany r. Sholedam 521 Sharp v. Powell 162 r. Waterhouse 285 v. Wilson & Co 140, 144, 182 Shaw's Water Co. v. Greenock 355 Shears v. Wood 146 Sheffield United Gas Co. v. Sheffield 687 Water Co. v. Bennett 356 v. Bingham 358 v. Carter 358 v. Wilkinson ... 355, 356 Shoebottomu. Egerton 328, 343 Shoreham v. Lancing 668 Short v. Tayler 241 Shroeder r. Smith 651 Sliuttleworth c. Le Fleming ... 238, 384, 397, 404 Sidebottom r. Glossop 356 Simper r. Foley 302 Simpson v. Attorney-General. ..109, 121, 532, 568, 569, 576, 581 v. God man Chester... 263 v. Scales 105 v. South Oxfordshire 354 v. Staffordshire Water Co. 108, 347, 354, 360, 527 v. Thompson 41 Sion College v. London Corpora- tion 672 Skinner v, Chapman , 389 XXVI INDEX TO CASES CITED. PAGE Slater v. Burnley Corporation 357 Smith v. Andrews.. .82, 90, 115, 121, 122, 385, 392, 393 v. Archibald 207 v. Birmingham 356 t. Brownlow 410 v. Burnham I/ocal Hoard ...211, 556 v. Condry 483, 484 v. Kemp 55, 385 t<. Kenrick 159, 163, 223 v. London and St. Katherine Dock 378 v. Midland Railway 600 v. Milles 696 v. Officers of Scotland 23 -. Shepherd 616, 617, 619 v. Southwark nnd Vauxhall 352 v. Stair (Earl of) 26, 32 V.Stephen 619 v. Voss 481 Smith's Dock Co. v. Tynemouth ... 364, 678 Smithett r. Blytlie 644, 646, 647 Snape r. Dobbs 317, 423 Snark, The 512, 513 Snowv. Whitehead 161 Solomon v. Glover,, 302 Somerset v. Fogwell 28, 37, 43, 91, 116, 122, 239, 381, 388, 401, 402, 416, 581 Canal v. Harcourt ... 108, 241, 333, 527 Drainage Co. v. Bridgwater Corporation 74. 210, 284 Soothill Council r. Wakefield 364 Southall Council r. Middlesex County Council 212 Southampton and Itchin v. South- ampton 311 Dock v. Hill 656 South Eastern Railway r. Dorling... 54 Southend Water Co. v. Howard ... 357 South Shields v. Cookson 249, 250, 352 South Staffordshire Water Co. v. Mason 351 Southwark and Vauxhall Co. v. Wandsworth 353 South West Suburban Co. r. Metro- politan Water Board 356 r. St. Marylebone 355, 356 Spencer's case 250 Spokes v. Banbury 192, 205, 717, 718, 720 Stackpoole v. The Queen 58 Staffordshire and Derbyshire Coun- cils, In re 607 Staffordshire Canal v. Birmingham Canal ... 77. 267, 271, 295, 315, 336, 529 PAGE Staffordshire Canal v. Hallen 342 v. Trent and Mersey 346 County Council r. Seisdon Council 218 Stamford r. Paulet 650 Stanley of Alderley v. Shrewsbury... 243 Stapler. Haydon 261 Stead v. Newport Union 44 v. Nicholas 436 v. Tillotson 450 Steamship " Fulwood " r. Dumfries Harbour 377 Steggles v. New River Co 360 Steinson v. Heath 619 Stephen v. Coster 641, 643 Stevens v. Barnet Gas Co 356 r. Woodward 162 Stewart v. Thames Conservators ... 540, 547 Stockport r. Potter... 136, 137, 142, 146, 147, 149, 150, 151, 152, 154, 155, 184, 185, 187, 188, 204, 236, 290 Stockton and Darlington Railway ?. Barrett ... 314, 374, 644, 648, 654, 657 and Middlesboro' Water Board v, Kirkleathain 351 Stone . Yeovil 318, 350, 359 Stort v. Clements 480, 481, 482 Stourbridge Canal r. Dudley... 229, 232, 318 r. Wheeley...313, 314, 345, 374, 657, 659 Strick f. Swansea Canal 346, 562 Stuart r. McBarnet 400, 408 Stubbs-c. Hilditch 495, 512 Sturges v. Bridgman 275 Success, The 2, 462 Suffield r. Brown ... 252, 255, 256, 258, 260, 261 Sury v. Pigott 254, 302 Sutcliffe f. Booth ... 130, 150, 186, 234, 287, 288, 289, 298, 299, 301 Sutherland r. Ross 446 r. Sutherland 239 Sutlej (H.M.S.) 473 Sutton r. Ash 162 v. Buck 57 v. Clark 311 - Harbour r. Plymouth ... 671, 678 Pool case 506 Swansborough v. Coventry 254, 259, 262 Swansea Harbour v. Swansea Union 616, 669, 677 Swatmaii v. Ambler 624 Swift, The 405, 449 Swindell r. Birmingham Canal 318 INDEX TO CASES CITED. XXV11 PAGE Swindon Waterworks Co. v. Wilts and Berks Canal ... 139, 141, 144, 146, 189, 203, 710, 715. 718 T. Tactician, The 482 Talargoch Mining Co. c.St. Asaph... 687. 688 Talbot r. Lewis 57, 59 Tamar Navigation v. Wagstaffe 660 Tame r. Grand Junction Canal 664 Taplingr. Jones 279, 337 Tasmania, The 480 Tatton r. Staffordshire Potteries ... 182, 205 Taylor r. Bennet 203.719 r. St. Helens ... 74, 127. 245. 246 r. Waters 240 r. Windsor 620, 624 Telegraph, The 479 Temple Pier Co. r. Metropolitan Board 546 Tenant r. Goldwin ... 161. 182. 184. 185. 233, 236, 259 Tenham r. Herbert 716 Teniel r. Harslop 388 Thakurain Ritraj r. Thakurain Sarfaraz 85, 119 Thames Conservators r. Gravesend 208, 213, 279 r. Smeed ... 22. 27, 78, 541, 542, 545 r. S. E. Rail- way 546 v. Walton Council ... 544 Tunnel Co. r. Sheldon 346 Thicknesse r. Lancaster 327 Thomas v. Birmingham Canal. ..181. 331 v.Evans 450 v. Joues 456 v. Quartermaine 157. 172 v. Russell 458 v. Thomas 302, 304 Thompson v. Burns 445 v. Gilbert 708 r. Greenock Harbour ... 377 v. N. E. Railway Co 374, 376 v. Sunderland Gas Co. ... 352 Tibbits v. Yorke 346 Tibbie v. Beadon 549 Tickle r. Brown 267 Tighev. Sinnott 396.400 Tilbury v. Silva...63. 119, 122. 237. 265, 303. 381. 332, 413 Tinam, Ex parte 560 Tinney v. Fisher 388 Tipping v. Eckersley...204. 205. 718, 719 Tisdell v. Combe 551 Todd v. Flight 708 Todhuuter v. Buckley 551 PAGE Tomline, In re 32, 33 Tone (Conservators of) v. Ash... 232, 528 Topsell v. Ferrers 629 Tottenham Council v. Williamson... 712 Townsend r. Ash 358 Trafford v. Rex 76, 179 Trinity House v. Clark 644, 646 - v. Sorsbie 645, 646 v. Staples ...631. 644. 646 Tripp v. Frank 572, 574 Trotter v. Hanis 568, 572 Truman v. Walgham 615, 616, 619 Truro Corporation v. Rowe 390, 428 Tucker r. Newman 162, 705, 706 Tuff v. Warman 480 Turnday v. Shaw 544 Turquoise, The 471 Tweed Commissioners v. Wood 429 Tyler v. Wilkinson 140 Tyne Commissioners v. Chirton 675 Keelmen v. Davidson 656 r. Elliott 656 - Pontoons Co. v. Tynemouth... 677 Tynemouth (Prior of) case 104 Tyringham's case 252, 254 Tyson v. Smith 275 U. Uckfield Council v. Crowborough ... 348 Ulman v. Cowes Harbour 23, 701 Umfreville v. Johnson 707 United Alkali Co. v. Simpson ... 68, 556 Upton v. Dawkins 386. 721 Utopia, The 512, 514 V. Yallego v. Wheeler 644. 646 Vance v.Frost 456 Vaudeleur r. Glynn 33, 37 Velocity, The 467 Vera Cruz, The 3 Vernon v. Prior 104 Vice v. Thomas 291 Vigilantia, The 2, 462 Vinkensterne v. Ebden 70, 71, 625, 643, 650 Vivian v. Mersey Docks 514 Vivid, The 479 Volcano, The 481 Von Siemens i: Mannesmain Co. ... 356 Vooght v. Winch 84, 99, 490, 494 Vrow Anna Catherina, The 2, 462 Vymer r. North Eastern Railway . . . 531 Vyner v. Mersey Docks 28 W. Wakeman v. West 244 Walker v. Goe 342 XXV111 INDEX TO CASES CITED. PAGE Walker v. Jackson 582 v. Lambeth Waterworks ... 855 Waller r. Manchester 3/54 Wallis r. Harrison 240 Wallseml, The 515, 545 Wansfcll, The 479 Ward v. Cresswell 55, 390, 406 r. Folkestone Water Co 357 v. Gray 597 v. Lee 312, 535 r. Robbins 140, 278, 697 r. Ward 304 v. Wolverhampton 361 Wardle v. Brocklehurst ... 245, 257, 263 Ware r. Grand Junction Water Co. 348 Warrand v. Mackintosh 400 Warren v. Matthews.. .55, 115, 116, 390, 391, 406 P. Prideanx 70,615,616,618,629 Warrick v. Queen's College 269, 410 Warringtou Water Co. v. Ix>ng- shaw 356 Warwick and Birmingham Canal v. Birmingham 683 Watercourse case (2 Eq. Abr.) 241 Waterford (Mayor of). Case of the... 632 and Limerick Railway v. Kearney 606 Waterlow r. Bacon 302 Watkins v. Gravesend 677 r. Milton 105, 677 Watson r. Gibson 482 - v. Trough ton 252 Watts v. Kelson 245, 252, 257, 260, 261, 263, 299 v. Lucas 457 Weald of Kent Canal v. Robinson... 346 Weale r. West Middlesex 355 Weardale Water Co. /'. Chester-le- Street 358 Wear River Commissioners v. Adam- son 48, 49, 167, 170, 481, 509, 513, 610 Weaver r. Cardiff 355 Webb v. Bird 275 v. Paternoster 240 Wedderburn r. Athole (Duke) 457 Weeks v. Howard 7lo, 719 Weld r. Gaslight Co 172 v. Hornby 407, 418, 721 Weller v. Smenton 718 Wells v. Kingston-on-Hull 373 Westbury v. Powell 275 West Cumberland Iron Co. v. Ken- yon 163 Lancashire Council r. Ogilvie 366, 701 Middlesex Water Co. v. Cole- man 356 v. Suer- krop 355 Norfolk Farmers' Club v. Arch- dale 45 Surrey Water Co. v. Chertsey 364 PAGE Western Belle, The 511 Weymouth (Mayor of) v. Nugent... 644 Whaley v. Laing 136, 146, 153. 154, 186. 188, 235. 236 Whalley v. Lancashire and York- shire Railway 181, 332 Wheeldon r. Burrows 252, 257 Whelan r. Hewson 392 White r. Bass 254, 260 r. Crisp 512 - r. Feast 459 - r. Hindley Board 711 r. Phillips 509. 512 v. White 110, 134, 137, 140, 145 Whitehead r. Parks 248, 249 Whitehouse f. Birmingham 172, 329 r. Fellowes ... 268. 311, 312, 531, 535 Win there r. Purchase 89, 119 Whiting r. East London Water Co. 357 Whitmures(Edenbridge) v. Stanford i60, 245, 285, 288, 299 Wickford r. Bill 697 Wickham r. Hawker 381, 384 Wiggin r. Braithwaite 57 Wiggins r. Boiidington ... 598, 599, 711 Wightly Canal v. Badley 318 Wilkes r. Hungerford Ill r. Kirby 70, 618 Wilkinson r. Bury 356 Williams' case , 508 Williams r. Bedminster 693 v. Blackwall 443, 452 -v. Gutch 484 r. Jersey 241 v. Jones 680 v. Long 451 v. Morland 131, 132, 144, 710 r. Swansea Harbour 375 r. Weston-super-Mare 61 v. Wilcox 81, 98, 122, 405, 417, 492, 507, 508, 520, 521 Willoughby v, Horridge 581 Wilson r. Carter 515 v. Newport Dock 375 v. Peto 708 v.Robertson 649 - c. Rust 14, 449 v. Townend 715 v. Townsend 705 v. Waddell 155, 160, 163 Wilson's Music Co. r. Finsbury Council 214, 216 Wilts and Berks Canal Co. v. Swindon Water Co 140 Winch v. Conservators of the Thames ...104, 105, 109, 341, 533, 534 Wingate v. Waite 50 Winter v. Brockwell 240, 244 Winterbotham v. Derby 700, 711 Wishartv. Wyllie 97, 117, 408, 410 INDEX TO CASES CITED. XXlX PAGE Witherley v. Regent's Canal 329 Withers v. North Kent Railway ... 170 Wohlgemuthe v. Coste 703 Wombwell Council v. Dearne Valley 356 Womersley v. Church 155, 184, 185, 204, 234, 235 Wood r. Leadbitter 240, 241 v.Luke 240 v. Manley 240 - r. Sntcliffe ... 190, 193, 204, 205, 280, 714, 717, 719 r. Venton 437 - v. Waud ... 76, 130, 150, 153, 182, 185, 220, 221, 234, 236, 279, 286, 287, 295, 297, 301, 302, 709 Woodrup Sims, The 481 Woodyerv. Haddon 269 Wootton r. Bishop 368 Worcester v. Droitwich 691 Worthington v. Girnsou 252 Wright v. Brewster 651 - r. Howard 80, 131, 134, 139 - v. Williams 204, 267, 269, 279, 291 Wyat Wild'scase 252 Wyatt r. Thompson 495, 643 Wyrley and Essington Canal v. Bradley 318, 323 Wyse r. Leahy 390 Y. PAGE Yardv. Ford , 699 Yarmouth (Mayor of) v. Eaton... 70, 71, 617, 629 York Corporation r. Pilkington 716 Yorkshire Rivers Board v, Preston 219 r. Rawson 213 r. Robinson 216 v. Scan End Mill Co. 216 (West Riding) v. Tad- caster 81, 219 r. The King 604 Councils. Holmfirth ... 215, 218 Young v. Bankier Distillery Co. ... 164, 189, 205, 220, 718 v. Cuthbertson 519 v. Kitchens 389, 391 v. Southwark and Vauxhall Water Co 371 z. Zangers r. Whi.skeard 104 Zetland (Earl of) v. Glover Incor- poration 120, 396, 409 Zollverein, The 484 INDEX TO THE PUBLIC STATUTES CITED. PAGE Magna Charta (9 Hen. III., 20 Hen. III., 25 Edw. I.).. .26, 55, 521, 584, 612, 617 3 Edw. I. c. 4 (Stat. of West. 1st) 57 c. 31 ( ,. ) 617 12 Edw. I. c. 7 521, n. (2) 13 Edw. I. c. 47 (Stat. of West. 2nd) 520 5 Edw. III. c. 14 665, n. (5) 25 Edw. III. Stat. 4, c. 4 (Weirs) 405, 507 45 Edw. III. c. 2 (Weirs) ...405, n. (4) 46Edw. III. c. 15 (Wreck) ...58. n. (2) 7Rich. II. c. 5 (Poor Law) 665, n. (5) 12 Rich. II. c. 7 ( ) 665, n. (5) 13 Rich. II. c. 19 (Salmon) ... 520, n. (7) 15 Rich. II. c. 3 (Admiralty Courts) 3 c. 6 (Poor Law) 665, n. (5) 17 Rich. II. c. 9 (Weirs and Fish). ..417, 520, n. (7), 525 1 Hen. IV. c 12 (Weirs and Fish) 406, 520, 521, n. (2) c. 16 58, n. (3) 4 Hen. IV. c. 11 (Fish) 406 1 Hen. V. c. 2 (Weirs) 525, n. (3) 2 Hen. VI. c. 19 (Fish) 406 3 Hen. VI. c. 5 (Conservancy) 525, n. (3) 6 Hen. VI. c. 5 (Sewers) 44, 522 8 Edw. IV. c. 5 (Nuisance) 697, n. (3) 9 Edw. IV. c. 35 ( ) 697, n. (3) 12 Edw. IV. c. 7 (Sewers) 405, n. (4), 406, 417 11 Hen. VII. c. 2 (Poor Law) 665, n. (5) 19 Hen. VII. c. 12 ( ) 665, n.. (5) c. 18 (Sewers) 525, n. (3) 22 Hen. VIII. c. 5 (Bridges) ... 584, 585, 595, 613 c. 12 (Poor Law) 665, n. (5) 23 Hen. VIII. c. 5 (Sewers)... 44, 48, 50, 522, 525 c. 8 (Harbours) 62 c. 12 (Sewers) 525, n. (3) 27 Hen. VIII. c. 23 (Harbours) 62 c. 25 (Poor Law) 665, n. (5) 3&4Edw.VI.c.l6(PoorLaw)665, n. (5) 2 & 3 Phil. & Mary. c. 5 ( ., ) 665, n. (5) 1 Eliz. c. 17 (Fish) 520 5 Eliz. c. 3 (Poor Law) 665, n. (5) 13 Eliz. c. 9 (Sewers) 44, n. (1), 522 (2) 18 Eliz. c. 3 (Poor Law) 665, n. (5) 39 Eliz. c. 3 ( ) 665, n. (5) 43 Eliz. c. 2 ( .. )...665. n.(5), 672, 680, 688 PAGE 7 Jac. I. c. 18 (Foreshore) 63 21 Jac. I. c. 3 (Statute of Monopo- lies) 121, n. (2) c. 32 (Conservancy) 523, n. (4) 3 Car. I. c. 4 (Poor Law) 665, n. (5) 16 & 17 Car. II. c. 12 (Avon (Hants) Navigation) 527, n. (1), 537, n. (3) 22 Car. II. c. 11 (Wharfage)... 643, n. (1) c. 12 (Bridges) 585, n. (2) 1 Anne, st. I.e. 7 (Crown Lands) 28, n.(2) c. 12 (Bridges) 585, n. (2) 6 Geo. I. c. 20 (Fisheries Grant, Scotland) 424, n. (1) 13 Geo. I. c. 26 (Fisheries Grant, Scotland) 424, n. (1) c. 30 (Fisheries Grant, Scot- land) 424, n. (1) 9 Geo. II. c. 33 (Lobsters, Scot- land) 424, n. (1) 12 Geo. II. c. 29 (Bridges) 585, n. (2) 14 Geo. II. c. 33 ( ) 585, n. (2) 29 Geo. II. c. 23 (Fishery, Scotland) 424, n. (1) 11 Geo. III. c. 31 (Herrings, Scot- land) 424,n.(l) 13 Geo. III. c. 78 (Bridges).. ..585, n. (2) 24 Geo. III. c. 8 (Conservancy) 523, n.(4) 43 Geo. III. c. 59 (Bridges)... 585, n. (2), 602, 604, 713 c. 132 (Warehousing) 642 48 Geo. Ill c. 110 (Herrings, Scot- land) .424, n. (1), 434, n. (1) 51 Geo. III. c. 101 (Herrings) 434, n. (1) 52 Geo. III. c. 110 (Bridges)... 585, n. (2) c. 153 (Herrings) 434, n. (1) 54 Geo. III. c. 59 (Harbours) 27, 705, n. (1) c. 90 (Bridges) 585, n. (2) c. 102 (Herrings) 434, n. (1) c. 159 (Navigation) 556 c. 170 (Bridges) 611, n. (5) 55 Geo. III. c. 94 (Herrings, Scot- land) 424, n. (1), 434, n. (1) c. 143 (Bridges) 585, n. (2) 59 Geo. III. c. 38 (Sea Fishery) 426 1 Geo. IV. c. 103 (Herrings) 434, n. (1) 3 Geo. IV. c. 126 (Turnpikes) 663 5 Geo. IV. c. 64 (Herrings)... 424, n.(l), 434, n. (1) c. 83 (Police) 560 INDEX TO THE PUBLIC STATUTES CITED. PAGE 6 Geo. IV. c.125 (Pilotage)... 488, n. (1) 7 Geo. IV. c. 34 (Herrings)... 434, n. (1) 9 Geo. IV. c. 39 (Salmon, Scotland) 424 n. (1) 10 Geo. IV. c. 50 (Crown Lands) 26, n. (9), 28, n. (1) 11 Geo. IV. & 1 Will. IV. c. 54 (Herrings) 424, n.(l), 434, n. (1) 1 & 2 Will. IV. c. 32 (Game) 409, n (6) c. 33 (Public Works Commis- sioners, Ireland) 424, n. (1), 523, 11. (1) 2 Will. IV. c. 1 (Land Revenue) 28, n. (1) 2 & 3 Will. IV. c. 71 (Prescription Act). . .267, 292, 295, 297, 338, 339, 384, 621 c. 112 .Land Revenue) 28, n. (1) 3 & 4 Will. IV. c. 22 (Sewers).. ..45, 50, 522, u. (2) c. 52 (Customs) 58 c. 67 (Land Revenue) 28, n. (1) c. 90 (Lighting and Watching) 669 4 & 5 Will. IV. c. 36 (Central Cri- minal Court) 3, 462 546 Will IV. c. 11 (Bridges).... 713 c. 50 (Highways and Bridges) 585, 586, 588, f.95 c. 58 (Land Revenue) 28, n. (1) c. 76 (Municipal Corporations) 606 6 & 7 Will. IV. c. 13 (Constabulary, Ireland) 424,'n. (1) 1 & 2 Viet. e. 56 (Hating, Ireland) 424, n. (1) 2 & 3 Viet. c. 47 (Metropolitan Police) 162 c. 61 (River Shannon).. ..527, 11. (1), 537, n. (3) 3&4 Viet. c.50(Police)..560. 705, n. (1) c. 65 (Admiralty Court).... 462 c. 88 (Constables) 436 4 & 5 Viet. c. 57 (Pilchard Fishery) 449, n. (1) 5 Viet. c. 1 (Land Revenue). ..28, u. (1) 5 & 6 Viet. c. 89 (Improvement of Land, Ireland) <.523, n. (1) c. 89 (Drainage, Ireland) 424, n. (1) c. 106 (Fishery, Ireland) 424, n. (1), 425, n. (2), 453, n. (2) 6 & 7 Viet. c. 79 (Fishery) 426, 434, n. (1) c. 94 (Defence Act) 9, n. (3) 7 & 8 Viet. c. 61 (County Bridges)... 607 c. 95 (Salmon, Scotland) 424, n. (1) c. 108 (Fishery, Ireland) 424, n. (1) 8 & 9 Viet. e. 16 (Companies Clauses Act) 347, 350, 562 c. 17 (Companies Clauses Act) 350, 494, 562 c. 18 (Lands Clauses Act) 67. n. (3), 347, 349,350.859. n. (1).362, 363, n. (4), 570, n. (4), 576 c. 20 (Railways Clauses Act) 67, n. (3), 570, 576, 599, 606 PAGE: 8 & 9 Viet. c. 26 (Trout, Scotland) 424, n. (1) c. 28 (Canal Tolls).. .346, n.(l), 561, 562, n. (2) c. 42 (Canal Traffic) 346, n. (1), 561 c. 99 (Foreshore) 27, 28, u. (2) c. 108 (Oyster, Salmon and Trout, Ireland) 424, n. (1) c. 118 (Enclosure) 523, n. (1) 9 & 10 Viet. c. 3 (Fisheries and Har- bours, Ireland) 424, n. (1) c. 86 (Public Works, Ireland) 424, u. (1) c. 93 (Death Representatives) 328, 344 10 & 11 Viet. c. 15 (Gasworks Clauses) 210 c. 17 (Waterworks Clauses) ... 205, 347, 348, 349, 352, n. (7), 357, 358, 359, n. (1), 362, 365 c. 27 (Harbours,Docks,and Piers) 67, 372, 464, 514, 650 c. 34 (Towns Clauses Act) 211, n. (5) c. 38 (Drainage) 523, n. (1) c. 91 (Herrings) 434, n. (1) c. 92 (Mussels, Scotland) 424, n. (1) c. 94 (Canal Traffic) 346, n. (1), 561 11 & 12 Viet. c. 63 (Public Health) 362, 521, n. (1) c. 92 (Salmon and Trout, Ireland) 424, u. (1) c. 102 (Land Revenue) 28, n. (1) 12 & 13 Viet. c. 45 (Procedure) 690 e. 100 (Drainage) 523, n. (1) 13 & 14 Viet. c. 88 (Oyster, Salmon, and Trout, Ireland) ...424, n. (1) 14 & 15 Viet. c. 26 (Herrings) 434, n. (1) c. 34 (Lodging Houses) 365 c. 42 (Land Re ven ue) 28, n. (1) 15 & 16 Viet. c. 62 (Land Revenue) 28, n. (1) c. 76 (Common Law Procedure) 697 c. 84 (Metropolis Water) 367 16 & 17 Viet. c. 56 (Land Revenue) 28, n. (1) c. 107 (Customs) 67 17 & 18 Viet. c. 31 (Railway and Canal Traffic) 346, n. (1), 562 c. 104 (Merchant Shipping) 58, 465, n. (4) 18 Viet. c. 68 (Land Revenue) 28, n. (1) 18 & 19 Viet. c. 90 (Crown Suits)... 721 c. 120 (Public Health) ... 200, 511, 545, n. (4) c. 121 (Nuisance Removal) 23 19 & 20 Viet. c. 9 (Drainage, Ireland) 523, n. (1) 20 & 21 Viet. c. 43 (Justice of Peace) 549 21 & 22 Viet. c. 75 (Canal Traffic) 561, n. (3) c. 98 (Local Government)... 363, 719 INDEX TO THE PUBLIC STATUTES CITED. XXX111 PAGE 21 & 22 Viet. c. 104 (Local Govern- ment) 545, 11. (4), 547. n. (1) c. 109 (Cornwall Duchy) 10 c. 147 (Metropolis Main Drain- age) 547, n. (1) 23 & 24 Viet. c. 106 (Lands Clauses Act) 350, 362 24 & 25 Viet. c. 10 (Admiralty Court) 463 c. 45 (Harbours) 68, 464 c. 47 (Passing Tolls Act) ... 69, 465 c. 61 (Local Government). ..200, 363, 719 c. 62 (Crown Suits) 721 c. 70 (Locomotives Act) 597 c. 96 (Larceny Act) . . . 372. n. (6), 422, 423, 458 c. 97 (Malicious Injuries) 211, 372, n. (6), 450, n. (1), 460, 556. 587 c. 109 (Salmon Fisheries) 211, 398, 423, 434443, 445458 c. 133 (Land Drainage)... 44, n. (1), 523, n. (1) 25 & 26 Viet. c. 69 (Harbours) 68. 465 c. 93 (Thames Embankment) 546, n. (1) c. 97 (Salmon, Scotland) 424, n. (1) c. 102 (Metropolis Management) 199, 522, 11. (4) 26 & 27 Viet. c. 10 (Salmon) 423, 424, n. (1) c. 92 (Railways Clauses Act) ...557, 560. 562 c. 93 (Waterworks Clauses Act) 349, 362 : 365 c. 114 (Salmon and Trout, Ire- land) 424, n. (1) c. 118 (Companies Clauses Act) 350 27 & 28 Viet. c. 3 (Mutiny Act) ... 597 c. 33 (Fish Teinds, Scotland) 424, n. (1) c. 113 (Thames Conservancy) 544, n. (1) c. 114 (Improvement of Land) 336, 523 c. 118 (Salmon, Scotland) 424. n. (1) 28 & 29 Viet. c. 104 (Crown Suits) 721 c. 106 (Dock Construction Loan) 372, n. (6) c. 121 (Salmon Fishing) ...424, 434, 443, 445, 449458 c. 125 (Dockyards Regulation)68, 705, n. (1) 29 & 30 Viet. c. 62 (Crown Lands)... 27, 28, n. (1) c. 88 (Oysters, Ireland)... 424, n. (1) c. 89 (Thames Navigation) 534 c. 90 (Public Health) ... 363, n. (3) c. 97 (Oysters, Ireland).. .424, n. (1) 30 & 31 Viet. c. 52 (Herrings, Scot- land) 424, n. (1) c. 101 (Public Health, Scot- land 206, n. (4) L.W. PAGE 31 & 32 Viet. c. 40 (Thames Em- bankment) 546, n. (1) c. 45 (Sea Fisheries) 13, 389, n. (4), 425, 426, 443, n. (5), 444, 449 c. 71 (County Courts Ad- miralty Jurisdiction) 703 c. 122 (Poor Law) 22, 93, 667 c. 123 (Salmon, Scotland) 424, n. (1) 32 & 33 Viet c. 18 (Lauds Clauses Act) 350 c. 48 (Companies Clauses Act) 350 c. 51 (County Courts Admiralty Jurisdiction) 703 c. 67 (Valuation) 690 c. 92 (Fishery. Ireland)... 424, n. (1) 33 & 34 Viet. c. 33 (Salmon, Scot- land) 424. n. (1) c. 70 (Gas and Water) 361 c. 73 (Bridges) 587, 602, n. (6) c. 75 (Education) 567 34 A; 35 Viet. c. 17 (Bank Holidays) 372, n. (6) c. 70 (Local Government) 522. n. (4) c. 113 (Metropolis Water) 367 35 & 36 Viet. c. 91 (Municipal Cor- porations, Borough Funds)... 365 36 & 37 Viet. c. 36 (Crown Lands) 27, 28, n. (1) c. 48 (Canal Traffic) 346, n. (1), 562 c. 66 (Judicature Act) 697, 700, u. (6) c. 71 (Salmon Fisheries)... 211, 424, 434442, 446452 c. 86 (Education) 567 c. 89 (Gas and Water) 362 37 & 38 Viet. c. 40 (Arbitration) 346, n. (1), 562 c. 54 (Poor Law) 681 c. 60 (River Shannon) ... 537, n. (3) c. 86 (Fishery Advances, Ire- land) 424, n. (1) c. 89 (Public Health) ...211, n. (5), 363, n. (3) c. 94 (Foreshore) 38 38 & 39 Viet. c. 13 (Bank Holiday) 372, n. (6) c. 17 (Explosives Act) 565, 703 c. 31 (Public Works Loans Act) 522. u. (4) c. 55 (Public Health) 208, 211, n. (5), 363, 522, n. (4). 588, 705, n. (1), 713, 716, n. (6) c. 77 (Judicature Act) 697, 700, n. (6), 706 c. 86 (Conspiracy) 366 c. 89 (Public Works Loans Act) 69, 465 39 & 40 Viet. c. 19 (Salmon Fisheries) 424, 437440, 447 c. 31 (Public Works Loans Act) 522, n. (4) XXxiv INDEX TO THE PUBLIC STATUTES CITED. PAGE 39 & 40 Viet. c. 34 (Elvers and Severn Fishery) 425. n. (1) c. 36 (Customs Consolidation)... 67 c. 8 (Bank Holiday) ... 372. n. (6) c. 75 (Rivers Pollution Preven- tion Act) 190, 191, 203, 206, n. (4). 212. 219, 703. 719, n. (1) c. 79 (Education) 567 40 k 41 Viet. c. 13 (Customs Con- solidation) 67 c. 14 (Bridges) 588 c. 31 (Water Supply) 366 c. 42 (Oyster. Crab, and Lobster) 426, 430, 444 c.'56 (Fishery, Ireland).. 424. n. (1) c. 60 (Canal Boats) 566 c. 65 (Fisheries Dynamite Act) 449, 450, 457 c. 98 (Norfolk & Suffolk Fishery) 424 41 ii 42 Viet. c. 15 (Customs Con- solidation) 67 c. 25 (Public Health. Water) ... 366 c. 39 (Freshwater Fisheries) ... 424. 439, 440, 447449 c. 52 (Public Health, Ireland) . 206, n. (4) c. 73 (Territorial Waters)... 8. 12. 462 c. 77 (Bridges) 588 c. 78 (Employment of Children, Scotland) 424, n. (1) 42 & 43 Viet. c. 26 (Salmon Fishery) 424. 445 c. 49 (Summary Jurisdiction)... 443 44 & 45 Viet. c. 11 (Clam and Bait Beds. Scotland) 424, n. (1) c. 12 (Customs Consolidation)... 67 c. 16 (Fishery Advances, Ire- land) 424, n. (1) c. 33 (Summary Procedure, Scot- land) 424, n. (1) c. 41 (Conveyancing and Law of Property) 239, n. (1) c. 49 (Rights of Fishery. Ireland) 424, n. (1) c. 6! (Pollen. Ireland) ... 424, n. (1) 45 & 46 Viet. c. 31 (Inferior Courts Judgments Extension) 703 c. 72 (Customs Consolidation) 67 c. 78 (Fishery Board, Scotland) 424. n. (1) c. 88 (Settled Land) 239, n. (1) 46 k 47 Viet. c. 22 (Sea Fishery) 13, 426, 427 c. 55 (Customs Consolidation) 67 47 Viet. c. 11 (Freshwater Fishery) 424. 440, 447 47 & 48 Viet. c. 21 (Sea Fishery, Ireland) 424, n. (1) c. 27 (Sea Fishery) 428 c. 48 (Oysters, Ireland)... 424. n. (1) c. 76 (Canal Boats) 566, 567 PAGE 48 & 49 Viet. c. 61 (Secretary of State for Scotland) ... 219, n. (4), 424, n. (1) c. 70 (Scottish Sea Fishery) 424, n. (1) c. 79 (Crown Lands). ..27, 28, n. (1) 49 Viet. c. 2 (Freshwater Fishery)... 424 49 & 50 Viet. c. 29 (Crofting Parishes. Scotland) 424, n. (1) c. 39 (Salmon and Freshwater Fishery) 423, 425. 434, 439 50 & 51 Viet. c. 52 (Secretary of State for Scotland) ... 424, n. (1) 51 & 52 Viet. c. 25 (Railway and Canal Traffic)... 346, n. (1), 563 565, 622, 658 c. 30 (Trawling. Ireland). ..424, n. (1) c. 41 (Local Government) 217, n. (1). 588, 589, 605 c. 43 (County Courts) 702, 703 c. 54 (Sea Fisheries Regula- tions) 429 52 & 53 Viet. c. 23 (Herring Fishery. Scotland)... 16, 431433 c. 33 (Herrings. Scotland) 424, n. (1) c. 42 (Customs Consolidation) 67 c. 50 (Local Government. Scot- land) 219, n. (4) c. 74 (Steam Trawling, Ireland) 432, 433 53 & 54 Viet. c. 10 (Herrings, Scot- land) 424, n. (1) c. 36 (Customs Consolidation)... 67 c. 59 (Public Health) 205, 208 54 & 55 Viet. c. 28 (Herrings, Scot- land) 424, n. (1) c. 37 (Sea Fishery) 13, 426, 427, 430, 431, 442 c. 48 (Fishery Advances, Ire- land) 424, n. (1) c. 63 (Bridges) 589 c. 76 (Public Health, London) 210, n. (2), 211, n. (5), 371 55 & 56 Viet. c. 61 (Fishery Ad- vances, Ireland) 424, n. (1) c. 60 (Salmon) 443, 448 56 & 57 Viet. c. 17 (North Sea Fishery) 426, 427 c. 31 (Rivers Pollution Preven- tion) 21221 c. 61 (Public Authorities Pro- tection) 176. 191, 704, 705 c. 63 (Crown Lands). ..27, 28, n. (1) c. 73 (Local Government)... 366, 588 57 & 58 Viet. c. 2 (Behring Sea Award) 426 c. 26 (Sea Fisheries, Shell Fish Regulation) 431, 445 c. 60 (Merchant Shipping) ... 3, 58, 69, 426, n. (3), 465488, 567, 678, 703 58 & 59 Viet. c. 29 (Salmon, Ireland) 424, n. (1) c. 42 (Sea Fisheries Regulation, Scotland) 424, n. (1) INDEX TO THE PUBLIC STATUTES CITED. XXXV PAGE 59 & 60 Viet. c. 12 (Derelict Vessels) 488, n. (1) c. 42 (Loans, Scotland).. .424, n. (1) c. 54 (Public Health, Ireland) 219, n. (5) 60 & 61 Viet. c. 21 (Mersey Channels) 488 c. 17 (Appeals, Ireland). ..424, n. (1), c. 59 (Merchant Shipping) 488, n.(l) c. 61 (Exemption from Pilot- age) 488, n. (1) 61 & 62 Viet. c. 14 (Liability of Shipowners) 488, n. (1) c. 16 (Canals Protection, Lon- don) 567 c. 28 (Mussels, Ireland)... 424, n. (1) c. 34 (Rivers Pollution Preven- tion, Border Councils) 217, n. (1) c. 37 (Local Government, Ire- land 424, n. (1) c. 44 (Mercantile Marine Fund) 488, n. (1) c. 56 (Sea Fishery Grant, Scot- land) 424, n. (1) 62 & 63 Viet. c. 23 (Anchor and Chain Cables) 488, n. (1) c. 50 (Department of Agricul- ture. Ireland) 424, n. (1) 63 & 64 Viet. c. 32 (Liability of Shipowners) 488, n. (1) 1 Edw. VII. c. 38 (Steam Trawling, Ireland) 424, n. (1), 432, 433 PAGE 2 Edw. VII. c. 29 (Freshwater Fish) 424, n. (1) c. 41 (Metropolis Water) 367 370, 549 3 Edw. VII. c. 31 (Board of Agri- culture and Fisheries) ...433, 444 c. 42 (County Courts) 702 5 Edw. VII. c. 13 (Aliens)... 487, n. (1), 488, n. (1) 6 Edw. VII. c. 28 (Crown Lands)... 27, 28, n. (1), 441, n. (3) c. 48 (Merchant Shipping) 466, 487, 488, n. (1) c. 58 (Workmen's Compensa- tion) 446, n. (1), 703 7 Edw. VII. c. 15 (Salmon and Freshwater Fisheries) ... 441, 442 c. 41 (Whale Fisheries, Scot- land) 424. n. (1) c. 42 (Sea Fisheries, Penalties) 424, n. (I) c. 52 (Merchant Shipping) ... 466, '488, n. (1) c. 53 (Public Health) ...522, n. (4) 8 Edw. VII. c. 17 (Cran Measures) 424, n. (1), 434, n. (1) c. 68 (Port of London) 66, n. 6, 72, n. (1), 541548, 551, 553 555 9 Edw. VII. c. 8 (Trawling in Pro- hibited Areas) ...424, n. (1), 432, 433 LOCAL ACTS OF PUBLIC IMPORTANCE CITED. 22 & 23 Viet. c. cxxxiii. (Watermen and Lightermen) 549 553 30 & 31 Viet. c. Ixxxi. (Commis- sioners of Irish Lights) 486 42 & 43 Viet. c. cxcviii. (Metropolis Management (Thames River Prevention of Floods) Act, 1879) ... 548 55 & 56 Viet. c. cxci. (Mersey and Irwell Joint Committee Act) 217, n. (1) 57 & 58 Viet. c. clxvi. (West Riding gf Yorkshire Rivers). ..217, n. (1) 57 & 58 Viet. c. clxxxvii. (Thames Conservancy) 540 548, 551, 552, 555, n. (1) 60 & 61 Viet. c. cxxxiii. (Public Health, London) 522, n. (4) 62 & 63 Viet. c. xxxi. (Public Health, London) 522, n. (4) 4 Edw. VII. c. cciii. (Thames River Steamboat Act, 1904) 549 7 Edw. VII. c. clxxi. (Metropolis Water Board Charges Act, 1907) 370 ERRATA. Page 13. For " 56 & 57 Viet. c. 53 " read " 56 & 57 Viet. c. 17." Pages 214, 216, 218, 279. For " Midlothian C. C. v. Oilbank Oil Co." read " Odkbaiih Oil Co." Page 590. For " R. v. Inhabitants of Southampton " read " Reg. v. Inhabitants of Southampton," 685. -For " Reg. v. Klngswlnford " read " R.\. Kingswinford." 702. j\w^ omitted. A claim by custom as an inhabitant of a town to fish in private waters is not a "hereditament'': Lloyd v. Jones, 6 C. B. 81 r 17L. J., C. P. 206. LAW LIBRARY, Tic. B. C. THE LAW RELATING TO WATERS. CHAPTEE I. OF THE SEA, AND RIGHTS THEREIN. The High Seas. THE high seas include the whole of the seas below low water Definition. mark and outside the body of a county. 1 The realm of England only extends to low water mark, and all beyond is the high seas. 2 The reason of the thing, the preponderance of authority, and Property in the practice of nations, have decided that the main ocean, inas- bedt much as it is the necessary highway of all nations, and is from its nature incapable of being continuously possessed, cannot be the property of any one State. It is possible, however, that a nation may acquire exclusive right of navigation and fishing of the main ocean as against another nation, by virtue of the specific provisions of a treaty ; for it is competent to a nation to renounce a portion of its rights ; and there have been instances of such renunciations both in ancient and modern times. 3 It would 1 As to this see Reg. v. Keyn, 2 Ex. bound by it. This assent may be ex- Div. 63, 46 L. J., M. C. 17, see post ; see press, as by treaty or the acknowledged also Leigh v. Hurley, Ow. 122, per Lord concurrence of governments, or may be Coke, C. J. implied from established usage ; p. 201. 2 It seems certainly to have been the Cf. per Lord Kenyon in Sail v. Herbert, general opinion of writers on inter- 3 T. R. 253, 1 R. R. 695, cited in Slundell national law that the territory of a v. Catteral, 5 B. & A. 268, 24 R. R. 353. State extends to the distance of three See also as to this, Selden, Mare Glaus., miles or more, or the distance of a bk. 2 ; Hale de Jure Maris, Harg. Tr. cannon shot, seaward from low water p. 10 ; Grotius de Jure Belli, lib. ii. c. 2, mark; but the case of Reg. v. Keyn, 2 s. 13; Bynkershoek de Dom. Mar.; Vattel, Ex. Div. 63, which will be noticed later, Droit des Gens, s. 288 ; Hautefeuille, establishes the proposition stated in the Droit Maritime, p. 197; Ortolan, Dip- text, Cockbum, C. J., remarking that lomatie de la Mer, liv. 2, c. 8 ; Wheaton's writers on international law, however International Law, by Boyd, p. 237 ; valuable their labours may be in elucidat- Phillimore's International Law, vol. 1., ing and ascertaining the principles and cc. vi. and vii. rules of law, cannot make the law. To s Phillimore's International Law, vol be binding, the law must have received 1, pp. 210, 211. the assent of the nations who are to be L.W. v. 2 OF THE SEA, AND RIGHTS THEREIN. appear also that a nation may give a tacit consent to the appropriation of certain portions of the sea for fishing and navigation by won user. 1 The free navigation, commerce, and fishery in the high seas is therefore the common right of all mankind ; 2 and as a physical necessity, the soil of the bed of the sea can be the exclusive property of no one individual or nation, except in those rare cases where a portion of the bed of the sea has been beneficially occu- pied for a sufficient time by any one nation to give a prescriptive right to that portion, by the acquiescence of the other nations. The writers on international law have questioned how far that particular species of presumption arising from the lapse of time, which is called prescription, is justly applicable as between nation and nation ; but the constant and approved practice of nations shows that by whatever name it is called, the uninter- rupted possession of territory or other property for a certain length of time by a State excludes the claim of every other. 3 It would also appear, that when the sea or the bed on which it rests can be physically occupied permanently as by the erection of piers, harbours, breakwaters or forts it may be the subject of occupation, in the same way as unoccupied territory, indepen- dently of prescription. In point of fact, such encroachments are generally made for the benefit of the navigation, and are there- fore readily acquiesced in. But whether, if an encroachment in the sea were such as to obstruct the navigation to the ships of other nations, it would not amount to just cause for complaint as inconsistent with international rights, might, if the case arose, be deserving of serious consideration. 4 Navigation. The high seas, as has been said, are open to all the world, and the ships of every nation are free to navigate them. The ships of all nations while so navigating the high seas are only subject to the laws of their own country ; and no one nation has the right to exercise civil or criminal jurisdiction over the ships of other nations while passing over the high seas between one foreign port and another. 6 The English Court of the Admiralty has from the earliest times 1 Vattel, Droit des Gens, t. l,c. xxiii. Ex. Div. p. 198. Direct United States Cable Co. v. Anglo- Reg v. Keyn, 2 Ex. Div., per Kelly, Amtrifan Co., L. K. 2 A. C. 394. C. B., p. 217 ; The. Vigilantia, 1 C. Bob. 1 Wheatons International I^aw, by 1 ; The Vrow Antia Catherina, 5 C. Kob. Boyd, p. 251. 161 ; The Succers, I Dodds, Ad. 131. As Ibid. p. 220. to " Navigation " see post, Chap. VII. Cockburn, C. J., Reg. v. Keyn, 2 THE HIGH SEAS. exercised criminal jurisdiction over English ships on the high seas all over the world. 1 By stat. 15 Ric. II. c. 3, it was enacted that the admiral should have no jurisdiction within the body of counties either by land or sea, except for mayhem and murder done in great ships being and hovering in estuaries and mouths of great rivers below the bridges, where he should have a con- current jurisdiction with the Courts of common law. Upon this footing the criminal law has remained ever since, the jurisdiction of the admiral having been transferred to the Central Criminal Court by 4 d 5 Will. IV. c. 36. Although the laws of trade and navigation cannot affect Merchant foreigners beyond the territorial jurisdiction of a State so as to render them criminally liable to those laws, the English legis- lature has asserted a certain dominion over foreign ships by sect. 688 of the Merchant Shipping Act, 1894, 57 dc 58 Viet. c. 60. 2 This section provides that " (1) Whenever any injury has in any part of the world been Power to " caused to any property 3 belonging to her Majesty or any of her " Majesty's subjects by a foreign ship, and at any time thereafter occasioned " that ship is found in any port or river of the United Kingdom, " or within three miles of the coast thereof, a judge of record in " the United Kingdom (and in Scotland the Court of Session and " also the sheriff of the county within whose jurisdiction the ship " may be) may, upon its being shown to him by any person " applying summarily that the injury was probably caused by " misconduct or want of skill of the master or mariners of the " ship, issue an order directed to any officer of customs or other " officer named by the judge, Court, or sheriff, requiring him to " detain the ship until such time as the owner, master or con- " signee thereof has made satisfaction in respect of the injury, or " has given security, to be approved by the judge, Court, or " sheriff, to abide the event of any action, suit or other legal " proceeding that may be instituted in respect of the injury, and 1 Foreigners on board English ships see ibid. s. 13. are subject to English law. See Reg. v. 3 The remedy given by the similar sec- Sattler, Dears. & B., Cr. C. 525 ; Reg. v. tion of the Act of 1854 is confined to Anderzon, L. R., 1 Cr. C. 161, 19 L. T. cases of damage to property and does 400 ; Reg. v. Lesley, Bell, Cr. C. 220. not extend to injury to the person. 2 As to the application of the pro- (Harris v. Owner* of the Franconia, 2 visions of sects. 437443 as to the load C. P. D. 173 ; Tlie Vei-a Cruz, 10 App. line and to detention of unsafe ships Cas. 59.) In The Bilbao, Lush. 149, this under sects. 452 455 and 462, see The provision was held to give jurisdiction Merchant Shipping Act, 1906 (6 Ed. VII. in a case of damage by a foreign ship 48), ss. 1 12 ; as to passenger ships, within the body of a county. 12 4 OF THE SEA, AND RIGHTS THEREIN. " to pay all costs and damages that may be awarded thereon ; " and any officer of customs or other officer to whom the order is " directed shall detain the ship accordingly. " (2) Where it appears that before an application can be made " under this section, the ship in respect of which the application " is to be made will have departed from the limits of the United " Kingdom or three miles from the coast thereof, the ship may be " detained for such time as will allow the application to be made, " and the result thereof to be communicated to the officer " detaining the ship ; and that officer shall not be liable for any " costs or damages in respect of the detention unless the same is " proved to have been made without reasonable grounds. "(8) In any legal proceeding in relation to any such injury " aforesaid, the person giving security shall be made defendant "or defender, and shall be stated to be the owner of the ship " that has occasioned the damage ; and the production of the " order of the judge, Court, or sheriff made in relation to the " security shall be conclusive evidence of the liability of the " defendant or defender to the proceedings." 1 Cockburn, C. J., doubts whether a similar section in the Act of 1864 would apply to a ship on a foreign voyage, as the authority is to detain and not to seize, and would seem applicable only to a vessel voluntarily seeking our waters, otherwise than for the pur- pose of passage, and so bringing itself within our jurisdiction. 2 The Merchant Shipping Act, 1906 (6 Ed. VII., c. 48), ss. 112, makes the provisions as to the load line in sects. 437 443 of the Act of 1894 and those relating to the detention of ships when unsafe through defective equipment and the loading of grain cargoes respectively embodied in sect. 462 and sects. 452 and 455 of that Act applicable to foreign ships. Pirates. Pirates, being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, may be lawfully captured on the high sea by the armed vessels of any particular State, and brought within its territorial jurisdiction for trial at its tribunals. 8 Toll*. The sea being the great highway of the world, no tolls are 1 As to offences against property or The Admiralty Offences (Colonial) Act person committed abroad or on the high 1849 (12 & 13 Viet. c. 97), provides seas by masters, seamen or apprentices for the trial in colonies of offences on belonging to British ships, see sects. 689 the high seas. 691. See also Abbot's Law of Mer- Reg. y. Keyn, 2 Ex. Div p 218 chant Shipping (14th ed.), by J. P. Wheaton's International Law, p.'l68. Aspinall, K. C., and H. 8. Moore, p. 1270. THE HIGH SEAS. 5 demandable for vessels navigating it. This freedom is, however, subject to exceptions arising from benefits done to the community at large which form a just consideration for a toll such as the formation of ports, harbours, and the like and the maintenance of lights, buoys and beacons. 1 " If," says Hale, C. J., " any man " will prescribe for a toll upon the sea, he must allege good " consideration ; because, by Magna Charta and other statutes, " every man has a right to go and come upon the sea without " impediment." 2 An Act of Parliament will, of course, be effectual to enforce a toll anywhere within its operation. 3 The right of navigation includes the right of anchoring ; and no tolls can be taken for anchorage unless in a port or harbour. 4 There is no limit imposed by the common law or by interna- Fishery, tional law, either as to the description of fish that may be caught on the high seas, or the means of catching them, or the season during which they may be caught. But it would appear that a nation may bind itself by treaty, or, perhaps, even by non user, from participating in this common right at certain places in favour of other nations. 5 Where this right is exercised by several nations, the customs of other nations must be respected, even in places which are free to all the world. 6 Although, as has been stated, the realm of England only Territorial extends to low water mark, and all beyond is high seas, yet the jurisdiction common consent of civilized independent States, which constitutes of the Crown, international law, has undoubtedly appropriated a certain portion of the high seas washing the shore of each State to that State for the fuller enjoyment and protection of its rights. 7 The distance to which these so-called territorial waters extend appears generally to be fixed at three nautical miles ; but this distance is not absolute, and is liable to be altered by the provisions of 1 Hale de Jure Maris, Harg. Tr. 51 ; foreign States, the following provision Gann v. Free Fishers of WTiiMable, 11 is inserted in the King's Regulations H. L. 193. and Admiralty Instructions for their 2 1 Mod. 105. due recognition by naval officers and 8 Woolrych on Waters, p. 299. men : - 4 Gann v. Free Fishers of Whitstable, " The territorial limits of foreign supra. As to tolls, see further, p. 53, ' Powers in amity with his Majesty are post, and Chap. IX, ' to be scrupulously respected. No 5 Phillimore's International Law, vol. 'exercise of authority over the persons, 1, p. 213 ; Vattel, t. 1,1. l,c. xxiii., sect. 'the ships, or the goods of another 286. ' nation is permissible within such limits, 6 Pruning* uml itthers\. Lord Grf.n- 'nor is great gun practice to take place rille, 1 Taunt. 248, 9 R. R. 760. As ' whether at floating targets or objects to "Fishery," see pout, pp. 13 et seq. and 'on shore within such limits without Chap. VI. 'the permission of the authorities." 7 As regards the territorial waters of (Sect. 455.) 6 OF THE SEA, AND RIGHTS THEREIN. particular treaties. 1 The extravagant doctrine laid down by Selden in his Mare Clausum, and followed by Hale de Jure Mans, that the four seas washing the coasts of England were in the absolute dominion and ownership of the sovereign of England, has long ago given way to the influence of reason and common sense ; but it was up to the decision of the case of Reg. v. Keyn, a rexata quast'io, giving rise to much difference of opinion, whether the dominion which is admitted to exist by the sovereign of England over such territorial waters is an absolute dominion, so as to constitute such territorial waters part of the realm of England, and vest the property of the soil below the water in the Crown, or whether it is a more limited dominion dependent not on original or inherent right, but on the acquiescence of other nations, and so limited by such acquiescence to the par- ticular purposes for which such dominion has been acquiesced in. Rtg. v. Kfyn. In the case of Reg. v. Keyn, 2 the defendant, a foreigner, commanding a foreign ship on a voyage to a foreign port, was tried and convicted of manslaughter at the Central Criminal Court for running down an English ship within three miles of the shore of England, and causing the death of a passenger under circumstances which amounted to manslaughter by English law. The learned judge at the trial, Pollock, B., reserved the question of jurisdiction for the Court for Crown Cases Keserved. The case was twice argued, the second time before fourteen judges, and the conviction was quashed by a majority of seven to six, one judge, Archibald, J., having died before the judgment was given, who would have agreed with the majority of the Court. It being admitted that the defendant being a foreigner on board a foreign ship, could not have been tried by an English Court if the crime had been committed on the high seas out of British territory, the real question in the case was whether this spot on the high seas where the collision occurred was or was not within the British territory. The minority of the Court, Lord Coleridge, C. J., Brett and Amphlett, JJ. A., Grove and Lindley, JJ., held that by the law of nations, the open sea within three miles of the coast of England is a part of the territory of the nation as much and as completely as if it were land a part of the territory of the ' F ^ im " r ' 8 , Internat 'onal Law, vol. See as to this point the Encyclopaedia limit apreed on by Great of the Laws of England, 2nd ed. (1909), im. France and the United States vol. 14 pp. 68 7 1 , Territorial Waters," iroc nautical miles, Spain puts it at by Sir T. Barclay, six miles, and Germany at cannon range. 2 2 Ex. Div. 63J 46 L. J., M. C. 17. THE HIGH SEAS. nation, and that every enactment, whether of statute or of common law, applied to the whole of such territory, and that, therefore, the Central Criminal Court which succeeded to the criminal jurisdiction of the admiral over the seas without the body of a county, but within the territorial jurisdiction of the realm, had jurisdiction to try the case. Denman, J., agreed with the minority on the ground that the act causing death was committed on board the English ship, and so constructively on British territory. The majority of the Court, Cockburn, C. J., Kelly, C. B., Bramwell, J. A., Lush and Field, JJ., Sir E. Phillimore and Pollock, B., held that the Central Criminal Court had no jurisdiction, and quashed the conviction. The elaborate judgment of Cockburn, C. J., with which the majority of the Court substantially agreed, was to the effect, that although the common consent of nations had appropriated the sea within three miles of the shore to the adjacent State to deal with as such State might think fit and expedient for its own interests, yet such concurrent assent that a portion of what was before treated as the high seas, and, as such, common to the world, should be treated as British territory, could not of itself, without the authority of Parliament, convert that which before was in the eye of the law high sea into British territory, and so change the law or give to the Courts of this country a jurisdiction over the foreigner where they had it not before. Sir E. Phillimore seems rather to imply a doubt as to the power of Parliament to legislate for these waters, so as to bind other nations, except for the purposes of the protection and peace of the State ; but Lush, J., particularly guards himself from seeming to imply any doubt as to the competency of Parliament to legislate as it may think fit for these waters ; and his short judgment expresses in a few words his view of the law. 1 "I have already announced " that, although I had prepared a separate judgment, I did not " feel it necessary to deliver it, because, having since perused the "judgment which the Lord Chief Justice has just read, I found " that we agreed entirely in our conclusions, and that I agreed " in the main with the reasons on which those conclusions are " founded. I wish however to guard myself from, being supposed " to imply a doubt as to the competency of Parliament to " legislate as it may think fit for these waters. I think that " usage and the common consent of nations, which constitute 1 2 Ex. Div. 238. 8 OF THE SEA, AND RIGHTS THEREIN. "international law, have appropriated these waters to the "adjacent State, to deal with them as the State may deem "expedient for its own interests. They are, therefore, in the " language of diplomacy and of international law, termed by a "convenient metaphor the territorial waters of Great Britain, " and the same or equivalent phrases are used in some of our " statutes, denoting that this belt of sea is under the exclusive " dominion of the State. But the dominion is the dominion of " Parliament, and not the dominion of the common law. That " extends no farther than the limits of the realm. In the reign " of Kichard II., the realm consisted of the land within the body " of the counties. All beyond low water mark was part of the " high seas. At that period the three mile radius had not been " thought of. International law, which, upon this subject at " least, has grown up since that period, cannot enlarge the area " of our municipal law ; nor could treaties with all the nations " of the world have that effect. That can only be done by " Parliament. As no such Act has been passed, it follows that " what was out of the realm then, is out of the realm now, and " what was part of the high seas then, is part of the high seas "now, and upon the high seas the Admiralty jurisdiction was " confined to British ships. Therefore, although as between " nation and nation these waters are British territory, as being " under the exclusive dominion of Great Britain, in judicial " language they are out of the realm, and any exercise of "criminal jurisdiction over a foreign ship in these waters must, " in my judgment, be authorized by an Act of Parliament." This appears to be the view taken by the legislature, for immediately after the decision of the case, an Act entitled 41 & 42 Viet. The Territorial Waters Act was passed, defining the territorial waters of her Majesty's dominions to be so much of the sea adjacent to the coast as is deemed by international law to be within the territorial waters of her Majesty, and declaring that for the purposes of the Act any part of the sea within a marine league of the coast, measured from low water mark, shall be open sea within the territorial waters of her Majesty's dominions. It then enacts, that any offence committed by a person, whether he is or is not a subject of her Majesty, within the territorial waters of her Majesty's dominions, is an offence within the jurisdiction of the admiral, although it may have been committed on board or by means of a foreign ship, and the person who THE HIGH SEAS. 9 commits it may be arrested and tried and punished accordingly. It is, however, provided that " Proceedings for the trial or " punishment of a person not being a subject of lieu Majesty " shall not be instituted in any Court of the United Kingdom " except with the consent of one of her Majesty's principal " Secretaries of State, nor in any of the dominions out of the " United Kingdom except with the leave of the governor thereof." This statute does not enlarge or declare the law as to the Title of the ownership of the bed of the sea below low water mark, and SJJJJ 1 ^ 8011 it would appear, according to the decision of Keg. v. Keyn, that water mark as as no statute has been passed so appropriating it, except in the nations. case of an uninterrupted occupation for a sufficient time to gain a title by prescription, the Crown would have no right in the bed of the sea beyond low water mark, and within three miles as against other nations. The question as to whether the Crown is entitled to the ownership of the soil beneath the sea within three miles has never been directly raised apart from the question of jurisdiction ; and though it would appear now to be finally settled by Reg. v. Keyn that the Crown has no such rights below low water mark, it should be mentioned that in the case of Gammel v. Commissioners of Woods and Forests, 1 Lord Wensley- dale, and apparently Lord Cranworth, are of opinion that the soil of the shore within three miles is in the Crown, as are also Lord Chelmsford and Erie, C. J., in Gann v. Free Fishers of WkitstaUe? It would seem clear that by international law the Crown has, Right of independently of the question of ownership of the bed of the sea, prote< or of the limits of the realm, all necessary powers of protection and self-defence over subjects and foreigners alike. 3 " A nation," says Yattel, 4 " is under an obligation to preserve itself and its " members, and has a right to everything necessary for its self- " preservation and which can assist it to ward off imminent " danger and to keep at a distance everything capable of causing " it ruin." 5 1 3 McQueen, H. L. 419. Channel Tunnel scheme. On the ground 2 11 C. B., N. S. 387 ; 11 H. L. 192 ; that the tunnel might be a future danger see also judgment of Brett, J. A., in to the nation, the Attorney-General, re- Reg. v. Keyn, 2 Ex. Div. p. 124. presenting the Board of Trade, applied 3 See also the Defence Act, 6 & 7 Viet. in 1882 for an injunction to restrain the c. 94, and Amendment Acts. extension of the works at Dover below 4 Droits des Gens, t. 1, pp. 109, 110. the line of low water mark. The appli- 5 See also Rrg. v. Keyn, 2 Ex. D. 63, 46 cation was made before Kay, J., and L. J., M. C. 1 7,paxiiim. This question has resulted in a compromise and temporary been much discussed owing to the English arrangement by which the company 10 OF THE SEA, AND RIGHTS THEREIN. Title as against a subject. That the Crown can acquire a title to mines below low water mark as against a subject, is shown by the dispute between the Crown and the Duchy of Cornwall, which resulted in the stat. 21 it 22 Viet. c. 109. That statute enacts that the mines and minerals below low water mark are, as between the Queen's Majesty in right of her Crown, and His Koyal Highness the Prince of Wales in right of his Duchy of Cornwall, vested in her Majesty in right of her Crown, as part of the soil and territorial possessions of the Crown. 1 In Johnson v. Barrett? it was held that a quay below low water mark at Yarmouth belonged to the Crown and that an intruder on the Crown may have an action of trespass against a stranger ; whereas in Blackpool Pier Co. v. Fylde Union* the Court held, on the authority of Reg. v. Keyn,* that the part of a pier below low water mark was out of agreed to permit the inspection of their works by the officials of the Board of Trade and to discontinue their operations below low water mark until the legal joints in dispute should be finally deter- mined by the Courts of law. No further steps have been taken in the matter up to the present date (1910), but the following statement of the law by M. Ortolan in his Diplomatic de la Mer, ed. 1864, 1. pp. 152 et gey., seems conclu- sive in favour of the Crown. " The security of a State, its duty to " protect itself, create for it the necessity ' of watching particularly over its fron- ' tiers. In virtue of its right of absolute ' independence it has the right to regu- ' late at its pleasure, with regard to ' foreigner?, the approaches to its terri- ' tory. The maritime frontiers of a State are by their nature exposed to unex- pected attacks, to sudden invasion ; contraband trade and illicit commerce can be organised there on a large scale. A nation ought then to exercise a most vigilant supervision over the vessels of ' all kinds which may attempt to effect a landing on its shores in a clandestine ' manner, nnd even over those which 'approach too near. The shores and banks of the sea, which mark the coasts 'of a State, are the natural maritime 1 boundaries of that State. But for the protection, for the more effectual de- ' fence of these natural boundaries, the 'general custom of nations, in accord - 'ance with numerous public treaties. ' permits an imaginary line to be traced " on the sea at a suitable distance from " the coasts, ami following their con- " tour*, which is to be considered as an "artificial maritime frontier. Every " vessel which comes within this line ' limiting the rights of sovereignty and jurisdiction of the State is said to be ' within the waters of the State. It is ' this imaginary line which Pinheiro- ' Ferreira calls ' ligne de respect.' and 'within which he justly remarks that ' ' the foreigner, even in the absence of ' ' all force, ought to conduct himself as "if he were upon the territory of the ' ' State, and to undertake nothing which "the Government of the State would ' ' have a right to prevent as threatening " the property or safety of the nation.' 'Charged with this particular duty of ' public defence over the whole of this ' space, the State has the right to make 1 the regulations and laws necessary for ' this end, and to employ the public " force to ensure their execution there. " In a word, the State has over this space " not the right of property but the right " of empire ; a power of legislation of " supervision and of jurisdiction in con- " formity with the rules of International "Jurisdiction." 1 See remarks of Cockburn, C. J., on this case, which was much relied on by the defendant in Reg. v. Ke.yn. See also Lord Advocate v. Weymxx (1900), App. Cas. 48, H. L. Sc., where it was held that the grant of a barony with power to work minerals infra fluxum marix does not extend to minerals below low water mark, as the words of the grant show that it is limited to minerals under the foreshore only. 8 Aleyn, 10. 8 46 L. J., M. C. 189, 36 L. T. 251. 4 2 Ex. D. 63. THE HIGH SEAS. 11 the realm and so not rateable to the poor as an extra-parochial place within 31 d 32 Viet. c. 122, *. 27. l Various treaties and statutes for the maintenance of neutral Protection of rights during war, and the prevention of breaches of the revenue revenue > etc> and fishery laws, are now in force, and most of them recognize three miles as the limit, though this limit is not universal, for it is admitted by international law that a nation is entitled to take such measures as it may deem necessary for the protection of its revenue within a reasonable distance of its shores. 2 1 As to right to a jetty under the laws of New Zealand and the Public Works Act, 1882, see Pllmmer \. Wellington (Mayor of), 9 A. C. 699, 714. 2 Cockburn, C. J., 2 Ex. D. p. 216. The question of the sufficiency of the three-mile limit for purposes of protec- tion and security in time of war in view of the enormous increase of the range of modern artillery has been much dis- cussed in late years. The Institute of International Law in 1896 drew up a series of rules which express the almost unanimous opinion of specialists in international law. The chief point adopted, namely, a distinc- tion between the fishery limit and that for other sovereign rights and neutrality, is explained in the following passage from a report to the International Law Association on the same subject by Sir T. Barclay, to whose initiative the distinction was due : "Text-book writers are agreed that " cannon-shot range from shore was the ' original basis of the existing three-mile ' rule, and they are also agreed that this ' distance falls very far short of contem- porary cannon range. There are thus ' practically two limits from shore ' known, at least historically, to inter- " national law for the determination of "a State's jurisdictional zone seawards, ' namely, the distance within which the ' State can de facto exert its authority by ' the use of artillery on shore, and the ' other a fixed distance of three maritime ' miles, which most States in practice " apply. These two distances being no " longer identical it has become a ques- " tion whether there is not in reality a ' distinction of principle between them ; ' whether the varying and uncertain ' cannon-shot limit can be a proper basis ' for sovereign rights ; and, if it cannot, ' whether, on the other hand, it may not ' have a juridical basis in respect of the " right of the neutral not to be molested " by acts between belligerents. When " the modern idea of territorial waters " came into existence, neutral States " were protected against acts between " belligerents within a distance which " was then the cannon range. Why " should they no longer be protected within that range? No change has ' taken place in the opinions of men ' which would abridge the rights of neutrals. Quite the contrary. My ' proposal to the institute, therefore, is ' to reaffirm the limit of cannon range 'as the public law of Europe, but to ' confine its application to the right of "the neutral as founded in reason." (See report of Brussels meeting of Association, 1895, p. 4.) If States are not yet agreed whether the proper limit is three miles (Great Britain, France, United States), or six miles (Spain), or cannon range (Ger- many), they are all agreed that whatever the limit be, fisheries within it are re- served to the subjects and citizens of the adjacent State exclusively, that all States have a right of innocent passage through territorial waters, but are subject to the jurisdiction of the adjacent State if they cast anchor or hover in them, and that if the adjacent State be neutral, acts of war committed within them are an infringement of its neutrality. As regards waters which the adjacent State can physically close against navi- gation, but which are in communication with the high sea, States practically recognise the following distinctions : 1. Inland waters surrounded by the territory of the same State, and serving only as a means of access to ports of the State, by whose territory they are sur- rounded, though communicating with the high sea, if the breadth of the channel of communication by its narrowness and the configuration of the coast practically severs such waters from the open sea, are classed with national rivers and their estuaries as inland waters. (The Zuiderzee, the North German Haffs, the Sea of Azov, are instances of such waters.) 12 OF THE SEA, AND RIGHTS THEREIN. The result of the authorities seems to be briefly as follows : 1. The realm of England only extends to low water mark ; all beyond is the high sea. 2. For the distance of three miles, and in some cases more, international law has conceded an extension of dominion over the seas washing the shores. 3. This concession is evidenced by treaty or by long usage. 4. In no case can the concession extend the realm of England so as to make the conceded portion liable to the common law, or to vest the soil of the bed in the Crown. This must be done by the act of the legislature. Navigation. The laws relating to navigation are, with the foregoing exceptions, the same within as without the territorial waters. These waters are free to the peaceful navigation as well by foreign as by English ships. 1 According to international law, it is certainly the right incident to each State to refuse a passage to foreigners over its territory by land, whether in time of peace or war ; but it does not appear that a nation has the same right with respect to preventing the peaceful passage of foreign ships in time of peace over this portion of the high seas. 2 A foreign vessel, therefore, on a voyage to a foreign port, and having this right of passage over the sea within three miles of the English coast, is not subject to the English municipal law in the absence of express provision by Act of Parliament ; 3 but a foreign vessel seeking an English port is liable to English law. 4 41 i 42 Viet. By 41 d~ 42 Viet. c. 78, foreigners on board foreign ships, and passing within three miles of the English coast, are now made subject to the English criminal law. 2. Bays, the headlands of which, one, the Solent of the other. though wider asunder than twice the 4. Channels indispensable or of ex- ordinary distance seawards of terri- treme utility for " inter-foreign " com- torial waters, project so as to place them munication, both shores of which belong unquestionably beyond the line of what to the same State, however narrow, may may be called "inter-foreign" com- be held to be territorial waters. Such are mnnication, are territorial wafers. Such the Straits of Messina and The Darda- bays are the Bay of Cancale, in France nelles (subject to treaty stipulations). (seventeen miles wide) and the Scotch 5. Channels serving for international firths. It is difficult, however, to recon- communication between shores belong- cile the practice in these instances with ing to different States, such as the Straits general practice as regards fishery limit. of Gibraltar, the Sound, the Lymoon 3. Channels between the territory of Pass, etc., are also territorial waters. the same State, though they can be used (Encyclopedia of the Law of England, in "inter-foreign" communication, if 2nd ed., vol. 14, pp. 68 71.) not indispensable or even very useful for > The Saxouia, I Lush. 410 such navigation, or if they serve defacin 2 sir R. Phillimore, 2 Ex. Div. 82. only for communication with ports of s The i^axonia, 1 Lush. 410. the adjacent States, are territorial or The Annapolis, 1 Lush. 2!5 The inland, as the case may be. The St. Joanna .Stall, 1 Lush. 29o ; Citnnivgliam'* Oeorge'8 Channel is an instance of the rate, Bell, Cr. C. 72. THE HIGH SEAS. 13 There can be no doubt that by treaty, or by the implied Fishery, assent of nations, the right of fishing within three miles of the coast of the United Kingdom is vested exclusively in the inhabitants subjects of his Majesty. 1 By 31 d- 32 Viet. c. 45, 46 12 Moo. P. C. 473. a In llchester (Earl) v. Itanfileig/t, 5 T. L. R. 73g- u-ell, 5 B. & C. 875, 29 R. R. 449 ; Moore's History of Foreshore, p. 682. * A.-G. v. Portsmouth, 25 W. R. 559 (O.A.). THE SEA SHORE. 29 intention to be collected from the language used with reference to the surrounding circumstances. 1 Thus in the Scotch case, Lord Advocate v. Wemyss? the House of Lords held that the doctrine of possession by prescriptive working for minerals applicable to the foreshore ex adverso of a barony granted with parts and pertinents cannot be extended to a barony granted with power to work minerals below low water mark, because the words showed that the grant was limited to minerals under the foreshore only. Nor can such prescriptive use be extended to a third barony where a barony with boundary charter lies between. In absence of express grant of the shore, the question arises By prescrip- whether a title to it as against the Crown can be acquired by a tlon> subject by user and prescription, giving rise to the presumption of a grant. Hall, in his essay on the Sea Shore, 3 discusses this point elaborately, and comes to the conclusion that as the shore is land, it must be governed by the same rules of law as to title and proof of title as terra firma ; and that as prescription and user can give no title to lands, especially as against the Crown, such title, in the absence of express grant, can only be supported by evidence of adverse possession for the full period prescribed by the Statutes of Limitations relating to Crown lands viz. sixty years. He further argues that the evidence capable of support- ing such adverse possession must be similar to that which will support a claim by adverse possession to inland estates viz. evidence of occupation and actual possession; and that, therefore, the user of rights and privileges such as the right to wreck, several fishery, royal fish, and, perhaps, digging sand, which are separable from the ownership of the soil, and do not imply a title to it cannot be evidence to support a claim to absolute owner- ship of the soil. 3 Phear, in his Eights of Water, takes a view more favourable to claimants against the Crown. "Almost all beneficial enjoyment " of land," he says, "is necessarily so exclusive in its character " as to leave but little opening for question as to its possession. " It is only with regard to waste land, waters and the sea shore " that any real doubt can arise. On the other hand, of these 1 Lord v. Commissioners of Sydney, 12 3 Moore's. History of Foreshore Moo. P. C. 473. pp. 682709. a (1900) A. C. 48, H. L. Sc. 30 OF THE SEA, AND RIGHTS THEREIN. " latter the sea shore especially is, by its very nature, so little " capable of exclusive possession, that the most undoubted owner " of it finds it very difficult to support his title by user. In some " sense, ownership may be said to be an aggregate of exclusive " easements ; the greater the number of them which are openly " exercised, the stronger is the probability of the greater right " being the true foundation of that exercise. Where, as in " the case of the sea shore, the incidents of enjoyment are " very few, it is not easy to say whether the user of one or two "of them is to be referred to the greater or the lesser right. "No general rules of guidance can be laid down, but " perhaps it may be assumed, that to make acts evidence of " ownership, they must appear, under the circumstances which " surround them, to have been done animo habendi, possidendi " ct appropriandi." 1 Which of these views of the law would be held correct in the case of a claim by a subject to a portion of the sea shore in gross, where the actual title as against the Crown would be in dispute, cannot be said to be as yet determined, 2 as there appears to be no reported case in which such a claim has been advanced on the ground of the exercise of such rights alone ; but in the case of claims to foreshore, as forming parcel of manors, 3 and even as forming parcel of lands adjacent to the sea, where the manor is not expressly granted, 4 or of a borough, 6 the Courts have adopted the more liberal construction, holding that evidence of the user of various rights and privileges is admissible to show that the part of the shore claimed forms parcel of the adjoining manor or lands. This proposition is stated with authority by Lord Watson in a case which came before the House of Lords on appeal from the Courts of Scotland : 6 " There is in my apprehension, or ought to be, a practical " distinction recognized between the prescriptive possession which " establishes a new and adverse right in the possessor, and the " prescriptive possession which the law admits, for the purpose " of construing or explaining, in a question with its author, the 1 Phear on the Rights of Water, p. 88. < Cliad v. Tilsed, 5 Moo. 185,23 B. R. a See Ag neni v. Jjird Advocate, 1 1 Ct. 477 ; Brew v. Harem, Ir. R., 1 1 C. L. li8 ; Sess. Cas.. 3rd series, 309 : Macaliter\. Lord Adrocate v. Young. 12 App. Cas. CiimpMl, 15 D. B. & M. Ses. Cas. 490. 544. 8 A.-G. v. Jone*, 2 H. k C. 347; In * A.-G. v. Portsmouth. 25 W. R. 559 re Bflfiixt JJarcel of a manor. Effect of grant of sea- coast manors. " ' sense I apprehend that this is as much the law in a Scotch as " ' in an English Court. And the weight of the aggregate of " ' many such pieces of evidence taken together is very much " ' greater than the sum of the weight of each such piece of " ' evidence taken separately.' ' In actions against mere trespassers, a sufficient possessory title can he established by persons claiming foreshore, without pro- ducing evidence sufficient to displace the title of the Crown. 1 There is no doubt that the foreshore may form parcel of a manor ; 3 and in fact claims to foreshore by a subject are almost invariably made by lords of sea-side manors. 3 "Where the grant of the manor is express and unambiguous, the title to the shore will depend wholly on the construction of the metes and boundaries of the grant, which will, as has been said, be construed stricto jure in favour of the Crown and against the grantee. 4 Thus if the boundary be expressed to be down to the sea, it is presumed that the ordinary high water mark is intended as the boundary line ; but if it is expressed to be down to low water mark, this will be tantamount to a grant of the shore. 5 In fact land granted, whether situate upon the sea coast or inland, is co-extensive with the words of the grant, and no more. A grant, therefore, of a sea-coast manor does not necessarily 1 Corporation <>f Hoistings v. Trail, L. R., 19 Eq. r>58. " Actual possession of " the locus in quo would have been not ' merely evidence of title, but actually " a title against wrongdoers." 1'er Lord Blackburn, in Bristowe v. Cormicaii, 3 A. C. 600. See also Smith, v. Stair (Jtirl of), 2 H. L. Cas. 807 ; 13 Jur. 713 ; lleg v. Downing, 23 L. T. 398 ; Johnson v. Barrett, Aleyn. 10 ; Moore's History of Foreshore, p. 661. " Calmady v. Itowe, 6 C. B. 861 Duke of lietnifort v. Swansea, 3 Ex. 413 Sir U. Constable's case, 5 Rep. 107 ; S'u John Constable's case, Anderson, 36 Uanfurley, Ex parte, Jr. K., 1 Eq. 128 Hale de Jure Maris, Harg. Tracts, 27 ('ate of Barons of Barclay, Harg. Tracts, 34 ; Alston's Estate, In re, 5 W. K. 189 ; A.-G. v. Portsmouth, 25 W. R. 559 ; Lord Adrocate v. Blantyre, 4 App. Cas. 770 ; In re Tomline, 28 L. T. 12. ' Prinid facie, the foreshore in the Duchy of Cornwall is within the parlia- mentary grant to the Black Prince and inalienable, but evidence of enjoyment by owners of adjoining manors may justify the presumption of a statute vesting it in them. {Lopes v. Andrews, 3 M. & R. 329.) 4 But see ante, p. 24. 5 In Corporation of Hastings v. I rail, L. R., 19 Eq. 558, where there was a grant by Queen Elizabeth of all that her parcel of land called the ' Stone Beache, 1 ' it was held that, as the name Stone Beach now applied to the entire beach below as well as above high water mark, such grant, as aijainst a person not claiming any title himself, must be presumed to include the whole foreshore. In A.-G. v. Ilanmer, 4 De G. & J. 200 ; 6 W. R. 804, under a grant of waste lands or roarish grounds the foreshore of a tidal incer has passed on proof of user ; and a grant by the Crown of " all "coals under commons, waste grounds 11 or marshes " of a certain manor has been held to pass coal lying under the space between high and low water mark on the i-hore of such manor. See also In re Belfast Dock, Ir. R., 1 Eq. 128. THE SEA SHORE. 33 include the foreshore, though it may do so, 1 even though the technical words to describe it are absent. 2 Where the owner of an adjoining manor, whose title to the Acts of manor from the Crown is not disputed, claims a portion of the admissible to sea shore as forming parcel of that manor, the question is really P rove extent , , , j e i.-ii j -, v i of grant. one of boundary, and not of title ; and in such cases it has been decided that acts of continuous ownership, including under this head such rights as those of taking wreck and royal fish, digging and selling stones and sand, and cutting seaweed, building a retaining wall, working minerals under the foreshore, and the enjoyment of an exclusive fishery, may be called in to explain the grant and to prove the portion of the sea shore claimed to be within the boundaries of the manor granted. 3 Thus it has been held, that where the Crown granted all the regions, countries, or territories of C., and the boundary seaward was the bank of the bay of K., as the description did not neces- sarily exclude from the grant the shore of the bay between high and low water mark, continuous acts of ownership were admis- sible against the Crown to prove that the foreshore was included in the grant.* So in A.-G. v. Jones, 1 on the trial of an information of intrusion, the question being as to the title of the defendant as against the Crown to the sea shore between high and low water mark, the defendant gave in evidence a grant of a manor, with fishery, wrecks of the sea, &c. ; and also gave in evidence various acts of ownership, such as taking sand and gravel, and preventing others from doing so. The learned judge told the jury that the grant of the manor did not pass the shore, and left it to the jury to say whether they were satisfied by the evidence of user that the 1 Hale de Jure Maris, p. 18 ; Agnew (1891) A. C. 649 ; Agnew v. Lord v. Lord Advocate, 11 Ct. Sess. Gas., 3rd Advocate, 11 Ct. Sess. Cas., 3rd series, series, 309. 309 ; Donegal Y. Templem&re, 9 Ir. 2 Vandeleur v. Glynn, (1905) 1 Ir. R. C. L. R. 374 ; Waltoncum-Tinley Manor, 483, 509, C. A. ; Att.-Gen. for Ireland In re Timline, 28 L. T. 12. Evidence of v. Glynn, 76 L. J., F. C. 89, (1907) acts of ownership on parts of the fore- A. C. 369, 97 L. T. 221, H. L. Ir. ; see shore which are separated and divided also Mellor v. Walmsley, post, p. 40. from the part in dispute by foreshore 3 A.-G. v. Jones, 2 H. & C. 347 ; Case are not admissible to prove a title to the of the Sarong of Barclay, Harg. Tracts, whole tract of which they form part. 34 ; Calmady v. Howe, 6 C. B. 861 ; {A.-G. v. Portsmouth, 29 W. R. 559). A.-G.v. Tomline, 14 Ch. D. 58 ; 12 Ch. D. < In re Belfast Dock, Ir. R., 1 Eq. 214 ; Lift-rage v. Rowe, 4 F. & F. 1048 ; 128. Daly v. Murray, 17 L. R. Ir. 185 ; 5 2 H. & C. 347 ; see also Calmady v. Lord Advocate v. Young, 12 A. C. Rowe, 6 C. B. 861 ; and In re Belfast 544 ; Lord Advocate v. Wemyss, (1900) Dock, Ir. R., 1 Eq. 128 ; Healy v. Thome, A. C. 48, H. L. Sc. ; A.-G. v. Emerson, Ir. R., 4 C. L. 495. L.W. 3 34 OF THE SEA, AND RIGHTS THEREIN. defendant had acquired a title as against the Crown ; but the Court of Exchequer held this a misdirection, and that the proper question for the jury was, whether the evidence of user, coupled with the grant, satisfied the jury that the defendant had such title. In The Duke of Beaufort v. Swansea, 1 it was held that the sea shore between high and low water mark may be parcel of the adjoining manor ; and where, by an ancient grant of the manor, its limits are not defined, modern usage is admissible as evidence to show that the sea shore is parcel of the manor ; the Court in this case holding that a grant of the Terra or Seignory de Gower was equivalent to the grant of a manor. In the case of Brew v. Haren,* the Irish Court of Exchequer Chamber have held, that where lands specifically described by name adjoining a sea shore were granted, and also all and singular lands, tenements, &c., thereto belonging, &c., evidence, such as the taking of seaweed by the plaintiff immemorially, and numerous convictions obtained by the plaintiff at petty sessions of persons whom he had prosecuted for taking seaweed in the locus in quo, and also that he had brought a former action against an alleged trespasser, in which, after a submission to arbitration, there was an award in his favour, which was made a rule of Court, was admissible as against a mere trespasser to prove that the shore passed under the grant, though the grant was not of a manor. In Midholland v. Kitten? a title to the foreshore, as it would appear, in gross, was held, as against a trespasser, to be supported by proof, that for sixty years the owner had let portions of it at yearly rents, had kept a bailiff to protect the seaweed, had issued regulations to govern the conduct of his tenants on the shore, and had issued licences to cut seaweed and dig gravel. In Chad v. Tilsed, 4 where there was a grant of wreck from Hen. II. to the Abbey of Cerna, by all their lands upon the sea, confirmed by inspeximus of Hen. VIII., and a subsequent grant of the island of B. and its shores, belonging to the late Abbey of C., supported by evidence that between forty and fifty years ago the owner of B. raised an embankment across a small bay, and had ever since asserted an exclusive right to the soil, it was held that although the usage of forty years could not of itself establish ' 3 Exch. 413. Browne. Ir. R 11 C. L 198, Ir. B., 9 C. L. Ir. R., 9 Eq.471 ; Ilealy v. Thome, see I*e v. Brown. 2 M. 4 Hale, part 1, ch. vi. ; Fleta, lib. 3, c. 2, s. 6 ; see Angel! . Tide Waters, 268 ; Woolrych, 36. 5 Hale, supra. THE SEA SHORE. 43 the sea belongs to the adjoining owner are thought by Lord Chelmsford * not to depend on the principle " De minimi s non curat lex" but to be those stated in the case of The Hull and Selby Rail. Co. 2 viz., 1st. That that which cannot be perceived in its progress is taken to be as if it had never existed ; and 2nd. The necessity for some such rule of law for the permanent protection and adjustment of property ; for it must be borne in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of the rule ; for if the sea gradually steals upon the land, he loses so much of his property. 3 The reason for assigning lands gained suddenly from the sea and islands to the Crown is stated by most writers to be, that the king is owner of the soil of the sea, and the universal occupant of what was unclaimed. 4 The king has probably from the very earliest times had a right Protection as part of the prerogative to defend the realm against the waste of^esea" of the sea, and to order the construction of defences at the expense severally of those who are to be benefited by them. 5 The power to erect a sea wall or embankment as a protection against the sea, or from the influx of the tide in rivers, is one of those things which emanate from the prerogative of the Crown Prerogative for the general safety of the public ; and no doubt the ordinary c rown * rights of property must give way to that which is done for the protection and safety of the public, but only to the extent to which it is necessary that private rights and public rights should be sacrificed for the larger public purposes the general common weal of the public at large. 6 We therefore find in the very earliest records that commissions Commissions of sewers were issued by the king for this purpose. The various 1 A.-G. v. Chambers, 4 De G. & J. 68. 2 Ex. Div. 63. The king is not universal See further as to this question, the occupant of unclaimed dry land ; Brig- elaborate judgment of Lindley, J., in towe v. Cormican, 3 A. C. 641, per Lord Foster v. Wright, 4 C. P. D. 438, and Blackburn. port, pp. 87 et seq. 5 Per Coleridge, C. J., in Hudson v. 2 5 M. & W. 327. Tabor, 2 Q. B. D. 290, 46 L. J., Q. B. 3 See judgment of Lindley, L. J., in 463 ; 36 L. T. 492 ; see Woolrych on Hindson v. Ashby. (1896) 2 Ch. 1, post, Sewers, pt. 1, p. 42 ; Callis on Sewers, p. 90, on the question of "accretion" p. 80 ; see also per Lord Coke, 10 Coke, when the boundaries are defined and 143 ; see also per Lord Holt, 12 Mod. known. 321 ; Holt's Cases, 643. 4 See Hale, pp. 17, 36; Callis, 44 ; 2 6 Greenwich Board of Win-Its v. Blackstone, 251. But, as Callis says, Maudslay, L. R., 5 Q. B. 397, 23 L. T. such islands are not within a county, 121. and so without the realm ; Reg. v. Keyn, 44 OF THE SEA, AND RIGHTS THEREIN. Powers and duties of Commis- sioners of Sewers. statutes of sewers, beginning with 6 Hen. VI. c. 5, 1 do but regulate the exercise of the prerogative in this respect, and prescribe forms of commissions for the ordering and execution of the necessary works, which forms have been from time to time varied. In early times, probably, the king ordered the con- struction of such sea walls as he judged necessary, very much according to his own discretion. In process of time, however, this discretion came to be limited by established rules, and at last by statute. The Statute of Sewers, 23 Hen. VIII., c. 5, is the most important of these. By it commissions of sewers were to be issued from time to time as need required, 2 and their powers and duties were confined to the particular districts issued in each particular commission, which formerly only lasted for three years. But now, by 24 dk 25 Viet. c. 133, a commission of sewers once issued shall be deemed to continue until such time as it shall be superseded by his Majesty, who may from time to time fill up any vacancies therein under his sign manual. The Commissioners of Sewers were required by 23 Hen. VIII. c. 5, in the first place, to make a survey of the various defences against the sea, and obstructions to navigation or the flow of rivers, and to hear and determine concerning the same, through whose default such defences were out of repair, or such obstruc- tion caused, and to ascertain the names of the owners of the various lands where offences have occurred, and also of such as have suffered inconvenience. They were empowered to assess the lands of all individuals in their district, 3 whether damaged or not, for repairs which they are directed to execute, and to take labourers, carriages, timber, and other necessaries, on paying a reasonable price. They are empowered to make such orders, ordinances, and decrees as may be expedient, and by the judicial 1 The most important are 23 Hen. VIII. c. 5 ; 13 Eliz. c. 9 ; 3 & 4 Will. IV. c. 22 ; 24 & 25 Viet. c. 133. See also pout, Chap. VII. * See Woolrych on Sewers, pp. 8, 9. 8 In a district under the statutory jurisdiction of Commissioners of Sewers rent-charges were imposed on lands A. and B. for the maintenance of works necessary to protect the district from the incursions of the sea. Some of the lands within the district shared the benefits of this protection, though they were not liable to, and did not con- tribute towards, the maintenance of the works. Held, by the H. L. reversing the decision of the C. A. and the K. B. D., that upon assessing to the poor rate the tenants of lands A. and B., they were entitled to a deduction from the rateable value in respect of the rent- charge or such proportion thereof as was the proper share of lands A. and B. respectively, on the footing that all the protected lands were taken to contribute rateably, having regard to the protec- tion they received. Green v. Ainrjiart Union and Stead v. A'rtr/>nrf I ninti (1909) A. C. 35, H. L. E. ; (1907) 2 K. B. 460, (1906) 2 K. B. 147. . B. C. LAW THE SEA SHORE. 45 authority with which they are invested they may sit in judgment upon their own orders, subject, however, to the correction of the higher Courts. They may issue writs and precepts to the sheriffs, bailiffs, and others, and may punish by distress, fine, and, in some cases, by imprisonment, any one showing negligence or disobeying their orders. 1 Their powers are confined to the sea, and to navigable rivers, and to public sewers, and to things which interfere with the public convenience. 2 The authority to be exercised by the Commissioners of Sewers Property in on the behalf of the public does not, however, vest in them such a property in the embankments or walls which they have erected not vested in erected, as will enable them to maintain an action of trespass them. against a trespasser for breaking them down the remedy must be by indictment in the name of the king. 3 Sect. 10 of the Sewers Act, 1833 (3 & 4 Will. IV. c. 22), by which all walls, banks, &c., adjoining the sea or tidal rivers are to be within the jurisdiction of the commissioners, does not vest such walls, &c., in the commissioners until they have taken them within their jurisdiction in the manner described in sect. 47.* It has further been held that there is nothing inconsistent with the purposes of a sea or river wall or embankment erected to protect the neigh- bouring lands, in a public right of way along the surface ; and that the same evidence of user will raise the presumption of a dedication of a right of way by the owner of the soil in the case of such embankment, as in any other case of uninterrupted and open user by the public ; but that, if it was necessary for public purposes or for the public safety of a district that the level of the wall should be altered, so as to interfere with and obstruct the public right of way, the right of way must yield to the larger and more important purpose for which the powers of the Commissioners of Sewers were given. 5 The navigable rivers, ports, harbours and docks of the kingdom Their powers are now almost universally vested in corporate bodies of con- p 1 }^^ servators, who have all the powers of permanent Commissioners coast not of Sewers, unless there is a stipulation to the contrary in their any conser- particular Act. 6 The powers, therefore, of Commissioners of vators or har- bour trustees. 1 Woolrych on Sewers, pp. 54 62. 4 Went Norfolk Farmer*" Manure Co. 8 Ibid. p. 68 ; per Buller, J., in Jean v. Archdale, 16 Q. B. D. 754 ; 55 L. J., v. Holland, 2 T. K. 365. Q. B. 230 ; 54 L. T. 561. 3 Duke of Newcastle v. Clark, 2 5 Greenunch Board of Works v. Moore, R. 666; 20 R. R. 583; see Maudsley, L. R.. 5 Q. B. 397. Driver v. Simpson, ibid, not* on p. 682. 6 Woolrych on Sewers, p. 49. 46 OF THE SEA, AND RIGHTS THEREIN. Liability to repair not enforceable against the Crown or at common law against a froutager. But the Crown may prevent de- struction of natural bar- riers. A.-O. v. Tomline. Sewers at the present day are restricted to those parts of the coast not under the regulation of any body of conservators or trustees of ports, harbours or docks. Though it has been said that it was the duty of the king to guard and protect the shores and lands adjoining the sea from being overflowed by the sea, there is no liability in this respect which can be enforced against the king, and no mode of enforcing it. 1 There is also no liability at common law apart from prescrip- tion upon a frontager to maintain a sea-wall for the protection of his neighbours; nor is the fact that a frontager had always maintained a wall in front of his land, and that no one had thought it necessary to erect a wall to protect his land from the water which might come from his neighbour's land, sufficient evidence to establish a prescriptive liability on a frontager to maintain the wall for the protection of the adjoining landowners. 2 So a parish has been held not liable to repair part of a highway washed away by the sea. 3 But there exists in the Crown a prerogative right and a duty to protect the lands of the realm from the inroads of the sea for the benefit of the commonwealth ; and such prerogative right and duty import a right in an owner of land protected from the sea by a natural barrier to have such barrier preserved from destruction by the owner of the land on which it exists ; and this right, though not enforceable against the Crown, is enforceable against a subject who is the owner of land on which such natural barrier exists. Thus in A.-G. v. Tomline,* the plaintiff and relator, the Secretary of State for War, was seised in trust for the Crown of a piece of land near the shore of the estuary of a tidal river. The defendant was lord of the manor and owner of the adjoining land and foreshore lying between the plaintiff's land and the estuary. On the shore on the defendant's land was a natural bank of shingle formed by the sea. The defendant and his predecessors had for many years sold large quantities of shingle, and in consequence of this removal the plaintiff's property was overflowed by a very high tide in 1877, and its safety became endangered. On information and action to restrain Hudton v. Tabor, 2 Q. B. D. 290 ; A.-O. v. Tomline, 14 Ch. D. 58 ; 12 Ch. D. 214. As to liability of River Com- missioners under Acts of Parliament to repair, see Sramlett V. Tees ftmter- vancy,pott, Chap. VII. 2 Hudson v. Tabor; A.-G. v. Tomline, supra. 8 Reg. v. Iftirnxea, 2 C. L. R. 596 ; 23 L. J., M. C. 59 ; 6 Cox, C. C. 279. 4 12 Ch. D. 214 ; 40 L. T., N. S. 775. THE SEA SHORE. 47 defendant from removing any shingle so as to endanger the plaintiff's land, Fry, J., granted the injunction prayed, and based his judgment on the ground of the duty of the Crown to protect the land of the subject, and on the absurdity which would result if the subject was allowed to destroy what the Crown is bound to maintain ; and, remarking on the case of Hudson v. Tabor, he admits that a great distinction may exist between a liability to repair an artificial bank or wall, and the right to destroy a natural protection. This judgment was affirmed on appeal, 1 the Court holding that it is the duty of the Crown to protect the realm from the inroads of the sea by maintaining the natural barriers or by raising artificial barriers, and that no subject is entitled to destroy a natural barrier against the sea ; and if the destruction of such natural barrier would cause an injury to a neighbouring landowner, he is entitled to an injunction to restrain it, although the removal of shingle and its sale is a natural and ordinary user of the land. 2 By prescription, however, the liability to repair a sea-wall and Liability to to defray all the expenses may be imposed upon an individual [^osed by 6 owner. If the injury to a sea-wall is occasioned by the default of prescription. him who is bound to repair it and is not irremediable, and he cannot repair it, every one charged with the repairs may have an action on the case against him. 3 Thus it had been held in Lyme Regis Corporation v. Henley* that an individual who had suffered loss by decay of sea-walls which a corporation was directed to repair under terms of a grant from the Crown conveying borough and pier or quay tolls, may sue the corporation for damages ; so also, as the obligation concerns the public, and indictment will lie. Where a farm has been subject ratione tenures to the repair of a sea-wall, such liability attaches to every part of the land com- prising the farm though the farm has been sold and has become vested in several different purchasers. 5 If the injury is caused by a sudden tempest without any default on his part, then the Commissioners of Sewers may order a new one, even in a different form if necessary, to be erected at the expense of all the owners of land who would be damaged by the nuisance, or may be benefited by the repair, according to the quantity of their 1 14 Ch. D. 58. 1 Scott, 29 ; 1 Bing., N. C. 222 ; 2 Cl. 2 See Crompton v. Lea, 31 L. T., N. S. & F. 331 ; 8 Bligh, N. S. 690 ; 37 R. R. 125. 469. 5 L. and N. W. Ely. v. Fobbing Level 8 Keighley's case, 10 Coke, 139. Commissioners, 66 L. J., Q. B. 127 ; 75 4 3 B. &; A. 77 ; 5 Bing. 71 ; affirmed L. T. 629 ; but see post, p. 48. 48 OF THE SEA, AND RIGHTS THEREIN. Where damage is caused by extraordinary tempest. Negligence. A'itrO'Ph-ot- phatf Co. v. London lands. 1 At common law the king might issue commissions to repair ancient walls, but not to build new ones. If a man would make a new wall, he must sue an ad quod damnum to know what damage it shall be to the king and others. By stat. 23 Hen. VIII. c. 5, new inventions are not warranted, but some alterations might be made; when an old wall by violence of the sea is broken down, another wall in the case of inevitable necessity may be made, but if the damage may be avoided by the reparation of the old one, a new one ought not to be erected. 2 In the absence of evidence that the prescriptive liability of a frontager extends to the repair of damage caused by extraordinary violence of the sea, the liability to repair the damage thus caused falls on all the landowners in a level. 3 The landowners of a level cannot, however, be called upon to contribute to the repairs of a sea-wall, although it has been injured by an extraordinarily high tide and tempest, unless the damage has been sustained without the default of the party generally bound to repair. 4 A landowner may, moreover, be bound by prescription to repair a sea-wall, even though it be destroyed by an extraordinary tempest, and it is a question for the jury whether he is bound to provide against the effects of ordinary tempests only or of extraordinary ones also. 5 Where an obligation is imposed on a frontager, either at common law or by statute, to keep a wall at a certain height, and he fails to do so, he is guilty of negligence and responsible for all damage caused by such negligence, even though the damage is caused by the overflow of an extraordinarily high tide. Thus, in The Nitro-Phosphate Co. v. London Docks, 6 the defendants, the owners of a dock on the river Thames, were, prior to 1875, required by the Dagenham and Havering Commissioners of Sewers to maintain a river-wall in front of their land at a height of four feet two inches above Trinity high water mark. They were authorized by Act of Parliament to make and maintain a dock and works according to levels defined in plans and sections deposited with the clerk of the peace. The sections showed the 1 R. v. Commissioners of Sewert for Somerset, 8 T. R. 312 ; 4 R. R. 659 ; Keighley't case, 10 Coke, 139. 8 Itle of Ely case, 10 Coke, 140; Rooke's case, 5 Coke, 99. 3 Fobbing SeicersCommissioners \.Reg., 11 A. C. 449; 66 L. J., M. C. 1 ; 55 L. T. 493. 4 It. v. Commissioners of Sewers lor Essex, 1 B. & C. 477 ; 25 R. R. 467. 6 R. v. Leigh, 10 A. & E. 398 ; 50 R. R. 463 ; and see per Cairns, L. C., in Mirer Wear Commissioners v. Adamson 2 A. C. 750. 8 9 Ch. Div. 503 ; 37 L. T., N. S. 330. THE SEA SHORE. 49 retaining banks of the new works to be of a uniform height of four feet above Trinity high water mark. The defendants allowed their retaining bank to be at one point several inches below the level of four feet. In November, 1875, an extraordinarily high tide, which rose to four feet five inches above Trinity high water mark, overflowed the defendants' bank and damaged the plaintiffs', adjoining landowners. The tide had never been known to rise so high before. In an action for damages the defendants urged that they were not liable, as the extraordinarily high tide was the act of God, and that, even if they were liable for some damages for not keeping the wall of the height of four feet, they were not liable for the whole damage caused by a tide which rose to four feet five inches, which would have overflowed the plaintiffs' premises, even if they, the defendants, had maintained their wall at the proper height. Fry, J., held, that a duty was imposed on the defendants by the Act of Parliament to keep their wall at a uniform height of four feet above Trinity high water mark ; that they had failed to do so, and were guilty of negligence, and liable for the whole of the damage ; and that though the unprecedented high tide might be the act of God, yet no man who has a duty cast on him, and who does not perform it, can rely upon the act of God as any excuse at all. He held further, that as he could not tell whether any of the damage did accrue from the act of God, and could not analyze the total amount of damage between the defendants' negligence and the act of God, the defendants must pay the whole damage done. 1 On appeal 2 the Lords Justices affirmed the decree of Fry, J., with a variation. They held, that, independently of the Act of Parliament, the defendants were bound at common law to maintain their bank up to the level of four feet two inches, the height of the rest of the river-wall, and were liable to the plaintiffs for negligence in not doing so ; that the extraordinarily high tide in question, though the act of God, did not excuse the defendants from their liability, but that they ought to have an opportunity of showing that the damage done by the act of God and the damage occa- sioned by their negligence could be ascertained and apportioned. 3 If a tenant for life suffer a sea-wall to be out of repair, so that Liability of by his fault the land is drowned, it is waste in him ; but if the land ijfe^d T . mortgagees. 1 Nitro - Phosphate Co. v. London Wear Commissioners v. Adamson, L/. K., Docks, 37 L. T., N. S. 330. 2 App. C. 780 ; 47 L. J., Q. B. 193 ; 37 * 9 Ch. D. 921 ; 39 L. T. 453. L. T. 543 ; Nicholls v. Marsland, 2 Ex. 8 As to the "act of God," see River Div. 1 ; and pott, Chap. III. L.W. 4 50 Presentment by a jury necessary. OF THE SEA, AND RIGHTS THEREIN. be drowned by the rage and extraordinary violence of the sea, it is not waste. 1 A mortgagee not in actual possession, but in receipt of rents and profits of land charged with the repair of a sea-bank, is liable for default of reparation, although notice has not been given him to repair under 8 Jc 4 Will. IV. c. 22, s. 15, as the power given by the old statute 23 Hen. VII I. c. 5, to assess and impose fines and pecuniary impositions still exists, although the statute 8 d 4 Will. IV. c. 22, s. 15, enacts that after notice given the commissioners may in default repair themselves at the defaulter's expense. 2 According to the terms of the commissioners set out in 23 Hen. VIII. c. 5, s. 3, before an order can be made upon a person to repair a sea-wall, there must be a presentment by a jury that he is the person by whose default the sea-wall is out of repair. 8 Stat. 3 Jc 4 Will. IV. c. 22, to a certain extent modifies that enactment, because, whereas under the old statute it was neces- sary that the jury should find on each occasion who was liable to do repairs, the later statute enacts that it shall no longer be necessary during the continuance of the same commission to have a presentment of a jury upon subsequent wants of repair, and that the first presentment of any given individual, or body politic, shall be sufficient. It says that not only an individual once presented, but the owners and occupiers for the time being of such lands, shall continue liable from time to time to repair the defence according to the presentment. But when it empowers the commissioners to make their order it only mentions such person, body politic or corporate, i.e., the person or body politic originally presented. It was held, therefore, that an order on an owner to whom the land had been transferred since the present- ment was bad. 4 The commissioners may proceed to order repairs under a commission and presentment of a jury on their own view (or by survey that is, upon their own view) or assisted by measure- ment and by conference with competent persons, whom they may call in, or by view and survey combined, or possibly on the report of a surveyor appointed for the purpose; but the information 1 Griffith' i case, Moore, Rep. 62. 2 Reg. v. Baker, L. R., 2 Q. R. 621 ; 36 L. J., Q. B. 242. ' Wingate v. Watte, 6 M. & W. 739 ; Lecel Cmnmiftionert, 66 L. J., Q. B 12": Reg. v. \Vharton, 2 B. & S. 719 ; 9 Jar., 75 L. T. 629. N. S. 325. 4 Reg. v. Wharton, 2 B. & S. 719. As to liability on purchasers after sale of lands, see L. and N. W. Rly. v. Fobbing THE SEA SHORE. 51 of a marsh bailiff and the expenditor and another seems not sufficient to justify an order to repair. 1 A mandamus is unneces- sary to enable Commissioners of Sewers to enforce liability on persons liable ratione tenura? In the absence of any prescriptive liability on any individual, in absence of all the owners and occupiers benefited by the wall, and they aifowners 11 alone, are liable to be rated to its repair. 3 Where five owners of and occupiers DCTlPfi tGCl lands below the sea level covenanted with each other that a certain liable to be sea-wall should be repaired at the expense of the estates to be borne rateably, a purchaser of one part of the estate who had no actual notice of the covenant was held liable to contribute to its maintenance on the following grounds : 1st. The covenant ran with the land ; 2nd. The defendant was bound to inquire how the wall was kept up, as it was manifest that the land, when he bought it, was protected by the sea-wall in question ; 3rd. That as defendant was protected by the sea-wall, he was liable at common law to contribute to its support, unless he could prove he was not so liable. 4 All owners of land exposed to the inroads of the sea, or Com- Necessary missioners of Sewers acting for a number of landowners, have a ^ greeted 137 right to erect such works as are necessary for their own protection 5 though in- even although they may be prejudicial to others, and they will adjoining not be liable to pay compensation for injury to lands not within owners - the level, in the absence of negligence or malice. 6 It does not appear that the Court in the last-cited case meant to lay down the principle that a riparian owner has a right as against the Crown to erect defences against the sea on the shore below low water mark when the shore is the property of the Crown, and so to justify a purpresture ; this right would seem confined to the soil above high water mark, which is primd facie his own. The question did not arise in the case, as the works were executed by 1 Reg. v. Wliarton, 2 B. & S. 719, per highway which the public were pre- Cockburn, C. J., and Crompton, J. ; vented from using for want of repara- Callis, p. 107. tion. 2 Reg. v. Gamble, 3 P. k D. 122 ; 11 * Mot-land v. Cooke. L. R., 6 Eq. 252 ; A. & E. 69 ; 9 L. J., Q. B. 2. 37 L. J,, Ch. 852 ; 18 L. T. 496. 3 Ke\ghley's cote, 10 Coke, 130 ; Isle 5 As to this, see Anderson v. Jacobs, of Ely case, 10 Coke, 140 ; Roolufs case, (1905) 21 T. L. R. 453 D. ; 93 L. T. 17, 5 Coke, 99. In R. v. Inhabitants of per Alverstone, C. J., ante, p. 30. Paul, 2 Moo. & Rob. 307, it was held, at 6 R. v. Commissioners of Sewers oj nisi prius, by Maule, J., that a parish Pagham Let-el, 8 B. & C. 355 ; 32 R. R. cannot be indicted for uot rebuilding a 406. This would not seem to hold good sea-wall over which an alleged highway in tidal rivers ; see A.-G. v. Lonsdale, used to pass ; for it could not be said to L. R., 7 Eq. 387 ; 37 L. J., Ch. 335 ; have been at the time of the default a 20 L. T. 64 ; post, p. 177. 42 52 OF THE SEA, AND RIGHTS THEREIN. Public right of navigation. Right of pas- sage over the shore. Mayor of Colche*ter v. Brooke. the Commissioners of Sewers, and the action was by an adjoining landowner for damage done to his land by the works. The ownership of the Crown in the soil of the shore is subservient to the public right of navigation, and cannot be used in any way so as to derogate from and interfere with such right. The grantees of the Crown take subject to this right, and any grant to a subject so as to be detrimental to the public right is void as to such parts as are open to such objections, if acted upon so as to effect nuisance by working injury to the public right. 1 All such nuisances may be abated on information. 2 The right of navigation extends over every part of a navigable river, and a fortiori of the sea, 3 and includes the right to anchor and fix moorings without paying toll as a necessary part of the right which is essential for its full enjoyment. 4 This right of passage has been said not to extend to the right of crossing the shore at low water, for the purpose of landing goods, or fishing, where the shore is the property of a subject, in the absence of necessity or of a prescriptive right to do so ; 5 but this doctrine is not now supported by the Courts, and decisions have been given in modern cases which overrule it. Thus it has been held that the right of navigation includes all such rights as are necessary for the full enjoyment, not only of the right of passage, 6 but of the rights of trade and commerce ; 7 and that the private property of the Crown and its grantees is in every way subservient to this public right. 8 In the case of The Mayor of Colchester v. Brooke, 9 it was held that the right of passage in a river exists at all times and states of the tide, and that it is no excess of this right if a vessel, which cannot reach its destination at a single tide, 1 A.-G. v. Parmeter, 10 Price. 378, 412 ; 24 R. R. 723745 ; Gann v. Free Fishrrt of W/tit*table, 11 H. L. 192; A.-G. v. Burridge, 10 Price, 350; 24 R. R. 705 ; Liverpool and .V. Wales StMiiighip Co. v. Mersey Trading Co., (1908) 2 Ch. 460 ; 77 L. J., Ch. 658; 72 J. P. 385 ; 24 T. L. R. 712 ; 78 L. J.,Ch. 17; 25 T. L. R. 89, C. A. ; pott, pp. 494, 497. * A.-G. v. Richards, 2 Anst, 603 ; 3 R. R. 632. R. v. Ward, 4 Atk. 384. 4 Gann \. Free Fithersof WhitstaWe, 11 H. L. 208; A.G. v. Wright, (mi) 2 Q. B. 318. * Blundell v. Caiteral, 5 B. & Ad. 268 ; 24 R. R. 353. The sea shore is not a " street, highway or public place " within the Gas and Waterworks Clauses Act, 1847 : Maddock v. Wallase.y Local Board, 55 L. J., Q. B. 267 ; 50 J. P. 404. 6 Gann v. Free Fishers of WhitstaUe, 1 1 H. L. 192 ; Mayor of Colchester v. Brooke, 1 Q. B. 339'. 7 R. v. Russell, 6 B. & C. 566 ; 30 R. R. 432 ; Original Hartlepool Colliers v. Gibb, 5 Ch. D. 713 ; 46 L. J.,Ch. 311 ; 36 L. T. 433. 8 Gann v. Free Fisliers of Whitstable, 11 H. L. 192; A.-G. v. Parmeter, 10 Price, 378 ; 24 R. R. 723745 ; A.-G. v. Burridge., 10 Price, 350 ; 24 R. R. 705 ; A.-G. v. Johnson, 2 Wils. 87 ; 18 R. R. 156. 9 7 Q. B. 373 ; 15 L. J., Q. B. 59. THE SEA SHORE. 53 remains aground till the tide serves. 1 Lord Denman, C. J., delivering the judgment of the Court of Queen's Bench, says : " Now if, in such rivers (i.e., navigable tidal rivers), it was held " that the character (i.e., of being public and navigable in the " sense of a highway) did not extend higher up than the water " sufficed to float vessels at all times, or was suspended during " such periods of the tide as left the channel too shallow for " that purpose, rights of the public invaluable and immemorial " in numerous rivers would be abridged and rendered in many " particulars vexatiously uncertain, and in many cases be made "nearly, if not entirely, useless. ... To say, then, that the " river ceased to be navigable, ceased to be a highway, at the ebb " or other states of the tide when such vessels could not float, is " in effect to say, that except for a short period of every month, " they should not use the river at all for the purpose of trading " with Colchester. It is more reasonable to hold that the term " navigable is a relative and comprehensive term, containing within " it all such rights upon the waterway as, with relation to the " circumstances, are necessary for the full and convenient passage " of vessels and boats along the channel. . . . The right of soil " in arms of the sea and public navigable rivers, which the Crown "primd facie has, independently of any ownership in the adjoin- "ing lands, must be, in all cases, considered as subject to the "public right of passage, however acquired ; and any grantee of " the Crown must of course take subject to such right." In the case of A.-G. v. Wemyss 2 the Judicial Committee have Right of laid down, on appeal from the Courts of the Straits Settlements, ^^^and that the right of the proprietor in the foreshore is subject to the occupiers of obligation of allowing the owner or occupier of lands adjoining ing S ea shore, the sea free access and egress to and from the sea to his lands, and to beach, land, and haul up boats upon the shore. This free right of access is from every part of the frontage over every part of the foreshore, 3 and is not limited to the period of the day when the sea is in contact with the land, but includes a private right of access to the sea across the portion of the foreshore left- bare by the receding tide. 4 Any obstruction of this right will be restrained by injunction. 4 1 See also Petrie v. Rostretoi- (owners), 475 ; (1905) 2 Ch. 164 ; 93 L. T. 574 ; (1898) 2 Ir. 11. 556. C. A. 53 W. R. 581 ; 21 T. L. R. 591, C. A., 2 3 A. C. 192, P. C. ; see also Xorth ante, p. 40. Shore Rly. v. Pwn, 14 A. C. 612, post, * Coppinger T. Shehan, (1906) 1 Ir. R. p. 172. 519. Mellor v. Walmsley, 74 L. J., Ch. 54 OF THE SKA, AND RIGHTS THEREIN. Marshall v. In the case of Marshall v. Ulleswater Company, 1 it was held that persons having a right to navigate on a non-tidal lake were entitled to pass over a pier belonging to the plaintiff, the owner of the soil of the bed of the lake, which had been wrong- fully erected by a third party, but was maintained by the plaintiff, and which prevented persons having a right of access from coming down to the brink of the lake, for the purposes of going on it to exercise the public right of navigation. In delivering the judgment of the Court, Blackburn, J., says: "It " is well-established law, that where there is a public highway, " the owners of land have a right to go upon the highway " from any spot on their own land. They cannot, of course, " pass over the soil of another without his leave, and he who " has dedicated the road to the public at large has no right to " complain that a particular individual has come upon it at one " spot, rather than at another ; consequently every person in " the vicinity of Ulleswater, whose land abuts on the edge of " the lake, has a right to come down to the brink of the water " for the purpose of going upon it to exercise the public right of " navigation where it is admitted to exist. Now I apprehend " that where there is a right of that kind, the necessary inci- " dents are involved in it, and therefore, that in a navigable " river like the Thames, where a person with his barge has come " to the land, it is not essential that he shall find some spot " where the water is so deep that the barge can float up to the " bank close enough to enable him to step ashore, but that he has " the reasonable and usual modes of disembarking incidental to " the navigation of vessels ; if the water were a few feet in depth " he would probably use a boat, if very shallow he could wade, or " if his vessel lay conveniently near, he might place a plank across " it to the land ; and, therefore, the rule of law is that the owner " of the adjoining land, or those whom he permits to go thereon, " have a right of access to and from their vessels either by walking, " or wading, or walking over a plank, but that they have no right " to disturb the soil covered with water, as by permanently fixing " anchors." 2 This right of crossing the sea shore as incident to the public right of navigation gives no right to trespass on land 1 L. R., 7 Q. B. 166 : 41 L. J., Q. B. South Eastern Rail. Co. T. Darling, 5 413 ; 25 L. T. 793. C. B., N. S. 821 ; A.-Q. v. Conservators 1 L. R., 7 Q. B. 172. See also Lyon T. of the 'fltatnes, 1 Hem. & M. p. 32, per Fishmongers' Co., 1 App. Cas. 662 ; North Wood, V.-C. ; Mellor v. Walmdey, ante, Sftore Rly. v. Pion, 14 App. Cas. 612 ; p. 40 ; Coppinger v. SJtthan, ibid. THE SEA SHORE. 55 above high water mark, and there is no legal right for fishermen (apart from exceptional circumstances, such as stress of weather) to draw or to leave their boats above that line. 1 Such a right may, however, be acquired by prescription, as it has been held that where fishermen had immemorially been used to beach their boats upon land near the sea, and the owner of such land had obtained an Act authorizing him to levy a yearly sum for such boats beached, the owner could not exclude the fishermen without assigning to them other land equally suited for beaching boats. 2 The right of fishing in the sea and upon the shore between Public right high and low water mark is primd facie vested in all the subjects of fisher y- of the realm as a common right. 3 But in some cases statute law has set bounds to the exercise of this right in respect of seasons, particular kinds of fish, and the manner of fishing. The right of the public to fish includes the right to take shell fish on the sea shore between high and low water mark. 4 It seems doubtful whether it includes the taking of shells. 4 It may be carried on by the use of lawful nets. 5 This right is sub- servient to the right of navigation, 6 and has been held not to include a right for fishermen apart from exceptional circum- stances, such as stress of weather, to draw up or leave their boats above high water mark. 7 Prior to Magna Charta the Crown had power to exclude the public from this right, and to grant a several and exclusive right of fishing to individual subjects. This right cannot now be granted by the Crown, and a several fishery in the sea can now only be claimed by prescription, or ancient usage presupposing a grant, or by express grant from the Crown prior to Magna Charta. 8 1 llchfster v. Rathleigh, (1889) 5 24 R. R. 723745 ; A.-G. v. Johnson, T. L. R. 739 ; 61 L. T. 477 ; 33 W. R. 104. 2 Wils. 87 ; 18 R. R. 156. 2 Alton v. Stephen, 1 App. Cas. 456, 1 llchester v. Rashleigh , 5 T. L. R. 739. H. L. Sc. An immemorial custom for fishermen 8 Fitzwalter's case, 1 Mod. 105 ; inhabitants of a parish to spread their Anonymous, 6 Mod. 73 ; Warren v. nets to dry on private land was held to Matthews, 1 Salk. 357 ; 6 Mod. 73 ; be valid in Mercer v. Denne, (1905) 2 Smith v. Kemp, 2 Salk. 637; Ward v. Ch. 538 ; 74 L. J., Ch. 723 ; 93 L. T. Cresswell, Willes, 265 ; Bagot v. On; 412 ; 3 L. G. R. 1293 ; 21 T. L. R. 760 ; 2 Bos. & Pul. 472 ; 5 R. R. 668 ; Carter v. 70 J. P. 65 ; 54 W. R. 303 ; see post, Murcott, 4 Burr. 2163 ; Mayor ofOrford pp. 390 et seq. v. Richardson, 4 T. R. 437 ; 3 R. R.579. 8 Carter v. Murcott. 4 Burr. 2163 ; 4 Bagot v. Orr, 2 Bos. & Pul. 472 ; Hale, ch. 5 ; Warren v. Matthews, 1 5 R. R. 668. See as to oyster fishery Salk. 357 ; Malcolmson v. O'Dea, 10 Goodman v. Saltash Corporation. 7 App. H. L. 593 ; Allen v. Donelly, 5 Ir. C. L. Cas. 633. R. 292 ; O'Neill v. Allen, 9 Ir. C. L. R. 6 Warren v. Matthews. 6 Mod. 73 ; 1 132 ; Kent's Com. 489 ; Moore's History Salk. 357. of the Foreshore, 715 ; Woolrych on A.-G. v. Parmeter, 10 Price, 378 ; Waters, c. 5, p. 75. 56 OF THE SEA, AND RIGHTS THEREIN. Right to shoot wiltl fowl. Where an immemorial usage is proved, a lawful origin for the usage ought to be presumed where reasonably possible. 1 The right of several fishery is independent of the ownership of the soil of the shore by the subject, and may exist either with or without such ownership. A grant, therefore, of the shore alone will not of itself pass the fishery, which will remain in the public; 2 nor will a grant of a several fishery necessarily pass the soil, 3 though it is evidence, coupled with the grant of a manor, that the soil was intended to pass. 4 It has been hold in a recent case that there is no right in the public to kill and carry away wild fowl on the foreshore of a tidal navigable river forming part of a manor, either when the shore is covered by the tide, or when uncovered. The only rights the public have are those ancillary to their rights of fishing and navigation in the sea. 5 1 Goodman v. Saltash Corporation, 7 App. Cas. 633. z Per Hale, C. J., Fitzwalti-r's cage, 1 Mod. 105. 8 A.-Q. v. Emerson, (1891) A. C. 649 ; Dulte of Somerset v. Foowell, 5 B. & C. 875 ; 29 K. R. 449. 4 For a full accouut of the right of fishery and the incidents thereto, see post, Chap. VI. 5 Fitzhardinge (Lord) v. Purcell, (1908) 2 Ch. 139 ; 77 L. J., Ch. 519 ; 99 L. T. 154 ; 72 J. P. 276 ; 24 T. L. R. 564. This was an action brought by Lord Fitzhardinge, lord of the manors of Slimbridge, Hinton, and Ham, parts of the great manor of Berkeley, adjoining the Severn, a tidal and navigable river, for trespass on the foreshore, parcel of the manors, in a boat and on foot for the purpose of shooting wild duck. Defendant denied that the foreshore was parcel of the manors, and, even if it were, he claimed the right to go upon the foreshore and shoot and carry away wild duck on the ground of immemorial user in four alternative ways : (1) As a member of the public in exercise of a general right of all the king's subjects iu and over the foreshore of a tidal navigable river ; (2) as one of the inhabitants of the manors by virtue of a trust or reservation in their favour which the Court would presume to have been created by the original grant of the manors to the plaintiff's predecessors in title ; (3) as an inhabitant of the manors, being a wild-fowler by occupa- tion, by virtue of a custom of the manors ; (4) by a prescription as a right in gross enjoyed by him and his ancestors : Held, on the evidence, that the plaintiff had proved his title to the foreshore as part of the manors, and also to a several fishery in the Severn. The public have no rights over the foreshore of a tidal navigable river when not covered by the tide except such as are ancillary to their rights of fishing and navigation in the sea. When covered by the tide the foreshore is part of the sea, and the only rights of the public in and over it are the rights of navigation and fishing and rights ancillary thereto. The right claimed to kill and carry away wild duck is whether wild fowl are birds of warren or mere wild birds in which there Js no property a profit d prendre, and cannot be claimed by cus- tom, but semble wild duck are birds of warren. Held, also, that there was not sufficient evidence of user to enable the Court to presume the existence of a trust, or to establish a prescriptive right. Per Parker, J., at p. 168 : " It seems " to me reasonably clear that, unless the " defendant in this case can establish a " substantive common law right to shoot " wild fowls on the lands in question, he " cannot justify what he'has done on the " ground .that|he has a right of navigation " any more than a person with a right to ' pass along a highway could, under the 'shadow of such a right, justify a claim 1 to shoot wild fowl as he passed along. ' What was said by Holroyd, J., in ' Slundell v. Catteral (5 B. & A. 300) 1 with regard to the alleged right of ' bathing on the foreshore may, I think, ' be said with equal truth of the alleged THE SEA SHORE. 57 By general law all goods found afloat and derelict belong to the Wreck, king in his office of Lord High Admiral. 1 The right to take wreck is not claimed by the Crown as part of or appurtenant to the ownership of the sea shore, but in virtue of the royal prero- gative. 2 The right to take wreck on the shore may be granted to a subject apart from the shore itself, but it frequently exists as a franchise attached to a manor on the sea coast, though in such cases it is still prescribed for on the ground of immemorial usage or proved by express grant. 3 A grant of the shore alone does not, therefore, pass the right of wreck, nor does a grant of wreck alone pass the shore, though it may be called in as evidence in support of a claim to the shore. 4 The right to wreck will not pass by the general words of a grant. 5 Wreck appurtenant to a manor by prescription does not pass under a grant of the office of admiral with wreck and profits appertaining to the office, though the manor is in the king's hands at date of the grant. 6 The right to take wreck implies a right of crossing the shore for the purpose of taking it. 7 By the stat. of West I. c. 4, it is provided that no ship or What is anything in it shall be adjudged wreck where any man or wrec ' domestic animal escape alive. 8 In such cases the goods are to be saved and kept by the coroner, sheriff, or king's bailiff : the owner may claim them within a year and a day : if he does not so claim them, they are to be delivered to the officers of the Crown. 9 Where goods are perishable, they may be sold sooner, to prevent loss. 10 Where wreck belongs to another than the king, he is to have them in the same way. Flotsam, 11 jetsam, 1 * right to kill wild fowl in the channel Button v. Suck, 2 Taunt. 355 ; 11 R. R. of navigable rivers : ' Where the soil 585. 'remains the king's, and where no s See Talbot v. Lewis, 6 C. & P. 606. 'mischief or injury is likely to arise * As to this, see Dickens v. Shaw, ' from the enjoyment or exercise of Moore's History of Foreshore, 3rd ed. ' such a public right, it is not to be sup- 454, 889, and cases ante, p. 35. ' posed that an unnecessary [and in- 5 Alcock v. Cooke, 2 M. & P. 625 ; 30 'jurious restraint upon the subjects R. R. 625. ' would in this case be enforced by the 6 Wiggin v. Branthwaite, 1 Ld. Ray- ',king, the parens patrics ' and I think mond, 473 ; Holt, 758 ; 12 Mod. 259. what is thus said of the King may ' 6 Mod. 149, Anon. with equal truth be said of those 8 See Hamilton v. Da-vies, 5 Burr. subjects of the king to whom beds of 2732. navigable rivers have been granted." 9 Woolrych, 12; Phear, 99 ; aeeSutton See also Harrison v. Duke of Rutland, v. Buck, 2 Taunt. 302 ; 11 R. R. 585. (1893) 1 Q. B. 142. 1 2 Inst. 168. 1 R. v. 49 Casks of Brandy, 3 Hagg. u When the ship sinks and goods 270 ; The Rebeckah, 1 C. Rob. 227 ; A.-G. float. (5 Coke, 106.) v. Emerson, (1891) A. C. 649. 12 Where the goods are thrown over- 2 Moore's History of Foreshore, 713 ; board to lighten the ship and the ship Bracton, 2 : Vent. 188 ; 5 Coke, 108 ; perishes. (Ibid.) 58 OF THE SEA, AND RIGHTS THEREIN. and ligan l being on the land pass by grant of wreck, but this only when the ship perishes, or the owner of goods is not known ; and goods cast into the sea for fear of tempest are not forfeited unless the ship be lost. 2 Further, to constitute wreck of the sea which will pass by grant to a subject, not only must there be no life saved, and no vestige remaining by which the property can be identified, but the goods must be cast or left on land by the sea, 3 touching the ground, 4 though they need not have been left dry. 3 A log of wood floating in the sea near the shore, and drawn on a rock by a person wading, and another log which having been cast on the beach and marked by the grantee of wreck, and then carried out to sea again and taken the second time while floating, were both held in a late case to be droits of the Admiralty, and not to belong to the grantee of wreck on the coast. 6 The grantee of wreck has, however, a special property in all goods stranded in his liberty, and may maintain trespass against a wrongdoer for taking them away, though such goods were part of a cargo of a ship from which some persons had escaped alive, and though the owners within the prescribed time identified them, and before any seizure had been made by the grantee. 6 To constitute wreck under the Merchant Shipping Act, 17 d 18 Viet. c. 104, and to entitle the finders to salvage, the goods must have been to sea in a ship ; and timber which had drifted from the place where it had been moored is not wreck within the Act. 7 This Act is repealed by sect. 745 and schedule 22 of 57 d 58 Viet. c. 60 (the Merchant Shipping Act, 1894), but the definition of wreck given in sect. 2 of the earlier Act is re-enacted by sect. 510 of the later Act. The goods must also have been wrecked i.e., cast on the shore, for goods landed from a ship which was abandoned and driven on shore are not wreck within 8 d- 4 Will. IV. c. 52, s. 50, so as to be liable to pay under that statute. 8 Jurisdiction It has been held that between high and low water mark of Courts of 1 Heavy goods cast in the sea atd Eq. 119. buoyed up by corks. (Ibid.) 6 Bailiff of Dumvich v. Sterry, 1 J 46 Edw. III. c. 15. B. & A. 831 ; 35 R. R. 471. 3 R. v. 49 Catkt of Brandy, 3 Hagg. "> Palmer v. Rouse, 3 H. & N. 505. 257 ; 1 Hen. IV. c. 16 ; The Pebeckah, 1 8 Legge v. Boyd, 1 C. B. 92 ; see Clark C. Rob. 227. v. Chamberlain, 2 M. & W. 78. As to * The Pauline, 2 Rob. Adm. 358. customs duty, see Barry v. Arnaud, 10 Stackpoole v. The. Queen, Ir. R., 9 A. & E. 646 ; 50 R. R. 516. THE SKA SHORE. 59 when the tide is high the Court of Admiralty has jurisdiction Admiralty over wreck, and when it is low the Courts of Common Law : ? nd Common .Law. Sir J. Nicholls thus stating the law : " Above high water mark " it [wreck] belongs to the lord of the manor as grantee of the " Crown ; beyond low water mark he can have no claim ; it is on " the high seas, and belongs to the Admiralty. It is equally clear " that between high and low water mark it is divisum imperium ; " when the tide covers this space it is sea, when it recedes again " it is land, and within the jurisdiction of the manor." l Spanish dollars one hundred years old found on the shore must be presumed to have come from a vessel which had been wrecked, though no part of the vessel is found. 2 Royal fish i.e., whale, sturgeon and porpoise whether thrown Royal fish on the shore or caught on the sea within the realm, are the property of the Crown and not of the finder. They may be the property of a subject by grant or prescription in the same way as wreck. 3 Bathing in the open sea and in tidal rivers has been held by the Bathing. Court of King's Bench, by a divided opinion, not to be a com- mon law right, so as to justify the public in passing over those parts of the shore which are private property, in order to gain access to the water for that purpose. 4 The plaintiff in this case was lord of the manor and owner of the shore by grant from the Crown, on the river Mersey, an arm of the sea, and had also the exclusive right of fishing on the shore with stake nets. The defendant was servant of an innkeeper on the shore, who kept bathing machines, and he drove the machines across the shore to the water. No prescriptive right was claimed for the passage of machines, though it was proved to be the custom for people to pass on foot for the purpose of bathing. The defendant claimed a common law right for all the king's subjects to bathe in the sea, and to cross the shore for that purpose on foot, and with horses and carriages. Best, J., took the defen- dant's view of the case, on the broad ground of the sea being the great highway of the world, of the importance of a free 1 R. v. Two Casks of Tallow, 2 Hagg. s Moore's History of Foreshore, 3rd 294 ; The Pauline, 2 Rob. Ad. 358 ; see ed. 753 ; Stephen's Blackstone, vol. ii. however, Embleton v. Brown, 3 . & E. p. 540, 7th ed. See Paterson's Fishery 234 ; and Reg. v. Musson, 3 E. & B. 800, Laws, 24, 165 ; Woolrych on Waters. 83. as to criminal jurisdiction, and 31 & 32 * Blundellv. Catteral, 5 B. & Ad. 268 ; Viet. c. 122. 24 R. R. 350. See Ilchesterv. Rathlngfi, 8 Talbot v. Lewis, 6 C. & P. 630. 5 T. L. R. 739 ; 61 L. T. 477. 60 OF THE SEA, AND RIGHTS THEREIN. access to the sea, and of a necessity of a right to bathe in the sea as essential to the health of so many persons ; but the majority of the Court (Abbott, C. J., Holroyd and Bayley, JJ.), held that there was no such common law right, and that in the absence of prescription the plaintiff was entitled to recover for the tres- pass. 1 This decision is protested against by Mr. Hall, in his Essay on the Sea Shore, on the ground that the custom of bathing is as ancient and general a custom as that of fishing in the sea ; and that, therefore, the rights of private property should be subservient to this public right, in the same way as they are to the right of fishing, 2 but in Brinckman v. Marley* where the defendant claimed a right to bathe from the foreshore by dedica- tion, prescription and custom, the Court of Appeal unanimously affirmed the judgment of the majority of the judges in Blnndell v. Catteral, Vaughan Williams, L. J., saying: "In my judgment " we should be doing very wrong if we were now to re-open those " questions which were determined once and for ever in the judg- " ments of the majority of the Court in that case." ,It would appear that the only restraint which by the common law is imposed upon the common liberty of bathing in the sea and tide waters, where no right of private property is involved, is that which is imposed by decency and a respect for public morals. The laws of decency must be enforced in all places which become the habitations of civilized man. 4 Hence it has been held that it is an indictable offence for a man to undress himself on the beach and to bathe in the sea near inhabited houses, from which he may be distinctly seen, although the houses may have been recently erected, and although it may have been usual up till then for men to bathe in great numbers at the place in question. 5 Bathing It has been held in a later case that where the shore is held by am? chairs. ^ ease * rom ^ ne Crown, an immemorial custom of bathing along the shore gives no right to persons availing themselves of it to place machines there, whether drawn by horses or by means of a capstan ; and that a prohibition in a provisional order under an Act of Parliament to bathe without a machine, does not operate to confer a right to place a machine on such land for the purpose 1 See Angell on Tidal Waters, 28. J. P. 161, 534 ; 2 L. G. R. 258, 1057 ; 20 a Hall, 156186 ; Angell on Tidal T. L. R. 180, 671, C. A. ; affirming Waters, 28. See Laird v. Briggs, 19 Buckley, J., 52 W. R. 363. Ch. D. 22. < Angell, 34. 3 (1904) 2 Ch. 313 ; 78 L. J. Ch. 160, Rer v. Crunden, 2 Camp. 89 ; 11 642 ; 90 L. T. 199 ; 91 L. T. 429 ; 68 R. R. 671. THE SEA SHORE. 61 of bathing. 1 In the case of Ramsgate Corporation v. Debling and others, where a claim was made by seven different defendants to place chairs on the foreshore and let the same for hire, it was held (1) that a custom for the inhabitants of Eamsgate to do what was claimed had not been proved, and (2) that a right in individuals to place chairs on the sea shore being a right in gross could not be claimed by prescription under the Prescription Act. 2 Following the case of Blundell v. Catteral, it has been held in Public Llandudno Urban District Council v. Woods 3 that a clergyman has no right to hold services on the sea shore between high and low water mark, and a declaration to that effect was made on the application of the plaintiffs, lessees of the Crown, though an injunction was refused on the ground that the matter was too trivial. Cozens-Hardy, J., in delivering judgment, says, at p. 208 of the report: "I think I am bound by the decision of the " majority of the judges of the Court of King's Bench in 1821, in " Blundell v. Catteral* to hold in strict law, this proposition is " well founded. The public are not entitled to cross the shore " even for the purposes of bathing or amusement. The sands on " the sea shore are not to be regarded as, in the full sense of the " word, a highway. A more extensive right may possibly have " been gained by prescription or by custom, either by individuals or " by the permanent or temporary inhabitants of Llandudno ; but " the existence of this more extensive right must be proved, and " will not be presumed in the absence of proof. The plaintiffs " have, therefore, every right to treat every bather, every " nursemaid with a perambulator, every boy riding a donkey, " and every preacher on the shore at Llandudno as a trespasser. " In the present case there is no evidence from which I can find " the existence of a legal usage or custom entitling the defendant " to deliver sermons or addresses on the shore at Llandudno. "... I feel bound to say that I consider this action wholly " unnecessary, and one which ought not to have been brought. "It is no part or duty of the council, as lessees from the Crown " for an unexpired term of two years, to prevent a harmless user " of the shore. . . . This action is an attempt to assert rights 1 Mace v. Philcox, 15 C. B., N. S. 600. 92 ; 72 J. P. 54 ; Parker v. Mayor of 2 (1906) 22 T. L. R. 369 ; 4 L. G. R. Bournemouth, 86 L. T. 669 ; and for 495 ; 70 J. P. 132. As to the validity regulating selling and hawking, see of bye-laws under local Acts for pro- Moorman v. Tordojf, 98 L. T. 416 ; 6 hibiting and regulating erections on the L. G. R. 360 ; 72 J. P. 142. foreshore, see William* v. Weston-super- 8 (1899) 2 Ch. 705. Mare Council, 98 I,. T. 537 ; 6 L, G, R. * 5 B. & Ad. 268. 62 OF THE SEA, AND RIGHTS THEREIN. Rights to sand, shells and seaweed. By prescrip- tion. " which the Crown would never have thought of putting forward, " and which are in no way necessary for the peace and good " order of the town of Llandudno. ... I cannot refuse to make " a declaration that the defendant is not entitled without the " consent of the plaintiffs to hold meetings or deliver addresses, " lectures or sermons on any part of the foreshore in lease from " the Crown. But I decline to go further. I decline to grant an " injunction. That is a formidable legal weapon which ought to " be reserved for less trivial occasions. And I make no order as " to costs." Sand, shells, and seaweed, being natural products of the shore, belong, it would seem, primd facie to the Crown or its grantees, 1 and there is no general right in the public to enter the shore and take them. 2 When, however, the soil is in the Crown, it is to be presumed that the taking of them would be permitted if it was not injurious to the navigation. 3 A lord of a manor cannot claim an exclusive right to cut seaweed below low water mark except by grant or prescription from the Crown. 4 Seaweed thrown on the land by extraordinary tides belongs to the owner of the property on which it is thrown ; 5 so does sand drifted by the wind. 6 Seaweed cast on a private shore between high and low water mark is not the subject of larceny, but trover will lie for it. 7 A right to take sand and shingle may exist and be claimed by prescription. As such a claim is, however, the claim to & profit a prendre in the soil of another, it cannot be supported by proof of a custom in the inhabitants of a township ; for such a custom would be void, as a, profit a prendre can only be claimed by grant or prescription. 8 Nor could it be claimed by such inhabitants by 1 See per Best, J., in Blundell v. Cat- feral, 24 R. R. 353 : Howe v. Stawell, 1 Al. & Nap. 356, and note at p. 357 ; Anderson v. Jacobs, (1905) 21 T. L. R. 453, D. ; 93 L. T. 17 ante, p. 42, n. 1 ; Bur- ton v. Hudson, (1909) 2 K. B. 564, ante, p. 27, n. 3 ; Angell on Tidal Waters, 260. See also Daly v. Murray, 17 L. R., Ir. 185, where evidence of user of foreshore by taking seaweed was held admissible to establish title to the foreshore. Howe v. Stawell, 1 Al. & Nap. 356 ; Bngot v. Orr, 2 Bos. & Pul. 472 ; 5 R. R. 668 ; Hamilton v. A.-O. for Ireland, 5 L. R., Ir. 555 ; see also Musselburgh Real Estate Co. v. Mvsselburgk (Pro- cotf), (1905) A. C. 491, H. L. Sc. 8 Per Best, J., in Dickens v. Shaw Hall on the Sea Shore, App. 68. * Benest v. Pipon, 1 Knapp, P. C. 60. As to duty to remove decomposed sea- weed which had become a nuisance, see Margate Local Board v. Margate Har- bour Co. , 2 L. T. 564. 6 Lowe v. Goeett, 3 B. & Ad. 863 ; 37 R. R. 560 ; Baird v. Fortune, 7 Jur., N. S. 926, per Lord Campbell, C. J. 6 Bleioett v. Tregonning, 3 A. & E. 554 ; 42 R. R. 463. 1 Reg. v. Clinton. Ir. R., 4 C. L. 6. 8 See Fttzhardtngp (Lord) v. Purcell, ante, p. 56, n. As to claim of inhabitants to dredge for oysters, see Goodman v. SaUash Corporation, 7 App. Cas. 633, j iJLUi l/i V PORTS AND HARBOURS. 63 prescription, as it was a claim by persons not a corporation, and thus incapable of taking by grant ; and, moreover, was not claimed by them in a que estate. 1 Where, however, the custom was for the good of the navigation, a custom for the freemen of an ancient borough and the proprietors of ships to dig gravel was held good. 2 A claim of this kind may, however, be supported by prescrip- tion by an individual through his ancestors, or in the name of a corporation and its predecessors, or as appurtenant to some estate holden by the claimant. 3 A tenant under a building agreement with the lord of the manor, who has only a right of entry upon the foreshore for the purposes of that agreement, cannot maintain an action against a defendant who sets up a forty years' uninterrupted use and enjoy- ment of the foreshore by taking shingle therefrom and putting bathing machines thereon. 4 By 7 Jac. I. c. 18, the taking of sand from the shore for agricultural purposes by the inhabitants of Cornwall and Devon is made lawful ; but whether this was in confirmation of a prior custom so to do seems doubtful. 5 At common law there is no right to discharge sewage into the sea so as to cause nuisance to another, neither does any such right exist under the Public Health Acts, 1848 and 1875, 6 nor can such a right be acquired by prescription. 6 Ports and Harbours. A harbour or haven is a place naturally or artificially made Definition, for the safe riding of ships. 7 A port is a haven and something and remarks of Kay, J., on this case in 2 Mayor of Lynn v. Tayler, 3 Lev. Tilbury v. Silva, 45 Ch. D. 98, post, 160. Chap. VI. ; as to prescription to dry 8 Angell on Tidal Waters, 273 ; Con- nets on private land, see Mercer v. stable v. Nicholson, 14 C. B., N. S. 230. Denne, ante, p. 55, n. 7. * Laird v. Briggs, 19 Ch. D. 22. 1 Constable \. Nicholson, 14 C. B.. N. S. 5 See Hall on the Sea Shore, 95; 230 ; Pitts v. Kingsbridge, 19 W. fii 884 ; Hale de Jure Maris, c. 6. see also Bland v. Lipsconibe, 24 L. J., 6 Hobart v. Southend-on-Sea Corpora- Q. B. 155, n. ; Race v. Ward, ibid. ; All- tion, 75 L. J., K. B. 305 ; 94 L. T. 337 ; good v. Gibson, 34 L. T., N. S. 883 ; A.-G. 51 W. R. 454 ; 70 J. P. 192 ; 4 L. G. K. v. Mathia*,27L.J.,Ch. 761; Gateward's 757 ; 22 T. L. R. 307, 530; Foster v. case, Cro. Jac. 152 ; Macnamara v. Warblington Urban Council, (1905) 21 Higgins, 4 Ir. C. L. R. 326. As to right T. L. R. 124 ; 69 J. P. 42 ; 3 L. G. R. 605 ; of surveyors of highways to take shingle, Owen v. Farersham Corporation, (1909) see Clowes v. eck,20 L. J., Ch. 505. A 73 J. P. 33, C. A. ; see post, Chap. IV. claim by the inhabitants of a parish by 7 Hale De Portibus Maris, c. 2. immemorial right to take gravel from Musselburgh Harbour under a local Act the bed of a river being a claim to take held to include the whole foreshore gravel without stint cannot exist at law, within its limits so as to preclude the Hough v. Clark, (1907) 5 L. G. R. 1195 ; owners from digging sand there : Mussel- 23 T. L. R. 682 ; see also Chesterfield burgh Meal Estate Co. v. Mustelburgh (Earl) v. Harris, post, p. 383. (Provotf), (1905) A. C. 491, H. L. Sc. 64 OF THE SEA, AND RIGHTS THEREIN. more ; it is a harbour where customs officers are established, and where goods are either imported or exported to foreign countries. 1 All ports comprehend a city or borough called caput portt'is, with a market and accommodation for sailors. 2 A port is a place where a vessel can lie in a position of more or less shelter from the elements, with a view to the loading or discharge of cargo. The natural configuration of the land is, therefore, often a most important element in determining what are the limits of a port. All the waters within given boundaries which possess the common character of safety and protection would be generally admitted to be within its ambit. Where, however, a port is one of several situate on the same river, it is obvious that the natural configura- tion of the land is not of the same importance and does not afford the same guidance. 8 Limits of The limits of a port vary according to the purpose for which it is instituted ; and a port for fiscal purposes is not the same as it is for municipal or local purposes or for pilotage or for commercial purposes. 4 This question was discussed in the recent case of Asheton- Smith v. Owen, 5 in which by two Acts, respectively passed in 1793 and 1809, the trustees of Carnarvon Harbour thereby appointed were authorized to levy specified rates or duties upon all ships loading or unloading within the limits of the port of Carnarvon, and upon all goods loaded or unloaded on or from vessels within the limits of that port. The plaintiff was the owner of a small port called Port Dinorwic, situate on the east side of the Menai Straits, about four miles to the north of Carnarvon. Since the passing of the Act of 1809 there had been constructed by the plaintiff's predecessors in title on the plaintiff's land, further inland than the natural high water mark at that date, docks and quays which were connected with the sea by an artificial channel and lock, so that at high water vessels could go into and come out from these docks and unload or load at the quays. The fiscal port of Carnarvon extended along the Straits some way to the north of Port Dinorwic, and the trustees claimed to 1 H ouck's Navigable Rivers, 175. Cas. 717, H. L. Sc. See also Enclyclo- a Hale de Port. Maris, c. 11. paedia of Laws of England, 2nd ed., art. 8 Per Lord Herschell in Hvnter v. " Port," vol. xi., pp. 300 et seq. Northern Marine Insurance Company, R (1906) 1 Ch. 179 ; 75 L. J., Ch. 181 ; 13 App. Cas. 717, H. L. Sc. 96 L. T. 62 ; Asp. M. C. 164 ; 22 T. L. R. 4 See Sailing Ship " Qarrtin '' Co. v. 182, C. A. ; affirmed in House of Lords on Hickie, 15 Q. B. D. 580; Hunter v. appeal (1907) A.C. 129; 76 L. J.,Ch.308 ; Northern Marine Insurance Co., 13 App, 96 L.. T. 478 ; 23 L. T. R. 385, H. L. E, PORTS AND HARBOURS. 65 be entitled to the payment of duties in respect of vessels loading or unloading at the plaintiff's quay. The plaintiff claimed a declaration that Port Dinorwic, including his docks and quays, was not within the limits of the Port of Carnarvon, and that the trustees were not entitled to claim payment of the duties upon vessels which passed through the north end of the Straits to or from Port Dinorwic or the plaintiff's docks and quays, or any rates or duties on goods loaded or unloaded on or from vessels at Port Dinorwic or on or from the plaintiff's docks or quays. There was evidence that the duties claimed by the trustees had been for many years, and up to a short time before the commencement of the action, paid by the plaintiff and his predecessors in title without dispute. The evidence also satisfied the Court that those who made use of Port Dinorwic derived some benefit from the works which the trustees had executed under their statutory powers. It was held by the House of Lords, affirming the Court of Appeal and Keke- wich, J., that, on the construction of the Acts, and having regard to the above facts, that the words " the limits of the port " in the Act must be taken to have been used in the sense of the limits of the fiscal port ; that the plaintiff's docks and quays were within those limits ; and that the trustees were entitled to payment of the duties they claimed. 1 The privilege of erecting ports at which customable goods may Privilege of be landed, and of taking dues and tolls as incident thereto, is a'rff 8 - part of the royal prerogative, and can only belong to a subject as gative of the a franchise by grant or prescription from the Crown, or by Act of Parliament. 2 No subject has therefore a right to land custom- able goods on his own land, or elsewhere than at a public port. There is no restriction in the landing of goods not customable at private wharves, even in public ports, 3 on the taking of such tolls for landing, &c., as may be agreed upon between the parties ; 4 but no general toll can be taken at such wharves, a right to a 1 Per Cozens-Hardy, L. J., (1906) 2 Hale de Port. Maris, c. 2 ; Houck, 1 Ch. p. 212, " It is clear that exemp- 176 ; 2 Stephen's Blackstone, 7th ed. ' tion cannot be claimed simply on 499 ; Foreman v. Free Fishers of Wliit- ' the ground that goods are loaded or stable, L. R., 4 H. L. 266. 'unloaded by the plaintiff on his own 3 See per Stirling, L. J., in Asheton- 'land adjacent to the sea. And if by Smith v. Owen, (1906) 1 Ch. at p. 211. 4 artificial means, such as the construe- * Hale de Port. Maris, c. 6 ; Houck 'tion of a dock, the line of high tide on Navigable Rivers, 181; Balti- is carried further inland, I think the more Wharf case, 3 Bland Rep. 383 ' limits of the fiscal port must follow (American). 'that line." L.W. 5 66 OF THE SEA, AND EIGHTS THEREIN. May be granted to a subject. Ownership of soil of ports. Ports now generally vested in trustees. toll depending in all cases on grant, prescription, or Act of Parliament. The Crown may grant to a subject the right to erect a port on his own land, or on the land of another, provided, in the latter case, no vested interests are interfered with. 1 The ownership of the soil of all ports, 2 as well as of the sea shore between high and low water mark, is vested primd facie in the Crown, and the Crown might formerly have conveyed the soil to a subject by grant or royal charter, either apart from or in conjunction with the franchise. 8 Where a subject has, by grant or prescription, the franchise of a port, it would appear to be evidence that he has the soil also, though this evidence will not be conclusive, as the franchise may exist apart from the soil. 4 A port may, it would seem, pass as parcel of a manor.* 1 The ports of this country are now almost exclusively the property of corporate bodies by ancient grant or charter from the Crown, or by Act of Parliament, by which the powers and duties of the trustees and the public in each particular port are regulated, and to which, in all cases of disputes, reference must be made. 6 1 Mayor of Exeter v. Warren, 5 Q. B. 773. a See Dendby and Cadeby Main Collieries Co. v. Anton, (1910) 102 L. T. 76. 8 See ante, pp. 23 et geq. 1 See ante, pp. 2839. 8 See Hale de Port. Maria, 57 ; Fore- man v. Free Fishers of Wkitstable, L. R., 3 C. P. 584 ; 21 L. T. 804. 6 The Port of London Act, 1908 (8 Ed. VII. c. 68), which also makes important changes in the constitution and jurisdiction of the conseivators of the Thames (zee post, p. 541), established and incorporated the Port of London Authority for the purpose of adminis- tering and improving the port (sect. 1 (1) (2)), and transferred to it (from March 31st, 1909) the undertakings of the London and India, the Surrey Com- mercial, and the Millwall Dock Com- panies (sect. 3). The Port Authority consists of seventeen members elected by payers of dues, wharfingers, and owners of river craft, one elected by wharfingers and ten appointed, re- spectively, by the Admiralty, the Board of Trade, the London County Council, the Corporation and the Trinity House (sect. 1 (5) (6)). It is em- powered to carry on the undertakings of the transferred dock companies ; to acquire other undertakings affording accommodation or facilities for the loading, unloading or warehousing of goods in the port; to "construct, ' equip, maintain, or manage any docks, ' quays, wharves, jetties, locks or piers, ' and buildings, railways and other works ' in connection therewith " ; and " to ' exercise any other powers conferred on ' or transferred to the Port Authority by 1 or under this Act" (sect. 2). By sec- tion 7 (1) all rights, powers and duties of the conservators of the Thames in respect of the river below " the land- " ward limit of the Port of London " are transferred to the Port Authority. By Sched. 5 the landward limit of the Port of London is defined as " an " imaginary straight line drawn from " high water mark on the bank of the ' River Thames at the boundary line ' between the parishes of Teddington ' and Twickenham, in the county of ' Middlesex, to high water mark on the 1 Surrey bank of the river immediately 1 opposite the first-mentioned spot," and the seaward limit of the port as " an " imaginary line drawn from the pilot " mark at the entrance of Havengrove " Creek in the county of Essex to the " Lands End at Warden Point in the Isle PORTS AND HARBOURS. 67 The Crown, in virtue of its prerogative, and of its office of Lord Conservancy High Admiral, is conservator of all ports, havens, creeks, and of P rts> arms of the sea, and protector of the navigation thereof. 1 Although, formerly, the king had a power of granting the franchise of havens and ports, yet he had not the power of narrowing and confining their limits when once established ; but any person had a right to load or discharge his merchandize in any part of the haven, whereby the revenue of customs was much impaired and diminished by fraudulent landing in obscure corners. This abuse caused statutes to be passed, enabling the Crown to ascertain the limits of all ports, and to assign proper quays for the exclusive landing and loading of merchandize ; and this duty, as well as those of appointing ports and sub-ports, and declaring the limits thereof, was confided, by 16 & 17 Viet, c. 107, . 9, to the Commissioners of her Majesty's Treasury. 2 This Act was repealed by the Customs Consolidation Act, 1876, 39 d~ 40 Viet. c. 86, which provides for the appointment of a Customs Board under the control of the Treasury, and the latter Act has been further amended by the Customs Consolidation Acts, 1877, 1878, 1881, 1882, 1883, 1884, 1887, 1889 and 1890. By 10 c 11 Vict.c. 27, 3 the provisions ordinarily inserted in local Acts of Parliament, passed for the construction and improvement of particular harbours, docks and piers, are consolidated into a " of Sheppey in the County of Kent." l See Hale de Jure Maris, Harg. Tr. Sub-sect. 2 (d) of the same section pro- 23 ; as to the right of a harbour master vides for the extension by Provisional to remove a ship anchored for the sale Order, on application by the Port of coal in an harbour, see Denaby and Authority to the Board of Trade, of the Cadeby Main Collieries Co. v. Anson, area within which the powers of the (1910) 102 L. T. 76. conservators with respect to dredging 2 2 Stephen's Blackstone's Com. were exercised under the Act of 1894 to 7th ed., p. 535. so much of the estuary of the river to 8 The Harbour, Docks and Piers the eastward of the seaward limit of the Clauses Act, 1847, extends to such port as is westward of such line as may harbours, docks or piers as shall be be fixed by the Order. The provisions authorized by Acts hereafter to be of the Act of 1894 exempting vessels passed which shall declare that this for passengers from tonnage and those Act shall be incorporated therewith of the Thames Conservancy Act, 1905, (sect. 1). The Lands Clauses Con- limiting the period during which the solidation Acts are to apply as to increased duties of tonnage authorized the purchase of lands, and the Rail- by that Act. are repealed by sect. 7, sub- ways Clauses Consolidation Acts with sect. 2 (e) (f). The powers and duties respect to recovery of damages. Plans vested in the Watermen's Company with are to be deposited with clerks of the respect to the registration and licensing peace, and approved by the Admiralty of craft and boats, the licensing of and Commissioners of Woods and lightermen and watermen, and the Forests. Powers are also given to government, regulation and control of the undertakers to make and enforce lightermen and watermen are also bye-laws. As to rights of steam trawlers transferred to the Port Authority by to have their own tugs under sect. 33 of sect. 11 (1). See further as to this Act, this Act, see Great Central Rail. Co. v. pout, Chap. VII. N. E. Steam Co., (1906) 22 T. L. R. 520. 52 68 OF THE SEA, AND EIGHTS THEREIN. single statute, so as to be embodied by way of reference in any special Act without needless repetition ; and with the object of obviating the necessity in certain cases of obtaining, at great expense, a special local Act for such construction, the Board of Trade is now enabled, by 24 <& 25 Viet. c. 45, to make provisional orders 1 authorizing the construction of any pier, harbour, quay, wharf, jetty, or excavation by private undertakers, upon applica- tion made to the Board, but such orders are of no validity or force until confirmed by Act of Parliament. 2 By 25 & 26 Viet, c. 69, various powers and duties relative to harbours and naviga- tion were transferred from the Admiralty to the Board of Trade ; sect. 5 of which enacts, " that with respect to any special Act " that may be passed after the end of the present session of " Parliament, the following sections of the Harbour, Docks and " Piers Clauses Act, 1847, and all provisions relative thereto in "that Act, or in any future special Act contained, shall be " construed as if the Board of Trade were named in the said "sections instead of the Admiralty, viz., in sects. 12, 18, 16, " 18, 19." Harbour authorities have also special facilities for keeping their harbours in good order and clear of obstructions. Thus by 23 Hen. VIII. c. 8 and 27 Hen. VIII. c. 28 provision was made for guarding harbours in Devon and Cornwall from being injured by tin workings near them ; and 54 Geo. III. c. 159 (the Harbours Act, 1814), and the Harbours Transfer Act (1862), 25 if 26 Viet. c. 69, s. 16, prohibit the removal of ballast or shingle from the shores or banks of any port, harbour or haven, and no ballast or rubbish may be thrown into them. 3 No obstruction to navigation is allowed, and the act of discharging water containing solid matter in suspension into a tidal brook which flowed into a tidal river, and was carried down and deposited in the tidal river, though not so as to obstruct its navigation, has been held punishable by penalty. 4 By 28 <& 29 Viet, c. 125 (the Regulation of Dockyard Ports Act, 1865) special pro- vision is made for the regulation of dockyard ports. 5 Under 1 As to the effect of a provisional the purpose of building a wall to protect order and certificate of the Board of his land, see Anderson v. Jacobs, (1905) Trade which has not been complied 21 T. L. R. 453, D. ; 93 L. T. 17; with, see Liverjwol and JV. Wale* and ante, p. 42, . 1 ; and Burton v. Hud- Steamship Co. v. Mersey Trading Co., son, (190'J) 2 K. B. 564, ante, p. 27, n. 3. (1909) 1 Ch. 209 ; 99 L. T. 863. ' United Alkali Co. v. Simpson, (1894) 2 Stephen's Blackstoue, p. 501. 2 Q. B. 116. 8 A'ichvlsvn v. William*, L. R., 6 Q. B. 8 See Encyc. Laws England, 2nd ed., 632. As to the right of a landowner vol. vi., pp. 511 518, art. " Haibour." under these Acts to remove shingle for PORTS AND HARBOURS. 69 sect. 9 and sched. I. of the Public Works Loans Act, 1 the Loan Commissioners are empowered to make loans to any person authorized for the purpose of constructing and improving docks, harbours and piers, and any work for which the Public Works Loan Commissioners are authorized to lend by 24 & 25 Viet, c. 47. 2 By the Merchant Shipping Act, 1894, 57 d- 58 Viet, c. 60, ss. 530 534, harbour and conservancy authorities are empowered to remove vessels sunk, stranded or abandoned in harbours or tidal waters, where such wreck is or is likely to become an obstruction. 3 The most important incident to the ownership of a port is the Tolls and right to take various dues and tolls for the use of it, such as anchorage and tonnage dues which arise from the ownership of the soil of the port, or from the ownership of the franchise apart from the soil, 4 and wharfage dues which arise generally from the ownership of the adjoining lands. 5 The right to take dues for the use of a port exists only by Act can only be of Parliament, by express grant from the Crown, or by imme- ^ctfof^riia- morial usage which presupposes such a grant, and from which, ment or by if uncontradicted, a grant must be presumed. 6 Thus, where by pTi!eTgrant m Act of Parliament the plaintiffs were authorized to make a dock, ^ rom the * Crown. and all goods which should be landed or discharged upon any of the quays should be liable to pay the like rates of wharfage as were usually taken for goods, &c., loaded or discharged on quays in the port of London, it was held, that as the premises were only vested in the company for the purposes of the Act, they had no common law right to compensation for the use of them, and that the statute did not give them any right to claim wharfage for goods shipped off from their quays. 7 In no case can a claim for dues and tolls be supported, unless Consideration some consideration can be shown on which to found the claim, ^upporta an express grant from the Crown being void unless founded on claim to toll sufficient consideration, for the creation of a toll is only a mode 1 38 & 39 Viet. c. 89. Hale de Port. Maris, c. 6 ; Woolrych 2 Harbours and Passing Tolls Act, on Waters, p. 301 ; see Sargent \. Reed, 1861. 1 Wils. 91 ; Colton v. Smith, 1 Cowp. 8 As to duty to remove seaweed which 47 ; and see post, Chap. IX. decomposed and became a nuisance, see 6 See Jenkins v. Harvey, 1 C., M. & R. Margate Local Board v. Margate Har- 877 ; 40 R. R. 769. hour Co., 2 L. T. 564. Kingtton-on-Hull Docks v. La 1 Hale de Port. Maris, c. 6 ; Foreman Marche, 8 B. & C. 42 ; 32 R. R. 337 ; v. Free Fithers of Wliitstable, L. R., 4 1 Mod. 105, per Hale, C. J. H. L. 281 ; 21 L. T. 804. 70 OP THE SEA, AND RIGHTS THEREIN. of paying for a public service. 1 It has, however, been held that the making of a port is of itself a sufficient consideration for such a claim, 2 even when the soil is in another. 3 So is the right to bring ships into a port for safety, and the liberty to unload goods there. 4 The maintaining a wharf and keeping a measure for measur- ing salt has, however, been held not to be sufficient to support a claim to have a bushel of salt from every ship laden with salt passing by the wharf; Hale, C. J., in that case saying, "the " prescription is not for a port but for a wharf. If any man " prescribe for a toll upon the sea, he must allege a good con- " sideration, because by Magna Charta and other statutes every " one hath a liberty to go and come upon the sea without " impediment." 6 No toll, therefore, can be claimed outside a port, unless some actual benefit is given as an equivalent for the payment ; and a claim for toll, to be for the right of passage and anchorage, merely as incident to the ownership of the soil of the sea beyond the limits of a port, cannot be sustained, 6 though possibly a customary payment might be claimed in such a case for actual injury done to property, as by a grounding of a ship on an oyster bed. 7 Where any actual benefit can be shown to the navigation, such as the keeping of a capstan and rope to assist boats in bad weather, a sufficient consideration exists to support a prescriptive right to take toll from all boats frequenting a cove (not within a port), whether such boats use the capstan or not, the existence of the capstan being necessary for the safety of the navigation in bad weather, 8 and it not being necessary that the benefit conferred should be precisely that in respect of which the toll is claimed. 9 Duty to The right to take dues and tolls implies a corresponding duty repair. 1 Falnumthv. George, 5 Bing. 286 ; 30 37; Wilkes v. Kirby, 2 Lutw. 1519; R. R. 597 ; Gann v. Free Fitters of Whit- Woolrych on Waters, p. 300. gfable, 11 H. L. 192 ; Brett v. Bealet, 10 6 Haspurt v. Wills, 1 Mod. 47. B. & C. 508 ; 34 R. R. 499 ; Hill v. Smith, 6 Gann v. Free Fishers of Whltstalle, 4 Taunt. 520 ; 10 R. R. 357 ; Warren v. 11 H. L. 192. See also Atheton-Smith Prideaux, 1 Mood. 104 ; Hagpurt v. v. Owen, ante, p. 64. Willt, \ Mod. 47 ; Vinkenstern v. Ebden, 7 Mayor of Colchester v. Brooke, 1 Ld. Raym. 384 ; 1 Salk. 248. 7 Q. B. 339. 8 Mayor of Yarmouth v. Eaton, 3 8 Falmouth v. Georgt, 5 Bing. 286 ; Burr. 1402 ; Queenborough Corporation 30 R. R. 597. v. Smeed % Co., (1904) 68 J. P. 244 ; 9 See foreman v. Free Fishers of 20 T. L. R. 279. WhitstaUe, L. R., 4 H. L. 285 ; 21 L. T. 8 Mayor of Exeter v. Warren, 5 Q. B. 804 ; Queenborougli Corporation v. Smeed % Co., 68 J. P. 244 ; 20 T. L. R. * Mayor of Tendon v. Hunt. 2 Lev. 279. PORTS AND HARBOURS. 71 on the owner of the port to keep it in repair, 1 and the owner of a port or dock will be liable for damage caused by his neglect in so doing, even where the tolls taken are not for his benefit, but are devoted to the maintenance of the port or dock. 2 This duty cannot be shifted on to local pilots 3 or on to the owners of the bed of a river over which wharf owners have no control, where the wharf owners have invited vessels to come alongside for discharging cargo. 4 It is not, however, necessary for an owner of a port to show that he has actually kept the port in repair to enable him to recover the dues, the consideration for such dues not being the actual repair, but the fact of the owner being bound by custom so to repair, 5 and it being possible that the port may never need repairs. 6 It has further been decided that anchorage dues may be foreman v. claimed in a port which is a natural roadstead and not arti- f 6 whU- * ficially formed, although there be no obligation to repair it and stable. keep it accessible, so as to form a consideration for the toll. 7 This last case is one of considerable importance, as in it the question of tolls was very fully considered, and it may be well to state it at some length. The Company of Free Fishers of Whitstable, lords of the manor of Whitstable, brought an action against one Foreman to recover tolls in respect of the anchorage of his ship within their manor below high water mark. In a former action they had claimed this toll solely as a customary payment for the use of the soil ; and the House of Lords held that such a claim could not be supported, for the right of free passage and the use of tha sea as a highway, including the right of anchorage, is paramount to the right of property in the soil, and cannot be interfered with, either by the Crown as owner of a manor, or by a subject to whom such ownership had been 1 Jenkins v. Harvey, 1 C., M. & R. 8 The Seam, (1906) P. 48 ; 75L.J., P. 877 ; 40 E. R. 769 ; Mayor of Exeter v. 9 ; 94 L. T. 265 ; 10 Asp. M. C. 208 ; 22 Warren, 5 Q. B. 773. As to liability of T. L. R. 165, C. A. ; and post, Chap. VII. Harbour Commissioners in a harbour of 4 The Moorcock, (1889) 14 P. D. 64. refuge for a defective mooring ring, 5 Vinkenstern v. Ebden, 1 Salk. 248 ; see Burrall v. Tuohy, (1898) 2 Ir. R. 1 Ld. Raym. 384. 271, Q. B. D. 6 Mayor of Yarmouth v. Eaton, 3 2 Mersey Dock Co. v. Gibb, L. R., 1 Burr. 1402. As to liability of a dock H. L. 93 ; 35 L. J., Ex. 225 ; 14 L. T. company for negligence of its servants, 677 ; T/te Beam, (1906) P. 48 ; 75 see Mersey Dock Co. v. Gibb, L. R., 1 L. J., P. 9 ; 94 L. T. 265 ; 10 Asp. M. C. H. L. 93 ; and for liability to repair 208 ; 22 T. L. R. 165, C. A. ; The Moor- under statutory provisions, Reg. v. cock, (1889) 14 P. D. 64 ; and for lia- Bristol Dock Co., 2 Rail. Cas. 599 ; ibid, bility of Harbour and Dock authorities 1 Rail. Cas. 548 ; and post, Chap. VII. for negligence, see cases, pout, pp. 374, 7 Foreman v. Free Fishers of Whit- et seq. and Chap. VII. stable, L. R., 4 H. L. 266 ; 21 L. T. 804. 72 OF THE SEA, AND RIGHTS THEREIN. Foreman v. Free Fishers of Whit- stable transferred. 1 In the present case the toll was claimed generally by the respondents as owners of the manor, and the point on which the whole question turned was whether the locus in quo was or was not a port. It appeared from the special case stated for the opinion of the Court, that the soil and fishery of thelocus in quo belonged to the plaintiffs, the lords of the manor ; that though there was no direct evidence that it was a port, yet tolls had been taken from time immemorial for vessels casting anchor there by the lords of the manor ; that the lords had the right to wreck and toll for merchandize landed within the manor ; and that they had immemorially maintained beacons and buoys, partly, however, for the protection of their oyster beds. The Court of Common Pleas held that the maintenance of the buoys and beacons, taken in connection with the ownership of the soil of the anchorage and the benefit of the public therefrom, was sufficient consideration to support the claim for anchorage dues. 2 On appeal, the Court of Exchequer Chamber Bramwell and Martin, BB., diss. affirmed this judgment ; Kelly, C. B., thus stating the grounds on which the opinion of the Court was based : " We think there is ample evidence to justify the presumption " both that there was here by prescription an ancient port, and " that before the time of legal memory the lord of the manor, " being also owner of the fishery and soil under the sea, had " consented to the formation of the port on the terms that he " should have toll on merchandize landed and anchorage from " vessels anchoring or grounding in the haven, he at the same " time agreeing to keep up the buoys, chiefly, in all probability, " for the object of protecting the oysters, but incidentally guiding " vessels to a safe anchorage. If this was so, there was ample " consideration to support the customary payment, and we think, " in order to support an immemorial payment, we ought to make " this presumption." 8 The House of Lords, on appeal, unani- mously affirmed the judgment, holding that, exclusive of the evidence as to buoys and beacons, there was sufficient evidence to show the former existence of a port in the locus in quo, from the immemorial payments of the tolls for merchandize and anchorage dues ; for as anchorage dues were almost, if not universally, incident to the ownership of a port, and as every intendment should be made in favour of a payment uninter- 1 Gann v. Free Fishers of WhitttaUe, 11 H. L. 192. a L. R., 2 C. P. 688. 8 L. R., 3 C. P. 586. PORTS AND HARBOURS. 73 ruptedly made time out of mind, they were justified in drawing the inference of fact that a port did exist, and therefore that the toll had a legal origin ; and that this inference was not rebutted by the fact that the port was not artificially formed, but was a natural roadstead, imposing no obligation on the owner to repair it and keep it accessible, so as to form a consideration for the anchorage toll, for that the repair of a port was not a necessary consideration for such a toll. 1 Lord Chelmsford, in his judg- ment, went even further than this, holding that from the immemorial payment of the anchorage toll alone, the Courts, in the absence of anything to compel them to assign a different foundation for it, were bound to presume that the lords of the manor were the owners of a port to which such a toll would be lawfully incident. 2 No general toll can, as has been said, be taken in any public Tolls must be ports, or at any wharves which have been dedicated to the public, reasonable - and at which customable goods are necessarily landed, except by grant, prescription, or Act of Parliament, founded on some corresponding benefit to the public as a quid pro quo. In addi- tion to this the toll taken must be reasonable in amount, and must not be unreasonably enhanced. 3 This, of course, does not refer to private wharves where the rates charged in each particular case are a matter of bargain between the parties. 4 1 L. R., 4 H. L. 266. also as to tolls, 'Hie Baltimore case, 3 2 L. R., 4 H. L. 286. Bland. 383 (American); Brune v. Tlwmp- 8 Hfddy v. Wheelhouse, Cro. Eliz. son, 4 Q. B. 543. 558 ; Falmouth v. George, 5 Bing. 286 ; 4 As to tolls generally, see post, 30 R. R. 597 ; Hale de Port. Mar., Harg. Chap. VIII., and as to navigation, Tr. 78; Chitty on Prerogative, 195; Chap. VII. Comyns' Dig. Market ; Inst. 200 ; see CHAPTEK II. Definition of a water- course. OF INLAND WATERCOURSES ; THE OWNERSHIP OF THE SOIL THEREOF, AND OTHER MATTERS. A WATERCOURSE may be defined as a body of water issuing ex jure nature from the earth, and by the same law pursuing a certain direction in a defined channel, till it forms a confluence with the sea. 1 " A spring of water, both in law and in ordinary language, " is, as I understand it," says Jessel, M. E., 2 " a natural source " of water, of a definite and well-marked extent. A stream of " water is water which runs in a defined course, so as to be " capable of diversion ; and it has been held that the term " does not include the percolation of water underground." " A " spring," says Brett, L. J., 3 " is not an artificial space, but a " natural chasm in which water has collected, and from which it " either is lost by percolation, or rises in a defined channel." A watercourse, jiumen vel cursiis aqua, has been defined by Lord Tenterden, C. J., as water flowing in a channel between banks more or less defined. 4 Woolrych defines a river as a running stream pent in on either side with walls and banks, and it bears that name as well where the waters flow and reflow, as where they have their current one way. 5 This definition includes, therefore, all natural streams, however small, which have a definite and permanent course, and excludes all bodies of water, however large, which are of a temporary character, i.e., which are dependent on the will or convenience of individuals for their volume or duration. 6 1 Angell on Watercourses, 2 ; Wool- rych on Waters, 40 ; Woolrych on Sewers, 31 ; Phear, Rights of Water, 31. 8 Taylor v. St. Helen's, 6 Ch. Div. 264 (C. A.) ; 46 L. J., Ch. 857 ; 37 L. T. 253. Brain v. Marfell, 41 L. T., N. S. 457. 4 Rex v. Inhabitants of Oxfordshire, 1 B. & A. 301 ; 35 R. R. 302 ; Callis on Sewers, 77. The river Parrett at Bridg- water, though an arm of the sea, assumed to be a " watercourse " within the mean- ing of a drainage Act by Lord Mac- naghten : Somerset Drainage Commis- sioners v. Bridgwater Corporation, (1900) 81 L. T. 729, H. L., at p. 730. For definition of a drain or watercourse under the Highways Act, 1835 (5 & 6 Will. IV. c. 50), see cases, post, p. 291. 8 Woolrych on Waters, 40 ; Callis on Sewers, 77 ; Houck on Navigable Rivers, 1 ; Phear on Rights of Water, 31. 8 Briscoe v. Drought, Ir. R., 11 C. L. 264 ; Arkwrigftt v. Gell, 5 M. & W. 203; 8 L. J., Ex. 201. OF INLAND WATERCOURSES. 75 A subterranean stream may flow in such a known and defined Subterranean channel as to give rise to similar rights as would exist above ground. 8treams - " If," says Pollock, C. B., " the course of a subterranean stream " were well known, as is the case with many which sink " underground, pursue for a short space a subterraneous course, " and then emerge again, it could never be contended that the "owner of the soil under which the stream flowed, could not " maintain an action for the diversion of it, if it took place under " such circumstances as would have enabled him to recover, if " the stream had been wholly above ground." 1 " According to " my apprehension," says Lord Watson in a late case in the House of Lords, " the word ' stream ' in its primary sense " denotes a body of water having, as such body, a continuous " flow in one direction. It is frequently used to signify running " water at places where its flow is rapid, as distinguished from " its sluggish current in other places. I see no reason to doubt " that a subterraneous flow of water may in some circumstances "possess the very same characteristics as a body of water running " on the surface ; but in my opinion, water, whether falling from " the sky or escaping from a spring which does not flow onward " with any continuity of parts, but becomes dissipated in the " earth's strata, and simply percolates through or along those "strata, until it issues from them at a lower level, through " dislocation of the strata or otherwise, cannot with any pro- " priety be described as a stream, and I may add that the " insertion of a common rubble or other agricultural drain in " these strata, whilst it tends to accelerate percolation, does not " constitute a stream as I understand the expression." 2 The principles which regulate the rights to water flowing in surface and known and defined channels, whether upon or below the surface of the ground, do not apply to water, whether under or above ground, having no certain course or defined limits, such as that merely percolating through the strata of the earth, or that diffused over its surface, such water not being subject to the law of watercourses. 3 A stream begins at the point where the water palpably rises to Limits of a watercourse. 1 Dickemonv. Grand Junction Canal, H. L. Sc. 129. 7 Ex. 300 ; 21 L. J., Ex. 201 ; Ckasemore 8 Acton v. Blundell, 7 M. & W. 324 ; T. Richards, 7 H. L. 374, per Lord McNab v. Robertson, (1897) A. 0., Chelmsford ; Dudden v. Clutton Union, H. L. Sc. 129 ; Bradford Corporation 11 Ex. 627 : 26 L. J., Ex. 146. v. Pickles, (1895) A. C. 587, and cases 9 McNab \. Robertxon, (1897) A. C., pott, pp. 220 et geq. 76 OF INLAND WATERCOURSES. the surface and forms a channel, 1 and extends till it mingles with the sea outside the body of a county. 2 In a case in the Exchequer it appeared that the water from a spring flowed in a gully or natural channel to a stream on which was a mill. The spring was cut off at its source, and the water was received into a tank as it rose from the earth, by the licence of the owner of the soil on which the spring rose. The action was for diversion by the mill-owner. The judge at the trial told the jury that the questions for them were, whether there was a natural or defined watercourse from the spring-head to the stream, and if so, whether the defendant had diverted water from this watercourse. Pollock, C. B., said : " The real " question is, whether there is a natural watercourse which, but " for the acts done by the defendant, would have conveyed water " to the stream, and from thence to the mill of the plaintiff. If " there is a natural spring, the waters of which flow in a natural " channel, it cannot be lawfully diverted by any one to the injury " of the riparian proprietors. The law of the case is clear and " undoubted. This was a natural spring, the waters of which " had acquired a natural channel from its source to the river. " It is absurd to say that a man might take the water of such a " stream, four feet from the surface." Martin, B. : "A river " begins at its source when it comes to the surface, and the owner " of the land on which it rises cannot monopolize all the water at " the source, so as to prevent its reaching the lands of other " proprietors lower down." 3 In the case of Mostyn v. Atherton 4 " it was held that the prin- ciple laid down in Dudden v. Glutton Union was not affected by the fact that the source of the spring had been built round and formed into a well, thus making an artificial channel for a short distance. A watercourse It is not, however, necessary to constitute a watercourse that "regular m *ke water should flow continually, as a channel may be occa- channei, but sionally dry, 5 but it must appear that the water flows usually cLiSiaiiy * n a regular channel, and has a well-defined and substantial dry. 1 Ditdden v. Clutton Union, 26 L. J., ropolitan Board of Works, 3 B. & 8. Ex. 146, 11 Ex. 627 ; Phear, 83. 710 ; 32 L. J., Q. B. 105 ; 8 L. T. 238. s See Reg. v. Kryn, 2 Ex. Div. 62. * (1899) 2 Ch. 360 ; 68 L. J., Ch. 629 : Dudden v. Clutton Union, 11 Ex. 81 L. T. 356 ; 48 W. R. 168. See as to 627 ; Rawttron v. Tayler, 11 Ex. 369 ; percolating water, post, pp. 220 et seq. 25 L. J., Ex. 33 ; Wood v. Waud , 3 Ex. 5 See Drewett v. Sheard, 7 Car. & P. 748, 779 ; 18 L. J., Ex. 305 ; Angell on 465 ; 48 R. K. 797 ; Trafford v. Reg., 8 Watercourses, 5, 6 ; see also Reg. v. Met- Bing. 204 ; 34 R. R. 680. OF INLAND WATERCOURSES. 77 existence, 1 the law making a distinction between a regular flowing stream which at certain seasons is dried up and those occasional bursts of water which in times of freshets and melting of snows descend from the hills and inundate the country. 2 So also the waste water from a canal, allowed to pass out of the canal, is not a watercourse to which any of the doctrines either as to natural or artificial streams will apply. 3 " The water passing " from the Wolverhampton Level to the Atherly Junction," says Lord Cran worth, " is not a natural, nor even an artificial, stream " in the sense in which these words are understood in the many " cases in which the law relating to flowing water has been con- " sidered. The water in this canal is not flowing water. It is " water accumulated under the authority of the legislature in " what is in fact only a tank or reservoir, which the respondents " are bound to economize, and use in a particular manner for " the convenience of the public. It never flows. It is let down " artificially, for the convenience of persons wishing to pass with " boats, by what may be called steps, till it reaches the Atherly " Level, and so enables the boats to pass into appellant's canal. " To such water none of the doctrines either as to natural or ''artificial streams is applicable." Every watercourse, says Mr. Angell, 4 consists of 1. The bed ; A water- 2. The bank or shore; 3. The water. The bed is covered by c Tse t c ?*; J sists of bed, the water, and is the space subjacent to the water through which bank and it flows, and is that which contains the water at its fullest when water - it does not overflow its banks. It is, generally speaking, all the soil below the high water mark either of the ordinary daily tides or of the ordinary floods. 5 " The bed of a river is the aliens, " as distinguished from the shore, and from places where flood " waters occasionally collect." 6 The bank is the outermost part of the bed in which the river naturally flows. The bed and the water may be said to be correlative terms, as one cannot be owned without touching the other. 7 " The bed of the river is " that portion of its soil which is alternately covered and left bare 1 Angell on Watercourses, 5. * Angell on Watercourses, 30 ; Grotius 2 Ibid. ; see also Drewett v. Sheard, 7 de Jur. Belli, 2, 8, 9. Car. & P. 465 ; 48 R. R. 797. s As to this, see Menzies v. Breadal- Staffordshire Canal v. Birmingham bane, 3 Wils. & Shaw, 243 ; 32 R. R. 103. Canal, L. R., 1 H. L. 254, 272 ; 35 L. J., 6 Per Lord Campbell, C. J., in Ch. 757 ; Roclidale Caiial v. Radcliffe, Abraham v. Great Northern Rly., 16 18 Q. B.287;21L. J.,Q. B.297; McEvoy Q. B. 592. See R. v. Oxfordshire, 1 v. Great Northern Rly., (1900) 3 Ir. R. B. & A. 289 ; 35 R. R. 302 ; Reg. v. 325. See post, pp. 271 et seq., and also Derbyshire, 2 Q. B. 745, 755. Chap. V. Angell on Watercourses, 30. 78 OF INLAND WATERCOURSES. " as there may be an increase or diminution in the supply of " water, and which is adequate to contain it at its average and " mean stage during the entire year without reference to the "extraordinary freshets of the winter or spring, or the extreme " droughts of the summer or autumn." l This, when applied to a tidal river, means without reference to extraordinary tides at any time of the year and includes, therefore, the portion of the bed between high and low water mark of ordinary tides, or, in other words, the soil between ordinary high water mark on one side and ordinary high water mark on the other side. 2 The right to It is generally laid down in the text-books and in the earlier the terofa the ^ported cases that the right of private property in a watercourse watercourse is derived as a corporeal right and hereditament from or is frmn'tne" * embraced in the ownership of the soil over which it naturally ownership of passes, according to the well-known maxim, cujus est solum, ejus the soil thereof. wt usque ad cwlum:' " A watercourse," says Woolrych, 4 " may " be either a real or a corporeal hereditament. If by grant, " prescription, or otherwise, one should have an easement of this " kind in the land of another person, it would partake of the " latter quality ; but if the water flow over the party's own land, " although indeed it cannot be claimed as water, yet it is in effect "identified with the realty, because it passes over the soil, and " cujus est solum, ejus est usque ad ccelum." " An action cannot," says Blackstone, 6 " be brought to recover the possession of water " by the name of water only, but it must be brought in respect " of the land which lies at the bottom, and the description of " it must be so much land covered with water." From this identification of the land with the water a grant of a field or meadow will carry all the timber and water standing and being thereupon. 6 This doctrine is supported by modern authority with regard to standing and percolating water, and also, it would appear, with regard to running water which rises and remains for the whole of its course on the land of a single owner, for in 1 State of Alabama, v. State of L. J., in Hindson v. .4A%,(1896) 1 Ch. Georgia, 64 U. S. 515 ; cited by A. L. 78, at pp. 84, 85. Smith, L. J., in Thames Conservators v. 8 Angell on Watercourses, 8 ; Wool- Smeed 4' Co., (1897) 2 Q. B. 3H4, and rych on Waters, 146 ; Phear on Waters, Hindson v. Ashby, (1890) 2 Ch. 1, at p. 22 ; 1 Stephen's Black., 7th ed., p. 25. pp. 659, 693 ; Co. Litt. 4 ; Rex v. 2 Thames Conservators v. Smeed $ Co., W/iarton, Holt, 499. (1897) 2 Q. B. 334, overruling Pearce v. < Page 146. Bunting, (1896) 2 Q. B. 360 : post, Chap. 2 Comm. 18. VII. See also Howard v. Ingertoll, 54 Angell on Watercourses, 9 ; 1 Green- U. 8. 38, cited and adopted by Romer, leaf's ed., Cruise's Dig. 37. OF INLAND WATERCOURSES. 79 such cases the water is the absolute property of such owner, and no one is entitled to share the use of it with him ; l but with regard to natural streams flowing through adjoining lands, the enjoyment of which is only usufructuary and not absolute, the right to use the water has been held in modern cases not But from the to arise from the ownership of the soil on the stream, but from the right of access to it which landowners on its banks have by the law of nature. 2 " With respect to the ownership of the bed "of the river," says Lord Selborne in Lyon v. Fishmongei s' Co., " this cannot be the foundation of riparian rights properly so " called, because the word ' riparian ' is relative to the banks and " not to the bed of the stream ; and the connection, when it " exists, of property on the banks with property in the bed of " the stream depends not upon nature, but on grant or pre- " sumption of law. The title to the soil constituting the bed of " a river does not carry with it any exclusive right of property " in the running water of the stream, which can only be appro- " priated by severance, and which may be lawfully so appropriated " by every one having a right of access to it. It is, of course, " necessary for the existence of a riparian right that the land " should be in contact with the flow of the stream; but lateral "contact is as good jure natures as vertical; 3 and not only the " word ' riparian,' but the best authorities, such as Miner v. " Gilmour* and the passage which one of your Lordships has " read from Lord Wensleydale's judgment in Chasemore v. " Richards, 5 state the doctrine in terms which point to lateral " rather than vertical. It is true that the bank of a tidal river, " of which the foreshore is left bare at low water, is not always in " contact with the flow of a stream, but it is in such contact for " a great part of every day in the ordinary and regular course of " nature, which is an amply sufficient foundation for a natural " riparian right." Lord Cairns, L. C., says, in the same case : 6 " I cannot admit that the right of a riparian owner to the use 1 See Holker v. Porrit, L. R., 10 Ex. alongside the lands and premises, is not o9 ; Chasemore v. RwJuirds, 7H. L. 349 ; supported by proof that the plaintiff 29 L. J., Ex. 81 ; Acton v. Blundell, 12 was the lessee of mines under lands M. & W. 324 ; New River Co. v. Johnson, adjoining the stream with a grant from 2 E. & E. 435 ; and post, Chap. III. the surface owner of the use of the 2 Lyon v. Fishmongers Co., 1 A. water for colliery purposes : Insole v. C. 662 ; 45 L. J., Ch. 68 ; 36 L. T. James, 1 H. & N. 243 ; 4 W. R. 680. 569. An allegation that the plain- 8 See North Shore Rly. v. Pion, 14 tiff was possessed of mines, lands and A. C. 612. premises, and of right ought to have 4 12 Moo., P. (J. 131. had and enjoyed and still of right ought 5 7 H. L. 349 : 29 L. J., Ex. 81. to have and enjoy the water of a stream 6 Page 673. OF INLAND WATERCOURSES. "of the stream depends on the ownership of the soil of the " stream. The late Lord Wensleydale observed in this House, " in the case of Chasemore v. Richards, 1 ' The subject of right to " ' streams of water flowing on the surface has been of late " ' years fully discussed, and by a series of carefully considered " ' judgments placed upon a clear and satisfactory footing. It " ' has been now settled that the right to the enjoyment of a " ' natural stream of water on the surface, ex jure natura, 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 as he is entitled to the support of " ' his neighbour's soil for his own in its natural state. His right " ' in no way depends on prescription or the presumed grant of " 'his neighbour.' ' In the case of Emlrey v. Owen? the same learned judge, then Baron Parke, says : " The right to have the "stream to flow in its natural state without diminution or " alteration is an incident to the property in the land through "which it passes; but flowing water is publici juris, not in the " sense that it is 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 3 itself except in the particular portion which he may " choose to abstract from the stream and take into his possession, " and that during his possession only : see 5 B. d- A. 24. But " each proprietor of the adjacent land has the right to the " usufruct of the stream which flows through it." 4 It would appear, therefore, that the ownership of the bed of a watercourse, not being the natural foundation of the right to the use of the water, the grantee of lands through which there was a watercourse would have the full use of the water therein, although the bed of the watercourse were reserved to the grantor. 1 7 H. L. 382. Chap. III. 3 6 Ex. 369. 4 See also judgment of Leach, V.-C., 8 Except by statute ; see Medway Co. in Wright v. Howard, 1 8. & St. 190 ; v. Earl of Jtomney, 9 C. B., N. 8. 575 ; 24 R. R. 169 ; and Mason v. Hill, 5 B. 30 L. J., C. P. 236 ; 4 L. T. 89 ; see pott, & A. 1 ; 39 R. R. 354. TIDAL NAVIGABLE RIVERS. 81 The natural and acquired rights to the use of water are fully treated of in subsequent chapters. 1 It is proposed in the present chapter to consider the rights of property in the bed of water- courses, apart from the use of the water. The subject will be best treated of under the following heads : 1. Tidal Navigable Rivers ; 2. Private Rivers and Streams ; 3. Lakes and Pools ; 4. Artificial Watercourses. Tidal Navigable Rivers. A public navigable river is a river which is actually navigable, Definition, and in which the tide ebbs and flows ; all other rivers on which navigation is carried on are private rivers over which the public have acquired a right or easement of navigation. 2 The word " tide " is not confined to salt water, but includes fresh water ponded back 3 by ordinary tides, 4 and includes those waters not merely where there is a horizontal ebb and flow, but also where there is a vertical rise and fall caused by the ordinary sea tide. 5 The bed of all navigable rivers where the tide flows and Ownership of reflows, and of all estuaries and arms of the sea 6 is by law vested s(nl primd facie in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any way so as to derogate from or interfere with the right of navigation which belongs by law to the subjects of the realm, 7 or the right of fishery, which is primd facie common to all. 9 1 See Chaps. III. and IV. port. 1208 ; Calcraftv. Gueist, Stewart Moore's 2 The word navigable in a legal sense, History and Law of Fisheries, p. 102. as applied to a river in which the soil 6 See ante, p. 23. primd facie belongs to the Crown and 7 Mayor of Colchester v. Brooke, 1 the fishing to the public, imports that Q. B. 339 ; William* v. Wilcox, 8 A. & the river is one in which the tide ebbs E. 337 ; 47 R. R. 595 ; Carter v. Mur- and flows : Murphy v. Ryan, Ir. R., 2 cott, 4 Burr. 2163 ; Gannv. Free Fishers C. L. 143; Ilchester v. Rashleigh, 5 of Wldtstable, 1 1 H. L. 192 ; Malcolmson T. L. R. 739 ; 61 L. T. 477 ; see also v. O'Dea, 10 H. L. 593 ; Lard Advocate Bloomfield v. Johnson, Ir. R., 8 C. L. 63 ; v. Hamilton, 1 Macqueen, H. L, 47 ; and per Whiteside, C. J., in Brigtowe v. SeelTtristo v. East India Co., 10 Moo. P.O. Cormican, Ir. R., 10 Ch. 434. 140 ; see Hale de Jure Maris, p. 1 ; 8 R. v. Smith, 2 Doug. 441 ; Hume T. Liverpool and 31 Wales Steamship Co. McKenzie, 2 Cl. & F. 628. v. Mersey Trading Co., (1908) 2 Ch. * Reece v. Miller (1882), 8 Q. B. D. 658 ; 77 L. J., Ch. 658 ; 72 J. P. 385 ; 626 ; 51 L. J., M. C. 64. 24 T. L. R. 712 ; 78 L. J., Ch. 17 ; 25 6 Yorkshire (West Riding) Rivers T. L. R. 89, C. A., post, p. 494. Board v. Tad-caster District Council, 97 B Malcolmson v. O'Dea, 10 H. L. 593 ; L. T. 436 ; 71 J. P. 429 ; 5 L. G. R. 9 L T. 93. L.W. 6 82 OP INLAND WATERCOURSES. Rights of the Crown con- fined to tidal waters. Much discussion has arisen both in this country and in America, whether or not this ownership of the Crown and the public rights above stated are confined to tidal rivers, or whether they may also exist in non-tidal rivers which are in fact navig- able, and have been used for the purposes of commerce from time immemorial. In America the Courts of some of the States have adopted one rule and some the other, the decision of the question appearing to depend much on the magnitude of the river in question. 1 In this country a series of modern decisions has at last settled the law, and confined the rights of the Crown and of the public to tidal waters. In the case of Murphy v. Ryan? in which an action was brought for trespass to a fishery in a non-tidal part of a navigable river, and defendant pleaded that the river was a royal river, and the right of fishery was in the public, on demurrer to this plea, O'Hagan, J., delivering the judgment of the Court, held that above the flux and reflux of the tide, the soil and fishing of rivers were vested primd facie in the riparian owners, and not in the Crown and the public, and this none the less because the river was navigable, and had been immemorially navigated for commercial and other purposes. In Hargreaves v. Diddams, 3 and Musset v. Burch* the Court of Queen's Bench held, that where a river above the tide is made navigable by Act of Parliament, which does not expressly touch the rights of the riparian owners, none of the incidents attaching to a navigable river, up to the flow and reflow of the tide, can properly attach ; and that, therefore, a claim by one of the public to fish there cannot exist in law. In the case of Pearce v. Scotcher 5 the Queen's Bench Division fully adopted the law as laid down in Murphy v. Ryan and held that there can be no public right of fishery in non-tidal waters even where an immemorial usage has been proved. So it has been held in Reece v. Miller 6 that in the part of a navigable river where the water was not salt and in ordinary tides unaffected by any tidal 1 See Houck, p. 26 ; Angell on Water- courses, c. 13, and per Dowse, B., in Sristinve v. Cormican, IT. R., 10 C. L. 68 ; and per Lord Hatherley in Lyon v. Fithmongers 1 Co., 1 App. C. 662. a Ir. R., 2 C. L. 143. L. R., 10 Q. B. 527 ; 44 L. J., M. C. 178 ; 32 L. T. 600. 35 L. T., N. S. 486 ; see also Hudson v. McRae, 4 B. & S. 585 ; 33 L. J., M. C. 65. 5 9 Q. B. D. 162 ; see also Smith v. Andrews, (1899) 2 Ch. 678. 6 (1882) 8 Q. B. D. 626 ; 51 L. J., M. C. 64 ; see also Hindson v. Ashby, (1896) 2 Ch. 1, per Lindley, L. J., at p. 9. TIDAL NAVIGABLE RIVERS. 83 influence, though upon the occasion of very high tides the rising of the salt water in the lower part of the river dammed back the fresh water and caused it upon those occasions to rise and fall with the flow and ebb of the tide, no public right of fishing could exist. In Bristowe v. Cormican, 1 the House of Lords held that the Crown has no de jure right to the soil or fisheries of inland non- tidal lakes, Lord Blackburn thus stating the law : " The property " in the soil of the sea, and of estuaries and of rivers, in which " tide ebbs and flows, is primd facie of common right vested in " the Crown ; but the property of dry land is not of common " right in the Crown. It is clearly and uniformly laid down in " our books, that where the soil is covered with the water forming " a river in which the tide does not flow, the soil does of common " right belong to the owners of the adjoining land, and there is "no case or book of authority to show that the Crown is of "common right entitled to land covered by water, where the "water is not running water forming a river, but still water " forming a lake.". 2 Again, in Orr Ewing v. Colquhoun, where it is laid down by the House of Lords that the public, who have acquired by user the right to navigate on an inland non-tidal water, have no right of property in the bed Lord Blackburn observes, that the right of the Crown as regards the soil of the alveus, and of the public to navigate, are not the same in such a river as they are in the sea or in a tidal estuary. 3 It may now therefore be said to be clear law, that up to the point where the tide ebbs and flows in a navigable river, the soil is primd facie in the Crown ; and, above that point, whether in rivers navigable or not, the soil is presumed to belong to the riparian owners to the middle line of the stream. 4 Though the flux and reflux of the tide is primd facie evidence What is j, , . . i i ., i M f 11 jr. L evidence that tnat a river is navigable, it does not necessarily tollow, that ar i ve ris because the tide flows and reflows in any particular place, it is navigable, therefore a public navigation, although of sufficient size. The strength of the evidence arising from the flux and the reflux of the tide, must depend on the situation and nature of the channel. If it is a broad and deep channel, calculated to serve for the 1 3 A. C. 641 ; see also 'Neil v. A. C. 682 ; and Bloomfield v. Johnson, Johnston, (1908) 1 Ir. 358. Ir. R., 8 C. L. 68. 2 3 A. C. 666. * See SicTtett v. Morris, L. R., 1 Sc. 8 2 A. C. 839 ; see also per Lord App. 47 ; 14 L. T. 835. Selborne in Lyon v. Fishmongert 1 Co., 1 62 84 OF INLAND WATERCOURSES. purpose of commerce, it will be natural to conclude that it has been a public navigation ; but if it is a petty stream navigable only at certain states of the tide, and then only for a short time, and by very small boats, it is difficult to suppose that it has ever been a public navigable channel. 1 It is more reasonable to hold that " navigable " is a relative and comprehensive term containing within it all such rights upon the water way as with relation to the circumstances of each river are necessary for the full and convenient passage of vessels and boats along the channel. 2 The actual user of a tidal river, for the purposes of navigation, is of course the strongest evidence of its navigability. 3 From this it follows that, whenever a river ceases to be navigable either by natural causes, such as the silting up of the channel, or by virtue of Act of Parliament, or by order of Commissioners of Sewers, or by the writ ad quod damnum, and an inquisition found thereon by a jury, the public right of navigation will cease, at any rate till the obstruction be removed * ; the public right will not, however, be barred by an artificial obstruction which has existed for more than twenty years. 5 Where a river was formerly navigable, but became silted up, and by Act of Parliament power was given to commissioners to restore the navigation, and they were authorized to make and made a new cut, the navigation of which was to be open to the public on payment of tolls ; it was held that the new cut was a public navigable river, the obstruc- tion of which was an indictable nuisance, and that the public had the same rights over it as over the original stream. 6 Limits of the The right of the Crown to the alveus of navigable rivers is th P c rty f limited to the line of ordinary high water mark, as is the case on the sea shore, and the adjoining land beyond this line is presumed to belong to the adjoining owners. 7 It has been held that the word tide is not confined to salt water, but includes 1 R. v. Montague, 4 B. & C. 598 ; 28 Q. B. 339. R. R. 420 ; Ilchester v. Rashleigh, 5 8 Miles v. Rose, 5 Taunt. 705 ; 15 R. R. T. L. R. 739 ; 61 L. T. 477 ; see also 623 ; see per Bayley, J., in Vooght Y. Mayor of Lynn v. Turner. 1 Cowp. 36 ; Winch, 2 B. & Aid. 662 ; 21 R. R. 446. Roue v. Mile*, 5 Taunt. 705 ; 15 R. R. * R. v. Montague, 4 B. & C. 598 ; 28 623. For definition of a navigable R. R. 420. See also R. v. Doiu/la*, river according to the French law 2 Lord Keny. 499, and Woolrych on existing in Canada, see Bell v. Corpora- Waters, p. 237. tion of Quebec. 41 L. T., N. S. 451 Vooght v. Winch, 2 B. & Aid. 662 ; (P. C.) ; 49 L. J., P. C. 1 ; according to 21 R. R. 446. American Law, see Angell on Water- 6 Reg. v. Bettx, 16 Q. B. 1022 ; 19 L. J., courses, ch. 13 ; and as to the distinction Q. B. 531. between " navigable " and " boatable." 7 See atite, p. 21. a Mayor of Colchester v. Brooke, 1 TIDAL NAVIGABLE RIVERS. 86 the fresh water ponded back ;"/ but in the case of Eeece v. Miller* which was a claim by the public to fish in a navigable river at a place where the water was not salt and unaffected by any tidal influence in ordinary tides, though upon the occasion of very high tides the rising of the salt water in the lower part of the river dammed back the fresh water and caused it on those occasions to rise and fall with the flow and ebb of the tide, the locus in quo was held not to be tidal within the meaning of the rule of law, which gives the public the right to fish in navigable tidal rivers. 3 This line is clearly liable from natural causes to a shifting of position from time to time : 4 if the alteration take place by imperceptible degrees, the boundary, as between the Crown or its grantees and the adjoining owners, will follow the line, whether it gain upon the land or not ; but if the new position be taken suddenly, whether in advance or recession, the old line continues to be the boundary between the territory of the Crown and that of the shore proprietors. 5 Following this principle, it is clear that where a tidal 6 river where a river gradually and imperceptibly changes its course, the Crown cha ngesits will remain the owner of the bed ; but where the change is sudden and perceptible, or where by the irruption of the waters of a tidal river an entirely new channel is formed in the land of a subject, the right to the soil of the new channel remains as before in the subject. This point was raised in the case of The Mayor of Carlisle v. Graham, 1 which was an action for trespass to plaintiffs' several fishery in the navigable tidal river Eden. It appeared that about the year 1693 the river began to leave its former bed where plaintiffs' fishery was situate, and to flow down a channel which was formerly a ditch on the land of the Earl of Lonsdale, under whom defendants claimed. The plaintiffs claimed to have the several fishery in the new channel, but the Court held, following Murphy v. Ryan, 9 that the right of the Crown to grant a several fishery in a tidal river depends on its proprietorship of the bed, and that the bed in this case remained, as before, the property of the former owner. Kelly, C. B., delivering the judgment of 1 R. v. Smith, 2 Doug. 441. post, p. 119. 2 8 Q. B. D. 626 ; 51 L. J., M. C. 647. 7 L. R., 4 Ex. 361 ; 38 L. J., Ex. 226 ; 8 See cases ante, p. 81. 21 L. T. 133 ; see also Thakurain Ritraj 4 See ante, p. 21. Koer v. lliaclturain Sarfaraz Koer, 21 5 Phear, p. 43. See aide, pp. 39 et seq. (1905) T. L. R. 637, P. This principle has been held to 8 Ir. R., 2 C. L. 68. apply equally to a non-tidal river : see 86 OF INLAND WATERCOURSES. the Court, says : "All the authorities ancient and modern are " uniform to the effect that, if by the irruption of the waters of " a tidal river, an entirely new channel is formed in the land of " a subject, although the rights of the Crown and of the public " may come into existence, and be exercised in what has thus " become a portion of a tidal river, the right to the soil remains " in the owner, so that if at any time thereafter the waters should " recede and the river again change its course, leaving the new " channel dry, the soil becomes again the exclusive property of " the owner, free from all rights whatsoever in the Crown or in " the public." l Ford v. Lacy. j n the case of Ford v. Lacy 2 a question arose as to the ownership of some land on the river Lea ; and though it appears that the river in the locus in quo was not navigable, the principles involved in the decision of the case would seem nevertheless to apply to land on navigable rivers as well. It was proved that formerly the river was the boundary of the two counties Middle- sex and Essex ; but that the bed was wholly in Essex. The piece of land in question was a narrow strip on the Middlesex side of the river, extending from the river to some posts, and had formerly been part of the bed of the river. The plaintiff, the owner of a farm on the Essex side, had exercised rights of ownership over the land claimed since 1814. Vicarial tithes had been taken for the parish of Waltham, in Essex, and it had been rated to the said parish. The defendant occupied land adjoining the land claimed, and proved an award under the Inclosure Act, 1804, by which all the land up to the river was allotted to his landlord. The learned judge at the trial asked the jury 1st. Whether the pieces of land in question were in Essex ; 2nd. Whether they were in the parish of Waltham ; 3rd. Whether they were in possession of plaintiff; 4th. Whether they were the property of defendant's landlord. The jury found for the plaintiff. On motion for a new trial on the ground that the learned judge should have directed the jury that land left by a river becomes part of the adjoining property and county the rule was refused ; the Court approving of the doctrine laid down by Lord Hale, 3 that if the change was sudden and per- ceptible, and if the former marks remained, and the extent could 1 See also Hale de Jure Maris, pp. 5, 2 7 H. & N. 151 ; 30 L. J., Ex. 351. 6, 11, 13, 16, 37, and Reg. v. Settf, 16 'See note 1, aide. Q. B. 1022. TIDAL NAVIGABLE RIVERS. 87 reasonably be ascertained, the soil remains in the former owner ; and Pollock, C. B., remarking in the course of the argument that, if for fifty years the land had been treated as part of Essex, it must be presumed that the water had receded suddenly. In the late case of Foster v. Wright l the question as to the Foster v. ownership of the bed of a river which had gradually and imper- ceptibly changed its course was raised and fully discussed. The plaintiff was lord of a manor under grants from the Crown, giving him the right of fishing in all the waters of the manor. Some manor land near, but not adjoining, a river in the manor, was enfranchised and became the property of the defendant. Subsequent to this enfranchisement the manor was forfeited to the Crown, but was regranted with free liberty of fishing in all its waters. The river, which then ran wholly within lands of the plaintiff, afterwards wore away its bank, and by gradual progress, not visible but periodically ascertained, during twelve years, approached and eventually encroached upon the defendant's land, until a strip of it became part of the river. The extent of the encroachment could be defined and identified. An action of trespass was brought by the plaintiff against the defendant for fishing on this strip of land covered with water. The Court held that the action would lie on the ground that at the time of the grant, and of the regrant of the manor, the whole of the bed of the river, and of the exclusive right of fishing therein, was the property of the plaintiff ; and that this property in the bed was not lost by the gradual and imperceptible change of the bed, although the former boundaries could be ascertained. Lindley, J., delivering the judgment of the Court, says : " Since the regrant of the manor, " the course of the river between the points above referred to has " gradually changed : its bed has gradually approached nearer and " nearer to the defendant's land ; and now some portion of that land " has become part of the river bed. This part can still be identified, " and its boundary can be ascertained. The question we have " to determine is, whether the plaintiff's exclusive right of fish- " ing extends over so much of the water as flows over land which " can be identified as formerly part of the defendant's property ? " I am of opinion that it does. The change of the bed of the " river has been gradual ; and although the river bed is not now " where it was, the shifting of the bed has not been perceptible " from hour to hour, from day to day, from week to week, nor in i 4 C. P. D. 438 ; 49 L. J., C. P. 97. 88 OF INLAND WATERCOURSES. " fact at all, except by comparing its position of late years with " its position many years before. Under these, circumstances, I "am of opinion that, for all purposes material to the present " case, the river has never lost its identity, nor its bed its legal " owner. Gradual accretions of land from water belong to the "owner of the land gradually added to: Rex v. Yarborough; 1 " and, conversely, land gradually encroached upon by water " ceases to belong to the former owner : In re Hull and Selby "Rail. Co? The law on this subject is based upon the " impossibility of identifying from day to day small additions " to or subtractions from land caused by the constant action of " running water. The history of the law shows this to be the " case. Our own law may be traced back through Blackstone? " Hale* Britton* Fleta, 6 and Bracton, 1 to the Institutes of Jus - 11 tinian,* from which Bracton evidently took his exposition of " the subject. Indeed, the general doctrine, and its application " to non-tidal and non-navigable rivers in cases where the old " boundaries are not known, was scarcely contested by the " counsel for the defendant, and is well settled : see the authori- " ties above cited ; but it was contended that the doctrine does " not apply to such rivers where the boundaries are not lost ; and " passages in Britton, 9 in the Year Books, 10 and in Hale de Jure " Maris, 11 were referred to in support of this view. Ford v. Lacy ia " was also relied upon in support of this distinction. Britton " lays down as a general rule that gradual encroachments of a "river enure to the benefit of the owner of the river; but he " qualifies this doctrine by adding, ' if certain boundaries are "'not found.' The same qualification is found in 22 Ass. pi. " 93, which case is referred to in Hale, ubi supra. But, curiously " enough, this qualification is omitted by Callis in his statement " of the same case : see Callis, p. 51 ; and, on its being brought " to the attention of the Court in In re Hull and Selby Rail. Co.* " the Court declined to recognize it, and treated it as inconsistent " with the principle on which the law of accretion rests. Lord " Tenterden's observations in Rex v. Yarborough 13 are also in 1 3 B. & C. 91 ; 5 Bing. 163 ; 27 R. R. 8 Inst. ii. 1, 20. 292. Ubi supra. 5 M. & W. 327. 10 22 Ass. p. 106, pi. 93. Vol. ii. c. 16, pp. 261, 262. " Book i. c. 1, citing 22 Ass. pi. De Jure Maris, cc. 1, 6. 93. Book ii. c. 2. 12 7 H. & N. 151. Book iii. c. 2, ss. 6, &c. w 3 B. & C. 106 ; 27 R. R. 292. i Book ii. c. 2. TIDAL NAVIGABLE RIVERS. 89 " accordance with this view ; and, although Lord Chelmsford in " Attorney -General v. Chambers l doubted whether, where the " old boundaries could be ascertained, the doctrine of accretion " could be applied, he did not overrule the decision of In re " Hull and Selby Rail. Co., 2 which decided the point so far as " encroachments by the sea are concerned. " Upon such a question as this, I am wholly unable to see any " difference between tidal and non-tidal or navigable or non- " navigable rivers ; and Lord Hale himself says there is no "difference in this respect between the sea and its arms and " other waters : De Jure Maris, p. 6. The question does not " depend on any doctrine peculiar to the royal prerogative, but " on the more general reasons to which I have alluded above. " In Ford v. Lacy, 3 the ownership of the land in dispute was " determined rather by the evidence of continuous acts of " ownership since the bed of the river had changed, than by " reference to the doctrine of gradual accretion, and I do not " regard that case as throwing any real light on the question I " am considering." 4 In the case of Hindson v. Ashby 5 the plaintiffs, under an nindson v. inclosure award made in 1803, were entitled to a piece of land As/lb v- at Wraysbury bounded on one side by the Thames, which is there navigable but not tidal. The land ended in an almost perpendicular bank five or six feet high, and the bed of the river reached to its foot, the water often reaching some height above the foot. The defendant was entitled to a several fishery in the river and to the bed of the river. The water of the river, owing to the removal of a weir, sank, and at the foot of the bank a deposit took place forming a strip on which some large trees grew, and which during some part of the year was left dry, but it was overflowed during a considerable part of the year. At the foot of the bank the defendant dug a ditch which he regularly cleaned out for more than twelve years, and afterwards filled up with concrete so as to make a footpath. The plaintiffs brought an action for an injunction to restrain him from trespassing, and it was held by Homer, J., that whether the strip had ceased to be part of the bed of the river was a question to be determined, not by any hard and fast rule, but regarding 1 4 De G. & J. 6971. Q. B. D., ante, p. 39 ; Wkithers v. Pur- 2 5 M. & W. 327. chase, 60 L. T. 819, and post, p. 119. 7H. &N. 151. 5 (1896) 2 Cb. 1. 4 See A.-G, v. Reeve, 1 T. L. R. 675, 90 OF INLAND WATERCOURSES. all the material circumstances of the case, including the fluctuations of the river, the nature of the land, and its growths and uses, and that, in the present case, the strip had ceased to be part of the bed and belonged to the plaintiffs as having been formed by gradual accretion. The Court of Appeal, however, held that, though the principle on which Homer, J., had proceeded in determining whether the strip was part of the bed of the river was sound, on the facts the strip had not ceased to form part of the bed, and therefore belonged to the defendant ; but that when it was dry the rights of the plaintiffs as riparian proprietors were not affected, and they had right of access over it to the water, and could use it to the same extent as they could use the bed of the river in its old state. The judgment of Lindley, L. J., in the Court of Appeal is of importance not only with regard to the law as to accretions, but as explaining the law generally as to the rights of riparian owners and owners of the beds of rivers. " The owners of the allotment made in 1803 were clearly " riparian proprietors, and the river being a public navigable river " they had a right as members of the public to use the river as " a public highway. They had also as riparian proprietors the " right to pass to and fro between the water and their own land, " and to pull their boats up from the water on to their own land, " and to push them down again from their own land into the " water. They had also as riparian proprietors the right to take " water from the river provided they did not injure others by " so doing. These rights, at least, the allottees acquired, and " to these rights, at least, the plaintiffs are now entitled : see " Lyon v. Fishmongers' Co. 1 The right of navigating a non- " tidal river does not, however, entitle the public to fish in it : " see Smith v. Andrews* and the authorities there cited." " But, further, it must be taken as now settled that, if the " right to a several fishery in a public navigable river is proved " to exist, the owner of the fishery is to be presumed to be also " the owner of the soil over which his fishery extends, unless " there is evidence to the contrary. The reasoning on which " this presumption is based is not satisfactory, and the difficulties " involved in it were very forcibly pointed out by Cockburn, C. J., 1 1 A. C. 662. 2 (1891) 2 Ch. 678. TIDAL NAVIGABLE RIVERS. 91 " in Marshall v. Ulleswater Steam Navigation Co. ; l but the pre- " sumption is supported by Mr. Butler in his note to Coke upon " Littleton ; 2 and it has the great authority of Bayley, J. and " the other judges who decided the Duke of Somerset v. Fogwell ; 3 " it was deliberately sanctioned by the Court of Queen's Bench " and by the Exchequer Chamber in Holford v. Bailey; 4 it was " recognized as law and was acted upon as such by Cockburn, C. J., " himself and by his colleagues in Marshall v. Ulleswater Steam " Navigation Co. ; l and lastly it was treated by the House of "Lords in Attorney -General v. Emerson 5 as no longer open to " question. But treating this presumption as established, what " does it involve ? Is the owner of a several fishery to be "treated as if he were the grantee of a defined strip of land, " with all subjacent mines and minerals ? Or is his presumed " ownership of the soil to be limited to the right to make such "a use of it as is necessary for the purposes of his fishery? " Are the limits of his soil fixed by metes and bounds, or do " they change as the bed of the river changes ? Again, what " are his rights as regards riparian owners ? What as regards " accretions to the banks or to the bed of the river ? And what " are his rights as regards soil from which the bed of the river " has permanently receded ? The answers to all these questions " must depend primarily on the real meaning of the doctrine "under consideration, and on the extent to which the owner " of a several fishery is to be treated as the owner of the bed " of the river within the limits of his fishery ; and on this " subject there is as yet very little authority in our books. " Scratton v. Brown 6 is a very important authority to show that " water boundaries of land may fluctuate in law as well as in fact. " In Foster v. Wright 7 it was decided that the owner of a several " fishery had the exclusive right to fish in a river which had "gradually encroached upon and into the land of a riparian pro- " prietor, the limits of which land were known. This decision " was, in my opinion, quite right, although in one part of my "judgment I may perhaps have gone too far. I am not, " however, satisfied that I did, for in that case the river was " the boundary. In the Mayor of Carlisle v. Graham B it was held 1 3 B. & S. 746. 5 (1891) A. C. 649. 2 122 a. 6 4 B. & C. 485 ; 28 R. R. 344. B. & C. 875 ; 29 R. R. 449. 4 C. P. D. 438. J 3 Q. B. 1000 ; 13 Q. B. 426. 8 L. R., 11 Ex. 361. 92 OF INLAND WATERCOURSES. Bed of a public navig- able river is presumably within the county. " that the owner of a several fishery, in a part of the river which " had been permanently left dry, had no right to fish in an entirely " new channel which the river had made for itself in quite a " different place. No such questions arise here ; but these cases " are useful as throwing some light on the rights of owners of " several fisheries." l As to accretions he says : 2 " Whether, apart " from the Statute of Limitations, the accretions, or the land left " by the water, can become the property of the plaintiffs or cease "to be the property of the defendant is a question of considerable " difficulty, and one which, in my view of the facts, it is not now " necessary to decide. Passages were cited from Bracton, Britton, " Fleta, and Hale de Jure Maris, c. i. and vi., and the Year Book, " 22 Ass. fo. 106, pi. 93, to show that the doctrine of accretion " does not apply where boundaries are well defined and known. " This may be if the boundary on the waterside is a wall or " something so clear and visible that it is easy to see whether "the accretions, as they become perceptible, are on one side " of the boundary or on the other. But I am not satisfied that " the authorities referred to are applicable to cases of land " having no boundary next flowing water, except the water " itself. The cases of Rex v. Lord Yarborough, 3 affirmed by the " House of Lords in Giffbrd v. Lord Yarborough, 4 and In re Hull " and Selby Rail. Co., 5 seem opposed to these authorities if applied " to fluctuating water boundaries. The judgments in Scratton v. ' Brown* point in the same direction. On the other hand, " Attorney-General v. Chambers 1 seems the other way. But it is " unnecessary to dwell more on this question, and I leave it for " reconsideration and decision when it shall arise." 8 A public navigable river, intra fauces terra, where a man may reasonably discern between shore and shore, it has been said by Lord Hale, is or may be within the body of a county ; 9 and will thus be subject to the jurisdiction of the justices of the county, and of the Common Law, except in the cases of murder, and mayhem done in great ships, where formerly the admiral, 10 and now the Central Criminal Court, has a concurrent jurisdiction 1 (1896), 2 Ch. p. 10. 2 Ibid., p. 13. 3B.&C. 91. 5 Bing. 163 ; 27 R. R. 292. * 5 M. & W. 327. 8 4 B. & 0. 485, 499, 502, 505 ; 28 R. R. 344. 7 4 DeG. & J. 55,71. 8 See Mellor v. Walmsley, ante, p. 40. 9 De Jure Maris, Harg. Tracts, p. 10 ; Ow. 122 ; see also Cockburn, C. J., in Reg. v. Keyn, 2 Ex. D. 164. w Stat. 15 Ric. II. c. 3. TIDAL NAVIGABLE RIVERS. 93 with the Courts of Common Law. 1 The shore between high and low water mark on rivers and estuaries is within the exclusive jurisdiction of the justices of the adjoining county, whether the offence be committed when the shore is or is not covered with water. 2 The bed and shore of a public navigable river does not, in the Not presum- absence of evidence, form part of the adjoining parish, but is prima facie extra-parochial. 3 Evidence may be given to show that it is within the parish. 4 Now, however, by 31 & 32 Viet, c. 122, s. 27, every accretion of the sea, whether natural or artificial, and the part of the sea shore to the low water mark, and the bank of every river to the middle of the stream, which at the date of the Act were not incorporated with any parish, are, for all civil parochial purposes, annexed to and incorporated with the next adjoining parish with which it has the longest common boundary. The word " bank of every river to the middle of the stream " is somewhat misleading one would have expected " bank and bed " but it is impossible to construe the words as other than meaning " bank and bed." The word " rivers " clearly includes " tidal rivers," and consequently by this Act the whole of the bed of such rivers is incorporated with the adjoining parishes. It is now the practice of the Ordnance Survey Department, in fixing parochial boundaries on tidal rivers to include in the adjoining parishes the bed of such rivers ad medium filum aquce down to the point where the river enters the sea level at low water mark. It may, therefore, be presumed that where a tidal river forms the boundary of two counties, the boundary line of the two counties will pass through the centre of the stream, though this presumption may be rebutted ; but that where it forms the boundary between two parishes, the presumption is that the bed up to high water mark is extra-parochial, except for certain statutory purposes. 5 1 4 & 5 Will. IV. c. 36 ; Reg. v. Keyn, 5 The subject of the rights of different International supra. nations whose territories are washed by rights on 2 Emlleton v. Brown, 3 E. & E. 224 ; the same river, is one connected with rivers form- Reg. v. Musson, 8 E. & B. 900 ; 27 L. J., international law, and does not, there- ing boundary M. C. 100. fore, properly fall within the scope of between two 8 Reg. v. Musson, supra ; Dulte of this work. It may, however, be of in- states. Bridgwater v. Bootle - cum - Linacre, terest to the reader to note some points L. E., 2 Q. B. 4. with regard to it. * Reg. v. Musson, gupra ; Cory v. The territory of a State includes the Brigtow, 2 A. C., H. L. 262 ; 46 L. J., lakes, seas, and rivers entirely inclosed M. C. 273 ; 36 L. T. 595 ; W Cannon v. within its limits. . . . Where a navig- Sinclair, 2 E. & E. 53 ; R. v. Landulpli, able river forms the boundary of con- 1 Moo. & Rob. 393 ; 42 E. E. 812. tinous States, the middle of the channel 94 OF INLAND WATERCOURSES. Property of bed maybe 11 The property of the Crown in the soil of tidal navigable rivers ma y ^ e communicated to a subject in the same way as may the or thalioey is generally taken as the line of separation between the two States, the presumption of law being, that the right of navigation is common to both ; but this presumption may be destroyed by actual proof of prior occupancy and long-undisturbed possession giving to one of the riparian proprietors the exclusive title to the entire river. (Wheaton, Elements of International Law, p. 346 ; Wheaton, Law of Nations, pp. 577 383.) Things of which the use is inexhaus- tible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor ; this is what is called an innocent use. Thus we have seen that the jurisdiction pos- sessed by one nation over sounds, straits and other arms of the sea leading through its own territory to that of another, or to other seas common to all nations, does not exclude others from the right of innocent passage through these com- munications. The same principle is applicable to rivers flowing from one State through the territory of another into the sea, or into the territory of a third State. The right of navigating for commercial purposes a river which flows through the territoriesof different States, is common to all nations inhabiting the different parts of its banks ; but this right of innocent passage being what text writers call an imperfect right, its exercise is necessarily modified by the safety and convenience of the State affected by it, and can only be effec- tually secured by mutual convention regulating the mode of its exercise. (Grotius de Jur. Bel. ac Pac. lib. ii. cap. 2, 12, 14 ; Vattel,Droit des Gens.liv. ii. ch. 9, as. 126130; ch. 10, ss. 132 134 ; Puffendorf de Jur. Naturae et Gentium, lib. iii. cap. 3, ss. 3 6 ; Wheaton, Elements of International Law, pp. 346, 347.) It seems this right draws after it the incidental right of using all the means which are necessary to the secure enjoy- ment of the principal right itself e.g., according to Roman law, right to use of shore to moor, to lade and unlade, incident to right to navigate ; and public jurists apply this principle to the same case, between nations. These rights are imperfect, and can be modified by compact. Cf. the case of the navigation of the Scheldt, and of the rivers whose navigation was regu- lated by the Treaty of Vienna, 1815, Neckar, Mayne, &c. (Wheaton's Ele- ments of Internatioual Law, pp. 347, 348.) By Treaty of Vienna, 1815, the com- mercial navigation of rivers which separate different States, or flow through their respective territories, was declared to be entirely free in their whole course from the point where each river becomes navigable to its mouth ; provided that the regulations relating to the police of the navigation should be observed, which regulations were to be uniform, and as favourable as possible to the commerce of all nations. (Wheaton's Elements of International Law, pp. 348, n., et seq.) Cf. also the case of the navigation of the Rhino, p. 350, the case of the navi- gation of the Mississippi, pp. 352 et seq., the case of the navigation of the St. Lawrence, pp. 356 et seq., the case of the navigation of the Plata and Parana rivers, p. 360, n. 1 ; and see the discus- sion as to the freedom of navigation of the Amazon, which took place between the United States and Brazil, and the arguments thereon. (Ibid.) TREATY OP VIENNA, 1815, June 9th (extracted from Hertslett's Collection of Treaties, vol. i. pp. 3, 5, 15, 16). General Treaty signed in Congress at Vienna, 9th June, 1815, and since acceded to by all the other powers of Europe. Art. 108. The powers whose States are separated or crossed by the same navigable river, engage to regulate, by common consent, all that regards its navigation. For this purpose they will name commissioners, who shall assemble, at latest, within six months after the termination of the congress, and who shall adopt, as the basis of their pro- ceedings, the principles established by the following articles. Art. 109. The navigation of the rivers along their whole course, referred to in the preceding article, from the point where each of them becomes navigable to its mouth, shall be entirely free, and shall not, in respect to commerce, be prohibited to any one : it being under- stood that the regulations established with regard to the police of this naviga- tion shall be respected ; as they will be framed alike for all, and as favourable as possible to the commerce of all nations. TIDAL NAVIGABLE RIVERS. 95 property in the sea shore, and may be claimed by a subject granted to a either in gross or as parcel of an adjoining manor. The grantees s These articles provided, besides, for the liberty of navigation, a uniform system for the collection of duties, and for the maintenance of police, as well as for regulations as to tariff, the establish- ment of offices for the collection of duties, custom houses, and the repair, &c., of towing paths. Harbour duties were prohibited, and such as existed were to be preserved for such time only as was necessary for navigation. Everything in the articles was to be settled by a general arrangement, which being once settled was not to be changed. With regard to towing paths, each State bordering on the rivers shall be at the expense of keeping in good repair those passing through its territory, and of maintaining the necessary works through the same extent in the bed of the river, in order that no obstacle may be experienced in the navigation. The intended regulation was to deter- mine the manner in which States bordering on rivers were to participate in these latter works, where opposite banks belonged to different Govern- ments. The principles laid down in this treaty were those suggested in a memoir by Baron Von Humboldt, plenipoten- tiary of Prussia, and presented on the 3rd February, 1815. Inter alia,, he states that, " In order to conciliate the " interests of commerce with those of the " riparian State, it would be necessary, " on the one hand, that every regulation " indispensable to the freedom of naviga- " tion from the point where a river " becomes navigable, to its mouth, should " be adopted by common consent, in "a convention subject to be altered " only by the unanimous consent of " the parties : and on the other hand, "that no riparian State should be " disturbed in the exercise of its rights " of sovereignty in respect to commerce " and navigation beyond the stipulations "of this convention, and at the same " time should be entitled to its share " of the net revenues collected upon the " navigation in proportion to the extent " of its territory along the banks of the "river. It would be necessary to " establish upon those bases principles "so general that the difference in " localities should only require modifica- "tions in their detailed application." (Wheaton, History of the Law of Nations, p. 499.) These principles have been applied by detailed convention to regulate the navigation of the Rhine, Scheldt, Meuse, Moselle, Elbe, Oder, Weser, and the Po, and their confluent rivers. (Ibid. p. 501.) The principles established by the Congress of Vienna, and applied to the navigation of the great European rivers, had been long before asserted by the Government of the United States, in respect to the navigation of the Mississippi, at the time when both banks of that river for a considerable distance above its mouth were in possession of Spain. Since 1783, "when the whole li navigable river was, by the Treaty of " Paris of that year, declared open to " the traffic of the two Powers (Great " Britain and the United States) estab- " lished on its banks," the right of navigating the Mississippi is now vested exclusively in the United States and their citizens. (Ibid. 506 et seq.~) "The right of the United States to " participate with Spain in the naviga- " tion of the Kiver Mississipi previously " to the cession of Louisiana, was rested " by the" American Government on the 'sentiment written in deep characters ' on the heart of man, that the ocean is ' free to all men, and its rivers to all 'riparian inhabitants. This natural ' right was found to be acknowledged " and protected in all tracts of country " united under the same political society, ' by laying the navigable rivers open ' to all the inhabitants of their banks. 'When these rivers enter the limits 'of another society, if the right of ' the upper inhabitants to descend the "stream be in any case obstructed, "it is an act of force by a stronger "society against a weaker condemned " by the judgment of mankind." (Ibid. p. 508.) Cf. the account of discussion between American and British Governments as to the navigation of the St. Lawrence. (Ibid. 511 et seq.) The Treaty of Paris, 1856, extended the principle of the treaty of Vienna to the Danube (Art. 15 of the treaty of the 30th March), and furthermore declared that "this provision henceforth forms part of the public law of Europe," and the signatory Powers " take it under their guarantee." (Art. 15.) The general Act of Berlin (26th February, 1885) applied the same principle as regards the Congo (Arts. 2 4 and 13 25), declaring that not only this river and its tributaries shall be open " to all flags, without 96 OF INLAND WATERCOURSES. of the Crown, of course, take subject to all the public rights, and any grant of the Crown detrimental to the public right is void as distinction of nationality," but also all the lakes and ports situated on its banks, and the canals by which they or different parts of the river may be connected (Art. 2), and roads or railways which may supplement these means of communica- tion. (Art. 16.) Similar provisions are made as regards the Niger (Arts. 26 33) ; and Arts. 25 and 23 of the general Act also provide for the neutralization of the Congo and Niger, traffic on which and on their tributaries is to remain free in spite of war, as well as on the territorial waters facing their estuaries, and the roads, railways, lakes, and canals above mentioned. Territorial changes may convert an international into a national river, as in the case of the Mississippi above men- tioned ; but the rights acquired when it was free subsist in spite of the change, and the Po has thus remained inter- national. (Cf. Encyclopaedia of Laws of England, 2nd ed., vol. xiii., pp. 25, 26, art. " Rivers, International.") The right of navigating waters open to all includes the right of passing through straits which serve for com- munication between such waters. Interoceanic " There is no reason," observes Mr. canals. Ferguson (International Law, London, 1884, s. 91), " for not including in this ' general rule all canals or narrow straits 1 connecting, for the benefit of outside 1 and international navigation, two open ' and internationally free seas, although ' such a canal may be an entirely or par- ' tially artificial channel dug out for ' the said purpose, and passing entirely through the territory of one Power. ' The legal status of such a canal in the ' eye of international law is but the state ' it actually occupies in the intercourse ' of nations independent of its origin. ' Being once de facto established as an ' international highway, whether with or ' without tolls, the only concern of inter- ' national jurisprudence regarding it is ' itaraison d'etre : This is exclusively the ' connection of two open seas. Such a ' highway having once been declared ' open to all nations can therefore not ' be legally closed again, except on the 'principles which govern all natural ' narrow passages between open seas." (See also Macdonell, " The Legal Posi- ' tion of the Dardanelles, and the Suez 1 Canal," Prater's Magazine., May, 1878.) Theoretically this may seem true ; yet the rules applicable to artificial water- courses may, with equal reason, be held to differ from those applicable to natural watercourses, owing to the very fact that they are artificial, have come into exist- ence at a determinate moment, and are dug upon territory over which the sove- reign State has paramount dominion. In any case oceanic canals are con- sidered in practice to form part of the territory they traverse, and it is only by treaty that the territorial authority abdicates any part of its sovereign power within its own frontiers. No question has ever been raised in this connection except as regards the Suez Canal, which, from the immense saving of distance it has effected as compared with alternative maritime routes, could not be closed without an essential disturbance of the course of European trade with the East. The powers have therefore by a treaty signed at Constantinople, October 29th, 1888, by the representatives of Great Britain, Germany, Austria, Hungary, Spain, France, Italy, the Netherlands, Russia and Turkey, as the preamble thereto states, established "a definite "system destined to guarantee at all " times and for all the Powers the free " use of the Suez Maritime Canal." The chief articles of this treaty are as follows : The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of com- merce or of war, without distinction of flag. Consequently the high contract- ing parties agree not in any way to interfere with the free use of the canal, in time of war as in time of peace. (Art. 1.) The maritime canal remaining open in time of war as a free passage, even to ships of war of belligerents, the high contracting parties agree that no right of war, no act of hostility, nor any act having for its object to obstruct the free navigation of the canal, shall be committed in the canal and in its ports of access, as well as within a radius of three marine miles from those ports, even though the Ottoman Empire should be one of the belligerent Powers. Vessels of war of belligerents shall not revictual or take in stores in the canal and its ports of access, except in so far as may be strictly necessary. The transit of the aforesaid vessels through the canal shall be effected with the least possible delay, in accordance with the regulations in force, and without any other intermission (arrlf) than that TIDAL NAVIGABLE RIVERS. 97 to such parts as are open to such objections, if acted upon so as to effect nuisance by working injury to the public right. 1 Such grants of the soil can now only be made under powers con- ferred by certain Acts of Parliament. 2 It has been shown 3 that the shore of the sea between high and Limits of low water mark may form parcel of the adjoining manor, and crown on may so pass by grant from the Crown to a subject. There would P" blic . navi g- T.OIG rivers appear to be no distinction as to this between the shore of the sea and of tidal rivers. 4 But as the soil of the bed of tidal rivers below low watermark is vested primd facie in the Crown, indepen- dently of any ownership in the adjoining land, and as this ownership of the soil below low water mark may be granted to a subject, questions might arise as to the boundaries of such grants when the Crown is also owner of the adjoining land. A grant of lands on non-tidal waters, in the absence of evidence to the contrary, conveys the soil of the bed usque ad medium filum aqua ; 5 and this, independently of the breadth of the stream. 6 A resulting from the necessities of the service. Their stay at Port Said and in the roadstead shall not exceed twenty-four hours, except in case of distress. In such case they shall be bound to leave as soon as possible. An interval of twenty-four hours shall always elapse between the starting of a belligerent ship from one of the ports of access and the departure of a ship belonging to the hostile Power. (Art. 4.) In time of war belligerent Powers shall not disembark nor embark, within the canal and its ports of access, either troops, munitions, or materials of war. But in case of an accidental hindrance in the canal, men may be embarked or disembarked at the ports of access by detachments not exceeding 1,000 men, with a corresponding amount of war material. (Art. 5.) The Powers shall not keep any vessel of war in the waters of the canal (including Lake Timsah and the Bitter Lakes). Nevertheless, they may station vessels of war in the ports of access of Port Said and Suez, the number of which shall not exceed two for each Power. This right shall not be exercised by belligerents. (Art. 7.) See Parl. Papers, C. 5,623 (1889). The position of the proposed Central American Oceanic Canal, when it is completed, will probably be regulated in some similar way. The so-called Clayton-Bulwer Treaty, a convention relative to a ship canal by way of Nicaragua, Costa Rica, the Mosouito L.W. Coast, or any part of Central America, concluded April 19th, 1850, already determines that as between Great Britain and the United States no exclu- sive control over the canal shall be exercised by either Power (Art. 1) ; also provides for the guaranteeing of the neutrality of the canal (Art. 5), and for the entering of other States into similar stipulations. (Art. 6.) Art. " Canals, Interoceanic," Encyclo- paedia of Laws of England, by J. S. Henderson, 2nd ed., voL ii., pp. 535, 536. 1 A.-6. v. Parnieter, 10 Price, 378, 412, H. L. ; 24 R. R. 723, 745 ; Gann v. Free Fishers of Whitsta ble, 11 H. L. 192 ; see ante, pp. 23 27. As to implied grants, &c., see ante, pp. 28 et geq. As to grants under Scotch Law, see Parker v. Lord Advocate, (1904) A. C. 364 ; 20 T. L. R. 547, H. L. Sc. 2 The liabilities of a foreshore owner under a statute may be limited . like his powers : London Port Sanitary Autlwrity v. Thames Conservators, (1894) 1 Q. B. 647 ; see post, Chap. VII. 3 Ante, pp. 22 et seq. 4 See Duke of BruLgwater v. Bootle- cum-Linacre, L. R., 2 Q. B. 4 ; Blundell v. Catteral, 5 B. & Aid. 268 ; 24 R. R. 353. 5 See Orr Ew'mg v. Colquhoun, 2 App. C. 839 ; Eickett v. Morris, L. R., 1 H. L. Sc. 47 ; Wihart v. Wyllie, 1 M'Q., H. L. 839. 6 Dwyer v. Rich, Ir. R., 4 C. L. 414. 98 OF INLAND WATERCOURSES. grant of land by the Crown, bounded by a non-navigable creek of Botany Bay, has been held to pass the soil of the creek ad medium filum aqua, as the description of the boundaries in the grant did not exclude from it that portion of the creek which, by the general presumption of the law, would go along with the ownership of the land on the banks of it ; and as the same rules of common sense and justice must apply in the construction of a deed, whether the subject-matter of construction be a grant from the Crown or from a subject, and it being always a question of intention to be collected from the language used with reference to the surrounding circumstances. 1 Following this principle, it would appear that as there is no presumption of law that the ownership of the bed of a tidal navigable river goes along with the ownership of the shore, a grant of lands by the Crown on the banks would primd facie be bounded by the line of high water mark ; but that, by evidence to that effect, it might be shown to include both the shore between high and low water mark and the bed below low water mark. 2 A navigable A navigable river is a public highway navigable by all his pubiichlgh- Majesty's subjects in a reasonable way and for a reasonable way. purpose. 3 The public right of free passage extends to the whole of the navigable channel, 4 which it appears may be used as a highway by the public whenever it suits their convenience, whether such navigation be valuable or not. 5 It includes all such rights as, with relation to the circumstances of each river, are necessary for the convenient passage of vessels, 6 such as the right of stopping for a reasonable time to unload, 7 and of grounding and anchoring free of toll, 8 and of fixing moorings. 9 1 Lord v. Commigg-ioners of Sydney, circle. Darling's Trustees \.\'17ie Cole- 12 Moo. P. C. 473 ; 3 L. T. 1 ; see ante, donian Rail. Co., (1903) 5 F. 1001, Ct. P. 24. of Sess. ; Cf. Cawbell v. Brown, (1873) a Where adjoining properties were 1 F. C. ; and McTaggart v. McDowall, situated ex adrerso of the convex side of (1867) Macph. 534. a bend in a tidal river the actual 8 Original Hartlepool Colliers v. medium Jilum (as determined by the Gibb, 1 Ch. D. 713. report of a skilled geographer) being A.-G. v. Terry, L. R.,9 Ch.423 ; Orr approximately an arc of a circle : Held Ewing v. Colguhoun, 2 A. C. 839 ; (1) that the method of determining the Williams v. Wilcox, 8 A. & E. 314 ; 47 foreshore boundary by drawing a per- R. R. 595. pendicular from the end of the land 6 A.-G. v. Lomdale, L. R., 7 Eq. 377. boundary at high water mark to an 6 Mayor of Colchester v. Brooke, 1 average medium Jilum represented by a Q. B. 339. straight line was inapplicable ; and (2) 1 Original Hartlepool Colliers T. that the proper method was to draw a Gibb, 1 Ch. D. 713. perpendicular to a tangent of the circu- 8 Gann v. Free Fixliers of Whit- lax arc forming the actual medium Jilum stable, 11 H. L. 192. by joining the end of the land boundary A.-G. v. Wright, (1897) 2 Q. B. 318. at high water mark to the centre of the TIDAL NAVIGABLE RIVERS. 99 The right of navigation is paramount to the right of property of the Crown and its grantees in the bed of the river, and such property cannot be used in any way so as to derogate or interfere with the public right of navigation; 1 and any grant by the Crown which interferes with the public right is void as to such parts as are open to such objections, if acted upon so as to effect nuisance by working injury to the public right. 2 The public right can only be abridged by Act of Parliament, by writ ad quod damnurn, followed by an inquisition, or by natural causes such as the recess of the sea, or the accumulation of soil or mud ; 3 in which case the river ceases to be navigable, at least until such causes are by some means counteracted. 4 Where a navigable river changes its bed, though the soil of the bed and the right of fishing may be vested in the owner of the adjoining land, it would appear that the right of navigation will follow to the new channel, the test being whether the river remains tidal. 5 An artificial Obstructions obstruction to a navigable river, though of more than twenty to navi s atlon - years' duration, will not operate as a bar to the public right. 6 Any erection on the bed of a navigable river obstructing the Rights of the navigation, even if erected by the authority of the Crown, is c illegal, and is a public nuisance, 7 and the subject of an indict- the bed. ment 8 and information, 9 and of an action on proof of special damage. 10 Any unauthorised erection on the bed of a navigable river by any person other than the owner of the soil is a purpres- ture, and is, per se, illegal, even though it cause no actual obstruction to the navigation ; though there may be cases of so trifling a nature that the Courts will not interfere by injunction to restrain or abate them. 11 The question whether the owner of 1 Ibid. ; Foreman v. Free Fishers of \\' hit stable, L. R., 4 H. L. 266. 2 A.-G. v. Parmeter, 10 Price, 412; 24 R. R. 723, 745. 8 R. v. Montague, 4 B. & C. 598 ; 28 R. R. 420. 4 Mayor of Colchester v. Brooke, 7 Q. B. 339. 5 Mayor of Carlisle v. Graham, L. R., 4 Ex. 366 ; Hale de Jure Mar. pt. 1, c. 6, p. 34 ; Rolle, Abr. 390 ; Roscoe, Crim. Ev. p. 535. 6 VoogU v. Winch, 2 B. & Aid. 662 ; 21 R. R. 446. As to navigation, see further, post, Chap. VII. T A.-G. v. Parmeter, 10 Price, 412 ; 24 R. R. 723, 745 ; A.-G. v. Burridge, 10 Price, 350 ; 24 R. R. 705 ; A.-G. v. Johnson, 2 Wils. Ch. C. 87; 18 R. R. 156 ; Liverpool and N. Wales Steam- packet Co. v. Mersey Trading Co., (1908) 2 Ch. 460 ; 77 L. J., Ch. 658 ; 72 J. P. 385 ; 24 T. L. R. 712 ; 78 L. J., Ch. 17 ; 25 T. L. R. 89, C. A. ; post, p. 497. 8 R. v. Grosvenor, 2 Stark. 511 ; 20 R. R. 732. 9 A.-G. v. Richards, 2 Anstr. 603; 3 R. R. 632. 10 Rose v. Miles, 4 M. & S. 101 ; 16 R. R. 405 ; Booth v. Haiti, 15 A. C. 188 ; 62 L. T. 198 ; 59 L. J., P. C. 41 ; Palmer v. Persse, Ir. R., 11 Eq. 616; Belfast Rope Works v. Boyd, 21 L. R., Ir. 560, C. A. 11 A.-G. v. Terry, L. R., 9 Ch. 423 ; R. v. Tindall, 6 A. & E. 143 ; 45 R. R. 426 ; Reg. v. Russell, 3 El. & Bl. 942 ; 23 L. J., M. C. 175. 72 100 OF INLAND WATERCOURSES. the soil of the bed of a navigable river may erect on the bed of the river works which cause no obstruction to the navigation, and no injury to the rights of the riparian owners, or whether such erections are illegal per se, is a question which has given rise to some apparently conflicting decisions ; but it would now seem settled that such erections are not illegal in themselves, if they cause no actual or probable injury either to the public rights or to the adjoining riparian proprietors. The cases of Bickctt v. Morris, and Orr Eu-ing v. Colquhoun, cited below, do not relate to tidal rivers ; but as they define the rights of the owners of the beds of rivers generally, and state broadly the laws with regard to such rights, it is submitted that the principles established by them will apply, mutatis mutandis, to the Crown and its grantees, as owners of the bed of tidal navigable rivers. Mrnzies v. In the case of Mcnzies v. Breadalbane, 1 an embankment on the flood-channel of a river, which might have the effect of diverting the stream in times of flood, and throwing it upon the land of an opposite proprietor, has been held illegal, though it was intended to protect the lands of the owner who made it from the flood. But where a riparian proprietor erected a mound, not for the purpose of altering the old course of the river, but to prevent the old course from being altered, and so encroaching on his lands, there being also evidence to show that at least part of the mound was erected on old foundations, and that it was the custom of the country for proprietors so to embank, the Court held that the erection was legal. 2 Where, however, an opposite proprietor complained of an erection in the alveus of the river, and was unable to prove that any damage had actually happened to him by the erection, it was held that, nevertheless, as the encroachment was not of a slight and trivial, but of a substantial, description, it must always involve some risk of injury. 3 " Mere apprehension of danger," says Lord Chelmsford, " will not, however, be sufficient, but " any operation extending into the stream itself is an inter- " ference with the common interest of the opposite riparian " proprietor ; and therefore, the act being primd facie an " encroachment, the onus seems properly to be cast upon the " party doing it to show that it is not an injurious obstruction." 1 3 Wils. & Shaw, 235. 32 R. R. 103. a Farquharson's case, June 25, 1741; 8 Bickett v. Morris, L. R., 1 H. L. Sc. cited in Atenzifsv. Breadalbane, supra ; 47. TIDAL NAVIGABLE RIVERS. 101 In Bickett v. Morris, 1 an application was made by a riparian sickett v. owner on the banks of a non-navigable stream to the Court of Morns - Session in Scotland for an interdict, and an action was brought to have it declared that the opposite riparian owner had no right to erect buildings in the alveus of the river to his injury. It was contended by the defender that unless the erection complained of did some material damage to the pursuers, the Court could not interfere by action or interdict : on appeal the House of Lords held, affirming the decision of the Court of Session, that though each proprietor on the banks of a non- tidal river had a property in the soil of the alveus from his own side to the medium filuin fluminis, neither is entitled to use the alveus in such a manner as to interfere with the natural flow of the water nor to abridge the width of the stream, or to interfere with its regular course, but that anything done in alveo, which produces no sensible effect on the stream, is allowable ; and further, that even though immediate damage cannot be described, nor actual loss predicated, yet, if an obstruction be made to the current of a stream, that obstruction is one which constitutes an injury which the Courts will take notice of as an encroachment which the adjacent proprietors have a right to have removed. 2 In A.-G. v. Lonsdale, 3 Malins, V.-C., held that a riparian owner A.-G. v. who was also owner of the soil of a public navigable river, had Lom no greater rights to use the alveus of a tidal river than of a non- tidal river, and that, therefore, he was not authorised to erect a jetty reaching across one-third of the width of the river ; for, although the damage proved by the plaintiff, an opposite riparian owner, was not sufficient to call for the interference of the Court, yet the erection of the jetty, which was a solid pier extending fifty-three yards across the river, was such an injury to the plaintiff's rights as would justify the Court to interfere without proof of such damage ; and that further the defendant, as owner of the bed of the river, had no right to erect the works in question, as they might interfere with the navigation of the river, if not at present, yet at some future time.* In the case of Orr Ewing v. Colquhoun, 5 the appellants, the Orr Swing v. owners of the bed of a non-tidal river over which the public had 1 L. R., 1 H. L. Sc. 47. 3 L. R., 7 Eq. 377. 2 See Eddledon v. Crogsley, 18 L. T. * See also Jessel, M. R., in A.-G. v. 15 ; Palmer v. Peruse, If. R., 11 Eq. 616 ; Tarry, L. R., 9 Ch. 425 ; 30 L. T. 215. Belfast Rope Works v. Boyd, 21 L. R., 6 2 A. C. 839. Ir. 560. 102 OF INLAND WATERCOURSES. by prescription a right of free navigation, erected a bridge on piers resting on the bed of the river. The House of Lords on appeal reversed an order of the Inner House, which had affirmed an interlocutor of the Lord Ordinary, and held that the piers of the bridge complained of were no actual obstruction to the navigation of the river as prescriptively enjoyed by the public ; and that, therefore, the interlocutor ordaining that the piers should be removed should be reversed. Lord Blackburn, in commenting on the case of Bickett v. Morris, 1 and the Scotch cases therein affirmed, 2 thus explains the law : "I think and " submit to your Lordships that the principle on which they " were really decided was, that where any unauthorized erection " is a sensible injury to the proprietary rights of an individual, " there is injuria for which he might, in a Court of law in " England, recover at least nominal damages. A Court of " Equity in England, or the Court of Session in Scotland, " in the exercise of its equitable jurisdiction, would not order " the removal of the erection, if convinced that the damage " was only nominal ; 3 but where there is an injury to the " proprietary rights in running streams, the present injury " now producing no damage may hereafter produce much. " And I understand the principle of Bickett v. Mori-is * to be, " that where an erection is a present sensible injuria to the " proprietary right of the owner of the other part of the alveus, " or of the opposite bank of a running stream, he may have it " removed on the ground that there is a present injury to the " right of the property, if it is impossible to predicate that it " may not produce serious damage in future, though the com- " plaining party is not yet in a position to qualify present " damage. 5 And I think the same principle will apply where " the complaining party is not a proprietor ex adverse of the " spot where the erection is made, 6 but is a proprietor of land " on the banks of the stream below the spot, but so near to it " that the erection in alveo alters the natural flow of the water " on the complaining parties' land ; but I do not think it was 1 L. R., 1 H. L. Sc. 47. See Eddleston v. Crosley, 18 L. T. 2 Menzies v. Breadalbanc, 3 Wils.& Sh. 15. 238 ; 32 R. R. 103 ; Aberdeen v. Menziex, * L. R., 1 H. L. Sc. 47. Morr. Diet. 12, 787 ; Blantyrev. ovn,lQ 6 See Ambler v. Bradford Corpora- Dunlop, 542 ; Hamilton v. Eddington, tion, (1902) 87 L. T. 217, C. A. Morr. Diet. 12, 826 ; Burnis v. Brown, 6 See Palmer v. Persse, Ir. R., 11 Eq. Hume's Diet. 504 ; Grllatly, 1 Macphers. 616. 5o*t. Chap. VI. 6 Murphy v. Hi/an, supra ; Musset v. 4 Maicolmton v. O'Dea, 10 H. L. 593 ; JSurc/t, 35 L. T., N. S. 486 ; Hargreatei 9 L. T. 93; Cricldon v. CoUey, 19 v. Diddamg, L. R.,]0 Q. B. 587 ; Pearce W. R. 167 ; Carter v. Mvreott, 4 Burr. v. Scotcher, 9 Q. B. D. 162 ; Smith v. 2163 ; Fit:icaltev' cage, 1 Mod. 106. Andrews, (1891) 2 Ch. 678 ; Hindson v. 3 See Woolrych on Waters, p. 76 ; Ashby, (1896) 2 Ch. 1. Mayor of Carlisle v. Graham, L. R., 4 7 Bagot v. Orr. 2 Bos. &: Pull. 472 ; 5 Ex. 361 ; Murphy v. Ryan, Ir. R., 2 R. R. 668. <}. L. 143. Quatre. whether the Crown 8 Warren v. Mathewt, t> Mod. 73 82 OF INLAND WATERCOURSES. might lawfully have been exercised by the Crown before Magna Charta. 1 The Crown cannot now exclude the public or create a several fishery, 2 and therefore all claims to a several fishery in a tidal river must now be supported by proof of a grant or by immemorial custom or prescription, such as will raise the presumption of such a grant, and from which such a grant will be inferred, in the absence of any evidence to show that its origin was modern. 3 A several fishery in a public navigable river is subject to the public right of navigation, and a grantee takes subject to this right, and cannot make any claim or demand, even if expressly granted to him, which in any way interferes with this right. 4 The right of the Crown to exclude the public from their common right of fishing and to create a several exclusive fishery in a subject was formerly a part of the royal prerogative ; and although this right is said in the cases above cited to arise from the ownership of the Crown of the bed of the river, yet such a- fishery may exist in a subject, apart from the ownership of the soil of the bed, as an incorporeal hereditament. 5 As the two- rights are thus divisible, it would appear that the grant of a portion of the soil of the bed of a tidal river will not necessarily pass a several fishery in the part granted, though it may do so, if the words of the grant admit of such a construction ; 6 and further that the grant of a several fishery in a tidal river will not necessarily pass a right to the soil, though it is primd facie evidence that the soil was intended to be passed. 7 X ' Private Rivers and Streams. Definition. All rivers and streams above the flow and reflow of the tide are primd facie private, though many have become by imme- morial user or by Act of Parliament subject to the public rights of navigation. Where a river has by immemorial user or by an Act of Parliament, which does not expressly affect the rights of 1 Malcolmson v. O'Dea, 10 H. L 593 ; 6 Scratton \. lirvwn, 4 B. & C. 485 ; 9 L. T. 93. 28 K. R. 344 ; Jf. v. Mlis, 1 M. ,V, S. a Warren v. Mat/tews, supra. 652 ; Gray v. Bond, 5 Moo. 527 ; 23 8 Edfjary. Commissioner* vf Fitherifii, It. R. 530. 23 L. T., N. S. 732. A.-G. v. Emerton, (1891) A. C. * Gaun v. Free. Fisliers of W/titstablc, 649 ; Hlndson v. Jish^y, (1896) 2 C'h. 1, 11 H. L. 192 ; 35 L. J., C. P. 29 ; 12 per Lindley, L. J., at p. 9 ; Duke of L. T. 150. Somerset *. Fogwell, tuyra ; 29 K. K. 5 Duke of Somerset v. Fug well, 5 449. As to Fishery, see post, Chap. VI. B. & C. 884 ; 29 R. K. 449. PRIVATE RIVERS AND STREAMS. 117 the soil, become subject to the public right of navigation, none of the incidents attaching to a navigable river up to the flow and reflow of the tide can properly attach. 1 The right of navigation gives no right of property, 2 nor of fishing. 3 When the lands of two conterminous proprietors are separated Ownership of from each other by a running non-tidal stream of water, each proprietor is primd facie owner of the soil of the alueus, or bed of the river, ad medium filum aqua. In the Scotch case Menzies v. Breadalbane* it has been held that when the alveus is divided by an island or islands into a main and subsidiary channels, the subsidiary channels being at times dry, but carrying water when the river is in its ordinary state, the medium filum of the river is the central line of the alveus from bank to bank, and not the centre line of the main stream. But in the English case of Great Torrington Commons Conservators v. Moore Stevens, 5 it was held that, assuming that the presumption that the moiety of the bed of a river passes under a grant of riparian lands applied to land vested in conservators under a private Act, the medium filnm ought to be drawn not through an island in the middle of the stream, but through the stream between the island and the plaintiff's land. The soil of the alveus is not the common property of the two proprietors, but the share of each belongs to him in severalty, so that if from any cause the course of the stream should be permanently diverted the proprietors on either side of the old channel would have a right to use the soil of the alreus, each of them up to what was the medium filum aqua, in the same way as they were entitled to the adjoining land. 6 Where the same person is the proprietor of the ground on both sides of the stream, he is primd facie the proprietor of the whole of the channel. 7 This presumption is liable to be rebutted, but if not rebutted it is the legal presumption. 8 The presumption that, by a conveyance describing the land 1 Murphy v. Ryan, Ir. R., 2 C. L. 397. 148 ; Musset v. Evrc/t, 35 L. T., N. S. <* Blcltett v. Morrix, L. R., 1 Sc. App. 486 ; Hargreave.it v. Diddams, L. R., 10 47 ; Wishart v. Wyllie, 1 McQ., H. L. Q. B. 582 ; 44 L. J., M. C. 178 ; 32 L. T. 389 ; Carter v. Murcott, 4 Burr. 2162 ; 600. Reg.v. Inhabitants of Landulph, 1 Moo. 2 Orr Sitting v. Colqukoun, 2 A. C. & R. 393 ; 42 R. R. 812 ; R. v. Wharton, 839. 12 Mod. 510 ; Eddleston v. Crotsley. 18 3 Hargreares v. Diddams, L. R., 10 L. T. 15. Q. B. 582 ; Hindson v. Ashby. (1896) ' See Orr Ewing v. Colquhoun, 2 2 Ch. 1. A. C. 856. 4 (1901) 4 F. 55, Ct. of Sess. 8 See Devonshire v. Pattinxon, 20 * (1904) 1 Ch. 347 ; 73 L. J., Ch. 124 ; Q. B. D. 263 ; 57 L. J., Q. B. 189 ; 58 89 L. T. 667 ; 68 J. P. Ill ; 2 L. G. R. L. T. 392, post, Chap. VI. 118 OF INLAND WATERCOURSES. thereby conveyed as bounded by a river, it is intended that the bed of the river, usque ad medium filum, should pass, may be rebutted by proof of surrounding circumstances in relation to the property in question which negative the possibility of such having been the intention. 1 The more than ordinary breadth of a river does not prevent a conveyance of premises therein described as bounded by the river from operating to convey the portion of the bed and soil of the river abutting thereon up to mid-stream ; and therefore a conveyance of one hundred and twenty acres of land on the banks of a river was held to convey also ten acres of the bed of the river, although the estimate of one hundred and twenty acres was satisfied by the contents of the land, exclusive of the bed of the river. 2 A grant by the Crown of land bounded by a non-navigable creek has been held to pass the soil of the creek ad medium filum aquce, as the description of the boun- daries in the grant did not exclude from it that portion of the creek which by the general presumption of the law would go along with the ownership of the land on the banks of it. 3 Though the presumption that a grant of land described as bounded by an inland river passes the adjoining half of the bed of the river may be rebutted by circumstances which show that the parties must have intended it not to pass, it will not be rebutted because subsequent circumstances, not contemplated at the time of the grant, show it to have been very disadvantageous to the grantor to have parted with the half bed, and if contem- plated would probably have induced him to reserve it ; nor is the presumption excluded by the fact that the grantor was owner of both banks of the river. 4 Whether a river running along waste of a manor is waste is a question of fact. An Act for enclosing moors, commons, and waste grounds of a manor does not apply to the bed of a river which is proved not to be waste of the manor but freehold of the land and not subject to any commonable rights. Therefore an 1 Devonshire (Ihilte, of)v. Pattinxon, 8 Lord v. Gomwitswiutrt of Sydney, 20 Q. B. D. 263 ; 57 L. J., Q. B. 189 ; 12 Moo., P. C. 473 ; 3 L. T. 1. See also 58 L. T. 392 ; 52 J. P. 276 (C. A.). See Crossley v. LigMowler, L. R., 3 Eq. 279. also Eckroyd v. Coultard, (1898) 2 Ch. 4 Micklethwait v. Newlay Bridge 358 ; 67 L. J., Ch. 458 ; 78 L. T. 702 Company, 33 Ch. D. 133. ' See also (C. A.); Hinigh v. Clark, (1907) 5 Bemdge.v. Ward. 10 C. B., N. S. 400 ; L. G. R. 1195 ; *23 T. L. R. 682. Leigh v. Jack, 5 Ex. D. 264. 2 Dwyer v. Eich, Ir. R., 4 C. L. 424. PRIVATE RIVERS AND STREAMS. 119 award under the act of waste bordering on the river does not carry with it the bed of the river ad medium filum. 1 In the case of Tilbury v. Silva 2 it was held by Kay, J., affirmed by the Court of Appeal, that the presumption that under a grant of land on the bank of a river the soil ad medium Jilum aquae passes to the grantor holds good in copyhold as well as freehold grants. When a stream changes its course by slow and imperceptible When a river , ,, ,,. , ; ,, , changes its steps, the riparian owners are obliged to accept the consequent course. alteration in their boundaries ; but when the shifting is sudden and well marked, the original medium Jilum continues to be the border line, and the stream so far passes entirely within the land of the one proprietor. 3 Land, therefore, gained gradually and imperceptibly from a stream belongs by accretion to the owner of the adjoining soil, who must also bear gradual and imperceptible loss from the same cause. 4 Where by long- continued natural accretion of gravel the bed of a river and consequently the flow of water have become permanently altered, it is not within the rights of a riparian owner, by removing the accretion, to restore the flow of the water to its former state as to velocity and direction. 5 Where, however, a river suddenly changes its course, the property remains as before, according to the former bounds. 6 Where a river had formerly flowed wholly within the lands of one proprietor, and by gradual and imperceptible degrees wore away its banks, and approached and eventually encroached upon the land of the defendant, a proprietor adjoining, it was held that as the former proprietor originally owned the whole of the bed, he had not lost his property in it by the gradual change of the course of the river, and could maintain an action of trespass against the defendant for fishing on a strip of the bed which before the encroachment had been his (defendant's) property. 7 Where a river is bisected into two courses by an island in its middle, the medium filum for boundary purposes is that which bisects the island ; but if the island be nearer to one side than 1 Ecltroyd v. Cmdtard, (1898) 2 Ch. farag Koer, 21 T. L. R. 37, P. 258 ; 67 L. J., Ch. 458 ; 78 L. T. 702 * See ante, pp. 85 et seq. (C. A.). s Whitters \. Purchase, 60 L. T. 819. 2 45 Ch. D. 98 ; 62 L. T. 254. See also Hlndson v. AMy, (1896) 2 8 Phear, Rights of Water, 12 ; Mayor Ch. 1, and cases aide, on pp. 85 et seq. of Carlisle\. Graham, L. R., 4 Ex. 361 ; 6 Ford v. Lacy, 7 H. & N. 151. Ford v. Lacy, 7 H. & N. 151 ; Thaku- 1 Foster v. Wright, 4 C. P. D. 438 ; 49 rain Bitraj Koer v. ThaTturain Sar- L. J., C. P. 97. 120 OF INLAND WATERCOURSKS. Right of navigation. the other, it appears that, in America at least, where such cases have been much considered, no account is taken of the smaller branch the other alone represents the river, and its medium filum constitutes the primd facie line of division. 1 If an island is formed by natural causes, the property in it remains apportioned in the same manner as was before its appearance the property, in the soil on which it stands. 2 If a shifting island springs up in the channel so as to impede or embarrass the fishing of one of the proprietors, he must submit, and hope for a change. The law can give him no redress. But if the shifting island becomes fixedly annexed to, and incorporated with, his bank, the permanent accretion will give rise to a new medium filum? Though the owner of land on the banks of a non-tidal river is primd facie the owner of half the bed, yet this is but a presump- tion, and may be rebutted ; 4 and it is clear upon the authorities that the soil of land covered with water may, together with the water and the right of fishing therein, be specially conveyed and appropriated to a third person, whether he have land or not on the borders thereof or adjacent thereto. 5 Though the soil of the alveus of non-tidal rivers is the property primd facie of the respective owners on the opposite sides of the river, neither of them is entitled to use it in such a manner as to interfere with the natural flow of the stream, to the injury of the other riparian owners, or of any right of navigation which has been acquired by the public. 6 Subject to this restriction they are entitled to protect their property from the invasion of the water, by building a bulwark, ripcs muniendte causa ; but even in this necessary defence of themselves they are not at liberty to conduct their operations so as to do any actual injury to the property on the opposite side of the river. 7 Though rivers above the flux and reflux of the tide are primd facie private rivers, yet the public may acquire a right or ease- ment to navigate such waters by express grant, or dedication by immemorial user, which presumes a grant, or by Act of 1 Phear, p. 11 ; Angell, Tide Waters, 42. 2 Ibid. ; Angell, Tide Waters, 43. 8 Zetland (Earl) v. Glorer Incorpora- tion, L. R., 2 H. L. Sc. 701. * Bloomfield v. Johnstm. L. R., 8 C. L. 104. 5 Marshall v. Ullegwater Co., 3 B. & S. 732 ; see Brixtowe v. Corniwan, 3 A. C. 608. 6 Orr Ewing \. Colquhoun, 2 A. C. 839 ; Blcliett v. Morris, L. R., 1 Sc. App. 47. 7 BicTtett v. Morris, supra, per Lord Chelmsford. See ante, pp. 99 et seq., and post, Chap. III. PRIVATE RIVERS AND STREAMS. 121 Parliament. 1 Where such right has been acquired, the obstruc- tion of it is a public nuisance and indictable in the same way as it is in tidal rivers. 2 The right of navigation is simply a right of way, similar to the right the public have to passage along a public road or footpath a right for those persons who may require the use of it to pass as fully and freely and as safely as they have been wont to do. 3 From this it would appear that this easement differs from the public right of navigation in the sea and tidal waters : for whereas, in the latter, the right is a right unlimited to pass in all parts of the channel, at all times, and in all species of vessel ; 4 in the former, the right would seem to be limited to the extent of the grant or user proved. 5 The public who have acquired the right to navigate on an inland water have no right of property in the bed. 6 This right of navigation does not carry with it the right of public fishery ; for it has been held that neither in the case where a non-tidal river has been navigated from time immemorial, 7 nor in the case where a river has been made navigable by Act of Parliament, 8 has the Crown any right to the soil, or the public to the fishery, which still remains private. It appears that the king has an interest of jurisdiction to Obstruction reform and punish nuisances in all rivers, whether fresh or salt, 1 What amounts to a dedication to dedicated to the public as a highway, the public must depend on evidence in and that the appellant was not bound each particular case. Thus, in the case to maintain or repair or allow the of Simpson v. A.-G. (1904), 74 L. J., public to pass through the locks or Ch. 1 ; A. C. 476; 91 L. T. 610; 69 stanch. J. P. 85; 3 L. G. R. 190; 20 T. L. R. 2 A royal charter purporting to confer 761, H. L. E. ; see also Barraclough v. on the patentee the exclusive naviga- Johnxon, 8 A. & E. 99; Hale, De Jure tion for all time of a part of a public Maris, Pt. I., c. 3, the owner of land navigable river or the exclusive right adjoining the River Ouse had made in of transporting goods thereon is void his own land in the seventeenth century, both by the Statute of Monopolies (1623), under letters patent, cuts from the river 21 Jac. I. c. 3, and by the common law : and locks in the cuts and took tolls from Simpson v. A.-G., supra. vessels passing through the locks. In 3 On- Ewing v. Colquhoun, 2 A. C. 839. 1720, by 6 Geo. I. c. 29, the then land- 4 R. v. Randall, Car. & M. 496, per owner was empowered to rebuild a stanch Wightman, J. in the river and to repair and maintain it, 5 See further as to Navigation, port, and take tolls on vessels passing through Chap. VII. it. Tolls were collected at the locks for 6 Orr Ewing v. Colquhoun, supra. more than two hundred years, and at the ' Murphy v. Ryan, Ir. R., 2 C. L. 68 : stanch for a long period by the predeces- Pearce v. Scotcher, 9 Q. B. D. 162; sors in title of the appellant. It was held Smith v. Andrews, (1899) 2 Ch. 678; by the majority of the House of Lords, see ante, p. 67. reversing the decision of the Court of 8 Har greaves v. Diddamx, L. R. 10 Appeal, upon the question of a highway Q. B. 582 ; 44 L. J., M. C. 178 ; 32 through the locks, that there was no L. T. 600 ; Mussel v. Burch, 35 L. T., evidence that the locks had ever been N. S. 486. 122 OF INLAND WATERCOURSES. that are a common passage not only for ships and great vessels, but also for smaller, as barges and boats, to reform the obstruc- tion or annoyance that are therein to such common passage. 1 Fishery. The right of fishery being a right of property, the presumption is that each owner of land abutting on a non-tidal stream has the right of fishing in front of his land, 2 usque ad medium filum aqua ; and where a man possesses land on both sides of the water, he has the sole right of fishing. " According to the well-established principles of the common " law," saj'S O'Hagan, J., " the proprietors on either side of a " river are presumed to be possessed of the bed and soil of it " moietively to a supposed line in the middle, constituting their " legal boundary, and being so possessed have an exclusive right " to the fishery in the water which flows above their respective " territories." 8 This presumption, as has been said, holds good in private rivers, though subject to the public right of navigation, and a claim by the public to fish in such water has been held such a claim as cannot exist at law. 4 If the lord of a manor would intrude his claim, he must take it out by evidence of his own as by deed. But the presumption that a several fishery passed to the lord as appurtenant to a manor under a deed is rebutted by proof that before the date of the deed the owners of land within the manor had the right of free fishery. 5 The owner of land on a river may grant the right of fishing to another either exclusively, in which case the fishing is called a several fishery, or not excluding himself, in which case it would be called a free fishery. In both cases the fishery is an incor- poreal hereditament, and can only pass by deed. 6 A valid licence to fish exclusively for a time certain, even for an hour, must be by deed. 7 Where a man has a several fishery, the presumption is that he has also the soil. 8 1 Hale de Jure Maris, c. 2 ; Williams 5 Lamb v. Newbiggen, 1 Car. & K. v. Wilcox, 8 A. & E. 333 ; 47 R. R. 595, 549. See also Grand Junction Canal v. per Lord Denraan, C.J. Ashby, 7 H. & N. 403. As to right of 2 Lamb v. Newbiggen, 1 Car. & K. copyholders, see Tilbury v. Silca, post, 549 ; Hale de Jure Maris, 1. Chap. VI. 8 Murphy v. Ryan, Ir. R., 2 C. L. 148. 8 Duke of Somerset v. Fogwell, 5 B. & See also Mayor of Carlisle v. Graham, C. 875 ; 29 R. R. 449. L. R.,4 Ex.a61,and.&ratou% v. Cm-mi- 7 Holford v. Bailey, 18 Q. B. 426; can, L. R., 3 A. C. 641. 18 L. J., Q. B. 109. 4 Hargreaves v. Diddamg, L. R., 10 8 See pott, Marshall v. Ulleswater Co., Q. B. 587 ; Musset v. Burch, 35 L. T.. 3 B. & S. 732 ; Bloomjield v. Johnson, N. S. 486 ; Hudson v. McCrae, 4 B. & s! Ir. R., 8 C. L. 105. As to Fishery, see 585 ; Pearce v. Scotcher, 9 Q. B. D. 162 ; post, Chap. VI. Smith \. Andrews, (1899) 2 Ch. 678. LAKES AND POOLS. 123 Lakes and Pools. A pool is defined by Callis as, "a mere standing water, with Definition. " no current at all ; " and is distinguished from a pond as being a work of nature, and not of art. 1 "A pond," says Angell, "is a lake of small size. The outlet " of a lake may be a river, but the lake does not lose its distinc- " tive character, because there is a current in it for a certain " distance tending towards its outlet." 2 It does not appear that by the English law there is any differ- Ownership ence as to the ownership of the soil between land covered with still and running water, except perhaps in the case of large inland lakes or seas, where the rule that the adjoining riparian owner is owner ad medium filum aqute might cause inconvenience. Where, therefore, a lake or pool lies wholly within, and is surrounded by, a manor or estate, the presumption is, that the owner of the manor or estate is also the owner of the soil of the lake ; and where the boundary of two properties passes along the pool, it is taken to coincide with the medium filum of the pool ; although, of course, it may be proved expressly to have some other direction. 3 With regard to the large inland lakes in this country, the law in large seems less settled, though several modern cases have removed i&es? much of the doubt hitherto felt with regard to them. In the case of Bristowe v. Cormicanf the House of Lords has held that the Crown has no de jure right to the soil and fisheries of large non-tidal navigable lakes, such as Lough Neagh in Ireland; Cairns, L. C., remarking that he was not aware of any rule which would primd facie connect the soil or fishing with the Crown, or disconnect them from the private ownership either of riparian proprietors or others. So far the case is clear, but it is left in doubt whether the presumption of ownership ad medium filum aqua, which exists with regard to owners of land on the banks of non-tidal streams of running water, exists also on large navigable lakes. In the judgment of Lord Blackburn this question is touched upon, and though the particular point was not necessary for the decision of the case, it may be well to cite 1 Callis on Sewers, p. 82 ; Woolrych 3 Phear, Rights of Water, p. 1. See on Sewers, p. 80. Woolrych, p. 121. 2 Angell on Watercourses, p. 8. As to 4 3 A. C. 641 ; see also O'Neil v. diversion of water from a pond by a Johnston, (1908) 1 Ir. 358. As to sewer, see Dukes v. Gostling, 4 L. J., C. P. American law, see Angell 's Water- 211 ; 1 Bing., N. C. 589. courses, 41. 124 OF INLAND WATERCOURSES. at some length the words of the very learned Lord. " The " property in the soil of the sea and estuaries, and of rivers in " which the tide ebbs and flows, is primd facie of common right "vested in the Crown, but the property of dry land is not of " common right in the Crown. It is clearly and uniformly laid " down in our books, that where the soil is covered with water, " forming a river in which the tide does not flow, the soil does " of common right belong to the owners of the adjoining land ; " and there is no case or book of authority to show that the " Crown is of common right entitled to land covered by water, " where the water is not running water forming a river, but still " water forming a lake. In Marshall v. The Ulleswater Steam " Navigation Co., 1 it is true that Mr. Justice Wightman, in " delivering the judgment of the majority of the Queen's Bench, " says, ' Whether the soil of lakes, like that of fresh water " ' rivers, primd facie belongs to the owners of the land or " ' of the manors on either side ad medium /Hum aquce, or " ' whether it belongs primd Jade to the king in right of his " ' prerogative, 2 it is not in this case necessary to determine ; for " ' it is clear upon the authorities that the soil of land covered " ' with water may, together with the water and the right of " ' fishing therein, be specially appropriated to a third person, " ' whether he has land or not on the borders thereof, or adjacent " ' thereto.' This is the only case cited, and, as far as I can find, " the only case which exists where there is even a suggestion " that the Crown of common right is entitled to the soil of lakes. " Neither the passage in Comyns, nor that in Hale de Jure Marts, " cited by Mr. Justice Wightman, gives any countenance to such "a doctrine. But it does appear that the learned judge did " not think that the law as to land covered by still water was so " clearly settled to be the same as the law as to land covered by " running water, as to justify him in unnecessarily deciding that " it was the same ; I own myself to be unable to see any reason " why the law should not be the same, at least where the lake is " so small, or the adjoining manor so large, that the whole lake " is included in one property, Whether the rule that each adjoin- " ing proprietor, where there are several, is entitled usque ad " medium filum aquce should apply to a lake, is a different " question. It does not seem convenient that each proprietor of 1 3 B. & S. 732; 41 L. J., Q. B. 41 ; * Com. Dig. Prerogative (D. 50) ; Hale 25 L. T. 793. de Jure Maris, c. 19. LAKES AND POOLS. 125 "'a few acres fronting on Lough Neagh, should have a piece of " the soil of the lough, many miles in length, tacked on to his- " frontage." In America this question has been of more import- ance than in this country, but the decisions of the different States vary considerably ; and with regard to the great lakes, the question has been considered more in a territorial and natural than in a legal point of view. 1 In this country there are but few cases on the subject. In the case of Lord v. Commissioners of Sydney, cited before, it was held that a grant by the Crown of lands bounded by a non-navigable creek passed the soil usque ad medium filum aquce.- In Bloomfield v. Johnson? the Irish Court of Exchequer Chamber, reversing the judgment of the Court of Common Pleas, has held that a grant from King James I., who was the owner of the whole soil and bed of Lough Erne, of lands adjacent to the lake, with certain islands in it, and also a free fishery in the lakes, and all waters, watercourses, fisheries, &c., within the same, did not pass the soil of the lake, distinguishing the case from that of Lord v. Commis- sioners of Sydney, on account of the size and navigability of the lake; and Fitzgerald, B., was of opinion that, assuming that the presumption that by a grant of lands adjacent to a fresh water river (the grantees being the owners of the soil of the river) the soil of the river passes ad medium filum aqua, applied to such lakes as Lough Erne, the grant of a free fishery when a several and exclusive fishery might have been granted was sufficient to rebut the presumption that the soil was intended to pass ad medium filum aquce. In Marshall v. Ulleswater Co., the plaintiff, who proved a grant to him of a several and exclusive fishery in the Lake of Ulleswater, was held on that account to be the owner of the soil of the lake ; the majority of the Court, however, expressing a doubt whether the soil of lakes, like fresh water rivers, belonged primd facie to the adjoining owners or to the Crown. 4 There seems no doubt but that the public may acquire a right Navigation. 1 See per Dowse, B., in the same case 4 3 B. & S. 732. See also lleg. v. in the Irish Court of Exchequer, Ir. R., Sarrwo, 34 Justice of Peace, p. 53. Sec 10 C. L. 412, and per Whiteside, C. J., in as to this the remarks of Lindley, L. J.. Bloomfield v. Johnson, Ir. R.,8C. L. 89; in Hindson v. A*hby, (189fi) 2 Ch. 1. Angeli on Tide Waters, p. 76. ante, p. 90. See also, as to the Norfolk 2 12 Moo., P. C. 473 ; 3 L. T. 1. See Broads, Blower v. Ellis, 50 J. P. 320 : ante, pp. 24 97 et seq. and Micldetlnuaite v. Vincent, 67 L. T. 3 Ir. H., 8 C. L. 89. 228, post, Chap VI. 126 OF INLAND WATERCOURSES. of navigation in a non-tidal lake in the same way as on a non- tidal river. 1 Fishing. In pools and small non-navigable lakes, the right of fishing of course belongs primd facie to the riparian owners ad medium filum aqu) 3 Eq . 279. 3 L. B., 3 Ch. 478. OF NATURAL RIGHTS OF WATER. " water which flows between the banks at Dean Clough (i.e., past " plaintiffs' mill), but of the supply, which they draw to the mills " from a higher source. This is clearly not an injury to the " rights of the plaintiffs as riparian owners." l In the recent case of Onnerod and another \. The Todmorden Joint Stock Mill Company, Limited? in which it was held by the Court of Appeal that a riparian owner cannot, except as against himself, confer on one who is not a riparian owner any right to use the water of the stream, and any user by a non-riparian pro- prietor, even under a grant from a riparian owner, is wrongful if it sensibly affects the flow of the water by the lands of other riparian proprietors, the foregoing cases were fully discussed, and the judgment of Brett, M. R., in the Court of Appeal is instructive as to riparian rights in artificial channels. In this case the plaintiffs, who were riparian owners on the Burnley river, from which they for many years had conducted water to their mill, complained that their rights were injuriously affected by the defendants, who were not riparian owners, but conducted water by means of a pipe laid through the land of a riparian owner about fifty yards above the plaintiffs' intake to their works, where some of it was used or lost, and the remainder returned to the river in a heated condition, thus sensibly diminishing its quantity and deteriorating its quality when it arrived at the plaintiffs' land. Cave, J., gave judgment for the plaintiffs with costs and an injunction restraining defendants, and judgment was affirmed by the Court of Appeal (Brett, M. R., and Lindley and Bowen, L. JJ.). " The question whether the defendants are or are not riparian " owners depends," says Brett, M. R., " on Nuttall v. Bracewell 3 " and Holker v. Porrit* rather than upon Stockport Waterworks " Co. v. Potter. 5 In those two cases the questions between the " parties depended upon riparian ownership ; at least this was the " view of some of the judges who took part in the decisions. It " was contended in Nuttall v. Bracewell 5 that a riparian owner " could not confer his own rights upon another person ; but 1 See also Holker v. Porrit, L. R., 3 Wood v. Waud, 3 Ex. 748. Ex. 107 ; 44 L. J., Ex. 52 ; 33 L. T. 125 ; Ml Q. B. D. 155. Beexttm v. Weate, per Lord Campbell, 8 L. R., 2 Ex. 1. C. J., 5 E. & B. 986 ; Magorv. Ckadioick, * L. R., 8 Ex. 107 ; L. R., 10 Ex. 59. 11 A. & E. 571 ; 9 L. J., Q. B. 159 ; s 3 H. & C. 300. Sutcliffe v. Booth, 9 Jur., N. S. 1037 ; THE EIGHT TO WATER IN ITS NATURAL QUANTITY. 151 " Pollock, C. B., and Channell, B., held that by the construc- " tion of the goit the course of the river was altered, a new " channel was created, and thenceforward the stream ran in two " channels or branches ; and these judges held that because the " stream flowed in two branches, the owner of the land along " which the new branch passed was a riparian owner. The case " was decided on the ground that the new stream was a branch of " the river. That was not a case where a mere easement had " been created, where a mere pipe had been laid in the ground. "In Holker v. Porrit 1 the judges of the Court of Exchequer " appear to have acted upon somewhat similar reasonings, " although in the Exchequer Chamber the judgment was affirmed " on a different ground. Neither of these two cases fully defines " what is a riparian owner : in the present case the question " depends to some extent upon the facts of the case. . . . The " defendants have taken nothing in the soil which abuts upon " the river ; they do not own a single inch of the bank, they " are not riparian owners : then are they entitled to the rights " of riparian owners ? The answer depends upon whether the " decision of the majority of the Court of Exchequer in Stockport " Waterworks Co v. Potter 2 can be supported ; we must take the " ground of the decision to be that which is stated. The ques- " tion there was whether the rights of a riparian proprietor can " be assigned ; and the following doctrine was laid down in the " judgment : 3 ' There seems to be no authority for contending " ' that a riparian proprietor can keep the land abutting on " ' the river, the possession of which gives him his water " ' rights, and at the same time transfer those rights, or any " ' of them, and thus create a right in gross by assigning a " ' portion of his rights appurtenant. It seems to us clear " ' that the rights which a riparian proprietor has with respect " ' to the water are entirely derived from his possession of land " ' abutting on the river. If he grants away any portion of his " ' land so abutting, then the grantee becomes a riparian pro- '''prietor, and has similar rights. But if he grants away a " ' portion of his estate not abutting on the river, then clearly " ' the grantee of the land would have no water rights by virtue " ' merely of his occupation. Can he have them by express " ' grant ? It seems to us that the true answer to this is that 1 L. K., 8 Ex. 107 ; L. K., 10 Ex. 2 3 H. & C. 300. 59. s 3 H. & C., pp. 326, 327. OF NATURAL RIGHTS OF WATER. " ' he can have them against the grantor, but not so far as to " ' sue other persons in his own name for an infringement of " ' them.' This passage contains the reason of the decision of "the majority. The grantee has his rights as against the " grantor, but not as against any one besides. Bramwell, B., " dissented ; and no doubt we ought carefully to consider any " objection coming from him. In Nuttall v. Brace tc ell it was " held that the plaintiff was a riparian proprietor in respect of a " goit ; but Pollock, C. B., and Channell, B., did not alter the " opinion which they had formed in Stockport Waterworks Co. " v. Potter ; they adhered to the ground of their judgment in " that case. They pointed out that the rights of a riparian " proprietor can be easily ascertained, but that one riparian " proprietor may have no means of ascertaining who are the " grantees of another riparian proprietor : they repeated that Keiuit v. G. E. Rail, Co., 27 Ch. D. 122 ; 54 L. J., Ch. 19 ; 51 L. T. 862. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 153 so enjoyed as to confer rights to the use of the water, especially in cases where from the antiquity of such channels there is a doubt as to whether they were not part of a natural stream. 1 Such rights are, however, not properly called natural rights, but are acquired by prescription, and as such are fully considered in another chapter. 2 The above cases have all been decided as between persons Rights as , . -i i i / i j against mere claiming rights on artificial watercourses and riparian owners trespassers or on the natural streams from which the water in the artificial wrongdoers, watercourses originally came, and would not, it is submitted, though the language of some of the judgments is very compre- hensive, affect the right which a person enjoying the benefit of water in an artificial channel which he has legally appropriated would have to sue a mere trespasser or wrongdoer for a direct interference with his enjoyment. " No one," says Brett, M. R., 3 " is justified in injuring the right of appropriation which every- " body else has." " Mere possession of rights corporeal and " incorporeal is sufficient to maintain an action against a wrong- " doer." 4 The only case which seems to be directly against this contention is that of Whaley v. Laing, where the Court of Exchequer Chamber held, reversing the Court of Exchequer, that the licensee of a canal company who took water from the canal for his engines could not sue the defendant, who polluted the water of the canal, which passed to and injured the boilers of the plaintiff. The question was, whether the plaintiff, as he had no legal right to the water, but merely a licence to use it, could sue the defendant for the damage. The declaration stated that the plaintiff used and had enjoyed the benefit of the water, which water had been used, and then ought to have run and flowed without pollution. The Court of Exchequer 5 held, without deciding whether the plaintiff had any possessory title in the water of the canal so that if the defendant had stopped the flow of it to the plaintiff, or if the plaintiff, in order to get the water, had to go to the canal and draw it with a bucket, any action could have been maintained that he was entitled to 1 Rameshur Pershad Singh v. Koonj 3 Bollard v. Tondinson, 29 Ch. D. 115, Behari Pattuck, 4 A. C. 121 ; Wood at p. 122. See post, p. 234. v. Waud, 3 Ex. 748 ; 18 L. J., Ex. 305 ; 4 Pullan v. Rovg/ifort Bleaching Co., Roberts v. Richards, 51 L. J., Ch. 944 21 L. R., Ir. 73 ; see Masons. Hill, 5 B. (C A.) ; 50 L. J., Ch. 297 ; 44 L. T. 271 ; & A. 1 ; 39 R. R. 354 ; Nuttall \. Brace- Blackburn v. Somers, 5 L R., Ir. 1 ; well, L. R., 2 Ex. 1 ; Foster v. War- Bailyv. Clark, (1901) 17 T. L. R. 239; blington Urban Council, (1906) 21 T. (1902) 18 T. L. R. 364. L. R. 214. 2 Post, Chap. IV., pp. 237 et seq. 2 H. & N. 476. 154 OF NATURAL RIGHTS OF WATER. judgment on the ground that the defendant caused foul water to flow on to the plaintiffs premises without justification. They held, further, that the declaration did not mean an assertion of title in the plaintiff, but that the defendant had no right to foul the water. On appeal the Court of Exchequer Chamber 1 were divided in opinion : Willes and Crowder, JJ., held that the judg- ment of the Court below ought to be affirmed, on the ground that the plaintiff was in possession of the water, and the defen- dant was a wrongdoer. Crompton and Erie, JJ., held that the declaration was bad, as it claimed indirectly a right to the flow of the water which was not supported by evidence of any legal right ; but they added that they did not say that an action might not lie if a man had permission from the owner of a pond to get water for his cattle, and if a stranger, knowing the probable and natural effect of his act, poisoned the water so that the cattle were injured, that probably in such a case an action would lie ; but that the right of action would be founded, not on the title or right to the water, but on the injury to the pro- perty of the plaintiff. Williams, J., held the declaration bad in substance, and that the judgment should be arrested ; but that the plaintiff was entitled to the verdict. Wightman, J., thought the defendants were entitled to judgment, as the plaintiff had no legal right to the water, and that, as against him, the defendants could not be considered wrongdoers. The result was that the verdict for the plaintiff was directed to stand, but judgment was arrested. In the case of Stockport Waterworks Co. v. Potter, 2 Bramwell, B., who dissented from the judgment of the Court, holding that grantees could recover, on the general principle that where a man has property, he may grant to others rights in it, for which the grantees can sue, says : " In this case, however, the plaintiffs " cannot rely on their mere possession of the water they take, " or perhaps, I ought to say, on their mere taking of it. For " whatever Whaley v. Laing may have decided, it certainly " decided this, that such possession was not enough to enable the " possessor to maintain an action. For that case decides that the " plaintiff had not alleged, or having alleged had not proved, a " right to the water, and so could not recover." The case of Whaley v. Laing 3 was therefore decided by a bare !3H. &N. 675. well, L. R., 2 Ex. 1. a 3 H. & C. 300 ; see Nuttull v. Brace- 3 H. & N. 675. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 155 majority of the judges, and was clearly against the opinion of the late Lord Bramwell. 1 It was, moreover, a claim by a mere licensee, whose interest in the water was possibly less than that of a grantee, who could sue his grantor for interfering with the subject of his grant. It seems also against the principles stated in Ballard v. Tomlinson 2 and Womersley v. Church? viz., that the right to sue a wrongdoer for a direct injury done to water which has been appropriated does not depend on property in that water. 4 In the recent case of Foster v. Warblington Urban Council, 5 it was held by the Court of Appeal that irrespective of the question of title to the soil or to a several fishery, the plaintiff as occupier of oyster ponds on the foreshore of an arm of the sea was entitled to maintain an action for tresspass to the same by wrongdoers, and that the defendants, an urban council, not having any right to discharge sewage into the sea so as to cause a nuisance, were wrongdoers, and that the action was maintainable, and an injunction ought to be granted. 6 A riparian owner is not only entitled to have the waters of a Liability to stream passi'ng through his lands flow to him in its natural state water. 6 * so far as it is a benefit to him, but he is also bound to submit to receive it so far as it is a nuisance to him by its tendency to flood his lands. 7 Unless, therefore, the flow of the stream is increased or diverted to his prejudice by some unauthorized act, either of proprietors above or below him, he has no remedy, but must submit to what is the result of natural causes. Thus where a stream becomes by natural causes silted up or choked with reeds, and in consequence overflows adjoining land, there is no common law liability on the owner to clear the channel or to compensate the adjoining landowners who may be damaged thereby. 8 1 The opinion of Bramwell, B., in partition, (1909) 73 J. P. 33, C. A. Stockport Waterworks Co. v. Potter, that 7 Per Blackburn, J., in Mason v. a grantee can sue another riparian Shrewsbury Rail. Co., L. R., 6 Q. B. owner, is overruled in Ormeroa v. Tod- 582. See also Wilson v. Waddell, 2 morden Co., 11 Q. B. D. 155, ante, p. 150. App. Cas. 95 ; 35 L. T. 639. 2 29 Ch. D. 115 ; 54 L. J., Ch. 404 ; 8 Hodgson v. Mayor of York, 28 52 L. T. 492 ; post, p. 234 . L. T., K S. 836. See also Cracltnell v. 8 17 L. T., N. S. 190. Thetford, L. R., 4 C. P. 629 ; Parrett 4 See Rochdale Canal v. King, 14 Navigation Co. v. Robing, 10 M. & W. Q. B. 122, 136, post, p. 339 ; Cocbburnv. 593 ; Bridges' case, 10 Rep. 33. As to Erewash Canal, 11 W. R. 34 ; Shand v. the liability of an occupier for neglect Henderson, 2 Dow, H. L. C. 519 ; 14 in scouring and cleansing a channel R. R. 202. under the Land Drainage Act, 1847 (10 5 (1905) 21 T. L. R. 214 ; 69 J. P. & 11 Viet, c.38), ss. 14, 15, see Finch v. 42 ; 3 L. G. R. 605. Bannister, (1908) 2 K. B. 441 ; 77 L. J. 6 See also Owen v. Faversham Cor- K. B. 718 ; 99 L. T. 228 ; 72 J. P. 203 ; 156 OF NATURAL RIGHTvS OF WATER. Liability for escape and overflow of water. Negligence defined. The principles of law regulating the duties and liabilities of the owners of land with regard to the escape and overflow of water, and the rights they have of protecting their land from such overflow, have been discussed of late in a series of important cases, and seem now to be settled on a satisfatory basis. The general principle regulating the liabilities of landowners, with regard to the escape and overflow of water, seems to be as follows : Where the owner of land, without wilfulness or negli- gence, uses his land in the ordinary manner of its use, 1 though mischief thereby accrues to his neighbour, he will not be liable for damages ; but where for his own convenience he diverts or interferes with the course of a stream, or where he brings upon his land water which would not naturally have come upon it, even though in so doing he act without wilfulness or negligence, he will be liable for all direct and proximate damages, 2 unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm, which amounts to vis major or the act of God, in the sense that it is practically, if not physically, impossible to resist it. 3 His liability, moreover, in no way depends on his knowledge of the existence of the nuisance. 4 Negligence is defined by Alderson, B., 5 as follows : " Negligence " is the omission to do something which a reasonable man, guided " upon those considerations which ordinarily regulate the conduct "of human affairs, would do; or doing something which a "prudent or reasonable man would not do." " It is now thoroughly established," says Lord Blackburn, 6 " that no action will lie for doing that which the legislature has " authorized, if it be done without negligence, although it does 6 L. G. R. 554 ; 24 T. L. R. 431, C. A., where it was held that the provisions of the Act were confined to injury to the land itself and did not apply to injury to a mill. 1 With regard to natural streams, it is the undoubted right of the owner of the banks and bed to build on the bed or banks in the same way as he may on any part of his land not covered with water ; provided that he does not inter- fere with either the rights of navigation or of the other riparian owners above or below him ; he cannot, however, obstruct the course of a stream by building on the ordinary or Hood channel, so as to throw the waters in the times of ordi- nary flood on the grounds of another proprietor to his injury : Orr Ewing v. Colqnhoun, 2 App. C. 839 ; Menzift v. Sreadalbane, 3 Bli., N. S. 414 ; 32 R. R. 103. See ante, Chap. II., pp. 99 et seq. 2 Cattle v. Stockton Water Co., L. R., 10 Q. B. 453 ; 44 L. J., Q. B. 139 ; 33 L. T. 475. 3 Rylands v. Fletcher, L. R., 3 H. L. 330 ; L. R., 1 Ex. 265 ; Fletcher v. Smith, 2 App. C. 781 ; Box v. Jvbb, 4 Ex. D. 76 ; NicholU v. Marsland, L. R., 10 Ex. 255 ; L. R., 2 Ex. D. 1 ; 35 L. T. 725 ; Bougliton v. Mid. and G. II'. Rail. Co., Ir. R., 7 C. L. 169. 4 See Mersey Docks v. Gibb, L. R., 1 H. L. 93 ; Hipkins v. Jiirmhif/fi/un Gas Co., 6 H. & N. 250. 5 Slyth v. liiriinng/mm Water Co., 11 Ex. 734. 6 Geddis v. Sann Heserrvir Co., 3 A. C. 430. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 157 "occasion damage to any one; but an action does lie for doing " that which the legislature has authorized, if it be done negli- " gently. I think that if by a reasonable exercise of the powers, " either given by statute to the promoters, or which they have " at Common Law, the damage could be prevented, it is, within " this rule, ' negligence' not to make such reasonable exercise of " their powers." " The ideas of negligence and duty," says Lord Justice Bowen, in Thomas v. Quatermaine, 1 "are strictly correlative, and there " is no such thing as negligence in the abstract ; negligence is " simply neglect of some care which we are bound by law to " exercise towards somebody." Ignorance of the existence of a cause of mischief has, moreover, been held to be no excuse, where the ignorance is the result of culpable negligence. 2 The principles of law above stated have been held to apply Liability the equally to water upon the surface and underground, and in fact most of the important decisions have arisen with regard to the underground effects of mining operations. A series of cases has of late fully settled the law on this most important subject, of which Eylands Rylands v. v. Fletcher 3 is the first. The facts of the case and the principles Fletch * r - of law are thus stated by Cairns, L. C. : "The plaintiff is " the occupier of a mine and works under a close of land. The " defendants are the owners of a mill in his neighbourhood, and " they proposed to make a reservoir for the purposes of keeping "and storing water to be used about their mill upon another " close of land, which for the purposes of this case may be taken " as being adjoining to the close of the plaintiff, although in " point of fact some intervening land lay between the two. " Underneath the close of land of the defendants, on which they "proposed to construct their reservoir, there were certain old " and disused mining passages and works. There were five "vertical shafts, and some horizontal shafts communicating with "them. The vertical shafts had been filled up with soil and "rubbish, and it does not appear that any person was aware of " the existence of either of the vertical shafts or of the horizontal " works communicating with them. In the course of the working " by the plaintiff of his mine, he had gradually worked through " the seams of coal underneath the close, and had come into 1 18 Q. B. D. 685, 694. 208 ; 22 T. L. R. 165, C. A. ; the Moor- 2 Mersey Docks v. Gibb, L. R., 1 cock, (1889) 14 P. D. 64. H. L. 93. The Seam, (1906) P. 48 ; 75 L. R., 3 H. L. 330 ; 37 L. J.. Ex. 161 ; L. J. P. 9 ; 94 L. T. 265 ; 10 Asp. M. C 19 L. T. 220. 158 OF NATURAL RIUHTS OF WATER. " contact with the old and disused works underneath the close " of the defendants. In that state of things, the reservoir of the "defendants was constructed. It was constructed by them "through the agency and inspection of an engineer and con- ' ' tractor. Personally, the defendants appear to have taken no " part in the works, or to have been aware of any want of security " connected with them. As regards the engineer and the con- " tractor, we must take it from the case that they did not " exercise, as far as they were concerned, that reasonable care ""and precaution which they might have exercised, taking notice, " as they appear to have taken notice, of the vertical shafts filled " up in the manner which I have mentioned. However, my " Lords, when the reservoir was constructed and filled, or partly " filled with water, the weight of the water bearing upon the " disused and imperfectly filled up vertical shafts, broke through " those shafts. The water passed down them and into the " horizontal workings, and from the horizontal workings under " the close of the defendants it passed on into the workings under " the close of the plaintiff and flooded his mine, causing con- " siderable damage, for which this action was brought. The " Court of Exchequer, when the special case stating the facts to " which I have referred was argued, was of opinion that the "plaintiff had established no cause of action. The Court of " Exchequer Chamber, before which an appeal from this judg- " ment was argued, was of a contrary opinion ; and the judges " there unanimously arrived at the conclusion that there was a " cause of action, and that the plaintiff was entitled to damages. " My Lords, the principles on which the case must be determined " appear to me to be extremely simple. The defendants, treating "them as the owners or occupiers of the close on which the " reservoir was constructed, might lawfully have used that close " for any purpose for which it might, in the ordinary course of " the enjoyment of land, be used ; and if, in what I may term " the natural user of that land, there had been any accumulation " of water, either on the surface or underground, and if, by the " operation of the laws of nature, that accumulation of water had " passed off into the close occupied by the plaintiff, the plaintiff " could not have complained that that result had taken place. " If he had desired to guard himself against it, it would have " lain upon him to have done so, by leaving, or by interposing, " some barrier between his close and the close of the defendants, THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 159 "in order to have prevented that operation of the laws of " nature. "As an illustration of that principle, I may refer to a case " which was cited in the argument before your Lordships, the " case of Smith v. Kenrick, 1 in the Court of Common Pleas. On " the other hand, if the defendants, not stopping at the natural " use of the close, had desired to use it for any purpose, which I " may term a non-natural use, for the purpose of introducing into " the close that which in its natural condition was not in or upon " it, for the purposes of introducing water, either above or below " ground, in quantities and in a manner not the result of any " work or operation on or under the land ; and if, in consequence " of their doing so, or in consequence of any imperfection in the " mode of their doing so, the water came to escape and to pass " off into the close of the plaintiff, then it appears to me that " that which the defendants were doing they were doing at their " own peril ; and if, in the course of their doing it, the evil arose " to which I have referred, the evil, namely, of the escape of the "water and its passing away to the close of the plaintiff and " injuring the plaintiff, then for the consequence of that, in my " opinion, the defendants would be liable. As the case of Smith " v. Kenrick 1 is an illustration of the first principle to which I " have referred, so also the second principle to which I have " referred is well illustrated by another case in the same Court " the case of Baird v. Williamson? which was also cited in the " argument at the bar. My Lords, these simple principles, if " they are well founded, as it appears to me they are, really "dispose of this case. The same result is arrived at on the " principles referred to by Mr. Justice Blackburn in his judgment " in the Court of Exchequer Chamber, where he states the "opinion of that Court as to the law in these words: 'We " ' think that the true rule of law is, that the person who, for " 'his own purposes, brings on his land, and collects and keeps " ' there anything likely to do mischief if it escapes, must keep " ' it at his peril ; and if he does not do so, is primd facie answer- " ' able for all the damage which is the natural consequence of " ' its escape. 3 He can excuse himself by showing that the 1 7 C. B. 515 ; 18 L. J., C. P. 172. does not extend to making the owner 2 15 C. B., N. S. 376. liable for consequences brought about 8 As to this, see Jone* v. Ffegtiniog by the collecting and impounding on Sail. Co., L. R., 3 Q. B. 733 ; 37 L. J.. his land by another of water or of any Q. B. 214 ; 18 L. T. 902. This principle other dangerous element not for the 160 OF NATURAL RIGHTS OF WATER. Liability for bringing water on the lands of another by artificial means. " ' escape was owing to the plaintiff's default ; or, perhaps, that " ' the escape was the consequence of vis major, or the act of " ' God ; but as nothing of this sort exists here, it is unnecessary " ' to inquire what excuse would be sufficient. The general rule, " ' as above stated, seems, on principle, just. The person whose " ' grass or corn is eaten down by the escaping cattle of his " ' neighbour, or whose mine is flooded by the water from his " ' neighbour's reservoir, or whose cellar is invaded by the filth " ' from his neighbour's privy, or whose habitation is made " ' unhealthy by the fumes and noisome vapours of his neighbour's "'alkali works, is damnified without any fault of his own; " ' and it seems but reasonable and just that the neighbour who " ' has brought something on his own property (which was not " 'naturally there), harmless to others, so long as it is confined " ' to his own property, but which he knows will be mischievous " ' if it gets on his neighbour's, should be obliged to make good " ' the damage which ensues if he does not succeed in confining " ' it to his own property. But for his act in bringing it there " ' no mischief could have accrued, and it seems but just that he " ' should, at his peril, keep it there, so that no mischief may '' ' accrue, or answer for the natural and anticipated consequence. " ' And upon authority this, we think, is established to be the " ' law, whether the things so brought be beasts, or water, or " ' filth, or stenches.' My Lords, in that opinion, I must say, I " entirely concur. Therefore I move your Lordships that the " judgment of the Court of Exchequer Chamber be affirmed, and " the present appeal be dismissed with costs." Following this decision, the Courts have held that, if any one, by artificially raising the surface of his own land, causes water, even though arising from natural rainfall, to pass to his neigh- bour's land, and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is injured. This liability is limited to liability for allowing things, in them- selves offensive, to pass to a neighbour's property, and for causing, by artificial means, things, in themselves inoffensive, to pass to a neighbour's property, to the prejudice of his enjoyment thereof.i purposes of the owner, but of that other person : Wliitmores {Edenbridge) v. Stanford, (1909) 1 Ch. 427 ; 78 L. J., Ch. 164 ; 99 L. T. 924 ; 25 T. L. K. 169 ; 33 Sol. Jo. 134. 1 See Herdman v. N. E. Rail. Co., 3 C. P. D. 168 (C. A.) ; Fttztiinmons v. Inglis, 5 Taunt. 534. Cf. Wilson v. Waddell, 2 App. C. 95, port, p. 163, where the excavation of minerals was held to be a natural use of the land. (Here, seinble, raising the surface is not a natural use.) Cf. Menziex v. Breadalbane, 3 Bli., N. S. 414 (H. L.) ; 32 R. R. 103. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 161 In Buckley & Sons v. Buckley A Sons 1 it was held that where the plaintiffs had acquired the right to water in an arti- ficial goit and the right to repair a sluice gate on it, this ease- ment in no way limited their liability to repair the sluice gate, and that they were liable for damages done to lands of the defendants by escape of the water caused by the sluice being out of repair. So, where water and sewage came on the defendant's land by an artificial drain made for the convenience of the defendant, and, passing thence, flooded the plaintiff's adjoining premises, it was held that the defendant was liable, although unaware of the existence of the drain, and consequently of its want of repair. 2 Following these decisions, it has been laid down by Wright, J., 3 that where damage results to an occupier of land from water or other injurious matter collected on adjoining land, no action lies if the occupier of the land upon which the injurious matter is collected can show that the damage resulted (1) from the neglect or default of some third party, or (2) without wilfulness or negligence on his part whilst using his land in an ordinary and reasonable manner or (3) without negli- gence on his part, the injured party consenting to what was done, or (4) from water or other injurious matter, which was stored for the common benefit of both parties. In the above case, the rain-water from the plaintiff 's and defendant's adjoining roofs drained on to the roof of the defen- dant's area, and so down a pipe into the defendant's drain, this arrangement being with the assent and for the benefit of both parties, and it was held that the defendant was not liable, in the absence of negligence on his part, for damage arising to the plaintiff 's premises from an accumulation of water on the area roof owing to an obstruction in the pipe. It has also been held that the occupier of a house is liable for the continuance of such a nuisance as the penetration of damp from an artificial mound on which his stable stood, though it had been put there before he took possession. 4 In Snow v. Whitehead, 5 the defendants had 1 (1895) 2 Q. B. 608 ; 67 L. J., Q. B. 602. 953 ; Pomfret v. Riecro/t, 1 Wms. * Broder v. Saillard, 2 Ch. Dir. 692, Saunders, 321, distinguished. M. B. ; see also Hodgltin&on v. Ennor, 4 2 Humphries v. Cwisins, 2 C. P. D. B. & S. *29 ; Bell v. Twenty-man, 1 Q. B. 239 ; Rijlands v. Fletcher, L. R., 3 H. L. 766 ; Tenant v. Goldtcin, 2 Lord Ray- 330. mond, 1089. 3 Gill v. Edouin, (1895) 15 R. 113 ; 5 27 Ch. D. 588 ; 51 L. T. 253 ; 33 affirmed 72 L. T. 579, C. A. ; see also L. J., Ch. 885 ; see Ballard v. Tomlinton, Anderson v. Oppenhelmer, 5 Q. B. D. 29 Ch. D. 115, pott, p. 234. L.W. 11 162 OF NATURAL RIGHTS OF WATER. fitted their house with pipes which did not communicate with any drain. The water flowing down their pipes settled in their cellar, and thence percolated into the plaintiff's cellar, and did some injury. The Court held that the defendants had, by allowing the water to escape from their cellar, committed an actionable wrong. But where fair water flowed into a neighbour's premises without default of the defendant, but owing to a defect in the pipes which supplied him with water from waterworks, and caused damage, the defendant was held not liable, in the absence of negligence, such mode of supply being the ordinary way of using a man's property. 1 Where persons occupy two floors of the same house, the upper occupier is not responsible to the lower, in the absence of negligence, for an escape of water from his water-closet, whereby the lower occupier is injured. 2 Drip. So the discharging of rain-water from the roof of a house, either by means of a spout, or by drip, on the premises of a neighbour, is a nuisance, and actionable, in the absence of a prescriptive right to such discharge. 3 Liability only In the case of Cattle v. Stockton Waterworks,* it was decided proximate ^ a ^ * ne liability for the escape of water only extends to the and direct proximate and direct consequences of the escape, and that where consequences. , -, u , , -, , a landowner had employed a contractor to excavate a tunnel on his land, and the works were stopped by the overflow of water from the defendant's pipes, even assuming that the landowner could recover, which point the Court did not decide, the contractor had no right of action for any loss which he might have sustained through being delayed in, or prevented from, completing his contract. In Sharp v. Powell, 5 the defendant washed his van in a street, and the water flowed down into another street and froze, and it was held that though the washing of the van was an offence under the Metropolitan Police Act, 2 Jc 3 Viet. c. 47, damage caused to the plaintiff, whose horse slipped on the ice and was injured, was too remote. 1 Button and Ash v. Card, W. N. Tucker v. Newman, 11 A. & E. 40 ; (1886) 120 ; see also Slake v. Land and Fay v. Prentice, 14 L. J., C. P. 298 ; House Corporation, 3 T.L. R. 667 (1887). Rolfe v. Rolfe, cited in Seswick v. 2 Ross v. Fedden, L. R., 7 Q. B. 661 ; Combdon, Moo. 353 ; 5 Rep. 101. 41 L. J., Q. B. 270 ; 26 L. T. 966 ; * L. R., 10 Q. B. 453 ; 44 L. J., Q. B. Carstalrs v. Taylor, L. R., 6 Ex. 217 ; 139 ; 33 L. T. 475 ; seeLumley v. Gye, 40 L. J., Ex. 129. As to liability for 2 E. & B. 252 ; 22 L. J., Q. B. 479 ; negligence of servants for escape of Langridge v. Levy, 2 M. & W. 519 ; 46 water from lavatories, see Stevent v. R. R. 689 ; 4 M. & W. 337. Woodward, 6 Q. B. D. 318 ; 50 L. J., s L. R., 7 C. P. 253 ; 41 L. J., C. P. Q. B. 231 ; 44 L. T. 153 ; and Ruddi- 45 ; 26 L. T. 437. man v. Smith, 60 L. T. 708. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 163 In Wilson v. Waddell, 1 the pursuer and defender were lessees Right to work of coal mines under one landlord. The seam of coal lay at a ^ r e c S i^ c f uly high inclination, and cropped out at the surface in defender's begets no holding. The seam of coal entered the pursuer's holding at many fathoms below the surface, so that any water which fell on and percolated into the defender's holding would necessarily, by force and gravitation, descend to the pursuer's holding, unless stopped by the minerals or soil from doing so. The surface soil above the coal was an impervious clay, so that, while it was undisturbed, it held the water, and very little filtered down into the seam. Under these circumstances, the House of Lords held that, as the right to work mines is a right of property, which, if duly exercised, begets no responsibility, the defender having worked out all his coal, and so caused a subsidence of the surface and a flow of rainfall into the pursuer's lower coal field, was not liable for any damage thereby caused, the injuries being entirely owing to gravitation and percolation. In West Cumberland Iron Co. v. Kenyon, the defendants, owners of mining property, sunk a shaft, by which they tapped water which had formerly found its way into certain old work- ings on their own ground, and had thence percolated into plaintiffs' mines. The defendants then made a borehole at the bottom of the shaft. It was admitted that the making of it was not in the due course of mining, but only for the purpose of getting rid of the water. The effect of the borehole was to let off the water into the above-mentioned old workings on defen- dants' ground, whence it percolated into plaintiffs' works in the same way in which it would have done if neither the shaft nor borehole had ever been made. The Court of Appeal 2 held, reversing the decision of Fry, J., 3 that the defendants had not, by making the shaft, so appropriated the water as to lay them- selves under an obligation to keep it from coming to plaintiffs' land ; and that, as the effect of defendants' operations was not to throw upon plaintiffs' land any burden which it had not borne before, the plaintiffs' case failed. So in Smith v. Kenrick, where the owner of a coal mine on a higher level worked out the whole of his coal in the ordinary way, leaving no barrier between his mine and the mine on the lower level, so that the water per- colating into the upper mine, flowed into the lower mine and 1 2 A. C. 95 ; 35 L. T. 639. 3 6 Ch. D. 773. 2 11 Ch. D. 782 ; 46 L. J.. Ch. 850. 112 164 OF NATURAL RIGHTS OF WATER. Liability for -throwing on a mine water which would not naturally have come there. obstructed the owner in getting his coal, it was held that the owner of the lower mine had no ground of complaint. 1 But where the owner of an upper mine did not merely suffer the water to flow through his mine, but pumped up quantities of water which passed into plaintiff's mine, in addition to that which would have naturally reached it, and so occasioned him damage, it was held that, though this was done without negligence, and in the due working of the defendant's mine, yet he was responsible for damage so occasioned. 2 In the Scotch case of Young v. Bankier Distillery Co., 3 the respondents were riparian proprietors on one side of a stream, and the appellants, without any pre- scriptive right so to do, poured into the stream a large body of water which they pumped up from their mines, which water, if it had been left to the law of gravitation, would never have reached the stream. The respondents did not complain of the increased volume of the stream, but that the foreign water was of a character and quality different from that of the natural stream and that it prejudicially affected the water of the stream for distillery pur- poses : The House of Lords held, affirming the decision of the Court of Session, 4 that the respondents were entitled to have the appellants interdicted from discharging the mine water into the stream. Lord Shand says (at p. 701): "I am, however, clearly of *' opinion that, while a lower proprietor must submit to the flow " of water coming down upon his lands by the natural force of " gravitation, he is not bound to receive water brought up from a " depth by artificial means, such as pumping. The appellants " would, no doubt, be entitled in mining to excavate and remove " the strata of minerals in the lands leased to them to any depth " practicable to which they might choose to go. If in doing so " they should happen to tap springs or a water waste from which " the water by gravitation rose to the surface and flowed down to a " lower proprietor's land, this must be submitted to; but the mine " owner is not entitled by pumping to increase this servitude or " burden on one unwilling to submit to it by pumping up water " which might never rise to the surface, or which might only do so 1 7 C. B. 564. a Saird v. Williamson, 15 C. B., N. S. 376 ; and see per Lord Cranworth also Crompton v. Lea, L. R., 19 Eq. 115 ; 44 L. J., Ch. 69 ; 31 L. T. 469. 8 (1893) A. C. 691 ; 69 L. T. 838 ; in Rylands v. Fletcher, L. R., 3 H. L. 58 J. P. 100, II. L. (Sc.). 341 ; see Ifipkim v. Birminglwm and Stafford Gas Co., 6 H. & N. 250 ; see 4 19 Cour. Sess. Cas. 4th series (Rettie), 1083. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 165 " more gradually and slowly and in much smaller volume. This " is, I think, the rule or principle on which the Court decided the " case of Baird v. Williamson, 1 the decision in which has been " approved of by your Lordships. I know of no distinction " between the law of Scotland and the law of England in the " class of questions relating to the common interests and rights " of upper and lower proprietors on the banks of a running " stream. The whole series of authorities in both countries seem " to be entirely against the claim or pretension of the appellants " for their own profit to pump up water from the depths of their " pit and send it into the stream, greatly enlarging the quantity of " water in the bed and impairing its quality." In Fletcher v. Smith 2 the defendants' mine was on a higher Liability for level than the plaintiffs and on the surface of defendants' land were certain hollows or openings partly caused by, and partly an artificial is made to facilitate, the defendants' workings. Across the surface f or a natural of their land ran a watercourse which, in the year 1865, the channel - defendants diverted into a new channel. In 1871 the banks of this watercourse, which were sufficient for all ordinary Exceptional occasions, burst, owing to exceptionally heavy rains, and the ramfaU - water escaped into the hollows, and thence by cracks and fissures passed into plaintiff's mine. The defendants were not guilty of any actual negligence. On the trial of an action for damages, Lush, J., held that the case was governed by Fletcher v. Rylands, 3 and that the defendants were absolutely liable ; he refused to receive evidence that the defendants had taken every reasonable precaution to guard against ordinary emergencies, and directed a verdict for the plaintiff. This ruling was upheld by the Court of Exchequer ; 4 but the Court of Exchequer Chamber directed a new trial, on the ground that the case was not beyond all question governed by Fletcher v. Rylands, and that if evidence had been received there might have been questions for the jury. 5 On the second trial, Pollock, B., left five questions to the jury : 1st. Was the mine flooded from natural causes, or from anything done by the defendants ? Answer : From the acts of defendants. 2nd (a). Was the flooding occasioned, in whole or in part, by the diversion of the stream ? Answer : In part, and chiefly, by the diversion of the stream. 2nd (b). Or by the deficient condition 1 15 C. B., N. S. 376. 3 Rylandi v. Fletcher, ante, p. 157, 2 2 A. C. 781 ; 47 L. J., Ex. 4 ; 37 * L. R., 7 Ex. 315. L. T. 367. s L. R., 9 Ex. 64. OF NATURAL RIGHTS OF WATER. of the new channel, and the banks thereof ? Answer : And by the condition of the new channel. 2nd (c). Was the stream in its diverted course more likely to overflow in time of flood ; and would its overflow do more damage to the plaintiff than if it had been allowed to flow in its former channel ? Answer : The stream in its diverted course would be more likely to overflow, and so do more damage to the plaintiff. 3rd. Was the flooding occasioned by the failure of the diverted channel, or other means, to inter- cept the surface water on the broken ground ? Answer : Yes. 4th. Was the flooding caused not by the insufficiency of the channel, but by the result of the exceptional rainfall ? Answer : The rainfall was exceptional, but the new channel was insuffi- cient. 5th. Was what was done by the defendants in the ordinary, reasonable, and proper working of their mine ? Answer : Yes, if diversion of the stream had been properly executed. The verdict was entered for plaintiff, and a rule for a new trial discharged ; and on appeal that decision was affirmed. On appeal to the House of Lords this decision was again affirmed. 1 Their Lordships were of opinion that as the jury had found the new channel not to be so efficient as the old one, and, therefore, not sufficient to carry off rainfall, not exceptional, the defendants were responsible at all events. With regard to the duty imposed upon persons so altering a natural channel, Lord Penzance, in whose opinion the remainder of the House con- curred, thus expresses himself : "In diverting it, what were " these obligations ? Was it enough to make the new and " artificial watercourses as efficient, but no more so than the " old and natural one, so that whatever defects, incapacity, or " otherwise, the old one might have had, might, without respon- " sibility, be produced in the new one ? or, secondly, were they " bound (as they, for their own convenience, were making a new " and artificial watercourse) to construct it in such a manner " that it would be capable of conveying off the water that might " flow into it from all such floods and rainfalls as might reason - " ably be anticipated to happen in that locality ? or, thirdly, " were they bound to make provisions for any such quantities " of water as might possibly be discharged into it from any mere " rainfall, however heavy, however unusual, and however con- " trary to all previous experience ? For my own part, I incline " to think that the second proposition defines the true measure 1 2 A. C. 781. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 167 " of the defendants' obligations, but I desire to express no positive "opinion to that effect." 1 In the case of Nichols v. Marsland* where the defendant Extraor- formed artificial ornamental pools by damming up a natural stream, and an extraordinary rainfall burst the dams and injured r the act of ' . * God, how far the plaintiffs property, and the jury found that there was no an excuse at negligence in the maintenance and construction of the pools, and common law - that the flood was so great that it could not reasonably have been anticipated, though if it had been anticipated, the effect might have been prevented ; it was held, affirming the judgment of the Court of Exchequer, that this was in substance a finding that the escape of water was caused by the act of God, or vis major, and that the defendant was not liable. Mellish, L. J., delivering the judgment of the Court, says : "It appears to us " that we have two questions to consider : First, the question " of law which was left undecided in Rylands v. Fletcher, Can "the defendant excuse herself by showing that the escape of " the water was owing to vis major, or, as it is termed in the law " books, the ' act of God ' ? and, secondly, If she can, did she in " fact make out that the escape w r as so occasioned ? Now with " respect to the first question, the ordinary rule of law is, that " when the law creates a duty, and the party is disabled from " performing it without any default of his own by the act of " God or the king's enemies the law will excuse him ; but " when a party by his own contract creates a duty, he is bound " to make it good, notwithstanding any accident by inevitable " necessity. 3 We can see no good reason why that rule should "not be applied to the case before us. The duty of keeping " the water in and preventing its escape is a duty imposed " by the law, and not one created by contract. If, indeed, the " making a reservoir was a wrongful act in itself, it might be " right to hold that a person could not escape from the conse- " quences of his own wrongful act. But it seems to us absurd " to hold that the making or the keeping a reservoir is a " wrongful act in itself. The wrongful act is not the making 1 See A.-G. v. Tomline, 40 L. T., N. S. Act, 10 Viet. c. 27, where damage had 775, where this and the preceding cases been occasioned to a pier by a vessel are discussed by Fry, J. through the violence of the wind and 2 2 Ex. Div. 1 (C. A.) ; L. R., 10 Ex. waves, at a time when the master and 255 ; 46 L. J., Ex. 174 ; 35 L. T. 725. crew had been compelled to leave the 8 See Hirer Wear Commissioners v. vessel, and had. consequently, no control Adamwn, 2 A. C. 743, where it was over her, the owners were not liable. held that under the Pier and Harbour See post, Chap. VII. 168 OF NATURAL BIGHTS OF WATER. " or keeping the reservoir, but the allowing or causing the " water to escape. If, indeed, the damages were occasioned by " the act of the party without more as where a man accumu- " lates water on his own land, but owing to the peculiar nature " or condition of the soil the water escapes and does damage to " his neighbour the case of Rylands v. Fletcher establishes that " he must be held liable. The accumulation of water in a " reservoir is not in itself wrongful ; but the making it and " suffering the water to escape, if damage ensue, constitute a " wrong. But the present case is distinguishable from that of " liylands v. Fletcher in this, that it is not the act of the " defendant in keeping this reservoir an act in itself lawful " which alone leads to the escape of the water, and so renders " wrongful that which but for such escape would have been " lawful, it is the supervening vis major of the water caused " by the flood which, superadded to the water in the reservoir " (which would of itself have been innocuous), causes the disaster. " A defendant cannot, in our opinion, be properly said to have " caused or allowed the water to escape, if the act of God or the " queen's enemies was the real cause of its escaping without any " fault on the part of the defendant. If a reservoir was destroyed "by an earthquake, or the queen's enemies destroyed it in " conducting some warlike operations, it would be contrary to "all reason and justice to hold the owner of the reservoir liable "for any damage which might be done by the escape of the " water. We are of opinion, therefore, that the defendant was " entitled to excuse himself by proving that the water escaped " through the act of God. The remaining question is, did the " defendant make out that the escape of water was owing to " the act of God ? Now the jury have distinctly found, not only " that there was no negligence in the construction or the main- " tenance of the reservoirs, but that the flood was go great that " it could not reasonably have been anticipated, although if it " had been anticipated, the effect might have been prevented ; " and this seems to us in substance a finding that the escape of " water was owing to the act of God. However great the flood had " been, if it had not been greater than floods that had happened " before, and might be expected to occur again, the defendant " might not have made out that she was free from fault ; but " we think she ought not to be held liable because she did not " prevent the effect of an extraordinary act of nature which she THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 169 " could not anticipate. In the late case of Nugent v. Smith, 1 we " held that a carrier might be protected from liability for a loss " occasioned by the act of God, if the loss by no reasonable " precaution could be prevented, although it was not absolutely " impossible to prevent it. 2 It was, indeed, ingeniously argued " for the appellant that at any rate the escape of the water was " not owing solely to the act of God ; because the weight of the " water originally in the reservoirs must have contributed to " break down the dams as well as the extraordinary water " brought in by the flood. We think, however, that the extra- " ordinary quantity of water brought in by the flood is, in point " of law, the sole proximate cause of the escape of the water. " It is the last drop which makes the cup overflow." 3 In the case of Nield v. London and North Western Railway it was held, that where water causing damage was not brought there by the owner of an artificial watercourse, but was the result of circumstances over which he had no control such as the sudden overflow of an adjoining stream he was not liable for the damage. 4 In Harrison v. Great Northern Railway, 5 where the defendants were charged with repairing a drain, and the drain burst during a period of extraordinary rainfall, Pollock, C. B., delivering the judgment of the Court, says : " There was nothing in the weather " of so extraordinary a character, that the defendants were not " bound to anticipate it. The storm, though unusual and extra- " ordinary in a sense yet, as happening once in a year, or in a " few years, was not unusual ; " and the defendants were held responsible. But where pipes burst, owing to an unprecedented 1 1 C. P. D. 423. James, L. J., there "prevent." defines the act of God as " Any accident 3 See Madras Rail. Co. v. Zemindar " due to natural causes directly and of Carventenagamm, L. R., 1 Ind. App. "exclusively without human interven- 364, where it was held that, where it is 'tion, such as could not have been the duty of the zemindar to maintain ' prevented by any amount of foresight the tanks on his zemindary which are " and pains and care reasonably to have part of the national system of irrigation "been expected." In Disronv. Metro- recognized by the laws of India, and politan Board of Works, 7 Q. B. D. 418 ; the banks of the tank are washed away it was held by Coleridge, C. J., that by an extraordinary flood without negli- where damage was caused by the open- gence on his part, the zemindar is not ing of water gates during an exception- liable for damage caused by the escape ally heavy rain the damage was not of the water. caused by the act of God ; see post, 4 L. R., 10 Ex. 4 : 44 L. J., Ex. 15. p. 174. s 33 L. J., Ex. 266 ; 10 L. T. 621 ; 2 See per Bramwell, B., in this case 10 Jur., N. S. 992 ; see also Forward\. in the Court of Exchequer, L. R., 10 Pittard, per Lord Mansfield, C. J. ; 1 Ex. 255, where he defines the act of T. R. 33; Bell's Diet. & Dig. of Sc. G od as "A state of circumstances practi- Law, p. 11; Broom's Legal Maxims, " cally, if not physically, impossible to oth ed., p. 530. 170 OF NATURAL RIGHTS OP WATER. frost, such as no reasonable man could have provided against, a water company were held not liable for the damage caused. 1 So where defendant, the landlord of a house, let the lower floor to plaintiff, and without any default in defendant, a rat ate a hole in a cistern, and plaintiff's goods were damaged by the water, he was held not liable ; Kelly, C. B., being of opinion that the damage was caused by ris major. 2 In Box v. Jubb, 3 the owner of a reservoir was held not responsible for damage done by the overflow of his reservoir, caused by the emptying of a reservoir belonging to a third person, and by an obstruction in a drain not under his control. Where liabi- From the above cases there is no doubt that where a duty is byVontractor cns * i on an individual by common law, he may excuse himself by Act of Parlia- showing that the performance of this duty was prevented by circumstances over which he had no control, amounting to vis major, or the act of God. Where, however, he contracts that he will be liable at all events, or where a contract is made which does not expressly or impliedly except the act of God, the Courts cannot introduce that exception by intendment of law. 4 " If," says Cairns, L. C., in The River Wear Commissioners v. Adamson, " a duty is cast on an individual by common law, the act of God " will excuse him from the performance of that duty. No man " is compelled to do that which is impossible. If, however, a " man contracts that he will be liable for the damage occasioned " by a particular state of circumstances, or if an Act of Parliament " declares that a man shall be liable for the damages occasioned " by a particular state of circumstances, I know of no reason why " a man should not be liable for the damage occasioned by that " state of circumstances, whether the state of circumstances is " brought about by the act of man, or by the act of God." 5 The act of I n the case f r ^ te Xitro-Phospkate Co. v. London Docks, 6 the God no excuse defendants were required by Commissioners of Sewers and by Act in cases of negligence. ' See Blyth v. Birmingham Water E. 398 ; 2 A. C. 750 ; 50 R. R. 463. Ci>., 11 Ex. 781 ; see Withers v. JTorth 5 Hirer Wear Commissioners'?. Adam- Kent Pail. Co., 27 L. J., Ex. 417. son, 2 A. C. 750 ; cf. judgment of 2 Carstairs v. Taylor, L. R., 6 Ex. Lord Blackburn in the same case, and 217; see also Boughton v. Mid. $ G. his remarks on Paradine v. Jane, Aleyn, W. Rail. Co., Ir. R., 7 C. L. 169. 26 ; Rothes (Countess') v. Kirkcaldy 4 Ex. Div. 76 : Boughttm v. Mid. % Waterworks, 7 A. C. 694, H. L. Sc. ; G. W. Hail. Co., Ir. R., 7 C. L. 168. Carstairs v. Taylor, L. R., 6 Ex. 217 ; * Per Lord Blackburn in Mirer Wear Nichols v. Mars'land, 2 Ex. D. 1 (C. A.) ; Commissioner* v. Adamson, 2 A. C. L. R., 10 Ex. 255 ; Harrison v. G. -V. 771 ; per Lord Watson in Rothes Pail. Co., 10 Jur., N. S. 992 ; Blyth v. (Qntntes*) v. Kirltcaldy Waterworks, 1 Birmingham Water Co., 11 Ex. 781. A. C. 694, at p. 707 ; Paradine v. 6 9 Ch. D. 503 ; 37 L. T., N. S. 330. Jane, Aleyne, 26 ; R. v. Leigh, 10 A. & THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 171 of Parliament to keep the wall of their dock at a certain height. They failed to do this, and an extraordinarily high tide over- flowed their wall and caused damage to the plaintiffs. The plaintiffs contended that defendants were bound at common law to keep their wall at treasonable height. The defendants alleged that the wall was high enough to keep out all ordinary tides, and that the damage was caused by the act of God. They also contended that if they were liable for any damage at all, they could not be held responsible for the damage which was caused by the water which would have come over their wall if it had been at the prescribed height. Fry, J., held that as the wall had been high enough to keep out all previous floods, and as the flood in question was of such an extraordinary character as to amount, in his opinion, to the act of God, he would have had great difficulty in coming to the conclusion that the defendants were responsible at common law, but that as the Act of Parliament imposed upon them the duty of keeping the wall at a certain height, and they had failed to do so, they were guilty of negligence, and responsible for the whole damage ; for that where a person has a duty cast upon him, and does not perform it, he cannot rely on the act of God as any excuse at all. The Court of Appeal affirmed the decree of Fry, J., with a variation. They held that the defendants were bound at common law, independently of the statute, to keep their part of the wall at the height prescribed by the Commissioners of Sewers, and that the extraordinarily high tide, though the act of God, did not excuse them from their liability ; but that they ought to have an opportunity of showing that the damage done by the act of God and the damage caused by their negligence could be ascertained and apportioned. 1 Where the diversion or bringing or storing up of water is Liability authorized by Act of Parliament, there is no liability on the persons so authorized for damage done in the due and reasonable 2 by Act of exercise of their statutory powers, 3 in the absence of negligence ; 1 9 Ch. D. 921 ; 34 L. T. 453 ; see ference with tbe natural flow, the ante, Chap. I., p. 48. original rights of the riparian owner 2 Riparian owners are entitled, except are impaired only so far as the reason- so far as their rights are varied by able exercise of the statutory rights statute or other special circumstances, impairs them ; Edinburgh Water Trv*- to require that nothing shall be done to tee* v. Sommerrill*, (1906) 95 L. T. 217, affect to their prejudice either the H. L. Sc. quantity or quality of a stream as it 8 Persons obtaining from the legisla- flows in its natural state, and when an ture powers to interfere with the rights Act of Parliament authorizes inter- of property are bound strictly to adhere OF NATURAL RIGHTS OF WATER. but an action will lie for doing that which the legislature has authorized, if it be done negligently. The law as above stated was laid down in the House of Lords in a late case, in which Lord Blackburn further defines negligence as follows : l " I think " that if, by a reasonable exercise of the powers, either given by " statute to the promoters, or which they have at common " law, the damage could be prevented, it is within this rule " ' negligence ' not to make such reasonable exercise of their " powers." a In the case of Geddis v. Bann Reservoir, 9 the defendants were authorized to collect water into a reservoir, and, when necessary, to send the waters down a channel to the river Bann. They were empowered to enter on lands to scour and cleanse channels and watercourses. They neglected to keep the channel in ques- tion cleared and scoured, so that at times it overflowed, and did damage to the lands of the adjoining proprietors. It was held that they were responsible for the damage so occasioned. In a similar case, where the damage was caused by an obstruc- tion in a public sewer not under the control of the defendants, they were held not responsible. 4 A canal was made under an Act of Parliament, the minerals being reserved to the owners of the land over which it passed, who might work them on giving three months' notice to the canal owners, who, in their turn, to the powers so conceded to them, to tion (1902), 87 L. T. 217, C. A. do no more than the legislature has 1 Geddis v. Bann Reservoir, 3 A. C. sanctioned, and to proceed only in the 430, H. L. Ir. ; Hammersmith Rail. mode which the legislature has pointed Co. v. Brand, L. R., 4 H. L. 171 ; out ; but (except in a proceeding at the Lawrence \. G. N. Rail, Co., 16 Q. B. instance of the Attorney-General) any 643 ; Weld v. Gaslight Co., 1 Stark, one seeking the assistance of a Court of 189. See also Collins v. Middlesex Equity to restrain the violation of such Lerel, L. R., 4 C. P. 279 ; R. v. Pease, a contract with the legislature is bound 4 B. & A. 30 ; 38 R. R. 207 ; Jones v. to show that he has a private interest Ffestiniog Rail. Co., L. R., 3 Q. B. 733 ; in the matter. Therefore, where a Bagnall v. L. $ N. W. Rail. Co., 1 H. Waterworks Act empowered a company & C. 544 ; W/iitehouse v. Birmingham to divert the water of a stream (without Canal, 27 L. J., Ex. 25 ; Cockburn v. limit as to quantity), by means of an JSrewash Canal, 11 W. R. 34 ; Madras open channel filled with loose stones, Rail. Co. v. Zemindar of Carventena- and they were diverting it by means of garum, 22 W. R. 865 ; Green v. Chelsea a culvert : Held, that another company, Waterworks Co., 70 L. T. 541. See also which was entitled to the water of a post, Chap. V., pp. 305 etseq. stream into which the diverted stream 2 See also Evans v. Manchester S. $ had flowed, was not entitled to an L. Rly., 36 Ch. D. 626 ; 57 L. J., Ch. injunction to restrain a violation of the 153 ; 57 L. T. 194 ; and remarks of terms of the Act, as to the mode of Bowen,L. J., in Thomas^. Quartermninc, diversion : Liverpool Corporation v. 18 Q. B. D. 685, at p. 694. Charley Waterworks Co., 2 De G., M. 8 3 A. C. 430, H. L. Ir. &. G. 852 ; see also Marriott v. East * Bovghton v. Mid. % G. W. Rail. Grinstead Gas and Water Co., (1909) Co., Ir. R., 7 C. L. 169. 1 Ch. 70 ; Ambler v. Bradford Corpora- THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 173 might prevent the working on payment to the owners of the value of the minerals. The plaintiffs, the landowners, gave due notice, and the canal company refused to purchase the mines. Thereupon the plaintiffs worked the mines without negligence, but without any regard to supporting the surface under the canal. The canal owners did all in their power to keep the canal water- tight, but the water escaped and flooded the plaintiffs' mines. The Court held that no action would lie for the damage so caused, for that, striking out the charge of negligence, which was negatived, the canal company were charged with nothing, but that they brought water into the canal near the plaintiffs' mines, and that they had full powers under their Act to bring the water there. 1 Where a railway was constructed by Act of Parliament, and carried along an embankment in lowlands adjoining a river, between the river and plaintiff's lands, the lowlands were separated from plaintiff's land by an embankment which, before the railway embankment was made, was sufficient to protect his land from the flood waters of the river, but, in consequence of the railway embankment, the flood waters were unable to spread over the lowlands as formerly, and flowed over the bank into plaintiff's lands : held, that, although the railway company were not, by their Act, to make flood openings, yet, as they might, by proper caution, have prevented the injury to plaintiff, an action was maintainable ; and that the compensation awarded to the owner of the land, before the railway was made, did not include the unforeseen damage in the present case. 2 If a statute expressly confers a power, but adds a proviso that Where there no nuisance must be created, it is no defence to say that the that^o work in truth cannot be done without creating a nuisance, nuisance This proposition has been laid down by the Court of Appeal in created, the recent case of Price's Patent Candle Co. v. London County Council, 3 and as in it the Court discusses the various authorities on the point, it may be well to set it out at some length. The plaintiff company owned large manufacturing works on both sides of a tidal navigable creek forming part of the Thames within the metropolis, and also the bed and banks of the creek 1 Dunn v. Binning/tarn Canal, L. R., 2 Lawrence \. G. N. Rail. Co., 16 8 Q. B. 42 ; 42 L. J., Q. B. 34 ; 27 L. T. Q. B. 643. 683. For further cases as to the liability 3 (1908) 2 Ch. 526 ; 78 L. J., Ch. 1 ; of canal and water companies, see 99 L. T. 571 ; 72 J. P. 429 ; 24 T. L. R. Chap. Y., post. 823, C. A. 174 OF NATURAL RIGHTS OF WATER. subject to the public right of navigation therein. By the Metro- polis Management Act, 1855, 18 <(; 19 Viet. c. 120, a brook which discharged into the creek and which had become an open sewer was with other sewers vested in the Metropolitan Board of Works, the predecessors in title of the defendants, with power to alter, divert, or discontinue such sewers when necessary. By that Act and the Metropolis Management Amendment Act, 1858, 21 d; 22 Viet. c. 104, the Board were authorized and required to construct, according to such plans as to them should seem proper, all necessary sewers and works for the improve- ment of the main drainage of the metropolis and for preventing as far as practicable the sewage of the metropolis from passing into the river within the metropolis ; but they were to cause the authorized works to be constructed and kept, and to exercise their powers of disposing of the sewage, so as not to create a nuisance. Under these Acts a vast system of sewers was con- structed so as to carry the sewage down the Thames beyond the limits of the metropolis, and the brook in question was culverted and connected with a low level sewer so that it no longer dis- charged into the creek. In 1907, the defendants, as part of the main drainage system and to relieve the pressure in the low level sewer in times of heavy rains, erected a pumping station at the mouth of the creek, and when occasion required pumped the storm overflow into the creek. The storm water was heavily charged with sewage matter, which adhered to the banks of the creek and created a nuisance. The Court Cozens-Hardy, M. K., and Farwell and Kennedy, L. JJ. held, affirming the judgment of Neville, J., that the defendants could not justify their acts on the plea that they were carrying out their statutory obligations, and that the plaintiffs were entitled to an injunction both on the ground of nuisance and Kennedy, L. J., doubting on ground of trespass ; and distinguished Dixon v. Metropolitan Board of Works (1881), 7 Q. B. D. 418. The defendants in this latter case constructed, under powers conferred on them by the Metropolis Local Management Act, 1855, 18 & 19 Viet. c. 120, ss. 135, 136, a sewer having its outfall in Deptford Creek a little above the plaintiff's coal wharf, with water gates which it was the duty of the person in charge of them to open when the water within them became eight feet deep a depth which was reached only in heavy rainfalls. On THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 175 29th August, 1879, there was an exceptionally heavy rainfall, and it became necessary to open the water gates to prevent a large district from being flooded. This having been done, and the rain increasing in violence, the rush of the water from the sewer carried away a portion of the plaintiffs wharf, with a barge moored thereto and a quantity of coals deposited therein and thereon. Lord Coleridge, C. J., held, that the injury complained of was occasioned by the opening of the water gates, and not by the act of God, and therefore the defendants were primd facie liable for the damage done, within the principle of Fletcher v. Rylands ; l but that, as they were a public body acting in the discharge of a public duty, and as that which happened was only the inevitable result of what Parliament had authorized them to do, they were not liable. With respect to this decision Farwell, L. J., in Price's Patent Candle Co., Ltd. v. London County Council, said: 2 " It has been " argued that nothing that the defendants have done can be " said to be a breach of any duty to 'construct, cover or keep,' " within sect. 135 of the Act of 1855, and sect. 24 of the Act " of 1858 ; and Lord Coleridge's judgment in Dixon v. Metro- " politan Board of Works, 3 has been pressed on us. If that case " was rightly decided, it cannot stand on the first ground stated, " because the duty to make and keep the sewers is not unqualified, "but is subject to the express qualification that it is not to be a " nuisance, as I have already pointed out, and it is not necessary " to express an opinion on the other ground stated, that the " nuisance referred to is sewage and refuse, not flood caused by " exceptional rainfall. In my opinion it is impossible to say that " these two sections refer to construction alone. Hammersmith " Rail. Co. v. Brand, 4 " on this point has no application to Acts " passed for a different purpose and expressed in different " language : see Fletcher v. Btrhenhead Corporation. 5 The duty to " keep the sewers so as not to be a nuisance creates a continuing " obligation to keep the sewers in such a state that the sewage will " not escape within the London area either by leakage or otherwise, " and to that there is the further duty added that the defendants " are not to dispose of the sewage so as to be a nuisance." Per Cozens-Hardy, M. R., p. 544 : " If the statute expressly 1 L. R., 3 H. L. S. 330. 4 L. R., 4 H. L. 171. 2 (1908) 2 Ch. p. 547. & (1907) 1 K. B. 205. 8 7 Q. B. D. 418, at p. 424. 176 OF NATURAL RIGHTS OF WATER. " confers a power, but adds a proviso that no nuisance must be " created, it is no defence to say that the work, in truth, cannot " be done without creating a nuisance. The small-pox hospital " case, 1 the Hammersmith Eail. Co. case, 2 and the Birmingham " sewage case, 3 are sufficient illustrations of these principles. " Considerations of public welfare may justify the suspension of " an injunction upon terms, but they do not justify the denial of " relief to the private person whose rights have been affected." The Puttie Authorities Protection Act, 1893, 56 & 57 Viet, c. 67, prescribes the limits of time within which actions may be brought against persons for any act done in pursuance or execu- tion of an Act of Parliament and regulates procedure and costs. 4 In Ambler v. Bradford Corporation? an action was brought by the plaintiffs for an injunction to restrain the defendants from obstructing the flow of water in a certain stream by means of sluices that they had erected in connection with the electric light works which they proposed to construct under a provisional order obtained by them. The plaintiffs also claimed damages for injury alleged to have been done to their premises and to goods stored therein, owing to the premises having been flooded by an overflow from the stream caused by a heavy thunderstorm on a certain date. Joyce, J., dismissed the action with costs as between party and party only, refusing to allow the defendants their costs as between solicitor and client, on the ground that the case did not fall within the Public Authorities Protection Act, 1893, as it was not one in which the defendants were charged with a breach of duty under any Act of Parliament. Against that part of the judgment the defendants appealed, and the plaintiffs appealed against the dismissal of their action. The Court of Appeal, held (1) that the obstruction created by the sluices erected by the defendants, although it might be regarded as an obstruction to the flow of water, was not the cause of the unfortunate result to the plaintiffs' premises, which occurred through the unaccustomed flow of water; and that therefore the plaintiffs were not entitled to damages. (2) That notwithstanding that the obstruction was a material obstruction, it was not such as could reach the plaintiffs' premises, 1 Metropolitan Axylum District v. * A.-G. v. Birmingham Corporation, Hill, 6 A. C. 193. 4 K. & J. 528 ; port, p. 195. 2 Hani in erxmitk Hail. Co. v. Brand, 4 See pott, p. 704. L. B., 4 H. L. 171. (1902) 87 L. T. 217, C. A. THE EIGHT TO WATER IN ITS NATURAL QUANTITY. 177 and they were not entitled to an injunction to restrain any repetition of the damage. (3) That the sluices formed part of the works which the defendants had statutory power to con- struct and were erected by them in pursuance of and solely in execution or intended execution of those powers ; and that therefore the erection constituted an " act done in persuance, or execution, or intended execution of a public duty or authority," and that the action was one which fell expressly within the statute. 1 A riparian owner on inland waters has, it would seem, an Right of ripa- ordinary right primd facie to protect his land from the inroads of a * flood water, provided he can do so without injury to others. 2 It la n d fr <>m floods has been already stated with regard to the sea, that every land- owner exposed to its inroads has a right to protect himself by erecting such works as are necessary for that purpose ; and that if he acts bond Jide, he is not liable for any damage thereby occasioned to his neighbours, who must protect themselves. 3 The law does not appear except, perhaps, in the case of extra- ordinary floods to give such large powers for protection to the owners on the banks of inland waters, whether tidal or not. Thus it has been laid down by the House of Lords, that riparian owners on the banks of a non-tidal river may protect their property from the invasion of the water by building a bulwark ripa muniendce causti ; but that even in this necessary defence of themselves, they are not at liberty to conduct their operations so as to do any actual injury to the property on the opposite side of the river, or above or below them. 4 " Mere apprehension, how- " ever," says Lord Chelmsford, " will not be sufficient to found a " complaint of the acts done by the opposite proprietor ; because, " being on the party's own ground, they were lawful in them- " selves, and only became unlawful in their consequences, upon " the principle of sic utere tuo ut alienum non Icedas. But any " operation extending into the stream itself is an interference " with the common interest of the opposite riparian proprietor ; " and therefore, the act being primd facie an encroachment, the 1 Fielden \. Corporation of Murky, Midland Rly., 53 J. P. 55. 82 L. T. R. 29 ; (1900) A. C. 133, 8 See ante, Chap. I., p. 51 ; R. \. considered and applied ; Bicltett v. Commissioners of Pagham Level, 8 B. Morris, L. R., 1 Sc. App. 47 ; and On- & C. 355 ; 32 R. R. 406. Swing v. C'olqu/toun, 2 A. C. 839, con- 4 Bicltett v. Morris, L. R. 1 Sc. App. sidered. 47 ; Orr Euoing v. Culqu/wun, 2 A. C. 2 R. v. Trajford, 8 Bing. 204; 34 839. See A.-G. v. Lowdate, L. R. 7 R. R. 680; 1 B. & A. 874; Ridge v. Eq. 377. L.W. 12 178 OF NATURAL RIGHTS OF WATER. No right to throw the water on to the opposite proprietors in times of ordinary flood. " onus seems properly to be cast upon the party doing it to show " that it is not an injurious obstruction." " A proprietor on the banks of a river," says Lord Lyndhurst, 1 " has no right to build a mound which, according to the opinion " and report of an engineer, would, if completed, in times of " ordinary flood throw the water of the river on the grounds of a " proprietor on the opposite bank, so as to overflow and injure " them. It is clear beyond the possibility of a doubt that by the " law of England such an operation could not be carried on. " The old course of the flood stream being along certain lands, it " is not competent for the proprietors of those lands to obstruct " that old course by a sort of new water way, to the prejudice of " the proprietors on the other side. The ordinary course of the " river is that which it takes at ordinary times ; there is also a " flood channel. 1 am not talking of that which it takes in " extraordinary or accidental floods ; but the ordinary course of " the river at the different seasons of the year must, I apprehend, " be subject to the same principles. Erskine, in his Institutes, " says : ' When a river threatens an alteration of its present " ' channel, by which damage may arise to the proprietor of the " ' adjacent or opposite ground, it it lawful for him to build a " ' bulwark " ripce muniendce causa " to prevent the loss of ground " ' that is threatened by that encroachment.' Though the river " threatens to change its channel and to encroach upon your "land, you cannot protect yourself to the prejudice of the " opposite proprietor. It is true that passages may be found in " the Digest (Roman) appearing to have a contrary tendency, but " I think they may all be reconciled ; and I consider the subject " in this light that these passages to which I am now alluding " have reference to accidental and extraordinary casualties "from the flood suddenly bursting forth; and they go to " this that in such a case the parties may, for the sake of " self-preservation, guard themselves against the consequence. " Farquharson v. Farquharson 2 is distinguishable in every par- " ticular. There it was held, that where Invercauld had erected " a mound on his ground to prevent the old course of the " river being (gradually) altered, and there was evidence to " show that a great part of the bank was built on old foundations, 1 Menzies v. Breadalbane, 3 Bli., N. S. 414 (H. L.) ; 32 R. R. 103 ; 3 Wils. & Shaw, 235 ; Orr Ewing v. Colquhoun, 2 A. C. 839 ; Bickett v. Morri*, L. R., 1 Sc. App. 47, ante, pp. 99 et seq. 2 Cited in Menzies v. Breadalbane, 3 Bli., N. S. 414 (H. L.) ; 32 R. R. 103 ; 3 Wils. & Shaw, 235. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 179 " and of a custom of the county for opposite proprietors " to embank under these circumstances, the Court gave their "opinion in favour of Invercauld." In the case of Ridge v. Midland Rail. Co., 1 it was held, that a riparian owner on a natural stream has the right to raise the banks of the river from time to time as it becomes necessary, so as to prevent it from overflowing his lands, so long as he does not injure the property of others. Lord Coleridge, C. J., in delivering the judgment of the Court, says, at p. 56 of the report : " The only question that remains and was seriously " argued by the plaintiffs is as to the raising of the level of the " defendants' ground and its effects. The argument of the " plaintiffs was to this effect : There are two riparian proprietors " and occupiers of land on the opposite banks of the same river, " the land of one being some feet lower than that of the other. " In ordinary times this makes no difference, because the level of " the plaintiffs' land is much above the surface of the stream, " but in times of flood, occurring at uncertain intervals and with " uncertain volume and force, if the river, overflows its banks at " all, it always overflows the lower bank. That bank was the " defendants'. The defendants wanted to build upon the land " subject to flood ; they had a right to build upon the land, and, " according to all the cases, including those which have been " adjudicated upon by such lawyers as Tenterden, Tindal, and " Lord Esher, it is a matter of common-law right that every " riparian owner is justified in preventing the river overflowing " his land. Tindal, C. J., expresses his view thus : ' At common " ' law the landowners would have the right to raise the banks " ' of the river and brook from time to time, as it became " ' necessary, upon their own lands, so as to confine the flood " ' water within the banks, and to prevent it from overflowing " ' their own lands.' 2 That is a right everybody may exercise " without the slightest objection. But in improving his property " the owner must not injure that of another. That, of course, " assumes that the other has rights. Sic utere tuo ut alieni (as I " prefer to express it (not alienum) non Icedas. But that was not " the contention of the plaintiffs. Their view was a new view " to me ; it was this: I shall not take the smallest care of my " land ; mine is the dominant tenement to yours ; yours is the 1 53 J. P. 55. 2 Trafford v. The King. 8 Bing. at p. 211. 122 180 OF NATURAL RIGHTS OF WATER. Extraordi- nary floods. The flood is a common enemy. " servient tenement ; anything you do in this connection must be " by my leave and licence. Such a doctrine is preposterous, to " say the least. The case of Bickett v. Morris et Ux. 1 has " nothing to do with this case at all, The facts there were " widely different. Similarly with the other cases cited by the " plaintiffs ; I agree with them entirely, but they do not seem to " me to be any authority in support of the contention sub- " mitted to us. Judgment must therefore be entered for the " defendants." With regard to such extraordinary floods as would come within the definition of extraordinary casualties, it would seem, from the opinion of Lord Lyndhurst in the case just cited, 2 as well as from the words of Bramwell, B., in a late case, that a riparian owner may exercise a reasonable selfishness in protecting himself from such a common enemy. In the case of Nield v. L. d- N. W. Rail. Co., 3 where a flood occurred in a canal from the bursting of the banks of an adjoin- ing river, and the defendants, the canal company, placed a barricade across the canal above their premises, and thereby flooded the plaintiff's premises, it was held they were not liable for the damage. " The flood," says Bramwell, B., " is a common " enemy against which every man has si right to defend himself, " and it would be mischievous if the law were otherwise, for a " man must then stand by and see his property destroyed, out " of fear lest some neighbour might say, ' You have caused me " ' an injury ! ' The law allows, I may say, a kind of reasonable " selfishness in such matters ; it says, ' Let every one look out ' ' for himself, and protect his own interest,' and he who puts " up a barricade against a flood is entitled to say to his neighbour " who complains of it, ' Why did not you do the same ? ' I " think what is said in Menzies v. Earl of Breadalbane is an " authority for this, and the rule so laid down is quite con- " consistent with what one would understand to be the natural " rule. Where, indeed, there is a natural outlet for natural " water, no one has a right for his own purpose to diminish it, " and if he does so, he is, with some qualification, perhaps, liable " to any one who has been injured by his act, no matter where " he water which does the mischief comes into the water - " course I say with some qualification, because it may be that, i L. R., 1 Sc. App. 47. a Menzie* v. Breadalbane, ante, p. 178. L. R., 10 Ex. 4. THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 181 " even in the case of a natural watercourse, the riparian owner " is entitled to protect himself against extraordinary floods by " keeping off extraordinary water." It would seem, however, that to justify such " reasonable " selfishness " that the acts done in self-defence must be done to avoid a common danger, and that no one can transfer such a danger coming on to his land to the land of another. Thus in Thomas v. Birmingham Canal, 1 where, on the occasion of an extraordinary rainfall, the defendants opened a sluice and dis- charged from their canal into a brook more water than the latter was able to carry off, the consequence being that the brook over- flowed into the plaintiffs' mines, and it was found that if the sluice had not been so opened the canal bank would shortly have burst ; that the adjacent country and the plaintiffs' mines would have been inundated ; that the course which the defendants adopted to avert such a catastrophe was a prudent one, and the only effectual one which could have been adopted in the emer- gency ; that so far as the plaintiffs' mines were concerned the opening of the sluices caused them to be flooded sooner than they would otherwise have been, but that no additional damage was caused thereby to the plaintiffs, the inundation being inevitable by reason of the excessive rainfall and consequent accumulation of water : The Court held, upon these findings, that even assuming the defendants' act to have been a wrongful one, it was injuria absque damno, and therefore not a ground of action; and, secondly, that the compensation clauses of the Acts of Parliament did not apply to such a case. But in a more recent case, Wlialley v. Lancashire and Yorkshire Rail. Co.? where owing to an excessive rainfall a quantity of water accumulated on the upper side of the defendants' railway embankment, which crossed some sloping land, and they, finding that the pressure of water was causing danger to their embank- ment, cut trenches through the embankment and thereby caused the water to flow through and on to the land of the plaintiff, which lay at a lower level ; although the jury found that the defendants had acted reasonably, regard being had to the safety of their own property, and that there was no negligence : The Court of Appeal held that the defendants were liable, for what they had done was not to ward off a common danger, but to 1 49 L. J., Q. B. 851 ; 43 L. T. 435. * 53 L. J., Q. B. 285 ; 13 Q. B. D. 131 ; 50 L. T. 472. 182 OP NATURAL RIGHTS OF WATER. transfer to the land of the plaintiff the danger and mischief already existing on their own land. 1 At common law incident to the lar.d" through which it flows. Pollution actionable without proof of actual injury. The Right to Water in its Natural Quality. With regard to this subject, we propose to treat, in the first place, of the common-law rights and liabilities of riparian owners with regard to water in its natural quality, and then to consider the various statutes which have been passed imposing penalties on the pollution of streams, and the modifications made by them in the common law. A riparian proprietor on a natural stream has a right to the flow of the stream through or by his land in its natural state as an incident to the land through or by which it flows, and if the water be polluted, so as to occasion damage in law, though not in fact, it gives him a good cause of action, unless a right to pollute the stream has been acquired by the person causing the pollution, by long enjoyment or grant. 2 This right to water in its natural state belongs also to the owners of oyster beds in tidal waters, as at common law there is no right to discharge sewage into the sea so as to cause nuisance to another, 3 nor can such a right be acquired by prescription. 4 A right to pollute a stream can only be acquired by a continuance of a perceptible amount of pollution for the full period of twenty years. 5 A riparian pro- prietor can therefore maintain a suit to restrain the fouling of the water without showing that the fouling is actually injurious to him, and the fact that the stream is also fouled by others is no defence. 6 The rights of a riparian proprietor are, moreover, not restricted to the present modes of enjoyment of the water, and a 1 Menzies v. Breadalbane, 3 Bligh, N. S. 414 ; 32 R. R. 103 ; Reg. v. Pagliam, 8 B. & C. 355 ; 32 R. R. 406 ; 3'irfrf v. L. $ N. W. Rail. Co., 44 L. J., Ex. 15 ; L/R., 10 Exch. 4 ; Scott v. Slieplierd, 1 Sm. L. C. (8th ed.) 466, were cited. 2 Wood v. Waud, 3 Ex. 748 ; Embrey v. Owen, 6 Ex. 153 ; Tenant v. Goldwin, 2 Lord Raymond. 1039; Sharp v. Wilton, Rotherhay % Co., (1905) 93 L. T. 155 ; 21 T. L. R. 671 ; Harrington (Earl)v. Derby Corporation, pout, p. 190. Damages cannot be recovered for " de- " preciation of property " assessed separately from " damages " in an action for polluting a stream : Tattan v. Staffordshire Potteries Co., 44 J. P. 106. 8 Hobart v. Soitt /tend-on- Sea Corpora- tion, (1906) 75 L. J., K. B. 305 ; 94 L. T. 337 ; 54 W. R. 454 ; 70 J. P. 192 ; 22 T. L. R. 307, 530 : see also Foster v. Warb- lington. Urban Council, (1905) 69 J. P. 42 ; 21 T. L. R. 214 ; 3 L. G. R. 605. 4 Owen v. Faversham Corporation, (1909) 73 J. P. 33, C. A. 5 A.-G.v. Halifax, 39 L. J., Ch. 129 ; Goldsmith v. Tunbridge Wells, L. R., 1 Ch. 349 ; Cater v. Lewisham, 11 Jur., N. S. 340 ; &ndpoxt, Chap. IV. 6 Crossley v. Lightowler, L. R., 2 Ch. 478 ; 3 Eq. 279 ; St. Helens v. lipping, 11 H. L. 642 ; A.-G. v. Leeds, L. R., 5 Ch. 583 ; Pennington v. Brinsop Hall Co., 5 Ch. D. 769. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 183 new mode of enjoyment gives a right at once to sue for an injury done in respect of such new uses. 1 In the case of Crossley v. Lightowler, 2 the plaintiffs, who owned a carpet manufactory near the river Hebble, purchased from the defendants a piece of land abutting on the river and higher up the stream. The defendants erected dye works still higher up the stream, and the plaintiffs filed a bill to restrain the defendants from fouling the water of the river, both with respect to the carpet manufactory and with respect to the piece of land. The plaintiffs failed to prove pollution opposite to the carpet manu- factory, but as they proved pollution opposite the piece of land higher up the stream, Wood, V.-C., and Chelmsford, L. C., on appeal, both held that they were entitled to an injunction, although they proved no actual injury. It was held, moreover, NO defence in the same case, following the case of The St. Helens Smelting Co. ^ter^vas v, Tipping, 3 that it was no defence that the water was also fouled polluted by by other manufacturers. "Where there are many existing " nuisances," says Chelmsford, L. C., " either to air or water, '* it may be very difficult to trace to its source the injury occasioned " by any one of them ; but if the defendants add to the former " foul state of the water, and yet are not to be responsible on " account of its previous condition, this consequence would follow " that if the plaintiff were to make terms with the other " polluters of the stream, so as to have water free from impurities " produced from their works, the defendants might say, ' We " ' began to foul the stream at a time when, as against you, " ' it was lawful for us to do so, inasmuch as it was unfit for " ' your use, and you cannot now, by getting rid of the existing " ' pollutions from other sources, prevent our continuing to do " ' what, at the time when we began, you had no right to object to.' " 4 1 Pennington v. Brinsop, 5 Ch. D. that it will be a good defence against 769 ; Holker v. Porrit, L. R., 10 Ex. such a complaint that the stream has 59 ; A.-G. v. Birmingham, 4 De G. been from time immemorial devoted to & J. 528. secondary purposes, such as manufac- 2 L. R., 2 Ch. 478 ; L. R., 3 Eq. 279. tories, so as to supersede and abrogate In the case of Duke of Buccleuch v. the primary purposes. See L. R., 2 App. Cowan (Court of Session Cases (Scotch), C. 344, where the judgment was affirmed, 3rd series, Vol. 5, p. 214), it was held and it was held that, by the law of that an upper proprietor is not entitled Scotland, in the case of the pollution of to throw impurities, and especially a stream, the several sufferers may corn- artificial impurities, into a stream so as bine and bring a joint action against to pollute the water as it passes through the several authors of the nuisance, the estate of a lower proprietor ; that s 11 H. L. C. 642 ; 35 L. J., Q. B.66 ; the lower proprietor is entitled to com- 12 L. T. 776. plain of such pollution as renders the 4 L. R., 2 Ch., p. 482. water unfit for primary purposes ; but 184 OF NATURAL RIGHTS OF WATER. Pollution in itself an un- lawful act, and differs in this respect from diver- sion and obstruction. Pollution of surface and percolating water action- able. With regard to this last point, Fry, J., observes in a late case : 1 " I may observe in passing, that the case of a stream affords a " very clear illustration of the difference between injury and "damage; for the pollution of a clear stream is, to a riparian " proprietor below, both an injury and damage, whilst the pollu- " tion of a stream already made foul, unless by other pollutions, " is an injury without damage, which would, however, at once " become both injury and damage on the cessation of the other " pollutions." On the same principle that the right to the flow of pure water is a natural right of property, it is no defence to an action for polluting a stream to show that the trade causing the nuisance was carried on in a proper and lawful manner. 2 The pollution of water then is, in itself, an unlawful act and a nuisance, and in this differs from the diversion or obstruction of a stream, which when done in a reasonable manner and on a man's own land is a lawful use of property. 3 It is established law, that if filth is created on any man's land, then he whose it is must keep it, that it may not trespass ; 4 and that, therefore, where a man, by an artificial channel or otherwise, discharges directly on to his neighbour's premises polluted water to his injury, he is liable to an action for nuisance. 5 For no man can have a right to send dirty water on to another's land, unless he can prove a prescriptive right so to send dirty water. 6 It has been further decided that there is no difference with regard to the natural right to purity of water between the cases of water flowing openly on the surface of land in a defined channel, and water trickling over the ground without any defined course, or water percolating through the soil in unknown or undefined channels. 7 This is established by the case of Hodgkimon v. Ennor, 8 where it was urged that the principles of law relating to the diversion or obstruction of percolating water established in 1 Pennington v. Br'nisoj) Hall Co., 5 Ch. D. 769. 2 Stochport v. Potter, 7 H. & N. 160 ; see HipJtins v. Birmingham, 6 H. & N. 250; 5 H. & N. 74 '; St. Helen* v. Tipping, 11 H. L. 642. 8 See ante, p. 140 et aeq. * Tenant v. Goldwin, 2 Ld. Raym. 1089; Salk. 21, 360 ; Mod. 311 ; Holt, 500 ; Hodgkimon v. Ennor, 4 B. & S. 229 ; Fletcher v. Rylandx, L. R., 3 H. L. 330. & Herd-man v. N. E. Rail. Co., 3 C. P. D. 168, C. A. ; Humphries v. Cousins, 2 C. P. D. 239; Broder v. Saillard, 2 Ch. D. 692 ; Bell v. Twentyman, 1 Q. B. 768. 6 See Cawkwell v. Russell, 26 L. J., Ex. 34. 7 Ballard v. Tomlinson, 29 Ch. D. 115, post, p. 234. See Goddard on Easements, 6th ed., pp. 102, 531. 8 4 B. & S. 229; 32 L. J., Q. B. 231 ; 8 L. T. 451 ; Womerley v. Church, 17 L. T., N. S. 190; see also Manchester and Sheffield Rail. Co. v Worktop, 23 Beav. 198. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 185 Chasemore v. Richards 1 applied equally to pollution of such water ; and that, therefore, no action would lie for injury to a landowner by the pollution of percolating water, by washing lead on his land in the ordinary way. The Court, however, held, that though the person polluting the water might have a right to use it for lead-washing, yet according to the maxim sic utere tuo ut alienum non Icedas, he could not so use it as to injure and cause a nuisance to his neighbour. 2 The rights of owners on artificial channels and of grantees of Pollution of water have been fully discussed in an earlier part of this chapter, watercourses, pp. 146 et seq. It remains to be considered whether the pollution of the water in such artificial channels is placed on the same footing as the diversion and obstruction of it/ The result of the cases seems to be that though neither the owner of land on an artificial watercourse which is not a branch or division of a natural stream, 3 nor the grantee or licensee of a riparian owner, can sue a higher riparian owner for polluting the water in the natural stream, 4 a non-riparian owner who has legally appro- priated part of the water is not debarred by the fact that he has no property in the water from suing a wrongdoer who discharges foul water directly upon his premises. 5 In Ballard v. TomTmson 6 the Court of Appeal have held, affirming Womersley v. Church? Hodykinson v. Ennor, 8 and Tenant v. Goldwi*,? that no one has a right to use his own land in such a way as to be a nuisance to his neighbour, and, therefore, if a man puts filth or poisonous matter on his land he must take care that it does not escape so as to poison water which his neighbour has a right to use, although his neighbour may have no property in such water at the time it is fouled. 10 Whether such a nuisance caused not directly or deliberately by the act of the defendant, but merely by misfeasance, would be actionable seems perhaps doubtful. 11 In the case of Wood v. Waud, 1 * which was the case of an Rights of 1 7 H. L. 349 ; 29 L. J., Ex. 81 ; see 29 Ch. D. 115 ; 54 L. J., Ch. 404 ; post, p. 223. 52 L. T. 942, pout, p. 234. 2 As to the pollution of percolating "> 17 L. T., N. S. 190. water, see Ballard v. Tomtimon, 29 Ch. 8 4 B. & S. 229. D. 115; 54 L. J., Ch. 404; 52 L. T. 1 Salk. 21, 360. 942, pott, p. 234. 10 See Foster v. Warblington Urban 8 As to this, see Baily v. Clark % Council, (1905), 21 T. L. R. 214 ; 69 Morland, 18 T. L. R. 364, post, p. 289. J. P. 42 ; 3 L. G. R. 605. 4 Kuttall v. Bracewell, L. R., 2 Ex. 1 ; "See DicUewon v. Shepley Sewage StocTtpm-t v. Potter, 1 H. & C. 300 ; Board, (1904), 68 J. P. 363 ; Footer \. Ormerod v. Todmorden Mill Co., 11 Warblington Urban Council, (1905), 21 Q. B. D. 155. T. L. R. 214 ; 69 J. P. 42 ; 3 L. G. R. 3 Ballard v. Tomlinson, 29 Ch. D. 605. 115 ; 54 L. J., Ch. 404 ; 52 L. T. 942. 3 Ex. 748 ; 18 L. J., Ex. 305. 186 OF NATURAL BIGHTS OF WATER. artificial watercourse made for the purpose of draining certain mines, the Court held, that as the watercourse was of a temporary and uncertain nature, no rights existed or could be acquired on it so as to prevent its diversion or obstruction, but expressed an opinion that the injury caused by fouling water did not stand on the same footing as abstraction or diversion ; and that though a mine owner might stop a stream of water which flowed artificially from his mines, it did not follow that he or any other could pollute it whilst it continued to run and again, " If they "polluted the water, so as to be injurious to the tenant below, " the case would be different." l The modern cases hardly support this view of the law ; and, after much difference of opinion among the learned judges who have considered the question, it would seem that the injury by pollution is placed on the same footing as other injuries to riparian rights, and that though actual injury caused by the direct discharge of foul water on the premises of another is actionable as a nuisance, the pollution of the water in a stream by a riparian owner can only be complained of by those entitled Whaley v. to the water as of right. 1 In the case of Whaley v. Laing* it appeared that a canal had been formed through land belonging to one Anderton ; and the plaintiff, by leave of Anderton and of the canal company, made a cut through the land to the canal, for the purpose of taking water from the canal to supply his engines. Chemical works were afterwards erected by the defendants, and they commenced pouring muriatic acid into the canal, which mixed with the water and passed to the plaintiff's boilers, which were thereby injured. The question was, whether the plaintiff, as he had no legal right to the water, but merely a licence to use it, could sue the defendants for the damage. The declaration stated that the plaintiff used and had and enjoyed the benefit of the water, which water had been used, and then ought to have run and flowed without pollution. The Court of Exchequer 3 held, without deciding whether the plaintiff had any possessory title in the water of the canal so that if the defendants had stopped the flow of it to the plaintiff, or if the plaintiff, in order to get the water, had to go to the canal and draw it with a bucket, any action could have been maintained that he was entitled to 1 See also Magor v. C'hadwick, 11 A. Chamb. See remarks ou this case, ante, & E. 571 ; Sutcli/e v. Booth, 9 Jur., p. 153. N. 8. 1037 ; 32 L.' J., Q. B. 136. 2 H. & N. 476. 2 2 H. & N. 476 ; 3 H. & N. 675, Ex. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 187 judgment on the ground that the defendants caused foul water to flow on to the plaintiff's premises without justification. They held, further, that the declaration did not mean an assertion of title in the plaintiff, but that the defendants had no right to foul the water. On appeal, the Court of Exchequer Chamber l were divided in opinion. Willes and Crowder, JJ., held that the judgment of the Court below ought to be affirmed, on the ground that the plaintiff was in possession of the water, and the defen- dant was a wrongdoer. Crompton and Erie, JJ., held, that the declaration was bad, as it claimed indirectly a right to the flow of the water which was not supported by evidence of any legal right ; but they added that they did not say that an action might not lie if a man had permission from the owner of a pond to get water for his cattle, and if a stranger, knowing the probable and natural effect of his act, poisoned the water so that the cattle were injured, that probably in such a case an action would lie ; but that the right of action would be founded, not on the title or right to the water, but on the injury to the property of the plaintiff. Williams, J., held the declaration bad in substance, and that judgment should be arrested ; but that the plaintiff was entitled to the verdict. Wightman, J., thought the defendants entitled to judgment, as the plaintiff had no legal right to the water, and, that as against him, the defendants could not be considered wrongdoers. The result was that the verdict for the plaintiff was directed to stand, but judgment was arrested. 2 In the case of Stockport Watencwks Co. v. Potter* the majority stockport of the Court of Exchequer Pollock, C. B., Channell and Wilde, B.B. held that where a landowner on a natural stream conveyed to the plaintiffs, a water company, land not on riparian lands, and also the use of certain conduits and tunnels through the riparian lands the grantees had no natural rights with regard to the stream, and, therefore, could not sue a higher riparian owner on the natural stream for the pollution of the stream, whereby the water flowing through their conduits was also polluted. Bramwell, B., dissented from this view, holding that the grantees could recover, on the general principle that where a man has property, he may grant to others rights in it, for which the grantees can sue. " In this case," he says, however, " the " plaintiffs cannot rely on their mere possession of the water 1 3 H. & N. 675. 3 H. & C. 300 ; 10 L. T. 748 ; see 2 3 H. & N. 901. Nuttall v. Bracewell, L. R., 2 Ex. 1. 188 OF NATURAL RIGHTS OF WATER. " they take, or perhaps, I ought to say, on their mere taking of " it. For whatever Whaley v. Lainy may have decided, it " certainly decided this, that such possession was not enough to " enable the possessor to maintain an action. For that case " decides that the plaintiff had not alleged, or having alleged had " not proved, a right to the water, and so could not recover." In Crossley v. Lightoider, 1 cited above, Chelmsford, L. C., held that the pollution of the water of a natural stream, which was conveyed to a mill by means of an artificial goit, was not an injury to the riparian rights of the owner of the mill, as the mill owner was not a riparian owner on the goit. In the case of Ormerod v. Todmorden Mill Co., 2 in which the judgment of Lord Esher, M. E., is set out at p. 150, ante, the case of Stockport Watenvorks Co. v. Potter was approved and followed, by the Court of Appeal, on the ground that the grant of a right to flowing water by a riparian owner is valid only against himself and cannot confer rights as against others. In Dickemon v. Shepley Sewerage Board, 3 foe plaintiff's water supply was obtained from a rubble drain in the fields of X. and Y. through a syphon under a brook dividing the plaintiff's land from the said fields to a cistern on the plaintiff's land. The water was used for drink- ing purposes. The defendants, by the licence of X. and Y., opened the rubble drain to examine it, and left it open for ten weeks, whereby mud and dirt got into the drain, and the plaintiff's supply was fouled. In an action in the county court for wrongful interference and damage to the plaintiff's water supply by the defendants, the plaintiff, although producing evidence that the water supply had been used by her for many years, expressly disclaimed any easement or right to the water supply that the case might be within the jurisdiction of the county court. The county court judge gave judgment for the defendants, and it was held, on appeal, that as the plaintiff had disclaimed any easement or right to the water supply, and the defendants did not appear to have deliberately fouled the drain, but had merely done something which led to the water being fouled, the plaintiff had no right of action, and the decision of the county court judge was right. In Fergusson v. Malvem Urban Council? owing to an escape of 1 L. R., 2 Ch. 476 ; 36 L. J., Ch. 584 ; T. L. R. 364, Ch. D. 16 L. T. 638, ante, p. 183. 8 (1904) 68 J. P. 363. 2 11 Q. B. D. 155 ; see also Saily v. 4 (1908 ) 72 J. P. 101, K. B. D. Clark, (1901) 17 T. L. R. 239 ; 18 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 189 sewage from a sewer vested in an urban district council, the supply of drinking water used by an adjacent hydropathic establishment became polluted, and an outbreak of typhoid fever occurred in the establishment. In an action by the proprietor of the establishment against the urban district council for damages for the pollution of the water supply, the jury found that the pollution was due to negligence on the part of the defendant council, and there was no contributory negligence on the part of the plaintiff and awarded damages to the plaintiff. The plaintiff had no proprietary title to the water coming to his establishment through the supply which was polluted, nor any leave or licence to use the said water. It was held by Lawrence, J., 1 that the plaintiff had a good cause of action and was entitled to judg- ment on the findings of the jury, but on appeal, the Court Sir Gorell Barnes, P., Fletcher Moulton and Farwell L. JJ. arrived at the conclusion from the facts and findings of the jury that the plaintiff was taking water which belonged to the defendants without any right to do so ; that the water was collected and polluted on the defendants' land; that the defendants did not know that the plaintiff was taking such water ; and that there was no evidence of any damage to the plaintiff except that which was brought about by his own act in thus taking the water. They found that, under these circumstances, the plaintiff had not established any breach of duty on the part of the defendants towards him, and entered judgment for the defendants. 2 Where an action for damages by a riparian owner lies for injunction pollution of a stream, the Courts will interfere by injunction to restrain the nuisance, even where no actual damage is proved, to prevent the inconvenience of repeated actions for damages ; 3 and also where the act done is claimed as of right, on the ground that the repetition of the act would, at the end of twenty years, establish a right in the claimant in derogation of the prior right. 4 1 72 J. P. 101. 100 (H. L. Sc.) ; Swiiidon Water Co. v. 2 72 J. P. 273, C. A. Wilts and Berks Canal, L. R., 7 H. L. 3 Clowes v. Staffordshire Water Co., 705 ; Goldsmid v. Tunbridge Wells, L. L. R. ; 8 Ch. 125, 143 ; 42 L. J., Ch. 107 ; R., 1 Ch. 349 ; Croxsley v. Liglttowler, 27L.T.:,2l; Penningtonv.BrittsopHall L. R., 2 Ch. 478; Han-op v. Hirst, Co.. 5 Ch. Div. 769 ; see also 24 & 25 L. R., 4 Ex. 43. See also cases post, Viet. c. 42 ; Anon., 2 Eq. Abr. 522. pp. 279 et seq. ; as to injunctions gener- 4 Young v. BunTtier Distillery Co., ally, see post, Chap. X. 1893) A. C. 691 ; 69 L. T. 853 ; 58 J. P. 190 OF NATURAL RIGHTS OF WATER. When the right and its violation are clearly established, 1 a man is, in general, entitled as of course to a perpetual injunction to prevent the recurrence of the injury ; 2 and in the case of an injury to riparian rights by pollution, the Courts will not, except in special cases, award damages in lieu of an injunction. 3 Where the mischief complained of is an injury to a private right, the balance of convenience and inconvenience cannot be considered, the question being simply, whether such private rights exist, and, if so, whether the Court, in the exercise of its Harrington judicial discretion, can interfere to protect them. 4 In Harrington ^iterly v ' (Earl of) v. Derby Corporation, 5 the river Derwent was polluted Corporation, by sewage from (1) old sewers into which householders of Derby had for more than twenty years discharged their sewage; (2) sewers inherited by the defendants, the Corpo- ration of Derby, from their predecessors, into which house- holders had by virtue of their statutory rights made connec- tions ; (3) sewers laid by the defendants themselves ; (4) additional sewage arising from the conversion of privies into water-closets under direction's given by the defendants. The (plaintiffs owned Elvaston Castle and estate situated on the river about five and a half miles below Derby, and brought this action for an injunction to restrain the defendants from polluting the river so as to cause a nuisance ; damages for the silting up of a lake fed from the river by a watercourse which had to be stopped up in 1902 ; the loss of a water wheel which had been worked by the watercourse, and the expenses of replacing it by an engine ; pollution to a well into which water percolated from the lake ; depreciation of a house on the bank of the river and to the castle ; the expense of obtaining a new water supply ; and for injury to the fishing. In 1898 an order was made in the Derbyshire County Court, in an action brought by the County Council, that the defendants should abstain from polluting the river contrary to the Kivers Pollution Prevention Act, 1876. 6 By the Derby 1 A Court of Equity will not exercise Imperial Gas Co. v. Broadbent, 7 H. L. its jurisdiction by injunction at the 612 ; see Kerr on Injunctions, p. 44 ; instance of an individual against an and post, Chap. X. alleged nuisance, without a previous s Pennington v. Brinsop Hall Co.. 5 trial at law or without its being clearly Ch. U. 769. proved that the plaintiff has sustained * A.-G. v. Birmingham, 4 Kay & J. such substantial injury as would have 528. entitled him to a verdict for damages in 5 (1905) 1 Ch. 205 ; 74 L. J., Ch. 219 ; an action at law : Elmhirst v. Spencer, 92 L. T. 153 ; 69 J. P. 62 ; 3 L. G. R. 2 Mac. & G. 45. 821 ; 21 T. L. R. 98. Woodv. Sutcliffe, 2 Sim., N. S. 166 ; Seejwst. pp. 212 at seq. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 191 Corporation Act, 1901, the defendants obtained the necessary powers, and they had now commenced to construct sewerage works for the whole of their area : It was held, that, inasmuch as the householders had obtained in the first two classes of sewage prescriptive rights which could not be interfered with by the defendants, and an order" had been made under the Kivers Pollution Act of 1876, and the defendants were taking steps to remove the nuisance, no injunction ought to be granted. It was also held that the action would not lie against the defendants for non-feasance or neglect of duty under the Public Healths Acts ; that the plaintiffs' remedy against them in that respect was by complaint to the Local Government Board under sect. 299 of the Public Health Act, 1875"; that sect. 17 of that Act must be read only as a proviso ; and that sect. 19 did not apply to the present case. It was, however, held that the action would lie against the defendants for damage caused by acts which they had done themselves, but that this did not make the defendants liable for the whole of the damage ; that the plaintiffs could recover damages for the expense of procuring a new water supply and engine, and for the injury to the house and the fishing ; but that they could not recover for injury to the amenities of the castle, nor for the silting up of the lake, for they ought to have excluded the water when they found it was polluted. It was further held that continuance of injury under sect. 1, sub-sect, (a) of the Public Authorities Protection Act, 1893, 56 A 57 Viet. c. 61, does not mean damage inflicted once and for all which continues unrepaired, but a new damage recurring day by day in respect of an act done, it may be, once and for all at some prior time, or repeated, it may be, from day to day ; that under that sub-section an action may be instituted within six months of the ceasing of the continuing injury ; and that therefore the plaintiffs were entitled to recover for a greater period than six months and up to the six years limited by the Statute of Limitations. Even where a prescriptive right has been acquired to discharge sewage into existing sewers an injunction may (notwithstanding Harrington (Earl) v. Derby Corporation) be granted to restrain a nuisance arising from the sewage, if on the facts of the case it does not appear that any interference with such rights will result from the injunction. 1 1 Hobart v. Southend-on-Sea Corpora- 337 ; 54 W. R. ;454 ; 70 J. P. 192 ; 4 tion (1906) 75 L. J., K. B. 305 ; 94 L. T. L. G. R. 757 ; 22 T. L. R. 307, 530. 192 OF NATURAL RIGHTS OF WATER. Where the plaintiff has proved a right to an injunction, it is no part of the duty of the Court to inquire how the defendant can best remove the nuisance. The plaintiff is entitled to an injunction at once, unless the removal of the cause of injury is physically impossible ; and the defendant must find his way out of the difficulty, whatever the inconvenience and expense may be. 1 Where the difficulty of removing the injury is great, the Court will suspend the injunction for a time, to render its removal possible. 2 Where the state of things existing at the date of a judgment has been changed and the nuisance removed an injunction granted will be discharged. 3 Where an injunction was granted to restrain defendants from pouring sewage into a river, and execution of the order was stayed till July 1st, and defendants did not, subsequently to July 1st, stop the nuisance, alleging that they had not yet found a way of deodorizing it, and that compliance with the order was physically impossible, it was held to be a gross and wilful contempt of Court, and sequestration was ordered to issue. 4 In granting an injunction to restrain pollution by sewage matter, it is the practice to grant an immediate injunction restraining any new communications with the river, and to suspend the operation of the order for a time to enable defendants to comply with the order by altering their works. 5 In the case Pennington of Pennington v. Brinsop Hall Co., 6 the plaintiffs, as riparian OP owners, sought a perpetual injunction to restrain defendants, the owners of a colliery, from polluting the waters of a stream with sulphuric acid and other deleterious matters ; and the defendants pleaded that their operations caused no appreciable injury to the plaintiffs ; and further, that if the injunction was granted, they would have no means of getting rid of the water from their mines, and would have to shut up their colliery, and that the 1 Goldnmidv. Tunbridqe Wells, L. 11., Pennington v. Brinsop Hall Co., 5 Ch. I Ch. 163 ; 1 Eq. 349 ; 35 L. J. Ch. 382 ; D. 769 ; A.-G. v. Birmingham, 4 K. & J. 14 L. T. 154 ; A.-G. v. Birmingham, 328. 4 K. & J. 528; A.-G. v. Sheffield, 3 8 A.-G, v. Birmingham Drainage D., M. & G. 304 ; A.-G. v. Leeds, L. R., Board, (1909) 26 T. L. E. 93, C. A. 5 Ch. 583 i A.-G. v. Halifax, 39 L. J., Ch. * Spiher v. Baribury, L. R., 1 Eq. 42. 129 ; 17 W. R. 1088 ; Cater v. Lewis/tarn, 8 Goldsmid v. Tunbrldge Wells, L. II Jur., K S. 340; A.-G.v. Hackney, R., 1 Ch. 163; 1 Eq. 349; A.-G. v. L. R., 20 Eq. 631. As to balance of Birmingham, I K. & J. 528; 19 W. R. convenience where important public 561 ; Pennington v. Brimop Hall Co., 5 interests are involved, see A.-G. v. Ch. D. 769 ; A.-G. v. Halifax, 17 W. R. Birmingham, post, p. 195, and cases 1088 ; 39 L. J., Ch. 129 ; A. G. v. Leeds, cited post, pp. 198 et seq. L. R., 5 Ch. 583 ; A.-G. v. Colney Hatch, 2 A.-G. v. Colney Hatch, L. R., 4 Ch. L. R., 4 Ch. 146. 146 : A.-G. v. Halifax, 29 L. J., Ch. 129 ; 5 Ch. D. 769. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 193 water would still finds its way into the stream by natural causes ; and that the closing of the colliery would cause a loss of 190,OOOJ. and the ruin of their company. They further urged that in lieu of an injunction damages ought to be awarded. 1 Fry, J., how- ever, held, that the plaintiffs had a good cause of action, though the in jury to their riparian rights was unaccompanied by damage, and awarded a perpetual injunction. In delivering judgment he says, " The plaintiffs claim both as riparian proprietors, and also " as having a prescriptive right to the use of the water of the " stream for the purposes of their mill. These rights are not " denied by the defendants. The plaintiffs allege that the " defendants pollute the stream so as to create an injury to the " plaintiffs' rights ; and they say, first, that this injury is " accompanied by damage ; and, secondly, that if it be unaecom- " panied by damage, they have nevertheless a good cause of " action. This second proposition of the plaintiffs is, in my " judgment, well founded, and has scarcely, if at all, been con- " tested by the defendants. The injury alleged by the plaintiffs " is denied by the defendants, and the first question which I have " to decide is, do the operations of the defendants cause an injury " to the plaintiffs ? I may observe, in passing, that the case of a " stream affords a very clear illustration of the difference between " injury and damage ; for the pollution of a clear stream is to a " riparian proprietor below both injury and damage, whilst the " pollution of a stream already made foul and useless by other " pollutions is an injury without damage, which would, however, " at once become both injury and damage on the cessation of the " other pollutions." (His lordship then reviewed the evidence, upon which he came to the conclusion that it proved that the water pumped by the defendants into the stream caused both injury and damage to the plaintiffs. He continued) : " It has, " in the next place, been urged upon me that in lieu of an " injunction I ought to award damages in this case. The " argument has assumed this form. It has been said, and the " case of Enibrey v. Owen 2 has been referred to as an authority, " that the cases of rights to running water, and of rights to air " and light, are analogous ; that in the case of injury done " to the right to air and light the Court has frequently granted 1 As to this, see Aynxley v. Glurei; v. Auction Mart, L. R., 2 Eq. 238 ; Leech , L. R., 18 Eq. 544 ; L. R., 10 Ch. 283 ; v. Schwrder, L. R., 9 Ch. 463. tubnsy v. Owen, 6 Ex. 353, 368 ; Wood 2 6 Ex. 353 ; 20 L. J., Ex. 212. v. Sutclijfe, 2 Sim., N. S. 163, 165 ; Dent L.w. 13 194 OP NATURAL RIGHTS OF WATER. " an inquiry as to damages in lieu of an injunction, and that " it would be right and proper to follow the same course in " this case. I am of opinion that I ought not to accede to this " argument. In the first place, it is to be observed that the " injury to air and light proceeds in almost all cases from a " permanent structural obstruction ; whereas the injury to water " in the present case proceeds from a cause which varies from " day to day, and may cease or may increase at any time. " Hence follows a difference in the measure of damages in the " two cases. In the case of an obstruction to light and air, " the damages would represent the depreciation in value of " the injured property, and so would be in the nature of a " compensation for the injury done ; whilst in the case of " injury to the right to running water, the damages given only " represent the past injury to the plaintiff's right, and are, " consequently, no compensation for the future injury. Again, " the rights of the plaintiffs, as riparian owners, are not limited " to their present modes of enjoyment ; and a new mode of "enjoyment gives a right at once to sue for the injury done in " respect of such new use, as was determined in Ilolkcr v. Porritt, 1 " and the cases there cited. It is impossible to foresee what " modes of enjoyment the plaintiffs, or their successors in title, " may resort to, or the extent of damages which would be a " compensation for the injury which the continued pollution " might cause to such new modes of enjoyment. I shall not, of " course, say that, in no case of injury to riparian rights, " damages should be awarded in lieu of an injunction ; but I " know of no case in which it has been done. In the case of " Clowes v. Staffordshire Potteries Waterworks Co., 9 the point was " considered by Lord Justice Hellish ; and although he was of " opinion that in that case the plaintiff could only have recovered " nominal damages, he nevertheless held that an injunction " ought to issue, upon the ground of the inconvenience of leaving " the parties to repeated and successive actions for damages. " If, therefore, in the present ease, there had been no evidence " of actual damage, but merely evidence of injury to the riparian *' and prescriptive rights of the plaintiffs, I should have followed " this authority ; but there is evidence before me which satisfies " me that the damage accruing to the plaintiffs is by no means 1 L. R., 10 Ex. 59; 44 L. J., Ex. a L. R., 8 Ch. 125; 42 L. J., Ch. 52 ; 83 L. T. 126. 1U7 ; 27 L. T. 521. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 195 " inconsiderable. It has been suggested that there are no known " modes of purifying the defendants' water ; and that obedience " to the injunction will be impossible, or possible only by stopping " the defendants' works, and throwing out of employment a " large number of workmen. I cannot yield to these suggestions, " nor can I find any such balance of inconvenience resulting " from the granting of the injunction as would have induced me "to refuse it, even if I could have assessed damages in the " nature of a compensation, which, for the reasons I have given, " I am of opinion that I cannot do. On the whole, therefore, I " am of opinion that a perpetual injunction should be awarded " to restrain the defendants from discharging water from their " mines and colliery into the stream, so as to cause an injury to " the plaintiffs' mill, engine, boilers, and works, or other their " premises in the pleadings mentioned, or so as to cause the stream " to flow to the plaintiffs' mill and premises, in a state less pure " than that in which it flowed thither previously to the commence- " ment of the defendants' pumping. If the defendants desire it, " and will undertake to indemnify the plaintiffs to such an " extent, and in such manner as the Court may direct, the " injunction may be suspended for three months. There must " be a reference as to damages sustained by the plaintiffs, and, " in my opinion, the measure of these damages will be the " expenses to which the plaintiffs have been put by the pollution " of the stream. The defendants must pay the costs of the action." In the case of A.-G. v. Birmingham, 1 an injunction was A.-G. v. granted to restrain the defendants from carrying out their Birmtn n ham - drainage operations, so as to drive away fish and prevent cattle from drinking the water of a river seven miles below the town, where it belonged to the plaintiff. Wood, V.-C., was of opinion that the defendants were not justified in causing a nuisance by their local Act of Parliament, which incorporated the Towns Improvement Act, 1847, 2 and that public works must be so executed as not to interfere with private rights of individuals. It was urged, on behalf of the defendants, that if the drains were stopped the whole sewage of the town would overflow and cause a pestilence, by which 250,000 people would suffer, and that, moreover, the sewage would empty itself into the river as before. The Vice-Chancellor says, " It has been urged upon " me, more than once, during the argument by the counsel for 1 4 K. ti J. 528 ; see also A.-G. v. 10ft 11 Viet. c. 34. Binningluim, 19 W. B. 561. 132 196 OF NATURAL RIGHTS OF WATER. " the defendants, that there are 250,000 inhabitants in the town " of Birmingham, and that this circumstance must be taken " into consideration in determining the question of the plaintiff's " right to an injunction. " I say the plaintiff's right, rather than the right of those " other members of the community on whose behalf the informa- " tion is exhibited, because, as regards the latter, there may be " circumstances to be taken into consideration which do not " affect the question, so far as it regards the plaintiff. There " are cases at law in which it has been held that where the " question arises between two portions of the community, the " convenience of one may be counterbalanced by the incon- " venience to the other, where the latter are far more numerous. " But in the case of an individual claiming certain private rights " and seeking to have those rights protected against an infraction " of the law, the question is simply, whether he has those rights, " and, if so, whether the Court, looking to the precedents by " which it must be governed in the exercise of its judicial " discretion, can interfere to protect them. " Now, with regard to the question of the plaintiff's right to " an injunction, it appears to me that so far as this Court is " concerned, it is a matter of almost absolute indifference " whether the decision will affect a population of 250,000, or a " single individual carrying on a manufactory for his own " benefit. The rights of the plaintiff must be measured precisely " as they are left by the legislature. Now the plaintiff's rights " are these : He has a clear right to enjoy the river, which, " before the defendants' operations, flowed unpolluted or, at all " events, so far unpolluted that fish could live in the stream, and " cattle would drink of it through his grounds for three miles " and upwards, in exactly the same condition in which it flowed " formerly, so that the cattle may drink of it without injury, and " fish, which were accustomed to frequent it, may not be driven " elsewhere. He is entitled to the full use and benefit of the " water of the river just as he enjoyed them before the passing " of the Municipal Act, unless there be in that Act something " which says he is not to enjoy them any longer. That is the " only question I have to try ; and when I have tried that " question, I arrive at the measure of the rights of the parties. " As regards the discretion the Court should exercise where such " rights exist, if the plaintiff finds the river so polluted as to be THE RIGHT TO WATER IN ITS NATURAL QUALITY. 197 " a continuous injury to him, if, in order to assert his right, he " would be obliged to bring a series of actions one every day of " his life in respect of every additional injury to his cattle, or " every additional annoyance to himself (not to mention the " permanent injury which he would sustain in having the water " which, as it passes along the course of his land, is his " property so damaged that he cannot use it), then the Court " will properly exercise its discretion by granting him an " injunction to relieve him from the necessity of bringing a " series of actions, in order to obtain the damages to which " such continual and daily annoyance entitles him. "In one respect it is true, arguments as to the discretion " which the Court should exercise in a case like the present may " very properly be addressed to it viz., that before granting an "injunction and compelling the sudden stoppage of works like " these, inasmuch as such an injunction might produce a con- " siderable injury, the Court, by way of indulgence, would afford " the defendants every conceivable facility to enable them to " remedy the evil complained of. But when I am told that they " have already done their utmost and spent all their money in " endeavouring to remedy that evil, and that now, in order to " discharge the duties imposed upon them, they have no alterna- " tive but to override the rights of private individuals, the " answer is this If they have not funds enough to make further " experiments, they must apply to Parliament for power to raise " more money. If after all possible experiments they cannot drain " Birmingham without invading the plaintiff's private rights, they " must apply to Parliament for power to invade his rights ; and " if the case be one of such magnitude as it is represented to " be, Parliament, no doubt, will take measures according!}' ; and " the plaintiff will protect himself as best he may." In Hobart v. Soathend-on-Sea l plaintiff was tenant in occupation of oyster beds forming part of an ancient several fishery in the creek or gut called Hadleigh Kay, in the estuary of the Thames, about three and a half miles above Southend-on-Sea. The sewage system of the defendants, constructed in 1897 and 1898, discharged the sewage of Southend-on-Sea in a crude state into the estuary of the Thames at several outfalls. On 31st October, 1903, the Fishmongers' Company, after a report from the medical 1 (1906) 75 L. J., K. B., 305 ; 94 192 ; 4 L. G. B. 757 ; 22 T. L. R. 307, L. T. 337 ; 54 W. R. 454 ; 70 J. P. 530. 11)8 OF NATURAL RIGHTS OF WATER. officer of health for the City of London that the cockles and oysters from the plaintiff's layings were extensively infested with bacteria, forbade the sale of oysters from the layings in London. In October, 1904, the plaintiff commenced this action, claiming an injunction and damages. The defendants alleged inter alia that the rights, if any, acquired or possessed by the plaintiff or his predecessors in title were acquired, or now possessed and enjoyed, subject to a right on the part of the inhabitants of the ancient parish of Prittlewell and of the township of Southend, and of the defendants as their successors, to drain into the sea or Thames estuary within the area within which the defendants' outfalls were situated. This claim was, however, abandoned by counsel at the hearing of the action. The beds were situate within the Kent and Essex Sea Fisheries District, 3onstituted under the Sea Fisheries Regulation Act, 1888 ; and the local fisheries committee for the district, also con- stituted under the Act, had made bye-laws duly confirmed by the Board of Trade, one of which (No. 15) prohibited the deposit or discharge of any solid or liquid substance detrimental to sea fish or sea fishing. Buckley, J., granted an injunction to restrain the defendants from discharging sewage into the tidal waters so as to cause the water flowing over the plaintiff's land to be contaminated and polluted, limiting it to the duration of the plaintiff's lease; and also damages for l,5QQL l In cases, however, where important public interests are involved, such as the improvement of the drainage of a town, the Court will protect the private rights of the individual if affected in any material degree, but will at the same time have regard to the nature and extent of the alleged injury or nuisance and to the balance of inconvenience. 2 Considerations of public welfare may justify the suspension of an injunction upon terms, but they do not justify the denial of relief to the private person whose rights have been affected. 3 injunctions The Courts will also interfere by injunction to prevent bodies to prevent 1 See also Fotter v. Warbltngton Guardian* of Dorking Union, 20 Ch. D. Urban Council, (1905) 21 T. L. R. 214 ; 595, per Jessel, M. R., at p. 607 ; A.-G. 69 J. P. 42 ; 3 L. G. R. 605. v. Acton Local Board, cited at p. 203, 2 Lillywhite v. Trimmer, 36 L. J., jwat. Ch. 525 ; 16 L. T. 318 ; 15 W. R. 763 ; 8 Price's Patent Candle Co. v. London see also Elmhirxt v. Spencer, 2 Macn. County Council, ante, p. 173 ; (1909) & G. 45 ; Edlexton v. Crossley, 18 L. T. A.-G. v. Birmingham Drainage Board, 15 ; see also as to this point A.-G. v. 26 T. L. R. 93, C. A. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 199 possessing parliamentary powers from exceeding or abusing those bodies pos- powers to the prejudice of riparian owners, it being a principle ^gntSy" of law that persons interfering with the property of others by an powers from Act of Parliament are strictly tied down to the limits of the powers granted by the Act, 1 the question in such cases being, whether the nuisance complained of is or is not the necessary result of the works authorized by the Act. 2 Thus in Clowes v. Staffordshire Potteries Water Co., 3 where defendants had power to take the water of certain springs which supplied a river on which certain mills were situate, and to make a compensation reservoir for storing water during floods for the benefit of the mill-owners, and they erected a reservoir which had the effect of making the water of the river more muddy than it was before, and unfit for dyeing purposes ; it was held that the Act gave the defendants no power to foul the water, and an injunction was granted ; and further, that the compensation clauses of the Waterworks Act of 1847 did not apply to the plaintiff's case, inasmuch as the injury was such as the water company were not authorized to commit. " I am of opinion," says James, L. J., " that this is a case pre-eminently for an application to this "Court for an injunction upon two grounds. To one of these " Hellish, L. J., has referred the absolute necessity of preventing " a series of actions which would be the sole result if we remitted " the party to what used to be called the other side of West- " minster Hall. Beyond that, it has always been the practice of " this Court, and one of the main duties of this Court, to take " care that the public bodies who obtained authorities under Acts " of Parliament do not abuse their powers." 4 So it was held in A.-G. v. Hackney Local Board, that the provisions of the Metropolitan Management Act, 25 c 26 Viet, c. 102, s. 6, requiring a month's notice to be served before com- mencing proceedings against the Metropolitan Board of Works, did not affect the right of a riparian proprietor, whose stream is being polluted by the drainage works of a district board 1 Oldaker v. Hunt, 19 Beav. 425; 2 A.-G. v. Metropolitan Board, of Glossop v. Helston Local Board, 12 Works, 11 W. R. 820; see also Black- Ch. D. 102; Metropolitan Board of burn, J., in Mersey Docks v. Gibb, L. R., Works v. L. $ N. W.Rail. Co., 17 Ch. 1 H. L. 93 ; A.-G. v. Colney Hatch, D. 246 ; A.-G. v. Guardians of Dorking, L. R., 4 Ch. 146 ; R. v. Pease, 4 B. & 20 Ch. D. 595 ; A.-G. v. Acton Local A. 30 ; 38 R. R. 207. Board, 22 Ch. D. 221 ; 52 L. J., Ch. 3 L. R., 8 Ch. 125 ; 42 L. J., Ch. 107 ; 108 ; 47 L. T. 510 ; and also cases ante, 27 L. T. 521. &177 ; and for cases under the Public 4 L. R., 8 Ch. 143. ealth Acts, see post, pp. 206 et seq. 200 OF NATURAL RIGHTS OF WATER. incorporated under the Act, to a summary relief by injunction, as the nuisance was not an exercise of their parliamentary powers. 1 Similarly it has been held in Price's Patent Candle Co. v. London County Council? that the London County Council were not justified under the Metropolitan Management Acts, 1855 and 1858 (18 a- 19 Viet. c. 120, and 21 A 22 Viet. c. 104), in pumping storm water heavily charged with sewage into a creek the property of the plaintiff so as to cause a nuisance, and an injunction was granted, and that the Metropolitan Board of Works were not authorized by sect. 135 of 18 & 19 Viet. c. 120, to turn into a navigable river the whole sewage of a district, not previously drained into it, so as to create a nuisance. 3 So a district board under the Metropolitan Management Act, 18 d 19 Viet. c. 120, are not empowered by their Act to pollute water beyond the district over which the board have authority. 4 So in A.-G. v. Cockermoiith, Jessel, M. K., granted an injunction to restrain a local board under the Local Government Act, 1861 (24 & 25 Viet. c. 61), from discharging sewage by an outfall out of their district into a river so as to affect or deteriorate the water at the point of discharge, though such pollution was imper- ceptible at a town six miles lower down the river. 5 " Now, if I " understand the law upon the subject," says the learned judge, at p. 178 of the report, " it is not necessary for the Attorney- " General to show any injury at all. The legislature is of " opinion that certain acts will produce injury, and that is " enough." Moreover, when statutory powers are conferred under circumstances in which they may be exercised with a result not causing any nuisance, and new and unforseen circumstances arise which render the exercise of them impossible without causing a nuisance, the persons so causing such nuisance are liable. Thus, where lessees of a canal company were empowered to take water from certain brooks for their canal, and the brooks became polluted and so caused the canal to become a public nuisance, they were held liable to an indictment, as their Act of Parliament did not enjoin, but only empowered them to take the water in its pure state, and the legislature did not contemplate their taking it in a polluted state. 6 The Court of Chancery in L. R., 20 Eq. 626. inning Jtam, 4 K. & J. 528 ; see A.-G. 2 See ante, p. 173. v. Kingston, 13 W. R. 888. 8 A.-G. v. Metropolitan Board of * Cator v. Lewisham, 5 B. & S. 115. Works, 11 W. R. 820 ; A.-G. v. Colmey 6 L. R., 18 Eq. 172. Hatch, L. R., 4 Ch. 146; A.-G. v. Reg. v. Bradford, 6 B. & S. 631; THE RIGHT TO WATER IN ITS NATURAL QUALITY. 201 the same case granted an injunction restraining the nuisance, holding that the judgment of the Court of Queen's Bench was correct, and that the fact that an appeal was pending was no bar to an injunction; and further, that it was no defence for the company to say that they did not pollute the water, they having the power to draw it in or not as they pleased. 1 A local board who do not act themselves so as to cause a nuisance but neglect to perform their duty of providing a satis- factory system of drainage, are not liable to an action or injunc- tion at the suit of an individual ; but the remedy is by prerogative writ of mandamus. 2 In the case of A.-G. v. Leeds Corporation* an injunction was Acquiescence, granted at suit of two landowners to restrain pollution by a sewer, although the sewer had existed sixteen years before bill filed. Lord Hatherley, L. C., remarks in his judgment, "The " only point that really seemed to me to create any question in " the cause was this, that all was done sixteen years ago ; that a " great deal of money was laid out in the construction of these "works, and that the landowners and other persons injured " might be affected by standing by and seeing an expenditure of " money which they might know could only tend to one result, "and was only intended for one purpose, which purpose must " necessarily produce the result in question, and yet making no " complaint. I think the true answer is that which had occurred " to us before we called on Sir Eoundell Palmer, viz. : that "when any person finds that the legislature has authorized a " work to be done (and of course, the force of this is increased by " the view we have taken that the true construction of the Act is " that it is to be done without creating a nuisance) he is not "to assume it will create a nuisance. On the contrary, the " presumption would be that the board would not do anything "unlawful." 4 The Courts, moreover, will not interfere by injunction in the Future case of merely prospective injury; the nuisance must be actual DUHance - and existing, and not future, however strongly the apprehension R. v. Pease distinguished, as in that Ch. D. 102 ; A.-G. v. Guardians of case the nuisance was the very thing Dorking, 20 Ch. D. 595 ; A.-G. v. Clerk- contemplated by the legislature, and, enwell Vestry, (1891) 3 Ch. 527. therefore, the legislature had sanctioned 8 L. K., 5 Ch. 583. it ; 4 B. & A. 30 ; 38 R. R. 207. 4 See also A.-G. v. Halifax. 39 L. J., 1 A.-G. v. Bradford, L. R., 2 Eq. 71 ; Cn. 129 ; 17 W. R. 1088 ; A.-G. v. Grand see also Manchester and Sheffield Rly. Junction Canal Co., (1909) Ch., W. N. v. Worksi'p, 23 Beav. 198. 167. See also cases, pott, p. 241. 2 Glossop v. Helston Local Board, 12 20*2 OF NATURAL RIGHTS OF WATER. of injury may be supported by scientific evidence. In The Attorney-General v. Kingston, 1 the corporation of that town, under the Towns Improvement Clauses Act, proposed to make a single drain to convey into the Thames the sewage of the town, which had formerly been drained by cesspools, and also by direct communication with the river. The evidence showed that at Jeast twice as much sewage would be thus discharged into the river, as under the old system ; and two scientific witnesses 2 were of opinion that the proposed works would, in the course of time, by the formation of deposits of sewage matter, have a very noxious effect, and render the water unfit for drinking or domestic purposes. The Vice-Chancellor held that the defen- dants were not authorized by the statute to create a nuisance, but that, looking at the Act, the mere fact of draining into a navigable river was not to be considered as a nuisance, since it was authorized to be done, provided no nuisance was thereby occasioned; that had any case of injury to cattle from drinking the water, or to the inhabitants on the banks, been at all established, or established approximately, as likely to occur, then he should conceive it was a case for interference by injunction; 3 but that nothing like such a case was shown by the evidence, and that the information should be dismissed. increasing If, however, some degree of present nuisance exists, the Court po11 will take into account its probable continuance and increase. 4 Thus, where the sewage of a town had for many years drained into a stream passing through plaintiff's land, without percep- tibly polluting it, but, for some years before filing the bill, in consequence of the increase of the town, the stream became per- ceptibly polluted, and continued to increase in imparity, the Court of Chancery granted an in junction restraining the draining of the sewage into the stream. 5 In the case of Metropolitan Board of Works v. London and North- Western Rail. Co., 6 where an injunc- tion was granted to restrain the defendants from draining certain new cottages into a brook which had been converted into a sewer, 1 13 W. R. 888. * Goldsmid v. Tunbridge Wellg,L. R.' 2 As to value of scientific evidence in 1 Ch. 349. See Foster v. Warbling ton cases of nuisance, see A.-G. v. Colney Urban Council, (1905) 21 T. L. R. 214 ; Hatch, L. R., 4 Ch. 156 ; Goldsmid v. 69 J. P. 42 ; 3 h. G. R. 605. Tunbridge Wells, L. R., 1 Ch. 349. 3 Ibid.; see also A.-G. v. Sheffield, 8 See^.-fi*. v. Hackney, L. R., 20 Eq. 3 D. M. & G. 304; A.-G. v. Leeds 631 ; Elliot v. North Eastern Rail. Co., Corporation, L. R.. 5 Ch. 583 ; A.-G. v. 10 H. L. 333 ; 1 J. & H. 156 ; 2 D., Halifax, 39 L. J., Ch. 129. F. & J. 423 ; Elwell v. Crowther, 31 6 17 Ch. D. 246. Beav. 169. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 203 James, L. J., says : " If a man has an artificial drain or sewer " by which he drains anything, either water or sewage, into his " neighbour's land, he cannot use the drain so as to drain another " close or another house. It seems to me impossible to suppose " that there is anything in the English law to say that a man has " the right to pour in as much sewage as can come from anywhere, " limited only by the size of the particular drain." This principle applies to a local board j ust as it does to an ordinary landowner. 1 Although, as has been said, it is not necessary for a riparian what is owner to prove actual damage to enable him to sue for the inter- P llutlon - ference with his right to pure water, yet it would appear that he must prove actual pollution of some character or another, and that the discharge of waste matter of an innocuous character is not actionable at common law. 2 " It is not," says Mr. Angell, 3 " under " all circumstances, an unreasonable or unlawful use of a stream, " to throw or discharge into it waste or impure matter : whether " such an act would be reasonable or not, in any given case, would " be a question for the jury upon its circumstances. The same " circumstances would be open for consideration, and the same " rules would govern in this case, as in respect to the abstraction, " detention, diversion, or obstruction of water in a stream. The " size and character of the stream, the uses to which it can be " or is applied, the nature and importance of the use claimed and " exercised by one party, as well as the inconvenience or injury " to the other party, would be subjects involved in the inquiry." 4 Thus it has been held at nisi prius by Coleridge, J., that the merely making water temporarily muddy is not sufficient to maintain an action. 5 So by the 20th section of the Rivers Pollution Act, 6 it is provided that the word pollution shall not include, for the purposes of the Act, innocuous discoloration. " Sand and " silt " are not " sewage or filthy water " under sect. 17 of the Public Health Act, 187 5. 7 In the case of Ling wood v. Stow- market, 8 Wood, Y.-C., held that in an order for an injunction to restrain the pollution of a stream, it is proper to insert the words " to the injury of the plaintiff," in order to establish a ground for 1 A.-G. v. Acton Local Board, 22 Water Co. v. Wiltx and Berks Canal. Ch. D. 221 ; 52 L. J., Ch., 108 ; 47 L. T. L. R., 7 H. L. 697. 510 ; 31 W. R. 153. s Taylor v. Sennet, 7 C. & P. 329. 2 Kensit v. G. E. Rail. Co., 27 Ch. D. 6 39 & 40 Viet. c. 75. post, p. 212. 122; 54 L. J., Ch. 19; 51 L. T. 862, 7 Durrantv.Branksoine Urban Coun- ante, p. 152. til, (1897) 2 Ch. 291 ; 76 L. T. 739. 8 Angell on Watercourses, p. 240. 8 L. R., 1 Eq. 77 ; see Dawson v. 4 See per Lord Cairns in Stcindon Paver, 5 Ha. 422. 204 OF NATURAL RIGHTS OF WATER. the interference of the Court, and to prevent its authority being invoked for trivial purposes. So in A.-G. v. Cockermouth, 1 Jessel, M. B., refused to grant an injunction at the suit of a local board to restrain the defendants from discharging sewage into a stream eight miles above the intake of the plaintiff's waterworks, as the evidence showed that chemical analysis failed to detect any pollution in the water at the intake of the waterworks, though it was perceptibly polluted at the point of discharge. 2 An injunction was, however, granted at suit of the Attorney- General on the ground that the defendants had infringed the 4th section of the Local Government Act, 1861. " Now as I understand " the law," says the learned judge, "it is not necessary to prove any " injury at all. The legislature is of opinion that certain acts will " produce injury, and that is enough. The legislature is of opinion " that it is desirable to preserve our natural streams, at least, in " their present state of purity, and it therefore was said that you " shall not affect or deteriorate the water at all ; and the Court " must presume that the deterioration of the water is an injury " which is prohibited by the legislature for good and sufficient " cause." Various sources of pollution have been held by our Courts to be actionable. Thus it has been held actionable to set up a lime pit for calf and sheep skins so near water as to pollute it; 3 so erecting a cesspool so near a well as to contaminate it; 4 so the letting off of water made noxious by precipitation of minerals ; 5 or dye wares, or liquors, or madder, or indigo, or potash, 6 or sulphuric 7 or muriatic 8 acid; or discharging heated water into a stream injuriously, 9 or sewage, 10 or rendering water unfit for domestic or culinary purposes; 11 or rendering it unfit for 1 L. R., 18 Eq. 172. 7 Pennington v. Brinxop, 5 Ch. D. 2 See also Lillywhite v. Trimmer, 36 769. L. J., Ch. 525 ; 16 L. T. 318 ; Ridge v. 6 Stochport v. Potter, 7 H. & N. Midland Rail. Co., 53 J. P. 55 ; Elmhirst 1 60. v. Spencer, 2 Macn. & G. 45 ; Edleston 9 Mason v. Hill, 5 B. & A. 1 ; 3 v. Cnmley, 18 L. T. 15. B. & A. 304 ; 39 R. R. 354 ; Wood v. 8 Year Book, Hen. II. b. 6 ; see Moore Waud, 3 Ex. 748 ; Tipping v. Ecltersley, v. Webb, 1 C. B., N. S. 673. 2 K. & J. 264. Norton v. ScJtoleJield, 9 M. & W. "> A.-G. v. Cockermoutli, L. R., 18 Eq. 565; Womersly v. Church, 17 L. T., 172; A.-G.v. Leeds, L. R., 5 Ch. 533; N. S. 190. A.-G. v. Colney Hatch, L. R., 4 Ch. 146 ; & Hodgltingon v. Ennor, 4 B. & S. A.-G. v. Birmingham, 4 K. & J. 528; 229 ; 32 L. J., Q. B. 231 ; 8 L. T. 451 ; A.-G. v. Kingston, 13 W. R. 888. Wright v. Williamx, 1 M. & W. 77. " Goldsmid v. Tunbridge Wells, L. R., B Wood v. Sutcli/e, 16 Jur., N. S. 1 Ch. 349. THE RIGHT TO WATER IN ITS NATURAL QUALITY. 205 cattle to drink of, 1 or fish to live in, 3 or for manufacturing purposes. 3 Where the pollution of a stream amounts to a public nuisance, Public the party causing it may be prosecuted by indictment, or nuisance - proceeded against by information at the suit of the Attorney- General. 4 An action will also lie for a public nuisance on proof of special damage. 5 The statutory provisions restricting the pollution of water are statutory numerous, but with the exception of the Rivers Pollution Pre- ******* on pollution. vention Act of 1876, 6 they are either local, or deal with the pollution of water used for special purposes. Thus sect. 1 of the Waterworks Clauses Act, 1847, 7 subjects to a penalty not exceeding 5L every person throwing rubbish, &c., into any stream, reservoir or other works, or bathing in any stream, or causing the water of any sink, sewer, or drain, steam engine, boiler, or other filthy water to flow into any stream or reservoir belonging to any undertakers under the Act. Such person to forfeit in addition 20s. per diem for every day that such offence shall be committed. The Public Health Acts and other Acts 8 empowering local authorities (the place of which enactments has been taken by the Public Health Act, 1875, 38 & 39 Viet. c. 55, and the Public Health Amendment Act, 1890, 53 ( 54 Viet. c. 59) do not authorize local authorities to send sewage into the sea 9 or into a river to the prejudice of parties having established interests in the water. 10 1 A.-G. v. Birmingham, K. &J. 528 ; and see post, Chap. X. Manchester Railway v. Worktop, 23 6 39 & 40 Yict. c. 75. Beav. 198 ; A.-G. v. Luton, 2 JUT., N. S. MO & 11 Viet. c. 17. Sect. 2 of this 181 ; OldaJter v. Hunt, 6 De G., M. & G. Act defines streams to include " springs, 376. " brooks, rivers, and other running 2 Bidder v. Croydon, 6 L. T., N. 'S. "waters." 778 ; A-.G. \. Birmingham, 4 K. & J. 8 See^wrf, Chap. V., pp. 365 et seq. 528; A.-G. v. Luton, 2 Jur.. N. S. 181; 9 Hobart v. Southend-on-Sea Cor- Oldaker v. Hunt, 6 De G., M. & G. 376 ; poration, (1906) 75 L. J., K. B. 305 : 94 Aldretfs case, 9 Rep. 59 a. L. T. 337 ; 54 W. R. 454 ; 70 J. P. 192 ; 8 Clowe* v. Staffordshire, L. R., 8 Ch. 4 L. G. R. 757 ; 22 T. L. R. 307, 530. 142 ; 42 L. J., Ch. 107 ; 27 L. T. 521 ; 10 See Oldaker v. Hunt, 6 De G., Mi Crossley v. Lightowler, L. R., 2 Ch. 478 ; & G. 376 ; Bidder v. Croydon, 6 L. T., Lingicood v. Stowmarket, L. R., 1 Eq. N. S. 778 ; A.-G. v. Luton Board of 77 ; Tipping v. Eckersley, 2 K. & J. 264 ; Health, 2 Jur., N. S. 180 ; Manche*ter Wood v. Sutclife, 2 Sim., N. S. 163; Railway v. WorJtsop, 23 Beav. 198; Young v. Bankier Distillery CH., (1893) Spokes \. Baiibury, L. R., 1 Eq. 42; A. C. 691 ; 69 L. T. 830 ; Tatton v. A. G. v. Birmingham, 4 K. & J. 428 ; Xtiiffordxhire Potteries Co., 44 J. P. 106. Cutor v. Lewinliam, 5 B. & S. 115 ; Reg. 4 See pott, Chap. X. v. Darlington, 5 B. & S. 515 ; Goldsmid > Benjamin v. Storr, L. R..9C- P,430; v. Tunbridge Wells, 35 L. J., Ch. 88 ; 206 OF NATURAL RIGHTS OF WATER. Public Health By the Public Health Act, 1875, 1 sect. 17, it is provided that Acts. tt f^bing in this Act shall authorize any local authority to make " or use any sewer, drain, or outfall for the purpose of conveying " sewage or filthy water into any natural stream or watercourse, " or into any canal, pond or lake until such sewage or filthy " water is freed from all excrements or other foul or noxious " matter such as would affect or deteriorate the purity or quality : 'of the water." 2 By sect. 832, it is provided, that " Nothing in " this Act shall be construed to authorize any local authority to " injuriously affect any reservoir, canal, river, or stream, or the " feeder thereof, or the supply, quality, or fall of water contained " in any reservoir, canal, river, or stream, or in the feeders " thereof, in cases where any body of persons or person would, if " this Act had not passed, have been entitled by law to prevent "or to be relieved against the injuriously affecting such reservoir, " canal, river, stream, feeders, or such supply, quality, or fall of " water, unless the local authority first obtain the consent in "writing of the body of persons or person so entitled as afore- said." This provision comes in place of sect. 70 of the Local Government Act, 1858, and sect. 45 of the Nuisances Removal Act, 1855, both repealed (the latter except as to the metropolis) by the Act of 1875. 3 By sect. 64 of the Act of 1875 it is enacted that, Public wells. " All existing public cisterns, pumps, wells, reservoirs, conduits, " aqueducts, and works used for the gratuitous supply of water " to the inhabitants of the district of any local authority shall " vest in and be under the control of such authority, and such "authority may cause the same to be maintained and plentifully " supplied with pure and wholesome water, or may substitute, " maintain, and plentifully supply with pure and wholesome "water other such works equally convenient; they may also " (subject to the provisions of this Act) construct any other such " works for supplying water for the gratuitous use of any " inhabitants who choose to carry the same away, not for sale, " but for their own private use." 4 By sect. 69, local authorities, L. R., 1 Ch. 349 ; A.-G. v. Leeds, L. R., a As to this section, see A.-G. v. 5 Ch. 583 ; A.-G.v. Cockermouth, L. R., Birmingham, fyc., Drainage. Board, 18 Eq. 172 ; A.-G. v. Richmond, L. R., (1909) 26 T. L. R. 93, C. A. 2 Eq. 306 ; A.-G. v. Colney Hatch, L. Michael and Will's Law of Gas and R., 4 Ch. 146. See also A.-G. v. Basing- Water, 5th ed., pp. 392, 400. stoke, 45 L. J., Ch. D. 726; St. Helens * Under a similar section in the Public Chemical Works v. St. Helens, 1 Ex. D. Health (Scotland') Act, 1867,8. 89,sub-s. 196; Durrant v. Branksome Urban 4, "A well situated on private ground, Council, (1897) 2 Ch. 291. the water of which has been used for 1 38 & 39 Viet. c. 55. domestic purposes gratuitously by the THE RIGHT TO WATER IN ITS NATURAL QUALITY. 207 with sanction of the Attorney-General, may take proceedings by indictment, bill in chancery, action or otherwise, for the purpose of restraining pollution. 1 inhabitants in the vicinity for the pre- scriptive period, is a public well within the meaning of the section ; and the local authority can enter on the land and do all acts to the well for continuing and maintaining it, which the inhabi- tants might have done before. And this, notwithstanding that there may be a company with a vested right to supply the inhabitants with water." Smith v. Archibald, a A. C. 489, H. L. Sc. (1880). See also St. Clair v. Magistrates of Di/xart, Moor. 14, 519. In Holmjirth Local Board v. Shore, 59 J. P. 344. a trough or cistern receiving the overflow from a spring at some dis- tance had been used by the public gratuitously for watering cattle and for domestic purposes for a period of over fifty years. The defendant erected a gate to prevent the access of cattle to the trough, and let a pipe into the bot- tom of the trough leading into his own house, where it terminated in a stopcock, and by means of this pipe and stopcock he could draw off as much water as he pleased. Held, that, under the Public Health Act, 1875 (38 & 39 Viet. c. 55), the trough or cistern was a public well or work used for the gratuitous supply of water to the inhabitants of the district of the local authority in which it was situate, and that it was vested in and was under the control of the local authority by force of sect. 64 of the Public Health Act. 1875, and that the local authority might maintain an action in their own name in the county court against the defen- dant for damages for the interference caused by the insertion of the pipe in the bottom of the trough. In Dmtgarcan Guardian's v. J/. 190. provides for the application of sect. 297 2 Kirkheaton Board v. Ainslie, (1892) of the Public Health Act, 1875, relating 2 Q. B. 274 ; Turks West Riding v. to the making of Provisional Orders for Holnijirth, (1894) 2 Q. B. 842; see the purposes of the Act. As to liabilities Derby County Council v. Derby, (1896) of sanitary authorities, see A.-G. v. 2 Q. B. 53, 297 ; Peebles v. Oswald- Guardians of Dorking, ante, p. 208. whistle, (1897) 1 Q. B. 384. 1 The principle to be applied by the 8 See ante, p. 216, n. 1. Court in exercising its discretion as to 4 A company whose works had been the making of an order is that regard constructed prior to the passing of the must not be had to the amount of Act, inter alia, stated that they had pollution already in the river, but that acquired a prescriptive right to pollute if from a particular place there is sent the river, and pleaded that sect. 16 into the river a quantity of polluting saved this right. The Court repelled matter which exceeds the minimum of this plea, holding that sect. 16 saved which the law will not take heed, the only rights to prevent pollution : Mid- plaintiffs are entitled to an order : lothian C. C. v. Oilbanh Oil Co., 6 Fraser Staffordshire. County Council v. Seisdon 387, Ct. of Sess. ; 5 Fraser 700, Ct. of Rural Council, 96 L. T. 328 ; 71 J. P. Sess. See, however, Harrington (Earl) 185 ; 5 L. G. K. 347 ; (1907) K. B. D. ; v. Derby Corporation, ante, p. 190. see also as to orders under the Act THE RIGHT TO WATER IN ITS NATURAL QUALITY. 219 Sect. 17. " This Act shall not apply to or affect the lawful Saving of " exercise of any rights of impounding or diverting water." l impounding Sect. 18 reserves rights under the Thames Conservancy Acts, and diverting the Lea Conservancy Acts, and the Metropolitan Management Acts. Sect. 19 excepts local authorities empowered by Act of Parlia- ment to carry sewage into the sea or tidal waters from liability under the Act. Sect. 20 contains definitions, of which the most important is as follows : " ' Stream ' includes the sea to such extent, and tidal waters to " such point, as may, after local inquiry and on sanitary " grounds, be determined by the Local Government Board, by " order published in the London Gazette. 2 Save as aforesaid " it includes rivers, streams, 3 canals, lakes, and watercourses, " other than watercourses at the passing of this Act mainly " used as sewers, and emptying directly into the sea, or " tidal waters which have not been determined to be streams " within the meaning of this Act by such order as aforesaid." Sects. 21 and '22 provide for the application of the Act to Scotland 4 and Ireland. 5 1 As to the construction of this sec- tion see Ribble Hirer Committee v. Halliwell, (1899) 2 Q. B. 388, ante, p. 213. 2 Under the West Riding Rivers Act, 1894, 57 & 58 Viet. c. clxii. s. 24, it is provided that " nothing in this Act ' shall apply to any tidal waters which ' have not been determined by the Local 'Government Board to be a 'stream' under this section." In Yorkshire ( Wttst Riding) Rirers Board v. Tadca*ter District Council, 97 L. T. 436 ; 71 J. P. 429 ; 5 L. G. R. 1208, it was held that " tidal waters " include those waters not merely where there is a horizontal ebb and flow, but also where there is a vertical rise and fall caused by the ordinary sea tide ; see ante, p. 81. 3 As to what is a " stream " see York- shire (West Riding) Rivers Board v. Preston $ Son, 92 L.T. 241 ; 69 J. P. 1 ; 3 L. G. R. 289. 4 Sect. 5 (sub-sect. (2) ) of the Secretary of State for Scotland Act, 1885 (48 & 49 Viet. c. 61), transfers to the Secretary all powers and duties previously " vested in "or imposed on one of Her Majesty's " Principal Secretaries of State " by the enactments specified in Part I. of the Schedule to the Act, among which is included the Rivers Pollution Preven- tion Act, 1876. The powers of making orders as to costs of inquiry under sects. 14 and 21, sub-sects. (4) and (8) of the Act, and with regard to inspectors under sects. 15 and 21, sub-sect. (9), are therefore now apparently vested in the Secretary of State for Scotland. Sect. 55 of the Local Government (Scotland) Act (52 & 53 Viet. c. 50) em- powers county councils in Scotland to enforce the provisions of the Rivers Pol- lution Prevention Act, 1876 (subject to any restrictions therein contained), " in " relation to so much of any stream as is " situate within, or passes through or by, " any part of their county," and confers on them the powers and duties of sani- tary authorities or other authorities having powers for that purpose, and also authorizes them to contribute towards the expenses of prosecutions under the Act instituted by any other county council or sanitary authority (sub-sects, (l)and (2)). The Secretary for Scot- land may also (by sub-sect. (3)), on the application of the council of any of the counties and burghs concerned, consti- tute by provisional order a joint com- mittee or other body representing all the counties and burghs through or by which a river, or any specified portion or any tributary thereof, passes, and confer on it all the powers of a sanitary authority under the Rivers Pollution Prevention Act, 1876, or s-.-.ch of them as may be specified in the order. 5 Sect. 28 of the Public Health (Ireland) 220 OF NATURAL RIGHTS OF WATER. Abstraction and diversion of, not actionable. Right to drain surface water for agricultural purposes. Subterranean water. Wells. Percolating Water and Water having no defined Course. The principles of law which regulate the rights of owners of land in respect of water flowing in known and defined channels, whether upon or below the surface of the ground, do not apply to water which runs in no defined channel, or merely percolates through the strata, and no action will, therefore, lie for the abstraction or diversion of such water. 1 Thus in the case of Rawstron v. Taylor, 2 it has been held that the owner of land has an unqualified right to drain it for agricultural purposes in order to get rid of mere surface water, the supply of the water being casual, and its flow following no regular or definite course ; and a neighbouring proprietor cannot complain that he is thereby deprived of such water which other- wise would have come to his land. So in Broadbent v. Rams- botham, 9 where the plaintiff's mill for more than fifty years had been worked by the stream of a brook which was supplied by the water of a pond filled with rain, a shallow well supplied by subterraneous water, a swamp and a well formed by a stream springing out of the side of a hill, the waters of all of which occasionally overflowed and ran down the defendant's land in no definite channel into the brook, it was held that the plaintiff had no right as against the defendant to the natural flow of any of the waters. So in Greatrex v. Hay ward* it was held, follow- ing Wood v. Waud, 5 that the flow of water from a drain made for agricultural purposes for twenty-one years does not give a right to the person, through whose land it flows, to the continuance of the flow so as to preclude the proprietor of the land drained from altering the level of his drains for the improvement of his land, and so cutting off the supply. 8 The same rules of law have, after some difference of opinion, been established in a series of cases to apply to subterranean water percolating through the strata of the earth in no definite or known course, it being now established on the highest Act, 1896 (59 & 60 Viet. c. 54), enacts that the expression Public Health (Ireland) Act, 1874, wherever it occurs in the Rivers Pollution Prevention Act, 1876, "shall in the application of the " said Act of 1876 to Ireland, be con- " strued as meaning the Public Health "(Ireland) Acts, 1878 to 1890." 1 For definition of a stream or water- course see ante, pp. 78 et e.q. As to pollution of percolating water, sec post, pp. 233 et seq. Ml Ex. 353; 25 L. J., Ex.33. 8 11 Ex. 602; 25 L. J., Ex. 115. 4 8 Ex. 291 ; 22 L. J., Ex. 137. s 3 Ex. 748 ; 18 L. J., Ex. 305. 6 See also Young v. Bankier Distillery Co., (1893) A. C. 691 ; 69 L. T. 838 ; 58 J. P. 100 (H. L. Sc.) ; Hanna v. Pollock, (1906) 2 Ir. R. 664, C. A. PERCOLATING WATER HAVING NO DEFINED COURSE. 221 authority that the owner of land containing underground water which percolates by undefined channels and flows to the land of a neighbour, has the right to divert or appropriate the per- colating water within his own land so as to deprive his neighbour of it ; and his right is the same whatever his motive may be, whether bond fide to improve his own land, or maliciously to injure his neighbour, or to induce his neighbour to buy him out. 1 Where the course of a stream is definite and notorious, the same rules of law will govern it, whether it be above or below ground. 2 In the case of Acton v. Blandell, 3 it was decided that the owner Acton v. of land through which water flows in a subterraneous course has no right or interest in it which will enable him to maintain an action against a landowner who, in carrying on mining opera- tions in his own land in the usual manner, drains away water from the land of the first-mentioned owner and lays his well dry. " The question argued before us," says Tindal, C. 'J., delivering the judgment of the Court, " has been in substance " this, whether the right to the enjoyment of an underground " spring, or of a well supplied by such underground spring, is " governed by the same rule of law as that which applies to and " regulates a watercourse flowing on the surface. In the case " of a running stream, the owner of the soil merely transmits " the water over its surface : he receives as much from his " higher neighbour as he sends down to his neighbour below : " he is neither better nor worse, the level of the water remains " the same. But if the man who sinks the well in his own land " can acquire by that act an absolute and indefeasible right to " the water that collects in it, he has the power of preventing " his neighbour from making any use of the spring in his own " soil which shall interfere with the enjoyment of the well. 4 He " has the power still further of debarring the owner of the land "in which the spring is first found, or through which it is " transmitted, from draining his land for the proper cultivation 1 Bradford Corporation v. Pickles, 2 Chagemore v. Richards, 7 H.L. 349 ; (1895) A. C. 587. In the above case DicTtenson v. Grand Junction Canal, 7 it was held that the prohibition in Ex. 282 ; 21 L. J., Ex. 211 ; Dudden v. sect. 49 of the Bradford Waterworks ClvMon Union, 1 H. & N. 627, 630 ; Act, 1854, against the illegal diversion, Wood v. Waud, 3 Ex. 748 ; Ewart v. detention or appropriation of the flow Belfast Guardians, 9 L. K., Ir. 172 of water applies only to the waters when (C. A.) ; see Phear, p. 33 ; Angell, p. 152. collected and not to the springs or s 12 M. &W. 324; 13 L. J., Ex. 289. sources from which the water proceeds ; 4 See Galgay v. G. 8. $ W. Rail. Co,, see also MNab v. Robertson, (1897) 4 Ir. C. L. B. 456. A. C., H. L. Sc. 129. 222 OF NATURAL RIGHTS OP WATER. " of the soil ; and thus by an act which is voluntary on his part, " and which may be entirely unsuspected by his neighbour, he " may impose on such a neighbour the necessity of bearing a " heavy expense, if the latter has erected machinery for the " purpose of mining, and discovers, when too late, that the " appropriation of the water has already been made. Further, " the advantage on one side, and the detriment to the other, may " bear no proportion. The well may be sunk to supply a cottage, " or a drinking place for cattle ; whilst the owner of the ad join - " ing land may be prevented from winning metals and minerals " of inestimable value. And, lastly, there is no limit of space " within which the claim of right to an underground spring can " be confined. In the present case the nearest coal-pit is at a " distance of half a mile from the well. It is obvious the law " must equally apply if there is an interval of many miles. " Considering, therefore, the state of circumstances upon which " the law is grounded in the one case is entirely dissimilar from " those which exist in the other, and that the application of " the same rule to both would lead, in many cases, to conse- " quences at once unreasonable and unjust, we feel ourselves " warranted in holding upon principle that the case now under " discussion does not fall within the rule which obtains as to " surface streams, nor is it to be governed by analogy therewith." In Vickenson v. The Grand Junction Canal, 1 the Court of Canal. Exchequer held that an action would lie against a landowner for digging a well and so preventing subterraneous water from reaching a natural surface stream, which it would otherwise have reached ; and this, whether the water was part of an underground watercourse, or would have reached the stream by percolating through the strata ; but this opinion has been over- ruled by the decision of the House of Lords in Chasemore v. Richards. In the case of Acton v. Blundell, just cited, the questions before the Court were two viz., whether a landowner by sinking a shaft on his own ground, first, might lawfully intercept water and prevent it from percolating into another landowner's well ; or, secondly, might so actually abstract or withdraw water from the well. Tindal, C. J., decides both in th. affirmative; for says he, " If in the exercise of such right he intercspts or drains " off the water collected from underground springs in his neighbour's 1 1 Ex. 282 ; 21 L. J., Ex. 241. PERCOLATING WATER HAVING NO DEFINED COURSE. 223 " well, this inconvenience to his neighbour falls within the " description of damniun absque injurid, which cannot become the " ground of action." The first of these two propositions has been re-asserted in the case of Chasemore v. Richards 1 by the House of Lords, affirming the judgment of the Court of Exchequer Chamber. This case, Long user moreover, decides a point not raised in Acton v. Blundell, viz., furtherright that a prescriptive right by long user to the water of the well or of action, surface stream, with which the sinking of the shaft interfered, would give no further right of action. 2 In Chasemore v. Richards, 3 the plaintiff, who owned an ancient Chasemore v. mill on the river Wandle, and had for more than sixty years tCMrds - enjoyed the use of the stream, which was chiefly supplied by percolating and underground water, lost the use of the stream after an adjoining landowner had dug on his ground an exten- sive well, for the purpose of supplying water to the inhabitants of the district, many of whom had no title as landowners. It was urged on behalf of the plaintiff, that, even granting that the defendant had a right to dig a well, and appropriate the water for the use of his own property, yet he had no right to such an unreasonable use of it, as to abstract it for the use of persons unconnected with his estates. This view seems to have been taken by Lord Wensleydale, 4 but the other learned Lords, Lords Chelmsford, Cranworth, Kingsdown, and Brougham, held that the plaintiff had no right of action : for said Lord Chelmsford, " Before the plaintiff can question the act of the defendant, or " discuss with him the reasonableness of the claim to appro- " priate this underground water for these purposes (whatever " they may be), he must first establish his own right to have ' it pass freely to his mill, subject only to the qualified and " restricted use of it to which each owner may be entitled, " through whose land it may make its way. It seems to me " that both principle and authority are opposed to such a right. " The law as to water flowing in a certain and definite channel " has been conclusively settled by a series of decisions, in which " the whole subject has been very fully and satisfactorily " considered, and the relative rights and duties of riparian " proprietors have been carefully adjusted and established. The 1 7 H. L. 349 ; 29 L. J., Ex. 81. 4 See remarks on Lord Wensleydale's 2 See also per Maule, J., in Smith v. judgment in this case per Lord Watson Kenrick, 1 C. B. 546 ; 18 L. J., C. P. 172. in Bradford Corporation v. Pickles, 8 7 H. L. 349 ; 29 L. J., Ex. 81. (1895) A. C. 589, at p. 597. 224 OP NATURAL RIGHTS OF WATER. ' principle of these decisions appears to me to be applicable to " all water flowing in a certain and defined course, whether in " an open visible stream or in a known subterranean channel; " and I agree with the observation of Pollock, C. B., in Dickenson " v. Grand Junction Canal Co., 1 that, ' If the course of a subter- " ' ranean stream were well known, as is the case with many " ' which sink underground, pursue for a short space a sub- " ' terranean course, and then emerge again, it never could be " ' contended that the owner of the soil, under which the stream " ' flowed, could not maintain an action for the diversion of it, if " ' it took place under such circumstances as would have enabled " ' him to recover had the stream been wholly above ground.' 2 " But it appears to me that the principles which apply to flowing " water in streams or rivers, the right to the flow of which, in " its natural state, is incident to the property through which it "passes, are wholly inapplicable to water percolating through " underground strata, which has no certain course, no defined " limits, but which oozes through the soil in every direction in " which the rain penetrates. There is no difficulty in deter- " mining the rights of the different proprietors to the usufruct "of the water in a running stream. Whether it has been " increased by floods, or diminished by drought, it flows on in " the same ascertained course, and the use which every owner " may claim is only of the water which has entered into and " become a part of the stream. But the right to percolating " underground water is necessarily of a very uncertain descrip- " tion. When does this right commence ? Before or after the " rain has found its way to the ground ? If the owner of land, " through which the water filters, cannot intercept it in its " progress, can he prevent its descending to the earth at all, by " catching it in tanks or cisterns ? And how far will the right " to this water supply extend ? In this case the water, which " ultimately finds its way to the river Wandle, is strained " through the soil of several thousand acres are the most " distant landowners, as well as the adjacent ones, to be bound " at their peril to take care to use their lands so as not to " interrupt the oozing of the water through the soil to a greater " extent than shall be necessary for their own actual wants ? 1 7 Ex. 300, 301. - v. Belfast Guardians, 9 L. R., Ir. 172, a See observations on this case by post, p. 229. Palles, C. B., in the Irish case of Ewart PERCOLATING WATER HAVING NO DEFINED COURSE. 225 " For with Mr. Justice Coleridge I do not see here ' how the " ' ignorance ' which the landowner has of the course of the " springs below the surface, of the changes they undergo, and " of the date of their commencement, ' is material in respect of a " ' right which does not grow out of the assent or acquiescence " ' of the landowner, as in the case of a servitude, but of the " ' nature of the thing itself.' l This distinction between water " flowing in a definite channel, and water, whether above or " underground, not flowing in a stream at all, but either draining " off the surface of the land, or oozing through the underground " soil in varying quantities, and in uncertain directions, depending " on the variations of the atmosphere, appears to be well settled " by the cases cited in argument." The learned lord goes on to cite Broadbent v. Itamsbotham, 2 Rawstron v. Taylor, 3 and Acton v. Blundell,* and continues: "Against this concurrence of autho- " rity, what is there to be offered in favour of the plaintiff but " the nisi prius case of Balston v. Benstedf and the case of " Dickenson v. Grand Junction Canal ? 6 With respect to Balston " v. Bensted, it does not appear that the question of the right to " water percolating through the strata, as contradistinguished "from water flowing in a visible stream, was ever presented " to Lord Ellenborough's mind. With respect to the case of " Dickenson v. Grand Junction Canal, upon which the plaintiff " also relied, after the observations made upon it by Mr. Justice " Cresswell in the Exchequer Chamber, 7 and by Mr. Justice " Wightman in delivering the opinion of the judges to this "House, 8 it is unnecessary for me to say more, than that I " entirely agree with them, and think that it can hardly be " regarded as a satisfactory decision upon the point under con- " sideration. It appears to me that reason and principle, as "well as authority, are opposed to the claim of the plaintiff to "maintain an action for the interception of the underground " water, which would have ultimately found its way into the " river Wandle ; and that, therefore, the judgment of the "Exchequer Chamber ought to be affirmed." Following this decision, it has been held in Reg. v. Metropolitan Reg. v. Metro- Board of Works, 9 that a landowner was not entitled to compensa- 1 2 H. & N. 191. 6 7 Ex. 282. 2 11 Ex. 602 ; 25 L. J., Ex. 115. 7 2 H. & N. 168. 8 11 Ex. 353; 15 L. J., Ex. 33. 8 7 H. L. 369. * 12 M. &W. 324; 13 L. J.. Ex. 289. 9 3 B. & S. 710 ; 9 Jur.. N. S 1008; * 1 Camp. 463. 32 L. J., Q. B. 105. L.W. 15 226 OF NATURAL RIGHTS OF \VATER. tion under the Metropolitan Sewers Act (11 d- 12 Viet. c. 112) for the abstraction of water from underground springs, which rose in his lands and fed his ponds, by a sewer made under the provisions of the Act, in neighbouring lands. The judgment of the Court was founded on the principle that where compensation is given for damages done from works authorized by an Act of Parliament, such compensation can only be claimed where the damage would have been ground of action if arising from the act of a private individual, and that as the abstraction of underground percolating water was not action- able, compensation could not be claimed. Cockburn, C. J., dissented from this judgment on the ground that under the 50th section of the Act, which provided that compensation should be given " where any work shall interfere with or prejudicially "affect any ancient mill or any right connected therewith, or "other right to the use of water," the plaintiff was entitled to compensation ; for though he might have no legal right to the water till it had risen into the pond, the defendants, by preventing the water from rising and becoming the subject of legal right, had prejudicially affected the plaintiff's right to it. Following this case, the Irish Court of Appeal has held that underground water not flowing in a known channel is not the subject of property or capable of being granted. 1 So in Brain v. Marfell* where defendant sold to plaintiff a well, and the right of conveying water therefrom through defendant's land without interruption or disturbance, the Court of Appeal held that defendant had only conveyed the flow of the water after it had risen in the well, and that no action would lie for the interception of percolating water before it reached the well. So the Privy Council 3 has held that where a landowner has granted the surface to another, retaining the mines beneath it, the mine-owner is not responsible, in the absence of express agreement, 4 if in working the mines he drains the water from the surface. In the case of Bradford Corporation v. Pickles, 5 the House of Lords, agreeing with Chasemore v. Richards, decided that where v. Belfast Poor Law Gvar- 658. dians. 9 L. R., Ir. 172, post, p. 229. 4 As to effect of express agreement, a 41 L. T., N. S. 455. see post, pp. 244 et geq. 8 Ballacorkish Co. v. Harrison, L. R., 5 (1895), A. C. 57. 5 P. C. 49 ; 43 L. J., P. C. 19 ; 29 L. T. PERCOLATING WATER HAVING NO DEFINED COURSE. 227 a statute provides that it shall be unlawful for a person other than a company authorized to supply water to a town to " divert, " alter, or appropriate in any manner other than by law they " may be legally entitled," water flowing from particular springs, the object of the statute is to give protection to the supply of water acquired by the company, and not to prevent a neighbour- ing landowner from making a legitimate use of water running from or percolating through his land before it reaches the company's supply and becomes part of their undertaking. In the case of M'Nab v. Robertson, 1 a lessor demised by lease a distillery, cottages, thirteen and a half acres of land, with two ponds, " together with right to the water in the said ponds and " in the streams leading thereto." The lease also contained the usual warrandice clause. The lessor sank a tank on ground outside but adjoining the demised subjects, and drew off from marshy ground percolating water which would have found its way eventually into one of the ponds. The House of Lords held (Lord Halsbury, L. C., dissenting), affirming the decision of the Second Division of the Court of Session, that water percolating through the ground towards the pond was not water in any stream leading to the pond : it was held secondly, by the whole House, that assuming an implied obligation on the part of the lessor not to diminish the water supply to the ponds, there had been no breach. 2 It has, moreover, been decided that where water which has Abstraction actually percolated into, and is in a well, has been abstracted by aerify in operations in the adjoining land, no action will lie. 3 Thus, in a well, the New River Co. v. Johnson* where a well of the respondent was drained by a sewer constructed by the appellants under a local Act incorporating the Waterworks Clauses Act, 10 d- 11 Viet, c. 17, the Court of Queen's Bench held that as on the authority of Acton v. Blundell, 5 and Chasemore v. Richards, 6 no action would have lain for what was done, the statute gave the respondent no right to compensation. Crompton, J., says, " The only matter " about which there could reasonably be any doubt is whether, " but for the Act of Parliament giving the appellants power to 1 (1897), A. C., H. L. Sc. 129. per Byrne, J., in Mogtyn v. Atlvrton, 2 For Lord Watson's definition of a post, p. 229, n. 2. "stream" in this case see ante, p. 75. < 2 El. & Bl. 435 ; 29 L. J., M. C. 93 ; 8 A local authority has no right to 1 L. T. 295. authorize a stranger to take water from 6 12 M. & W. 324. a public well for commercial purposes : 7 H. L. 349 ; 29 L. J.. Ex. 81. 152 228 OF NATURAL RIGHTS OF WATER. " construct their works, the respondent would have had a good *' cause of action against them for abstracting from the well " water which had already percolated into it. Had this been " a case of water running in a defined stream, I should have " been sorry to give a positive opinion that the abstraction of it " might not have afforded her a cause of action. There may be " some distinction between such a case and the present one, of " water merely percolating ; as to which Acton v. Blundell l shows " conclusively that no action will lie, and that the only remedy " of the owner of a well, from which such water has been " abstracted, is to sink the well deeper. That is a decision of " the Court of Exchequer Chamber of great authority ; and the " case of Dickenson v. Grand Junction Canal, in the Court of " Exchequer, 2 not only does not and could not overrule it, but " is itself virtually overruled by the judgment of the House of " Lords in Chasemore v. Richards, 3 in which Acton v. Blundell 1 is " approved and acted upon." Actually in a In conformity with the doubt expressed by Crompton, J., it face channel, has been held by Lord Hatherley, L. C., in Grand Junction Canal v. Shugar* that although a landowner will not, in general, be restrained from drawing off the subterranean waters in the adjoining land, yet he will be restrained if, in so doing, he draws off water flowing in a defined surface channel through the adjoining land. Lord Hatherley says, " The point most closely " pressed on me by Mr. Eddis and Mr. Lindley was this how " can you distinguish the case of a well where the water has " been secured, from the case of running water ? That is " answered at once by the decision in the case of Chasemore v. " Richards, and the distinction is plain. If you are simply " using what you have a right to use, and leaving your neigh- " hour to use the rest of the water as it flows on, you are entitled " to do so ; but you must not appropriate that which you have " no right to appropriate to yourself. In this case there is, ex " concessis, a defined channel in which this water was flowing, " and I think the evidence is clear that some of it is withdrawn " by the drain which the local board have made. As far as " regards the support of the water, all one can say is this : I do " not think Chasemore v. Richards, or any other case, has decided " more than this, that you have a right to all the water which 1 12 M. & W. 324. 8 7 H. L. 349 ; 29 L. J., Ex. 81. a 7 Ex. 282. L. R., 6 Ch. 483 ; 24 L. T. 402. PERCOLATING WATER HAVING NO DEFINED COURSE. 229 " you can draw from the different sources which may percolate " underground ; but that has no bearing at all on what you may " do with regard to water which is in a defined channel, and " which you are not to touch. If you cannot get at the under- " ground water without touching the water in a defined channel, " I think you cannot get at it at all. You are not by your " operations, or by any act of yours, to diminish the water which " runs in this defined channel, because that is not only for " yourself, but for your neighbours also, who have a clear right " to use it, and have it come to them unimpaired in quality and " undiminished in quantity." l This right is not affected by the fact that at some remote period the source of the spring has been built round and formed into a well in order to improve its mode of issuing from the earth, thus making an artificial channel for a short distance. 2 From a consideration of the above cases, it seems that water Water in a defined and known underground channel is placed on the a defined same basis as water in a defined surface channel. 3 " I see no channel. " reason," says Lord Watson, 4 " to doubt that a subterranean " flow of water may in some circumstances possess the very same " characteristics as a body of water running on the surface." It has been, however, held in the Irish case of Ewart v. Belfast Guardians* that the principle of Chasemore v. Richards as to percolating water applies to water flowing subterraneously in a channel which was and by excavation could have been ascertained to be defined, if such channel is not actually known. Palles, C. B., in his judgment quotes the judgment of Lord Gran worth in Chasemore v. Richards, as follows : " The right to running water " has always been properly described as a natural right just like " the right to the air we breathe. They are the gifts of nature, " and no one has a right to appropriate them. There is no " difficulty in enforcing that right, because running water is " something visible, and no one can interrupt it without knowing " whether he does or does not do injury to those who are above or 1 As to rights and liabilities of mine Rly. v. ChtMey, L. R., 4 Eq. 19 ; 26 owners with regard to water, see ante, L. J., C. P. 386. pp. 157 et eq. ; and as to canals, see a Mostyn v. Atherton, (1899) 2 Ch. Stourbridge Canal v. Dudley, 30 L. J., 360 ; 68 L. J. 629 ; 81 L. T. 356. Q. B. 108 ; Dudley Canal \. Grazebrook, 3 See Chasemore v. Richards, ante, 1 B. & A. 59 ; 35 R. R. 212 ; Cromfvrd p. 223. Canal v. Cutts, 5 R. C. 442 ; Birmingham *AT2fab v. Robertson, (1897) A. C. Canal v. Dudley, 7 H. & N. 989 ; Dunn H. L. Sc. 129. v. Birmingham, L. R., 8 Q. B. 42, post, 5 9 L. R., Ir. 172. Chap. V., pp. 318333 ; and Midland 230 OF NATURAL EIGHTS OF WATER. " below him. But if the doctrine were to be applied to water " merely percolating, as it is said, through the soil, and eventually " reaching some stream, it would always be a matter that would " require the evidence of scientific men to state whether or not " there had been interruption, and whether or not there had " been injury. It is a process of nature and not apparent, and there- " fore such percolating water has not received the protection " which water running in a natural channel on the surface has " always received. If the argument of the plaintiff were adopted, " the consequence would be that every well ever sunk would have " given rise, or might give rise, to an action." " All this reason- " ing," continues the learned C. B., " applies equally well to the " present case. Here, too, the evidence of scientific men is " necessary, and has been largely resorted to. If the doctrine " contended for here were true, the sinking of any well might " give rise to an action. It might interfere with an unknown " subterranean stream." In the subsequent Irish case of Black v. Ballymena Commis- sioners, 1 a " defined " channel is said to mean " a contracted and " bounded channel, although the course of the stream may be "undefined by human knowledge;" and "known" is said to " mean the knowledge by reasonable inference from existing and " observed facts in the natural or pre-existing condition of the " surface of the ground," and not to be synonymous with " visible," nor is it restricted to knowledge derived from exposure of the channel by excavation. As to Ewart v. Belfast Poor Law Guardians, 2 " which," the Vice-Chancellor observes, " approaches much more closely to " the present case than the others which have been referred to, " it decides that in order to apply the rule as to riparian rights " to subterranean water, it must flow not only in a defined " channel but in a known channel, giving to the word ' known ' " a sense beyond what is conveyed by the word ' defined.' In " that case the water had not in any case flowed in a surface " stream in a defined channel. It was only discovered by deep " excavations made in the land under which the water flowed, " and even then it was a matter of controversy and doubt " whether there was any defined channel, as to which the experts '' examined on each side, as usual, expressed opposite opinions." 3 1 17 L. R., Ir. 457. 8 See further as to conveyances of 2 9 L. R., Ir. 172. percolating water, post, pp. 248 et teq. PERCOLATING WATER HAVING NO DEFINED COURSE. 281 In Bradford Corporation v. Ferrard l it was held by Farwell, J., that (i.) There is no right in lower riparian owners to water flowing in an upper denned underground channel, unless the course of such channel is known, or can, at any rate, be easily and inevitably inferred, without recourse to explanatory excavations. (ii.) If underground water flows in a denned channel into a well supplying a stream above ground, but the existence and course of that channel are not known and cannot be ascertained except by excavation, the lower riparian proprietors on the banks of the stream have no right of action for the abstraction of the underground water. In this case the Sweet Well Spring was one of the principal feeders of the Morton Beck, on the banks of which the plaintiffs were riparian proprietors. The water flowed from the spring to the beck in a visible channel above ground. The spring was alleged to be fed by underground water flowing in a defined channel ; but the course and existence of this channel were not known, and could not be ascertained except by excavation. The defendants, by sinking wells above the Sweet Well Spring, diverted the underground supply and diminished the flow of water from the spring. In the first instance the plaintiffs moved, on April 25th, 1901, before Farwell, J., for leave to enter on the defen- dants' land and make the necessary excavations, experiments, and observations for the purpose of ascertaining whether the waters which issued at the Sweet Well Spring flowed before so issuing in a definite underground channel. The motion was refused by Farwell, J., on the ground that it was doubtful, having regard to the decision in the Irish case of Ewart v. Belfast Poor Laiv Guardians,* 2 whether the plaintiffs could succeed at the trial of action in establishing their claim to water flowing even in a well-defined channel in a case where the existence of such a channel could be ascertained only by excavations ; and that, under those circumstances, it would be improper to allow the plaintiffs to make their exploratory exca- vations. The plaintiffs appealed, and on May 14th, 1904, the Court of Appeal ordered the motion to stand over upon the defendants undertaking to amend their statement of defence so 1 (No. 2), 71 L. J., Ch. 859 ; (1902) 2 67 J. P. 21. Ch. 655 ; 87 L. T. 388 ; 51 W. R. 122 ; 2 (1881) 9 L. R., Ir. 174, 185, 194, 205. 232 OF NATURAL RIGHTS OF WATER. as to raise as a point of law the question whether there is any right in underground water where the course of that water is unknown except by excavation. The defendants amended their defence accordingly, and the judgment of Farwell, J., was given on the argument of point of law. Support from An owner of land has, on the same principle as governs the foregoiflg cases, no right at common law to the support of subterranean water. In Popplewell v. Hodgkinson, 1 the owner of land granted to him for building purposes, subject to a chief rent, granted a portion of it to the plaintiff, subject to a similar rent, and sub- sequently granted the remaining adjoining portion to certain trustees for erecting a church. The defendant, a builder employed by the trustees, by necessary excavations drained the land of the plaintiff, so that the soil subsided, and certain cottages thereon became thereby cracked and damaged. The Court of Exchequer Chamber held, affirming the judgment of the Court of Exchequer, that the plaintiff had no right of action. Cockburn* C. J., says, delivering the judgment of the Court : " Although " there is no doubt that a man has no right to withdraw from " his neighbour the support of adjacent soil, 2 there is nothing at " common law to prevent his draining the soil, if for any reason " it becomes necessary or convenient for him to do so. It may " be, indeed, that where one grants land to another for some "special purpose, for building purposes, for example, then, " since according to the old maxim a man cannot derogate from " his own grant, the grantor could not do anything whatever " with his own land which might have the effect of rendering the " land granted less fit for the special purpose in question than it " otherwise might have been." His Lordship goes on to say that there is nothing in the present case from which an implied condition could be inferred to prevent the defendant using his land in the ordinary manner. So in Elliot v. N. E. Kail. Co., 3 it has been held by the House 1 L. R., 4 Ex. 248 ; 38 L. J., Ex. 126 ; See also Earl Ripon v. Hobart, 3 Myl. & 17 W. R. 806 (Ex. Ch.). K. 169 ; 41 R. R. 40 ; Dudley Canal v. 2 See New Moss Colliery v. Manchester Grazebrook, 1 B. & A. 59 ; 35 R. R. 212 ; Corporation, (1908) A. C. 117 ; 77 L. J., Stourbridge, Canal v. Dudley, 30 L. J., Ch. 392 ; 98 L. T. 467 ; 72 J. P. 169 ; Q.B. 108 ; Birmingham Canal v. Dudley, 6 L. G. R. 809 ; 24 T. L. R. 386, 7 H. & N. 969 ; Birmingham Canal v. H. L. E. Swindell, 7 H. & N. 980, n. 8 10 H. L. Cas. 333 ; 29 L. J., Ch. 308. PERCOLATING WATER HAVING NO DEFINED COURSE. 233 of Lords that, where the owner of an accidentally drowned mine sold land to a railway company for the purpose of building a bridge under an Act of Parliament, reserving to him the right to work the minerals, provided no damage was done thereby to the railway, and the land sold derived additional support from the water in the mine, the railway company was not entitled to an injunction to restrain the mine owner from draining the mine in the ordinary way, and restoring it to a working condition, although the mine had been in a drowned state and abandoned for forty years. 1 Damage caused by the withdrawal of support arising from the abstraction of water in and under land taken for the construction of waterworks for the purpose of the waterworks after the com- pletion of the structural work is injurious affection of the land and the subject of compensation under sects. 6 and 12 of the Waterworks Clauses Act, 1845(10 & 11 Viet. c. 17 ). 2 Although no action will lie for the diversion or abstraction of Pollution of percolating water, the law is otherwise with regard to its pollu- water, tion. The principle on which this distinction rests is expressed by the maxim, " Sic utere tuo ut alienum non ladas" In the case of Hodgkinson v. Ennor, 3 the plaintiff owned a mill, and proved an immemorial right to the pure flow of a stream from a natural cavern into which rainwater ran by underground passages. The defendant, the owner of land on a hill above the cavern, and in the process of lead working, dis- charged polluted water from pits through drains and natural rents in the rock into the aforesaid cavern. It was argued for defendant that he had a right to work his mines in the ordinary way, and that, on the authority of Chase-more v. Richards, no action would lie for any interference with underground perco- lating water ; at least, unless an indictable nuisance was created. The Court of Queen's Bench held, however, that the plaintiff had a cause of action. Blackburn, J. : "I take the law to be as " stated in Tenant v. Goldwin* that you must not injure the " property of your neighbour, and that, consequently, if filth is " created on any man's land, then, in the quaint language of the 1 For cases relating to support under 4 H. L. 171, distinguished. Canal Acts, see pout, pp. 318 et seq. 4 B. & S. 229 ; 32 L. J., Q. B. 231 ; 2 Fletcher v. JBirltenhead Corporation, 8 L. T. 451. (1907) 1 K. B. 205, C. A. ; Hammer- * 2 Ld. Raym. 1089 ; Salk. 21, 360 ; tmith # City Rly.\ Co. v. Brand, L. R., 6 Mod. 311 ; Holt, 500. 234 OF NATURAL RIGHTS OF WATER. Report in Salk. 361, ' he whose dirt it is, must keep it that it may " ' not trespass.' " So, in Womersley v. Church, 1 Lord Romilly, M. B., granted an injunction to restrain the defendant from deepening his cesspool, so as to cause polluting matter to percolate through the soil, and foul the plaintiff's well. The cases of Magor v. Chadwick, 2 and Wood v. Wand, 3 also draw distinction between the right to divert and the right to pollute water arising from temporary causes. Ballard v. This question was thoroughly discussed in the case of Ballird v. Tomlinson* where the Court of Appeal laid down that no one has a right to use his own land in such a way as to be a nuisance to his neighbour, and therefore, if a man puts filth or poisonous matter on his land, he must take care that it does not escape so as to poison water which his neighbour has a right to use, although his neighbour may have no property in such water at the time it is fouled. The plaintiff and defendant were adjoining landowners, and had each a deep well on his own land, the plaintiff's being at a lower level than the defendant's. The defendant turned sewage from his house into his well, and thus polluted the water that perco- lated underground from the defendant's to the plaintiff's land ? and consequently the water which came into the plaintiff's well from such percolating water when he used his well by pumping came adulterated with the sewage from the defendant's well. The Court held (reversing the decision of Mr. Justice Pearson 5 ) that the plaintiff had a right of action against the defendant for so polluting the source of supply, although until the plaintiff had appropriated it, he had no property in the percolating water under his land, and although he had appropriated such water by the artificial means of pumping. It was argued for the defendants by the Solicitor-General (Sir F. Herschell) that the plaintiff had no case : (1) because the defendants did not pollute any water in which the plaintiff had any property ; and (2) because the act complained of was done by the defendants on their own land, as they had a right to do, and nothing obnoxious would have passed to the plaintiff's well but for the act of the plaintiff himself. As the water 1 17 L. T., N. S. 190. < 29 Ch. D. 115 ; 64 L. J., Ch. 404 ; 8 11 A. & E. 571 ; 9 L. J., Q. B. 159. 52 L. T. 942. 3 Ex. 748 ; 18 L. J., Ex. 305. See also * 26 Ch. D. 194. Sutcliffe v. Booth, 32 L. J., Q. B. 136. PERCOLATING WATER HAVING NO DEFINED COURSE. 235 percolates underground and does not flow in a denned channel, no one has any property in it (Chasemore v. Richards, 7 H. L. C. 349). In answer to this, Brett, M. E., says : l " The nearest case to " the present I take to be the case of Womersley v. Church. 2 I " think that that case does show that the first proposition of the " Solicitor-General is wrong, but I do not think that it governs " the second point taken by him. I think that second point is " partly noticed in the case of Whaley v. Laing, 3 but it does not in " my opinion want any authority. I disagree with the decision " of Mr. Justice Pearson on this ground, that although nobody " has any property in the percolating water, yet such water is a " common source which everybody has a right to appropriate, " and that, therefore, no one is justified in injuring the right " of appropriation which everybody else has." Cotton, L. J., says : l " I also am of opinion that the decision appealed from " is erroneous. As I understand the judgment of Mr. Justice " Pearson on the first point, namely, that this was underground " water in an indefinite channel, he thought that his decision was " a necessary consequence of Chasemore v. Richards. Now Chase- " more v. Richards 4 simply decided this, as I understand it, that " every man has a right to take all the underground water (by " which I mean water going in no definite channel) which he can " find in his own land, notwithstanding that the effect of his doing " so may be that his neighbour will have no underground water " in his own land, or that the stream which he owns will be " diminished in consequence of the underground water which has " been so appropriated not coming into that stream. That in no " way decides the present case. . . . All that the House of " Lords decided was that the plaintiff could not complain of a " defendant exercising that natural right in taking the water " which for the time being was under his own soil. But here " the defendants are not doing that, but are simply putting filth " on their own land in such a way as that it gets into the " underground water in the stratum common to themselves and " other persons. In my opinion, therefore, it is no necessary " consequence of Chasemore v. Richards * to say here the plaintiff " cannot complain of the act of the defendants." Lindley, L J., after stating that the question decided in Acton 1 29 Ch. D., at p. 122. 2 H. & N. 476 ; 3 H. & N. 675, 901. " 17 L. T., N. S. 190. * 7 H. L. C. 349. 236 OF NATURAL RIGHTS OF WATER. v. Blundell, l and Chase-more v. Richards, 2 was " the right of a " landowner to remove underground water from his own land " when that water did not flow in any visible defined channel " and discussing these decisions, says : 3 " The right to foul water " is not the same as the right to get it, and in my opinion does " not depend on the same principles. Primd facie every man has " a right to get from his own land water which is naturally found " there, but it frequently happens that he cannot do this with- " out diminishing his neighbour's supply. In such a case a man " must submit to the inconvenience. But primd facie no man " has a right to use his own land in such a way as to be a " nuisance to his neighbour, and whether the nuisance is effected " by sending filth on his neighbour's land, or by putting poisonous " matter on his own land and allowing it to escape on his " neighbour's land, or whether the nuisance is effected by " poisoning the air which his neighbour breathes, or the water " which he drinks, appears to me wholly immaterial. If a man " chooses to put filth on his own land he must take care not to " let it escape on to his neighbour's land, Tenant v. Goldwin " (1 Salk. 21, 860), and not to let it poison the air which reaches " it ; Corny us' Dig. (Action on the Case for Nuisance, A). So, " if a man chooses to poison his own well, he must take care not " to poison waters which other persons have a right to use as " much as himself." 4 1 12 M. &W. 324. Potter, 3H.&C.300; WJialey v. Lain;/, 2 7 H. L. C. 349. 3 H. & N. 675 ; Crosdey v. Llghtotvler, 3 29 Ch. p., at p. 126. L. R., 3 Ch. 478 ; Wood v. Wand, 3 Ex. 4 The decisions as to the pollution of 748 ; Ormerod v. Todmorden Mill Co., water in which the person complaining 11 Q. B. D. 155, and ante, pp. 150 et xrq. has no legal " property " are discussed and 185 et xeq. elsewhere. See Stockjtort Water Co. v. ( 237 ) CHAPTEE IV. OF ACQUIRED RIGHTS OF WATER AND THE EASEMENT OF WATERCOURSE. IN addition to the natural right to receive flowing water in its Acquired accustomed course, rights, the object of which is to interfere water termed with the natural course of the stream, may be acquired over a easements, stream flowing through a man's land or through his neighbour's land. Thus a right may be acquired to throw back upon the land of proprietors higher up the stream the water which, unless so reflected, would by the force of gravity pass from it ; or to discharge the water upon the land lying lower down the stream either injured in quality, or with a degree of force greater or less than the natural current. 1 Such acquired rights are termed easements. An easement may be defined as a service or convenience which Definition of one neighbour hath, without profit upon, over, or from any land easement - or water of another. 2 An easement (under which head all acquired rights of water are classed) differs from a profit d prendre, in that the former is merely a right to do some act which, if done without such right, would be a simple trespass on another's property, while a profit d prendre carries with it a right to take and appropriate a portion of the soil and its produce. 3 A profit d prendre, moreover, cannot be claimed by prescription by the public, nor by a large and indefinite class, nor by custom by the inhabitants of a township or parish. 4 Easements must be used in connection with some tenement, and cannot, as hereditaments, be created or acquired in gross. 5 1 Gale on Easements. 8th ed. by R. E. 3 Phear, Rights of Water, p. 57 ; Race Reeve, 1908, pp. 274, 275 ; Sampson v. v. Ward, 4 E. & B. 702 ; 24 L. J., Q. B. Hoddinott, 1 C. B., N. S. 611 ; 26 L. J., 153 ; Manning v. Wasdale, 5 A. & E. C. P. 148. 764 ; 44 R. R. 576 ; Goodman \. Saltash 2 Co. Lit. 19, 20 ; see also Angell on Corporation. 7 A. C. 633 ; Tilbury v. Watercourses, p. 244 : Hewling v. Ship- Silra, 45 Oh. D. 98 ; 62 L. T. 254 ; pam, 5 B. & C. 221 ; 31 R. R. 757 ; Hough v. Clark, 5 L. G. R. 1145 ; 23 Manning v. Wasdale, 5 A. & E. 764 ; T. L. R. 682 (1907). 44 R. R. 576 ; Race. v. Ward, 4 E. & B. < See ante, p. 62. 5 Achroyd v. Smith, 10 C. B. 164 ; OF ACQUIRED RIGHTS OF WATER. Easement of water. An easement is an incor- poreal right. The tenement in respect of which an easement is used is termed the dominant tenement ; and the tenement upon, over, or from which it is used is termed the servient tenement. Considered with reference to the servient tenement, an easement is frequently termed a servitude. The easements relating to water may be classified thus : l 1. The right to affect or use the water of a natural stream in any manner not justified by natural right (a) In quantity ; (b) In quality. 2. The right to conduct water across a neighbour's land by an artificial watercourse, and to go on his land for the purposes of clearing it. 3. The right to discharge water or other matter on a neigh- bour's land. 4. The right to go on a neighbour's land to draw water from a well. 2 It is proposed to consider, first, how these easements may be acquired ; and, secondly, the nature, extent, and mode of enjoyment of the above-named particular easements of water. Easements of Water, how acquired. The origin of rights of this kind is referred either to express contract between the parties or to a similar contract implied from the peculiar relation of the parties at the time they became possessed of their respective tenements, or from the long- continued exercise of the right from which a previous contract between them may be inferred ; 3 or to the provisions of an Act of the legislature. 4 " A watercourse," says Woolrych, 5 " may be either a real or an " incorporeal hereditament. If by grant, prescription, or other- " wise, one should have an easement of this kind in the land of Shuttleworth v. Le Fleming, 19 C. B., N. S. 637 ; Ramsgate Corporation v. Debling and others, 22 T. L. K. 369 ; 4 L. G. R. 495 ; 70 J. P. 132 ; Hill v. Tupper, 2 H. & C. 121 ; and see also remarks on the last case by Bramwell, B., in Nuttall v. Bracewell, L. R., 2 Ex. II ; 36 L. J., Ex. 1. 1 The acquired rights of fishery and navigation are fully treated of else- where ; see Chaps. VI. and VII. a As to what evidence is necessary to maintain such a claim see Macnaghten v. Baird, (1903) 2 Ir. R. 731 ; Gardner v. Hodgson's Brewery Co., (1901) 2 Ch. 198 ; 84 L. T. 373 ; 49 W. R. 421, C. A. 8 Gale on Easements, 8th ed. by R. R. Reeve, 1908, p. 28. 4 Per Cockburn, C. J., in Mason v. Shrewsbury Railway, L. R., 6 Q. B. 537 ; 40 L. J., Q. B. 293 ; 25 L. T. 239. 6 Woolrych, p. 146. EASEMENTS OF WATER, HOW ACQUIRED. 239 " another person, it would partake of the latter quality ; but if " the water flow over the party's own land, although, indeed, it " cannot be claimed as water, yet it is, in effect, identified with " the realty, because it passes over the soil, and cujus est solum " ejus est usque ad coehim." The ceremony required by law for the creation of easements and all other incorporeal hereditaments, is a deed, devise, or record ; and as the same ceremonies are requisite in the transfer of a right as are requisite in its original formation, a water right as an incorporeal hereditament can only be assigned by deed, devise, or record. 1 This point was decided in Heuiins v. Skippam? where the question was, whether a right to a drain running through the adjoining land could be conferred by a parol licence, and under the Statute of Frauds ; and the Court held that such an interest could only be created by deed. Bayley, J., in delivering the judgment of the Court, says : " A " right of way or a right of passage for water (where it does not " create an interest in land) is an incorporeal right, and stands " on the same footing with other incorporeal rights, such as " rights of common, rents, advowsons, &c. It lies not in livery, " but in grant, and a freehold interest in it cannot be created or " passed (even if a chattel interest may, which I think it cannot} " otherwise than by deed." 3 1 Angell on Watercourses, p. 324 ; Gale on Easements, p. 29. An ease- ment could not, until recently, be created by a grant under the Statute of Uses, but now the Conveyancing and Law of Property Act, 1881 (44 & 45 Viet. c. 41, s. 62), provides as follows : "(1) A conveyance of freehold land ' to the use that any person may have, ' for an estate or interest not exceeding ' in duration the estate conveyed in the laud, any easement, right, liberty or 'privilege in, or over or with respect to that land, or any part thereof, shall ' operate to vest in possession in that ' person that easement, right, liberty, ' or privileges for the estate or interest 'expressed to be limited to him; and ' he, and the persons deriving title under ' him, shall have, use, and enjoy the 1 same accordingly. " (2) This section applies only to con- veyances made after the commence- ' ment of this Act." " It is conceived that this section is " intended to alter the mode of convey- ' ance only, and does not authorize the ' creation of easements of a novel kind, ' such as easements in gross or not con- ' nected with the enjoyment of a tene- ' ment. By virtue of this section, an ' easement may now be reserved, or may be granted under a power. " It should be noted that the Settled ' Land Act, 1882 (45 & 46 Viet. c. 88, 's. 3 (1) and cf. s. 24 (7)) empowers ' a tenant for life to ' sell the settled land ' or any easement, right, or privilege 'over or in relation to the same,' i.e., ' to subject the settled land to any such ' easement." See Sutherland v. Suther- land, L. R., 3 Ch. 169 ; see Gale on Easements, 7th ed., p. 71. 2 5 B. & C. 221 ; 31 R. R. 757 ; see as to this subject, Gale on Easements, pp. 30, 63. 3 Hewlinsv. Shippam, 5 B. & C. 221 ; 31 R. R. 757 ; see also Fentlman v. Smith, 4 East, 107 ; 7 R. R. 533 ; see also Corker v. Paynr, 18 W. R. 436; Cooker v. Cowper, 1 C. M. & R. 418 ; 40 R. R. 626 ; Duke of Somerset v. Fogwell By express, agreement. An easement can only be created or assigned at law by deed. 240 OF ACQUIRED RIGHTS OF WATER. After citing other cases 1 in support of his opinion, the learned judge continues : " And in Fentiman v. Smith? where the plaintiff " claimed to have passage for water by a tunnel over defendant's " land, Lord Ellenborough lays it down distinctly ' The title to " ' have the water flowing in the tunnel over defendant's land " ' could not pass by parol licence without deed.' Upon these " authorities, we are of opinion, that, although a parol licence " might be an excuse for a trespass till such licence were counter- " manded, that a right and title to have passage for water, for a " freehold interest, required a deed to create it ; and that, as " there has been no deed in this case, the present action, which " is founded on a right and title, cannot be supported." 3 The doctrine laid down in this case was fully recognized in Cocker v. Cowper.* where an action was brought for stopping a watercourse. It appears from the award of the arbitrator that the channel in question consisted of a drain and tunnel which had been constructed in defendant's land by the plaintiff with the verbal consent of the then tenant and the defendant, and that the water had flowed through it up to the year 1833, when upon the plaintiffs refusal to pay for the use of the water the defen- dant diverted the channel. The Court of Exchequer were clearly of the opinion that the plaintiff was not entitled to recover. " With regard to the question of licence," says the Court, " the " case of Heivlins v. Shippam is decisive to show that an ease- " ment like this cannot be conferred unless by deed." With regard to the effect of a licence, Mr. Phear 5 thus expresses himself : " It is very important in considering the subject of " easements to distinguish as early as possible between a right 6 "to do an act in alieno solo and a licence to commit an act of '' trespass. The right involves a certain continuing element, and " has an incorporeal existence, whether any act be done under 5 B. & C. 875 ; 29 R. R. 449 ; Gale, 18 R. R. 499. pp. 29, 53. 4 1 C. M. & R. 418 ; 40 R. R. 626 ; 1 Co. Litt. 9a, 42a, 169 ; 2 Roll. Abr. see also Wood v. Leadbitter, 13 M.& W. 62 ; Shep. Touch. 231 ; Monk v. Butler, 838 ; Wood v. Manley, 11 A. & E. 30 ; Cro. Jac. 574 ; Rummy v. Rawsoti, 1 Bird v. Higginson, 6 A. & E. 824 ; Vent. 18 25 ; Hoskins v. Robing, 1 Perry v. Fitz/unve, 8 Q. B. 757 ; Bryan Vent. 123163; Harrison v. Parker, 6 v. Whistler, 2 B. & C. 288; 32 R. R. East, 154 ; 8 R. R. 434. 389 ; Brown v. Wi-ndnor, 1 Cr. & J. 20 ; 2 4 East, 107 ; 7 R. R. 533. Wallvt v. Jlarrison, 4 M. & W. 538. 8 See also the remarks of the learned 6 Phear's Rights of Water, p. 58. judge on the cases of Winter v. Brock- See judgment of Bayley, J., in well, 8 East, 309 : Webb v. Paternoster, Hewlinx v. Shippam, 5 B. & C. 232 ; 31 Palm. 71 ; Wood v. Lake, Sayer, 3 ; R. R. 757, and Taylor v. Walters, 7 Taunt. 374 ; EASEMENTS OF WATER, HOW ACQUIRED. 241 " it or not : the possessor of the land over which it extends is, " so far as it is capable of being exercised, deprived of an incident " of territorial property, and the possessor of the right acquires " by it, just to the same extent, an interest in the land itself. " Whether the possessor of a right avails himself of it or not, he " is entitled, while it continues, to treat it as something having " an abstract existence, and to protect it from any infringement " i.e., from anything, the effect of which would be to prevent his " free exercise of it when he chose. On the other hand, a licence 1 " merely excuses the act when done, is retrospective and not " prospective in its operation ; it begets no obligation on the part " of the licensor to keep it in force, and may, therefore, be revoked " by him at any moment." Where, however, the owner of a servient tenement has by Equitable , 1 . i j i - doctrine of express consent, or by such acquiescence as would make it a acquiescence. fraud to insist upon the legal right, induced others to incur expense in the execution of permanent works or the like, the High Court of Justice, 2 administering equity, will, in many cases, restrain him from the benefit of this rule. " The Court," says Lord Eldon, 3 " will not permit a man knowingly, though " passively, to encourage another to lay out money under an " erroneous opinion of title (and the circumstance of looking on " is in many cases as strong as using terms of encouragement) " a lessor knowing and permitting those acts which the lessee " would not have done, and the other must conceive that he " would not have done, but upon an expectation that the lessor " would not have thrown any obstacle in the way of the enjoy - " ment." Thus in Duke of Devonshire v. Eglin, 4 where expense had been incurred in constructing a watercourse through defendant's lands, with his consent, but without any grant under seal, and after a user of nine years defendant attempted to interfere, he was restrained, upon terms, by perpetual injunction from interfering with the further user of the watercourse. 5 In 1 Brooke's Abridg. title " License " ; & Ph. 91 ; Somerset Canal v. Harcourt, Shep. Touch. 239 ; Wood v. Leadbitter, 24 Beav. 271 ; Rochdale Canal v. Xing, 13 M. & W. 842. 2 Sim., N. S. 28 ; Cot eking v. Bassett, 2 See 36 & 37 Viet. c. 66, s. 24. 32 Beav. 101. 3 Dann v Spurrier, 7 Ves. 235 ; 6 4 14 Beav. 530. As to what acqui- R. R. 119 ; Ramxden v. Dyson. L. R., 1 escence is not sufficient, see Blanchard H. L. 140 ; Watercourse case, 2 Eq. v. Bridges, 4 A. & E. 194 ; 53 R. R. 26 ; Abr. 522, pi. 3 ; Short v. Tayler, cited Bankart v. Houghton, 27 Beav. 425 ; ibid.; Powell v. Tftomas, 6 Hare, 300 ; Bankart v. Tennant, L. R., 10 Eq. 141 ; Laird v. Birkenhead, 1 John. 500 ; 39 L. J., Ch. 809 ; 23 L. T. 137. Duke of Beaufort v. Patrick, 17 Beav. ' See Owen v. Davws, W. N.. (1874) 60 ; Williams v. Earl of Jersey, 1 Cr. 175. L.W. 16 242 OF ACQUIRED RIGHTS OF WATER. Att.-Gen. v. Grand Junction Canal Co. 1 a canal company by an Act of 1810, was incorporated and empowered to make a canal through certain counties, and for that purpose to take water for such canal from all brooks, rivers, and watercourses within 1,000 yards, but the Act prohibited the company from taking water from the river Avon or its tributary streams except in times of flood and when there should be a surplus of water in the river or watercourses flowing into the same, and from diminishing the water of the river below a certain average flow. Certain works were directed by the Act to be constructed for the purpose of ascertaining the average quantity of water flowing into the river. These works were duly executed and completed about the year 1887. By an Act of 1894, the undertaking of the canal company was transferred to the defendants. The Attorney- General, on behalf of the public and the urban district council of Bugby as riparian owners, now sought an injunction to restrain the defendants from taking more water from the river than they were entitled to under the Act of 1810, and from permitting the works constructed under the Act of 1810 to remain so constructed. The Court of Appeal, affirming Joyce, J., held that the defendants had acquired by lapse of time an absolute and indefeasible right as against the plaintiff council to the water taken from the river, and the council were not entitled to the right claimed, and, further, that the action failed as far as the public represented by the Attorney-General were concerned ; that delay was a circumstance to be taken into consideration in determining whether the Court should interfere by injunction, and especially, as here, by mandatory injunction, though the application was by the Attorney-General ; and, in such a case as this, the Court had a discretion and ought to have regard to the very long period of time which had elapsed without objection being taken. 2 So where a licence to take water which is essential to the enjoyment of property is acted upon, and expense incurred to the knowledge of the licensor, the Courts will grant relief. In Bankart v. Tennant, 3 the defendant, being the owner of a canal of which plaintiffs were customers, gave the plaintiffs to understand 1 101 L. T. 150; 78 L. J., Ch. 681 ; miners Co., 3 De G. M. & G. 304 ; Countess (1909) 2 Ch. 505 ; 73 J. P. 421 ; 7 of Rothes v. Kirkcaldy Waterworks, 7 L. G. R. 1014; 25 T. L. R. 720. A. C. 694. 3 See also A.-G. v. Sheffield Gas Con- L. R., 10 Eq. 141. EASEMENTS OF WATER, HOW ACQUIRED. 243 that as long as they were customers they should have the use of the waste water of the canal for certain furnaces and smelting works which they had erected on the banks. James, V.-C., held that this did not give them any equitable right to the water; though he said that if it had been made out to his satisfaction that the water was essential, or anything like essential, to the enjoyment of the plaintiffs' property, he should have found his way to give them the relief they asked. He cited in his judgment what Lord Loughborough says in Clavering' s case : 1 " There was a case (I do not know whether it " came to a decree) against Mr. George Clavering, in which some " person was carrying on the project of a colliery, and had sunk " a shaft at a considerable expense. Mr. Clavering saw the " thing going on ; and in the execution of that plan it was very " clear the colliery was not worth a farthing without a road over " his ground ; and when the work was begun he said he would " not give the road. The end of it was that he was made " sensible I do not know whether by decree or not and that " he was made to give the road at a fair value." 2 " Notwithstanding this provision," says the editor of Gale, " the distinction between law and equity must still be regarded. "If a legal estate in an easement is granted by deed, the " consideration is immaterial. A claim for damages may be " founded for breach of an agreement to grant an easement, if " there is any consideration for the agreement ; but to claim an " equitable estate in an easement by agreement not under seal, " there must be a substantial consideration at least equal in "value to the easement claimed, according to the maxim 'Equity " ' is equality.' " A parol licence has, moreover, been held to be sufficient to Paroi licence extinguish an existing easement, as where permission is given to ex^mluish- the a man to erect something on his own land which is incompatible menfc of an with the continuance of some easement over it. Thus, in Liggins v. Inge, 3 it appeared that the predecessor of the plaintiff, who was entitled to a flow of water to his mill over defendant's land, by a parol licence authorized the defendants to cut down and lower a bank, and to erect a weir upon their own land, the 1 5 Vesey, 690 ; 5 R. R. 146. 194 ; 53 R. R. 26 ; Lady Stanley of 2 Darius v. Sear, L. R., 7 Eq. 427 ; Alderley v. Earl of Shrewsbury, 10 see also Bankart v. Houghton, 27 Beav. W. N. 71. 425 ; Blanchard v. Bridges, 4 A. & E. 3 7 Bing. 693 ; 33 R. R. 615. 162 244 OF ACQUIRED RIGHTS OF WATER. effect of which was to divert into another channel the water which was requisite for the working of plaintiff's mill ; sub- sequently the plaintiff complained to the defendants of the injurious effects of the weir, and called upon them to restore the bank to its ancient height, and to remove the weir ; and upon refusal on the part of the defendants to do this, an action was brought. The Court held, on the authority of Winter v. Brock- well, 1 and Hewlins v. Shippam, 2 that the licence was irrevocable. In the judgment of Bayley, J., in Hewlins v. Shippam,* the learned judge, in referring to the case of Winter v. Brockwell, says, " The case of Winter v. Brockwell, which was relied upon " on the parl of the plaintiff, appears clearly distinguishable " from the present. All that the defendant there did, he did " upon his own land. He claimed no right or easement on the " plaintiff's. The plaintiff claimed a right or easement against " him, viz. : the privilege of light and air through a parlour " window, and a free passage for the smells of an adjoining " house through the defendant's area ; and the only point " decided was, that as the plaintiff had consented to the obstruc- " tion of such his easement, and had allowed the defendant to "incur expenses in making such obstruction, he could not " retract that consent without reimbursing the defendant that " expense. But that was not the case of the grant of an ease- " ment to be exercised on the grantor's land, but a permission to " the grantee to use his own land in a way in which, but for an "easement of the plaintiff's, such grantee would have had a " clear right to use it." Such a licence, moreover, coupled with the absence of interference by the licensor with the execution of the works licensed, proves an intention to abandon the easement, which, if communicated to and acted on by the servient owner, is, of itself, sufficient in some cases to extinguish an easement. 8 Construction An easement may be granted either separately and apart from the dominant tenement, or it may be included in the conveyance of it, by the use of such words as " all waters and watercourses " used, occupied, or enjoyed with the premises." Where the easement is granted per se, the precise words of the instrument of an ease- ment. 1 8 East, 308. a 5 B. & C. 221 ; 31 R. R. 757, and ante, p. 239. 8 See Gale on Easements, 8th ed., pp. 31 , 4 7, 519 ; see also Angell on Water- courses, pp. 483 510, and American cases therein cited. See also Wdkeman T. West, 8 Car. & P. 105 ; S. C. as to admissibility of an old map as evidence, 7 Car. & P. 479 : 48 R. R. 802. EASEMENTS OF WATER, HOW ACQUIRED. 245 itself must determine the extent of the right created. 1 " I "think," says Jessel, M. R., 2 " that the true rule of construction " is to construe the language of the instrument according to its " ordinary meaning, giving to technical terms their technical " meaning, unless we find a context such as to convince the mind " that the ordinary rules of construction, which would be applied " to the original expressions standing alone, ought not to be " applied. ... A grant of a watercourse in law, especially " when coupled with other words, may mean any one of three "things. It may mean the easement, or the right to the " running of water ; it may mean the channel pipe or drain " which contains the water, and it may mean the land over " which the water flows. Which it does mean must be shown " by the context, and, if there is no context, I apprehend that it " would not mean anything but the easement a right to the " flow of water." 3 1 Gale, 8th ed., p. 77, as to whether a claim to take water without stint will support aright to use surplus water only ; see A.-G. v. Great Northern Rly. Co., post, p. 528. 2 Taylor v. St. Helens, 6 Ch. D. 264 ; 46 L. J., Ch. 857 ; 37 L. T. 253 ; see also Watts v. Kelson, L. R., 6 Ch. 166; Wardle v. Broeklehurxt, 1 E. & E. 1058; Northam v. Hurley, 1 E. & B. 665 ; 22 L. J., Q. B. 183 ;' Matchford v. Mayor of Plymouth, 3 Bing., N. C. 691 ; 43 K. R. 765 ; Chadwick v. Mars- den, L. R., 2 Ex. 285. 3 See per Bramwell, L. J., in Brain v. Marfell, 41 L. T., N. S. 457. In the case of Whit mores (Edenbridge) v. Stanford (1909), 1 Ch. 427; 78 L. J., Ch. 164 ; 99 L. T. 924 ; 25 T. L. R. 169 ; 33 Sol. Jo. 134, the plaintiffs were the owners in fee of an ancient tannery situated on either bank of a mill stream, and the defendants were occupiers of an ancient corn mill further down the stream. The channel of the stream was an artificial one, constructed several centuries ago, and passing through the lands of various proprietors before reaching the tannery and the mill. The owners or occupiers of the mill were also in possession of, and exercised sole control over a weir and sluice gates built across the river Eden at the point where the mill stream commenced, and they regulated the flow of the water into the mill stream and cleansed the bed and banks from the weir to the tannery. In November, 1907, the defendants cut off the water supply and, entering on the bed of the stream within the plaintiffs' premises, removed therefrom certain pipes by means of which the plaintiffs had been in the habit of obtaining water for their tannery. In an action by the plaintiffs for an injunction to restrain the inter- ference with their right to abstract water, and for trespass and damages : Held, upon the facts, and having regard to the conduct of the parties, and especially to the notorious and con- stant user of the water by the plaintiffs and their predecessors for nearly 250 years, that (1) the plaintiffs were the owners of the bed of the stream so far as it ran through their land ; and (2) the Court was bound to infer that the mill stream was originally constructed for the mutual benefit of the tanner and the miller, and that the plaintiffs were entitled, under a reservation made or agreement entered into when the channel was constructed, to a right to use the water for all reasonable pur- poses, not causing any sensible or material injury to the miller. Semble, where water flows through an artificial channel past the land of several proprietors to serve the purposes of a proprietor lower down, the proper grant to presume in the absence of all evidence as to the conditions upon which the channel was originally made, would be the grant of an easement or right to the running of water ; andprimd facie every proprietor would be entitled to a moiety of the bed of the channel adjoining his land. 246 OF ACQUIRED RIGHTS OF WATER. Taylor v. St. Helens. C/iadwick v. Marsdcn. In the above case, a landowner granted to a company all the watercourses, dams, and reservoirs upon certain lands of his, which watercourses, &c., were laid down on an annexed plan, which was to be taken as part of the deed ; and also the several streams and springs of water flowing into or feeding the said watercourses, &c., with right for the company solely to take and use the water from the said springs or streams of water, water- courses, &c., with power to cleanse and repair, and with all other powers requisite for the enjoyment of the premises granted. The grantor was to be at liberty to use the waste or overflow water from the dams and reservoirs, but was not to exercise this power if the company resolved that it would be injurious to them. Certain portions of the watercourse noted on the plan might be enlarged to a certain extent. The watercourse, it appeared, was large enough to carry off all the water which flowed into it, except after heavy rain ; but at one point there was a contraction of the channel, which, after heavy rain, backed up the water and caused a considerable overflow, of which overflow the grantor had the benefit for many years. The grantees, having occasion for more water, removed the obstruction, so as to allow the whole of the water which came into the watercourse during heavy rains to run down to their reservoir. The Court of Appeal held, that the grant was a grant of the artificial channel, of the definite springs and streams on the land, and of such water as should find its way into and run down the channel as it stood, and not a grant of all the waters on the land, and that the grantees had no right to alter the levels, or to enlarge the channel, so as to enable it to carry off all the water in times of heavy rains. 1 In Chadtvick v. Marsden* the reservation of the free running of water and soil, coming from any other building and lands contiguous to the premises demised in and through the sewers and watercourses, made or to be made within, through, or under the said premises, was held to entitle the grantor to the passage of all water lawfully on his land, though it did not arise there, and to such products of the ordinary use of the land for habita- tion, such as night soil and sewage, but not to entitle him to send through the drain the offensive refuse of a manufactory. 1 See also Nortliam v. Hurley, 1 E. & B. 665 ; 22 L. J., Q. B. 183. L. R., 2 Ex. 285 ; 36 L. J., Ex. 177 ; 16 L. T. 666 ; see also Pyer v. Carter, 1 H. & N. 916 ; 26 L. J., Ex. 258. EASEMENTS OF WATER, HOW ACQUIRED. 247 In Brain v. Marfell, 1 the respondent, Marfell, conveyed to the Brain v. appellant, Brain, a well or spring, and the sole right to the water therein and obtainable therefrom and the right and liberty to convey the said waste to his dwelling-house, and agreed that Brain, his heirs and assigns, should be for ever absolutely entitled to the said well or spring of water, and enjoy the same without interruption or disturbance by him, Marfell, or his heirs assigns, or any other person or persons whomsoever. A railway company purchased from respondent lands in the proximity of the spring, without recourse to their compulsory powers. . The works of the railway company drained the water from the land before it reached the spring, in consequence whereof the spring became dry, and no water flowed through the appellant's pipes. On an action for breach of agreement, the Court of Appeal held, affirming the judgment of Pollock, B., that the respondent had only conveyed the flow of the water after it had reached the spring, and that, therefore, the draining of the water before it reached the spring was no breach. In the case of Rawstron v. Taylor? it appeared that for twenty nawxtron v. years and more water had flowed through an old drain on Ta yi r - defendant's land, and along an ancient watercourse, and thence along a close of the defendant called G. B. and had thence contributed to supply plaintiff's mills after their erection in 1845. In that year defendant by deed conveyed to plaintiff the close G. B., together with all ways, watercourses, privileges, rights, members, and appurtenances to the same .close belonging or appertaining, subject to the proviso that it should be lawful for the defendant to use for any manufacturing, domestic or agricultural purposes, any water flowing from or through the contiguous lands of defendant unto and into the close G. B., returning the surplus, or so much as remained, after being used for the aforesaid purposes, into its usual channel at a certain point, so that the water should not be diverted from its then course, but be allowed to flow into the close G. B. The defendant erected a lock-up tank upon his land, and caused the water which arose in his land near to the close G. B., and which had previously been accustomed to flow along the old drain and ancient watercourse into the close G. B. ; and he caused the water to be conveyed from the tank to a lower part of his land to be used by his tenants. This water was used by them for the i 41 L. T., N. S. 455 (C. A.). 2 11 Ex. 369 ; 25 L. J., Ex. 33. 248 OP ACQUIRED RIGHTS OF WATER. WMtehead v. Parka. purposes mentioned in the proviso, but the surplus could not be returned to the close G. B. It was held, that by the deed the defendant granted to the plaintiff the use of the water, subject only to the use by himself of it as specified in the proviso ; and that by locking it up he had diverted it, and was liable to an action for breach of covenant by reason of such diversion. 1 In Whitehead v. Parks, 2 a grant of all streams of water that may be found in certain closes (when at the time of the grant there was but one stream and several wells), was held to include the underground water in the land, so as to prevent the grantor, or any one claiming under him, from doing anything, the effect of which would be to drain such underground water from the land. Pollock, C. B., says : " In the case of Northam v. Hurley, " it was settled that where rights to water are created under " a deed, the Court cannot take into consideration the rights " which the parties would have had as riparian proprietors or " otherwise ; but the nature and extent of their interest must be " regulated wholly by the deed." 2 In Ewart v. Belfast Poor Law Guardians? the Irish Vice- 1 See Nortlmm v. Hurley, 1 E. & B. 665. 2 2 H. & N. 870 ; 27 L. J., Ex. 169. 8 9 L. B., Ir. 172 (C A.). The full statement of this case is as follows : T., who was lessee for lives renewable for ever over a parcel of ground ex- pressed in the original lease to be de- mised, " together with the free use of " all springs and streams of water arising " in or running through the demised pre- " raises," made two sub-leases to different persons, for lives renewable for ever, of portions of the premises, the first sub- lease being made in 1851, and describing the premises therein comprised as " that " parcel of ground formerly used as a " bleach-green, together with the free use " of all waters running in or through the " demised premises, or any part thereof, " theretofore used for the purposes of " linen manufacture on the said lands, as " fully as T. was entitled thereto ; " and the second being made in 1853 of the remaining portion of the lands, " to- " gether with the free use of all water, if 11 any, arising in or running through the " demised premises or any part thereof, " as fully as T. was entitled thereto." The interest in both sub-leases, as well as the equity of redemption in the superior lease (which had been mort- gaged), afterwards became vested in W., who was subsequently adjudicated a bankrupt, and the lands were sold by the Court of Bankruptcy. The plaintiff pur- chased the portion of lands comprised in the sub-lease of 1851 ; and one C., under whom the defendants claimed, became the purchaser of the portion included in the sub-lease of 1853. Both portions of land were set up for sale by auction on the same day one of the conditions of sale providing that each would be sold " sub- " ject to existing easements," but the Court having refused the plaintiff's first tender, he subsequently increased it, and was not actually declared the purchaser until a few days after the confirmation of the sale to C. By deed of March 15th, 1876, made between the assignees of W. and certain other persons and the plaintiff, which recited (inter alia) the superior lease, the sub-lease of 1853, with the water rights thereby respectively granted, and the sub-lease of 1851, with the water rights thereby respectively granted, and the sub-lease of 1853, the grantors conveyed to the plaintiff the parcel of land formerly used as a bleach- green, together with the full use of all water rising in or running through the demised premises or any part thereof, theretofore used for the purposes of linen manufacture as fully as T. was entitled thereto under the recited superior lease or otherwise ; and all other (if any) the premises comprised in the lease of EASEMENTS OF WATER, HOW ACQUIRED. 249 Chancellor held, following Whitehead v. Parks, that where a tenement had been divided, the plaintiff, who held one portion by a conveyance comprising " the full use of all water rising in or running through the demised premises," was entitled to an injunction to restrain the defendants, a sanitary authority and licensees of C., who held the other portion under conveyance from the same grantor, the testatum of which deed of conveyance made no mention of water rights, from making a cutting on the land of C. and so draining a spring of water on the plaintiff's land, on the ground that the conveyance to the plaintiff expressly granted him this water, and that, as the grantors could not derogate from their own grant, 1 neither C., who derived his title from those grantors, nor the defendants claiming through him, could lawfully deprive the plaintiff of the use of the water. But the Irish Court of Appeal (Lord O'Hagan, C., Palles, C. B., and Deasy and Fitzgibbon, L. JJ.) reversed this decision, holding (a) that the conveyance to the plaintiff did not convey to him the right claimed, and that he would not have been entitled to it even if the conveyance to C. had contained an exception of all existing easements ; and (b) that although the water flowed in a channel which was and by excavation could have been ascertained to be defined, as the channel was not known it must be treated as if it were percolating water and not the subject of property or capable of being granted. 2 Where a local Act of Parliament authorized a company to Sout? t Shields enter upon lands in a manor and search for any spring of water, and to convey the water from such spring into the town of South Shields, and it was provided that the company should not take 1850, excepting thereout and out of this domestic purposes in the dwelling-house grant the premises purchased by C. on the plaintiff's grounds, and for the By deed of the llth of April, 1876, supply of a large mill thereon. The made between the same grantors and defendants, who were the local sanitary C., and containing similar recitals to authority, entered into an agreement those in the conveyance to the plaintiff, with C. to permit them to bore for the grantors conveyed to C. the lands water on his lands, and they made a comprised in the sub-lease of 1853. The cutting on them a few feet from the testatum of this deed made no mention fence and obtained a large supply of of water rights. The plaintiff's lands water, whereupon the stream on the were at a lower level than the lands of plaintiff's land ceased to flow. The C. ; and in the plaintiff's lands, a few plaintiff thereupon applied for an in- feet from the fence dividing them from junction to restrain the defendants C.'s lands, a copious stream of pure from diverting and obstructing the water issued from the ground. This water from his stream, water was peculiarly suitable for bleach- 1 As to this, see Birmingham and ing purposes ; and the plaintiff, who was Dudley Bank v. Ross, 38 Ch. D. 295; a bleacher, deposed that he intended to Burrows v. Lane, (1901) 2 Ch. 503. use it for bleaching ; and at the time 2 See Bradford Corporation v. Fer- of action brought, it was used for rard, ante, p. 231. 250 OF ACQUIRED RIGHTS OF WATER. water from any spring, streams or ponds, so as to deprive the occupiers of the land of water for their own necessary uses, but that the company might lay down pipes and the inhabitants might, with consent of the company, obtain water by pipes to communicate with the company's pipes at certain charges, according to the bore of the pipes ; it was held that the owners and occupiers of lands within the manor were not prevented by the Act of Parliament from sinking wells in such lands, though the effect might be to draw off water from the company's springs. 1 Benefits of Upon a grant or covenant conferring an easement, the succes- 8 i ye owners of the dominant estate, who, in the case of an run with ordinary covenant, would at common law be strangers to the contract, become entitled to the benefits of the rights conferred, and may sue for a violation of them. 2 Thus, in the case of Cooke v. Chilcote, 3 where a purchaser of land with a well or spring on it covenanted with the vendor, who retained land adjoining, to erect a pump and reservoir, and to supply water from the well to all houses built on the vendor's land : it was held that both the benefit and burthen of the covenant ran with the land, and that consequently the plaintiff, who had purchased part of the land retained by the vendor, was entitled to an injunction to restrain the defendant, who had purchased the land of the original purchaser, from allowing the pump and reservoir to remain uncompleted. It was further held, that even if the covenant did not run with the land, yet a sub- purchaser with notice of the covenant was bound by it. 4 In the case of Athol v. The Midland Great Western Rail. Co., a covenant by a lessor with a lessee, his heirs and assigns that it should be lawful for the lessee, his heirs and assigns during the continuance of the demise to make use of a conduit made for carrying off certain waste and superfluous water for their own use, was held to be a covenant running with the land. 5 In Key v. Neath Rural District Council, 6 by a lease made in 1880 the lessors demised to the lessee a dwelling-house, together with " all water and watercourses, liberties, privileges, easements, and 1 South Shields Water Co. v. Cookaon, Spencer's case, 5 Rep. 16 a; 1 Smith's 15 L. J., N. S., Ex. 315 ; see per Lord L. C. 60. Eldon in Blakemore v. Glamorgan, 1 4 As to the effect of notice with regard Myl. & K. 162 ; 36 R. R. 289, as to effect to lights, see Allen v. LocMam, 11 Ch. of local Acts of Parliament ; see also Div. 790. ante, pp. 220 et seq. 6 Ir. R., 3 0. L. 353. 2 Gale on Easements, 8th ed., p. 80. (1906) 95 L.T.771 ; 4 L. G.R.I 174 ; 8 3 Ch. D. 694 ; 34 L. T. 207 ; see 71 J. P. 87, C. A. EASEMENTS OF WATER, HOW ACQUIRED. 251 appurtenances thereto belonging, &c., &c., &c.," for the residue of a term of years from 1840. At the date of the lease, and for eighteen years previously, the dwelling-house har received a water supply from iron pipes which conducted water from a reservoir held by the same lessors as lessees on a yearly tenancy. In 1885 the representatives of the lessors, who then held the yearly tenancy of the reservoir, became undertakers for the supply of water in the district under statutory powers. In 1902 by another statute the undertaking, including the yearly tenancy of the reservoir, was transferred to defendants, who threatened to cut off the supply of water if plaintiff did not pay for it. Held, that under the lease of 1880, a right to the water flowing through the pipes passed to the lessee, and the fact that the lessors were only yearly tenants of the reservoir made no difference and that the successors of the lessors in the water undertaking were bound so long as they continued to be yearly tenants of the reservoir. The grant, however, of a right not appurtenant to land operates Not so rights only as a personal licence, and is not assignable it confers no ^thand tec right in the land to the grantee, but operates only as a contract between the grantor and the grantee. Thus where a canal company granted by deed the sole and exclusive right and liberty of putting pleasure boats on a canal, it was held that the grant did not create such an estate in the plaintiff as to enable him to maintain an action against a person who has disturbed his right. " It is not competent," says Pollock, C. B., " to " create rights unconnected with the use and enjoyment of lands " and annex them to it, so as to constitute a property in the " grantee. This grant may act as a licence or covenant on the " part of the grantors, and is binding on them as between them. " selves and the grantee, but gives him no right of action in his " own name for any infringement of the supposed exclusive "right." 1 No particular words are necessary for a grant or covenant No particular conveying an easement. Any words which clearly show the intention to give an easement which is by law grantable are necessary. sufficient to effect that purpose. 2 Where the dominant tenement itself is conveyed, it would implied grant of an easement. 1 Hill v. Tupper, 2 H. & C. 121 ; see Ackroyd v. Smith, 10 C. B. 164. also remarks on the case by Bramwell, B., 2 Rowbotham v. Wilson, 8 H. L. Gas. in Nidtall v. Braeewdl, L. R., 2 Ex. 11 ; 362 ; Holmes v. Seller, 3 Lev. 305. 252 OF ACQUIRED RIGHTS OF WATER. On severance of tenements. There is an implied grant of necessary easements to the grantee. But no cor- responding reservation in favour of grantor. Ewart v. Coehrame. seem that all rights which the conveying party enjoyed by virtue of, and as appendant to his estate, as against third parties, pass with it; and that if the dominant tenement be severed, each of the severed portions will retain the original right, pro- vided no additional burden be thereby imposed on the servient tenement. 1 Where there has been unity of ownership of the dominant and servient tenements, and where consequently all easements have been merged in the general rights of property, questions of difficulty arise, on the severance of the tenements, as to whether such easements or quasi-easements are created anew by the severance. After some difference of opinion, the law must be taken to be settled as follows : By the grant of the part of a tenement, there will pass to the grantee, by implication of law, 1st, All those easements over the other part of the tenement without which the enjoyment of the severed portion could not be had at all ; and 2ndly, All those continuous 2 and apparent easements over the other part of the tenement which are necessary to the reasonable enjoyment of the part granted, and have been and are at the time of the grant 3 used by the owner of the entirety for the benefit of the part granted; but, as a general rule, there is no corresponding implication in favour of the grantor, except in such cases as ways of necessity, where the use of the part reserved could not be had at all without such implied reservation. 4 A grantor, therefore, who wishes to reserve any easement over the part granted must use language to show that he intended to create the easement de novo. 6 The proposition that where the dominant portion of the tenement is granted first, the grantee, as against the grantor and 1 Gale, 8th ed., pp. 83, 86, 495 ; 1 1 H. 6, 22, p. 19 ; 2 Roll. Abr. 60, pi. 1 ; Beaudely v. Brook, Cro. Jac. 289 ; Fentiman v. Smith, 4 East, 107 ; 7 R. R. 533 ; Canham v. Fish, 2 Cr. & J. 126 ; 37 R. R. 655 ; Tyringham's case, 4 Rep. 36 b ; Wyat Wild's COM, 8 Rep. 78 b ; Harris v. Ifrewe, 2 B. & A. 164 ; 36 R. R. 527 ; Codling v. Johnson, 9 B. & C. 934 ; 33 R. R. 375. 2 For definition of a "temporary" easement, see Burrows v. Lang, (1901) 2 Ch. 503. 8 See Watson v. Troughton, 48 L. T. 508 ; 47 J. P. 518 (C. A.). 4 Wheeldon v. Burrows, 12 Ch. D. 31 ; Barnes v. Loach, 4 Q. B. D. 494 ; Watts v. Kelson, L. R., 6 Ch. 166 ; Polden v. Bastard. L. R., 1 Q. B. 156,161 ; Cross- ley v. Lightowler, L. R., 2 Ch. 476 ; Suffield v. Brown, 12 W. R. 356 ; Pyer v. Carter, 1 H. & N. 916 ; Nicholas v. Chamberlain, Cro. Jac. 121 ; Pullan v. Roughfort Bleaching Co., 21 L. R., Ir. 73 ; Gale on Easements, 8th ed., pp. 115, 156. 5 Barlow v. Rhodes, 1 C. M. & R. 448 ; 38 R. R. 653, per Bayley, J. ; Worthing- ton v. Gimson, 29 L. J., Q. B. 116; 2 E. & E. 618 ; Pearson v. Spencer, 4 L. T., N. S. 769 ; Pheysey v. Vicary, 16 M. & W. 484 ; Holland v. Deakin, 7L. J., 0. S.,K. B. 145. EASEMENTS OF WATER, HOW ACQUIRED. 253 his successors has by implied grant all those continuous and apparent easements over the other portion of the tenement necessary to the enjoyment of the part granted, has never been disputed, and was finally declared to be the law by the House of Lords in the case of Ewart v. Cochrane. 1 In this case the respondent claimed a right to send the refuse of his tan-yard through a drain into a cesspool in the appellant's garden. Both tenements had belonged to one owner, who had sold the tan- yard to the respondent's predecessor without alluding in the conveyance to the drain. He afterwards sold the garden to the appellant, who stopped the drain. In an action for the obstruc- tion the House of Lords decided in favour of the respondent, on the following ground, stated by Lord Campbell, L. C. : " My " Lords, I consider the law of Scotland as well as the law of " England to be, that when two properties are possessed by the " same owner, and there has been a severance made of one part " from the other, anything which was used and was necessary " for the comfortable enjoyment of that part of the property " which is granted shall be considered to follow from the grant if " there are the usual words in the conveyance. I do not know " whether the words are essentially necessary, but where there " are the usual words, I cannot doubt that that is the law. In " the case of Pyer v. Carter that is laid down as the law of " England, which will apply to any drain or any other easement " which is necessary for the enjoyment of the property. When " I say it was necessary, I do not mean that it was so essentially " necessary that the property could have no value whatever " without this easement, but I mean that it was necessary for " the convenient and comfortable enjoyment of the property as it " existed before the time of the grant." 2 With regard to the second proposition, namely, that there is no implied reservation of such easements other than ways of necessity and the like in favour of the grantor, there has been some conflict of authority. In Nicholas v. Chamberlain, 3 it was held by the Court that if one Nicholas v. erects a house and builds a conduit thereto in another part of his Chamberlain. land, and conveys water by pipes to the house, and afterwards sells the house with the appurtenances, excepting the land, or sells the 1 4 McQ. Scotch App., p. 117. L. J., Ex. 113 ; 7 L. T. 692 ; 1 H. & C. 2 Ewart v. Cochrane, 4 McQ. Scotch 676. App. 117 ; see also Hall v. Laird, 32 3 Cro. Jac. 121. 254 OF ACQUIRED RIGHTS OF WATER. land to another reserving to himself the house, the conduit and pipes pass with the house, because it is necessary and quasi appendant thereunto ; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case requires. So it is if the lessee for years of a house and land erect a conduit upon the land, and after the term determines, the lessor occupies them together for a time, and afterwards sells the house with the appurtenances to one, and the land to another, the vendee shall have the conduit and the pipes and liberty to amend them. But by Popham, if the lessee erects such a conduit, and afterwards the lessor, during the lease, sells the house to one and the land wherein the conduit is, to another, after the lease determines, he who hath the land wherein the conduit is, may disturb the other in the using thereof, and may break it, because it was not erected by one who had a permanent estate or inherit- ance. So it is if a disseisor of a house and land erects such a conduit, and the disseisee re-enter, not taking conusance of any such erection, nor using it, but presently after his re-entry sells the house to one, and the land to another, he who hath the land is not compellable to suffer the other to enjoy the conduit ; but in the principal case, by reason of the mispleading therein, there was not any judgment given. In Sury v. Pigott, 1 Doddridge, J., says, " A man having a mill " and a watercourse over his land, sells a portion of the land over " which the watercourse runs ; in such a case by necessity the " watercourse remaineth to the vendor, and the vendee cannot " stop it." p,jp, r v. In the case of Pyer v. Carter? the defendant's house adjoined the plaintiff's, and the action was for stopping a drain running under both houses. The two houses had formerly been one, and were converted into two by a former owner, who conveyed one to the defendant and afterwards the other to plaintiff. At the time of the conveyance the drain existed running under plaintiff's house, and then under defendant's, and discharging itself into 1 Palmer, 444 ; Popham, 166 ; 3 Bui- Richards, 1 Price, 27 ; 15 R. R. 082 ; strode, 339 ; Noy, 84 ; Latch, 153 ; W. Glace v. Harding, 27 L. J., Ex. 392, Jones, 145. As to other cases of neces- per B ram well, B. ; Pearxon v. Spencer, sary easements, see Cox v. Mathews, 1 1 B. & S. 571 : 3 B. & S. 766, Ex. Ch. ; Ventr. 237 ; Palmer \. Fletcher, Lev. Tyringliam 's case, 4 Rep. 38 ; Hertz v. 122; Richards v. Roue, 9 Ex. 220: Union Bank, 2 Giff. 286; White v. Murchie v. Black, 19 C. B., N. S. 190 ; Basts, 7 H. & N. 722 ; Dodd v. Burchell, Swansborovgh v. Coventry, 9 Bing. 305 ; 1 H. & C. 113 ; Gale, 8th ed., pp. 115 35 R. R. 660 ; Riviere v. Bower, Ry. & 121, 517, 518. Moo. 24 ; 27 R. R. 726 ; Com,pton v. a 1 H. & N. 916 ; Gale, pp. 158, 159. EASEMENTS OF WATER, HOW ACQUIRED. 255 the common sewer ; water from the eaves of defendant's house fell on plaintiff's, and then ran into the drain on plaintiff's premises, and thence through the defendant's premises into the common sewer. The plaintiff's house was drained through the same drain. It was proved that plaintiff might have made a drain direct from his house into the common sewer, and it was not proved that the defendant when he purchased knew of the position of the drain. It was laid down by the Court that where the owner of two or more adjoining houses conveys one to a purchaser, such purchaser will be entitled to the benefit of all drains from that house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without any express reservation or grant, inasmuch as the purchaser takes the house as it is : and that the question as to what is " necessarily used " depends upon the state of things at the time of the conveyance, and as matters then stood without alteration ; and upon the argument urged that this was not an apparent and continuous easement, the Court said, that although the defendant did not know of the existence of the drain at the time of the conveyance to him, yet as he must or ought to have known that there was some drainage for the waters he ought to have inquired, and that those things must be considered apparent which would be so upon a careful inspection by a person conversant with such matters. The doctrines laid down in Pyer v. Carter have been strongly dissented from in two cases in the Court of Chancery. The first, that of Suffield v. Brown, 1 was a case of a dock and wharf Suffield v. owned by the same party, where the bowsprits of vessels in n the dock had to project over the corner of the wharf in order to enter the dock if they were of any considerable size. The wharf was sold to one without any reservation of the right claimed, and the dock to another. The Master of the Rolls, Lord Romilly, held that the right to project the bowsprits was necessary to the enjoyment of the dock, and was, there- fore, impliedly granted by the conveyance. On appeal, Lord Chancellor Westbury reversed this decision of the Master of the Rolls : " Where," he says, " the owner of two adjoining " properties makes an absolute grant of one of them without "reservation, neither he nor those claiming under him can " derogate from that grant by claiming over the property so 1 33 L. J., Ch. 249 ; 9 L. T. 627 ; 12 W. R. 356. 266 OF ACQUIRED RIGHTS OF WATER. " granted an easement in respect of the other property, the " user of which existed during the unity of ownership." In the course of his judgment he criticises Gale on Easements, oh. 4, and says, " If nothing more be intended by this passage " than to state that, on the grant by the owner of an entire " heritage of part of that heritage as it is then used and enjoyed "there will pass to the grantee all those continuous and " apparent easements which have been and are at the time " of the grant used by the owners of the entirety for the benefit " of the parcel granted, there can be little doubt of its correct- " ness ; but it seems clear that the learned writer uses the word " ' grant ' in the sense of reservation and mutual grant, and " intends to state that where the owner of the entirety sells " and grants a part of it in the fullest manner, there will still "be reserved to such owner all such continuous, apparent, or " necessary easements out of or upon the thing granted as have " been used by the owner for the benefit of the unsold property " during the unity of possession. This is clearly shown by what " is subsequently laid down, that it is immaterial which of the " two tenements is first granted, whether it be the quasi servient " or the quasi dominant. But I cannot agree that the grantor " can derogate from his own absolute grant, so as to claim rights " over the thing granted, even if they were at the time of the " grant continuous and apparent easements enjoyed by an " adjoining tenement which remains the property of him, the " grantor." His Lordship goes on to disapprove of Pyer v. Carter, and says, "I cannot look upon that case as rightly decided, " and must wholly refuse to accept it as any authority." In Crossley v. Lightowler 1 it was held, that on the conveyance Q f r ip ar j an } ari( j t ne grantee is entitled as against the grantor to a flow of pure water past the land granted, and that the grantor cannot, in the absence of any express reservation to that effect, justify fouling the water, although he may have done so from the drainage of a manufactory existing before and at the time of the grant ; and Lord Chelmsford, L. C., in giving judgment, approves of Lord Westbury's dicta in Suffield v. Brown, and adds : " It appears to me to be an immaterial circumstance that "the easement should be apparent and continuous. For non " constat that the grantor does not intend to relinquish it unless " he shows the contrary by expressly reserving it. The argument 1 L. R., 2 Ch. 478 ; 36 L. J. Cb, 684 ; 16 L. T. 638. EASEMENTS OF WATER, HOW ACQUIRED. 257 " of the defendants would make, in every case of this kind, an " implied reservation ; and yet the law will not reserve anything " out of a grant in favour of a grantor except in case of necessity." In the case of Watts v. Kelson, 1 in 1860 the owner of two Watts v. properties, A. and B., made a drain from a tank on property B. to some cattle sheds on property A., for the purpose of supplying them with water, and they were so supplied until 1863, when the owner sold property A. to the plaintiff, " with all waters, water- " courses, &c., to the same hereditaments and premises belonging "or appertaining, or with the same or any part thereof held, " enjoyed, or reputed as part thereof or as appurtenant thereto;" and the plaintiff had the use of the water as above until defen- dant, a subsequent purchaser of property B., stopped it ; it was held that the watercourse was a continuous easement necessary to the use of property A. and would have passed by implication with- out any words of grant ; and further, that supposing the use of the water were only convenient and not necessary, the general words of the grant were sufficient to pass it. It was held, moreover, in this case, that the right claimed being a right to have the accustomed flow of water through the pipes without regard to the purpose for which plaintiff used it, the right was not lost by his using the water for cottages erected on the side of the cattle sheds. In the course of the argument, Mellish, L. J., says: "I think the order of the two conveyances in point of " date is immaterial, and that Pyer v. Carter, 2 is good sense and "good law. Most of the common law judges have not approved " of Lord Westbury's observations on it." James, L. J. : "I " also am satisfied with the decision in Pyer v. Carter." 2 In the case of Wheeldon v. Burrows, 3 a vendor conveyed a plot wheeldon v of land, part of his property, to A., without any reservation - 8wm>MJ *- of the easement of access of light, and subsequently another adjoining plot, part of the property retained, to B. Bacon, V.-C., held that the easement, though apparent and continuous, was not of necessity, and consequently there was no implied reserva- tion of it by the vendor out of his conveyance to A. On appeal, the Court of Appeal, 4 consisting of James, Baggallay, 1 L. R., 6 Ch. 166 ; 40 L. J., Ch. 126 ; 41 L. T. 327 ; 27 W. R. 165 ; see Ellis 24 L. T. 209 ; War die v. Brockleliurnt, v. Mancliester Carriage Co., 2 C. P. D. 1 E. & E. 1058 ; 29 L. J., Q. B. 145 ; 1 13 ; Russell v. Harford, L. R., 2 Eq. L. T. 579 ; and see also cases cited by 507 ; Curriers' Co. v. Corbett, 11 Jur., Gale, 8th ed., pp. 125 et seq. N. S. 719. 2 1 H. & N. 916. < 12 Ch. Div. 48. 12 Ch. Div. 31 ; 48 L. J., Ch. 853 ; L.W. 17 258 OF ACQUIRED RIGHTS OF WATER. and Thesiger, L. JJ., upheld the decision of the Vice- Chancellor ; and Thesiger, L. J., delivering the judgment of the Court, discusses in an elaborate judgment the previous cases, and lays down the law as follows : " We have had," says the Lord Justice, " a considerable number of cases cited to us, and out " of them I think that two propositions may be stated as " what I may call the general rules governing cases of this "kind. The first of these rules is, that on the grant by the " owner of a tenement of part of that tenement as it is " then used and enjoyed, there will pass to the grantee all those " continuous and apparent easements (by which of course, I mean "quasi easements), or, in other words, all those easements which " are necessary to the reasonable enjoyment of the property "granted, and which have been, and are at the time of the " grant, used by the owners of the entirety for the benefit of the " part granted. The second proposition is that, if the grantor " intends to reserve any right over the tenement granted, it is " his duty to reserve it expressly in the grant. Those are the " general rules governing cases of this kind, but the second of "those rules is subject to certain exceptions. One of those " exceptions is the well-known exception which attaches to cases " of what are called ways of necessity ; and I do not dispute for " a moment that there may be, and probably are, certain other " exceptions, to which I shall refer before I close my observations " upon this case. Both of the general rules which I have men- " tioned are founded upon a maxim which is as well established " by authority as it is consonant to reason and common sense, " viz., that a grantor shall not derogate from his grant. It has " been argued before us, that there is no distinction between what " has been called an implied grant and what is attempted to be " established under the name of an implied reservation, and that " such a distinction between the implied grant and the implied " reservation is a mere modern invention, and one which runs "contrary, not only to the general practice upon which land " has been bought and sold for a considerable time, but also to " authorities which are said to be clear and distinct upon the " matter. So far, however, from that distinction being one " which was laid down for the first time by, and which is to be " attributed to Lord Westbury in Suffield v. Brown, 1 it appears to " me that it has existed almost as far back as we can trace the 1 4 De G. J. & S. 185. EASEMENTS OF WATER, HOW ACQUIRED. 259 " law upon the subject ; and I think it right, as the case is one of " considerable importance, not merely as regards the parties, but " as regards vendors and purchasers of land generally, that I " should go with some little particularity into what I may term " the leading cases upon the subject." His Lordship then goes on to cite Palmer v. Fletcher, 1 Nicholas v. Chamberlain, 2 Tenant v. Goldwin, 3 Sicansborough v. Coventry* Cox v. Matheivs, 5 and Compton v. Richards, 6 as authorities for the principles of law stated at the beginning of his judgment, and continues : "I now " come to Pyer v. Carter, 1 which seems to break the hitherto " unbroken current of authority upon this point, and there can " be no doubt that Sir Henry Jackson is justified in saying, that " if that case is right, this appeal ought to be allowed. That was " a case of a somewhat special character. A house was conveyed " to the defendant by a person who was the owner of that house, " and also of the house which was subsequently conveyed to the " plaintiff; and there had been, during the unity of the owner- " ship, the enjoyment of the easement of a spout which extended "from the defendant's premises over the plaintiff's premises, " and by which water was conveyed on to the latter. But it is " material to observe that the water, when it came on to what "was subsequently the plaintiff's premises, was conveyed into a " drain on the plaintiff's premises, which drain passed through "the defendant's premises, and in that way went out into the " common sewer. Subsequently, the house over which this " easement existed was conveyed to the plaintiff, and upon an " obstruction of the drains in the defendant's house, which, be it " observed, immediately caused a flooding of the plaintiff's house " by the very water coming from the defendant's house, the " plaintiff brought his action ; and it was held there that the " plaintiff was entitled to maintain his action, and that upon the " original conveyance to the defendant, there was a reservation " to the grantor of the right to carry away this water which came "from the defendant's premises by the medium of the drain, " which also went through his premises. Though those circum- " stances were special in their character, there is no doubt that " the principles laid down by the Court of Exchequer were as " wide as possibly could be. The Court laid down that there was 1 1 Lev. 122. 5 i Vent. 237. 2 Cro. Jac. 121. 6 i p rice) 2 7 ; 15 R. R. 682. 3 2 Ld. Raym. 1089, 1093. i 1 H. & N. 916. 9 Bing. 305 ; 35 R. R. 660. 172 260 OF ACQUIRED RIGHTS OF WATER. "no distinction between implied reservation and implied grant; "and this, as it appears to me, broke the hitherto unbroken "current of authority upon this subject." His Lordship then states that the principles of law laid down in Pyer v. Carter were distinctly overruled in White v. Bass, 1 and cites with approval the judgment of Lord Westbury in Suffield v. Brown as stated on a former page. 2 " But," he con- tinues, " Suffield v. Brown 2 has been confirmed by an equally " high authority, for, in Crossley and Sons v. Lightowler, 3 Lord " Chelmsford as Lord Chancellor had to deal with a similar " question, and he there says : ' Lord Westbury, however, in the " ' case of Sufficld v. Brown, refused to accept the case of Pyer " ' v. Carter* as an authority, and said : " It seems to be more " ' "reasonable and just to hold that if the grantor intends to " ' " reserve any right over the property granted, it is his duty to " ' " reserve it expressly in the grant, rather than to limit and cut " ' " down the operation of a plain grant (which is not pretended " ' " to be otherwise than in conformity with the contract between " ' " the parties), by the fiction of an implied reservation." I " ' entirely agree with this view. It appears to 'me to be an " ' immaterial circumstance that the easement should be apparent " ' and continuous, for non constat that the grantor does not intend " ' to relinquish it unless he shows the contrary by expressly " ' reserving it. The argument of the defendants would make, " ' in every case of this kind, an implied reservation by law ; and " ' yet the law will not reserve anything out of a grant in favour " ' of a grantor, except in case of necessity.' Now the only case " in the Court of Appeal which is suggested as being contrary to " this high authority of two Lord Chancellors is Watts v. Kelson, 5 " and no doubt there are observations of Lord Justice Hellish to " the effect that the order of conveyance in point of date is " immaterial, that Pyer v. Carter 6 is good sense and good law? " and that most of the common law judges have not approved " of Lord Westbury's observations. But, putting aside for the " moment that this was a mere dictum of the Lord Justice during " the argument, I must observe that this is not exactly so, as in " White v. Bass, 1 the judges of the Court of Exchequer had " distinctly, as regards the reasoning of Pyerv. Carter, overruled 1 7 H. & N. 722. 5 L. K., 6 Ch. 166, 174. 2 4 De G. J. & S. 185 ; ante, pp. 255 et seq. 6 1 H. & N. 916. 8 L. R., 2 Ch. 478. 7 7 H. & N. 722. * 1 H. & N. 916. EASEMENTS OF WATER, HOW ACQUIRED. 261 " that case. No doubt also, Lord Justice James says, ' I am " ' satisfied with the decision in Pyer v. Carter.' But in the con- " sidered judgment of the Court, when, if it had been intended to " say that Suffield v. Brown 1 was not law, one would have thought " there would have been something distinct upon the point, there " is not one word to the effect of that which had been said by the " Lord Justices during the argument. All that is said about it " is this : Lord Justice Mellish, who delivered the judgment, " after referring to Nicholas v. Chamberlain, 2 said, ' This case has " ' always been cited with approval, and is identical not only in " ' principle, but in its actual facts, with the case now before us. " ' It was expressly approved of by Lord Westbury in Suffield v. " ' Brotvn, 3 where, though he objected to the decision in Pyer v. "'Carter, 4 in which it was held that a right to an existent " ' continuous apparent easement was impliedly reserved in the " ' conveyance by the owner of two houses in the alleged servient " ' houses, yet he seems to agree that the right to such an easement " ' would pass by implied grant where the dominant tenement '"is conveyed first ; ' and that is what the Court of Appeal had " to decide in Watts v. Kelson. 5 Therefore Watts v. Kelson is " no authority to justify us in overruling Suffield v. Brown, " still less for overruling it, supported as it is by the case of " Crossley and Sons v. Lightowler. 6 Thus, then, as it appears to " me, stand the principal authorities on the general rules of law " which I stated at the commencement of this judgment." The Lord Justice then notices a number of other cases 7 which were cited to illustrate the exceptions to the second general rule laid down by him at the commencement of his judgment viz., ways of necessity and continues : " These cases in no way " support the proposition for which the appellant in this case " contends ; but, on the contrary, support the propositions that " in the case of a grant you may imply a grant of such continuous "and apparent easements, or such easements as are necessary " to the reasonable enjoyment of the property conveyed, and " have, in fact, been enjoyed during the unity of ownership ; but 1 4 De G. J. & S. 185. 7 Pennington v. Gotland, 9 Ex. 1, 12 ; 2 Cro. Jac. 121. Clark v. Cogge, Cro. Jac. 170 ; Staple v. 8 4 De G. J. & S. 185. Haydon, 6 Mod. 1 ; ChicJiester v. Leth- * 1 H. & N. 916. bridge, Willes, 72, n. ; Dutton v. Taylor, 5 L. B., 6 Ch. 166. Lutw. 1487 ; Danes v. Sear, L. B., 7 Eq. L. B., 2 Ch. 478 ; 36 L. J., Ch. 584 ; 427, 431. 16 L. T. 638. 262 OF ACQUIRED RIGHTS OF WATER. " that, with the exception which I have referred to of easements " of necessity, you cannot imply a similar reservation in favour " of the grantor of land. Upon the question whether there is "any other exception, I must refer both to Pyer v. Carter 1 and " to Richards v. Rose ; 2 and, although it is quite unnecessary for " us to decide the point, it seems to me that there is a possible " way in which these cases can be supported without in any way " departing from the general maxims upon which we base our "judgment in this case. I have already pointed to the special " circumstances in Pyer v. Carter, and I cannot see that there is " anything unreasonable in supposing that in such a case, where " the defendant under his grant is to take this easement which " had been enjoyed during the unity of ownership, of pouring " his water upon the grantor's land, he should also be held to " take it, subject to the reciprocal and mutual easement by which " that very same water was carried into the drain on that land, " and then back through the land of the person from whose land " the water came. It seems to me to be consistent with reason " and common sense that these reciprocal easements should be " implied ; and, although it is not necessary to decide the point, " it seems to me worthy of consideration in any after case, if the " question whether Pyer v. Carter is right or wrong comes for " discussion, to consider that point. Richards v. Rose, although " not identically open to exactly the same reasoning as would " apply to Pyer v. Carter, still appears to me to be open to analogous "reasoning. Two houses had existed for some time, each " supporting the other. Is there anything unreasonable is "there not, on the contrary, something very reasonable to " suppose in that case that the man who takes a grant of the " house first, and takes it with the right of support from that " adjoining house, should also give to that adjoining house a "reciprocal right of support from his own?" His Lordship concludes his judgment by referring again to the case of Swansborough v. Coventry, 3 and by holding that in the present case the fact that the two tenements, though not sold together, were put up at an auction together as part and parcel of one sale, could not affect the question. 4 An easement exercised for the benefit of the dominant estate is 1 1 H. & N. 916. * As to this last point, see Ewart v. 8 9 Ex. 218. Belfast Guardians, ante, p. 248 and n. 3. 9 Bing. 305 ; 35 R. R. 660. EASEMENTS OF WATER, HOW ACQUIRED. 263 not invalid merely because from the very nature of its exercise by the dominant estate it confers some benefit on other tenements. 1 With regard to what words are necessary in a conveyance to what words pass an easement not necessary to the enjoyment of the tenement pasf^Jase- granted, it has been held that general words, such as " apper- ment not of taining," " belonging," &c., are insufficient on the severance of tenements to pass such rights as ways, commons, &c. ; but in the case of Wardle v. Brocklehurst it was held that, by the grant of a farm with the usual words " with all watercourses used, "occupied, or enjoyed with the premises," the benefit of a culvert, and a stream of water running through the lands of the vendor to the farm granted, passed ; and Lord Campbell says, " The land must be taken to be conveyed in the state in which " it then was, that is, we must take it that the culvert so bringing " down the water and all the watercourses are granted, not only " those which belong and appertain to the premises, but also " those which were used and enjoyed therewith." This judg- ment was affirmed in the Exchequer Chamber, and it was held that the defendant was entitled to use the water, not only for the farm which was sold to him, but for a manufactory which he possessed beyond. 2 In Pullan v. Bmighfort Bleaching Co., 3 lands, on which were certain dams and artificial watercourses leading therefrom, and which were held under leases containing reservations of all mills, mill-seats, dams, dam-seats, water, and watercourses, and all convenient ways to and from the same, were ordered to be sold in an administration suit. They were accordingly put up for sale by auction in four lots, the particulars and conditions of sale, which set out the reservations in detail, stating that each lot would be sold subject to all rights and easements legally existing. The sale by auction proved abortive. The plaintiff subsequently tendered for lot 4. His offer was accepted, and his lot was conveyed to him " excepting and "reserving all such matters and things as are excepted and "reserved in and by the said recited indenture of lease," and 1 Simpson v. Godmanchester Corpora- and it was held that the easement was tion, (1897) A. C. 696 ; 66 L. J., Ch. good and was none the worse because 770 ; 77 L. T. 409, H. L. (E.). In this the exercise of it also benefited lands case the corporation of Godmanchester, belonging to other persons, as owners of certain lands, had for more 2 1 E. & E. 1058 ; 29 L. J., Q. B. 145 ; than 200 years opened, as of right, the 1 L. T. 579. See also Watts v. Kelson, gates of certain sluices or locks belonging L. R., 6 Cb. 175. to the appellant upon the river Ouse in 8 21 L. R., Ir. 73 ; see also Hall v. time of floods or likelihood of flood in Laird, 32 L. J., Ex. 113 ; 7 L. T. 692 ; order to prevent damage to those lands, 1 H. & C. 676. 264 OF ACQUIRED RIGHTS OF WATER. also subject to all such rights and easements as then existed or affected the premises. After the acceptance of the plaintiff's offer, and before the conveyance to him, H. made a tender for lot 3, which was accepted ; and this lot was by deed, subsequent to the plaintiff's conveyance, assigned to him with similar exceptions, reserva- tions, &c. H. assigned his interests to the defendants. Prior to, and at the time of, the plaintiff's proposal and conveyance, some of the artificial watercourses flowed from lot 3 to lot 4, and the water thereof was utilized for certain purposes on this lot. The lessor had never interfered or expressed any intention of inter- fering with the plaintiff's user or enjoyment of these water- courses. The defendants obstructed the water flowing therein : The Court held, that the plaintiff was entitled to a declaration as between him and the defendants of a right to the usual and accustomed flow of water, and to an injunction to restrain the defendants from obstructing the same, and that mere possession of rights, corporeal or incorporeal, is sufficient to maintain an action for disturbance of them against a wrongdoer. Secondary It should be here noticed that the maxim of law is, that who- easements. soever grants a thing, is supposed also tacitly to grant that without which the grant would be of no effect ; * and that conse- quently, upon the grant of an easement, all such secondary easements as are essential for its full enjoyment will pass also without further words of grant. 2 Thus, where there is an ease- ment of watercourse over another's land, there is an implied right of going on that land to clear and repair it, or its banks, 3 and, where there is a right of drawing water, this includes the right of going and returning over the servient owner's land, 4 and of repairing a pump thereon. 5 In executing works necessary for the enjoyment of the easement, nothing of course must be done to alter the accustomed mode of enjoyment in such a manner as to impose a greater burden on the servient tenement. Such 1 11 Rep. 52 ; Angell, p. 278. 579 ; see also Pijer v. Carter, 1 H. & 2 See Gale, 8th ed., pp. 492, 575. N. 916 ; Pearson v. Spencer, 3 B. & S. 8 Roberts v. Fellowes, (1906) 94 L. T. 761 ; Dodd v. Burchell, 1 H. & C. 279. 1 13 ; and American cases in Angell, ' Goodhart v. ffyett, 25 Ch. D. 182 ; ch. 5. 53 L. J., Ch. 219 ; 50 L. T. 95 ; Brown ' Pomfret v. Eieeroft, 1 Wms. v. Best, 1 Wils. 174 ; Bracton, lib. 4, ff. Saunders, 321 ; see also Buckley v. 232 a, 233 a; Wcholas v. Chamberlain, Buckley, (1895) 2 Q. B. 608 ; 67 L. J., Cro. Jac. 121 ; Hinchdiffe v. Earl of Q. B. 953. Kinnoul, 5 Bing., N. C. 1 ; 50 R. R. EASEMENTS OF WATER, HOW ACQUIRED. 266 secondary easements, forming in most cases one entire right with the principal easement, cease also on its extinction. 1 As every easement is a restriction upon the rights of property No alteration of the owner of the servient tenement, no alteration can be made j n an ease . in the mode of enjoyment by the owner of the dominant heritage, ment increas- the effect of which will be to increase such restriction. Supposing restriction, no grant to exist, the right must be limited by the amount of enjoyment proved to have been had ; 2 but a mere alteration in the mode of enjoyment, whereby no injury is caused to the servient heritage, will not destroy the right. 8 The existence 4 of the necessary evidence to prove an actual By prescrip- grant of a special right to a watercourse, may be inferred from a tlon< long use and enjoyment without interruption. It is laid down in Bracton, 5 that all incorporeal rights or services may be acquired by acquiescence and use, and lost by neglect and disuse. Indeed, all the writers upon the common law of England, as well as the civilians, have recognized the principle, that a right to any incorporeal hereditament may be acquired by lapse of time. It is the duty of the Court when they find an interrupted and immemorial user to find if possible a legal origin for it, 6 but the circumstances of the enjoyment must be carefully looked to. 7 Where an onerous liability has been asserted and submitted to for a long series of years, although the evidence begins well within modern times, anything not manifestly absurd which will support and give a legal origin to such a custom will be pre- sumed to have a legal origin. 8 This mode of acquisition has been by writers both on the common and civil law denominated prescription, which they say is founded on usage longa, continua, et pacifica. They also state that every prescription supposes a grant once made and afterwards lost ; therefore, nothing can be claimed by prescription which in its nature could not have been granted. 9 1 Civil Law, L. 17, ff. quemad. serv. Tilbury v. Silva, 45 Ch. Div. 98 ; 62 amit. ; Peter v. Daniel, 5 C. B. 563 ; L. T. 254. Beenton v. Weate, 5 E. & E. 986. 8 L. $ N. W. Ply. \. Fobbing Level 2 See Catckicell v. Russell, 26 L. J., Commissioners, (1896) 66 L. J., Q. B. Ex. 34, and post, p. 291. 127 ; 25 L. T. 629. 3 LuttrelVs case. 4 Rep. 86 ; Hall v. 9 Carlyon v. Levering, 1 H. & N. 784 ; Sioift, 6 Scott, 167 ; 4 BiDg., N. C. 381 ; 26 L. J., Ex. 251 ; Rochdale Co. v. Rad- 44 R. R. 728; and post, p. 279. cliffe, 18 Q. B. 287; A.-G. T. Great 4 Angell on Watercourses, p. 351. Northern Rly., (1909) 1 Ch. 778; 78 5 Lib. 4, xxxviii., sect. 3. L. J., Ch. 577 ; 73 J. P. 41, C. A. ; see 6 Goodman v. Saltash Corporation, 7 also Ivimey v. Stacker, L. R., 1 Ch. App. Cas. 633 ; A.-G. v. Wright, (1897) 396 ; 35 L. J., Ch. 467 ; 14 L. T. 427. 2 Q. B. 318. 266 OF ACQUIRED RIGHTS OF WATER. Prescription Prescription may be defined as " a title acquired by possession Common hftd during thfl time ftnd Jn the manner fixed by law> " l By common law an enjoyment to confer a title to an easement must have continued during a period co-extensive with the memory of man, or, in legal phrase, " during time whereof the memory of " man runneth not to the contrary." " The time of memory," says Blackstone, " has long ago been used and ascertained by the " law to commence from the reign of Eic. I." The extreme difficulty of giving proof of enjoyment for so long a period was lessened by its being held that evidence of enjoyment, during a shorter time, raised a presumption that such enjoyment had existed for the necessary period. Where, however, the actual origin of the enjoyment was shewn to have been of more recent date than the prescription, the right in earlier cases was held to be defeated. 2 By lost grant. To obviate the inconvenience, which must have arisen from allowing long enjoyment to be defeated, merely by shewing that the origin of the right was subsequent to the reign of Eic. L, the Courts introduced a new title by the presumption of a grant made and lost in modern times. 3 According to this doctrine, from evidence of enjoyment of from twenty to sixty years, 4 a jury were at liberty to presume a grant of the right claimed, although the origin of the right was shewn to be more recent than the time of legal memory. 5 Such a presumption might be rebutted ; 6 but on the recommendation of a judge that the evidence warranted the presumption of a grant, a jury were bound to find that such had existed. 7 1 Gale, 8th ed., 185 ; Co. Litt. 113 b ; necessary. see also the judgment of Cockburn, C. J., 5 Keymer v. Summers, cited in Read in Angus v. Dalton, 3 Q. B. D. 100, where v. Brookman, 3 T. R. 157 ; Bull. N. P. an elaborate history of the origin of the 74 ; Campbell v. Wilson, 3 East, 294 ; 7 doctrine of prescription is given ; and R. R. 462 ; see also Mayor of Hull v. same case on appeal, 4 Q. B. D. 462. Hornet; Cowp. 102 ; Eldridge v. Nott, 2 Gale, p. 188 ; see Jenkins v. Harvey, ibid. 214 ; Lady Dartmouth v. Roberts, 1 Cr., M. & R. 894 ; 40 R. R. 769 ; Bury 16 East, 334 ; Holcroft v. Keel, 1 Bos. v. Pope, Cro. Eliz. 118. & Pul. 400 ; 35 R. R. 683 ; Lovett v. 8 Gale, p. 191. Wilson, 3 Bing. 115 ; Codling v. John- * See Rolle v. Whyte, L. R., 3 Q. B. son, 9 B. & C. 933 ; 33 R. R. 375 ; see 303 ; Dewhirgt v. Wrigley, C. P. Coop. per Cockburn, C. J., in Angus v. Dalton, 329 ; Baily v. Clark, (1901) 17 T. L. R. 3 Q. B. D. 100. 239 ; (1902) 18 T. L. R. 364, C. A. A lost 6 See per Cockburn, C. J., in Angus v. grant may be presumed from enjoyment Dalton, 3 Q. B. D. 100. for twenty years between two tenants, ? p e r Alderson, B., in Jenkins v. whether holding under the same land- Harvey, 1 C., M. & R. 895 ; 40 R. R. 769 ; lord or not : Hanna v. Pollock, (1906) per Parke, B., in Bright v. Walker, 2 IT. R. 669, C. A., per Walker ani 1 C., M. & R. 217 ; 40 R. R. 536 ; see Holmes, L. JJ., dissentiente Fitz- also Finch v. Resbridge, 2 Vern. 390. gibbon. L. J., who held forty years to be EASEMENTS OF WATER, HOW ACQUIRED. 267 The statute 2 d- 3 Will. IV. c. 71, commonly called the ThePrescrip- Prescription Act, was intended further to accomplish this object, * by shortening, in effect, the period of prescription, and making that possession a bar or title of itself, which was so before only by the intervention of a jury. 1 The provisions of this Act, so far as they relate to the easement of watercourse, are as follows : By sect. 2, it is enacted, " That " no claim which may be lawfully made at the common law, by " custom, prescription, or grant, to any way or other easement, " or to any watercourse, 2 or the use of any water, 3 to be enjoyed " or derived upon, over, or from any land or water of our said " Lord the King, his heirs or successors, or being parcel of the " Duchy of Lancaster, or of the Duchy of Cornwall, or being the " property of an ecclesiastical or lay person, or body corporate, " when such way or other matter as herein last before mentioned " shall have been actually enjoyed by any person claiming right 4 " thereto, without interruption for the full period of twenty years, " shall be defeated or destroyed by shewing only that such way " or other matter was first enjoyed at any time prior to such " period of twenty years ; but nevertheless, such claim may be " defeated in any other way by which the same is now liable to " be defeated ; 5 and where such way or other matter as herein " last before mentioned shall have been so enjoyed as aforesaid " for the full period of forty years, 6 the right thereto shall be 1 BrigU v. Walker, 1 C., M. & R. 217, 48 R. R. 797. A claim to have water per Parke, B. ; 40 R. R. 536. diverted, which would otherwise have 2 A claim to adulterate the water of come to plaintiff's land, is a claim to a a natural stream is a claim to a water- watercourse under 2 & 3 Will. IV. c. 71 : course within this section : Wright v. Mason v. Shrewsbury Rail. Co., L. R., Williams, 1 M. & W. 77 ; Curly on v. 6 Q. B. 578. A claim to the waste Lowering, 1 H. & N. 797 ; 35 L. J., Ch. water allowed to pass from a canal is 467 ; 14 L. T. 427. not a claim to a watercourse under the 8 A claim of right to go on any man's Prescription Act : Staffordshire Canal close, and take water from a spring v. Birmingham, L. R., 1 H. L. 254. A there, is an easement : Race v. Ward, claim to a weir in a non-navigable river 4 E. & B. 702 ; Manning v. Wasdale, 5 is within the Act : Rolle v. Whyte, A. & E. 764 ; 44 R. R. 576 ; Constable v. L. R., 3 Q. B. 286; Lecotifield v. Nicholson, 14 C. B.,N.S. 230. As to what Lonsdale. L. R., 5 C. P. 657. evidence is necessary to support such a * See Tickle v. Brown, 4 A.& E. 369 ; claim, see Macnaghten v. Baird, (1903) 2 43 R. R. 358. Ir. R. 731. A claim to go on to the lands 5 As to this, see Gale on Easements, of a higher riparian owner to repair the 8th ed., pp. 200, 215. banks of a stream which had been 6 In Mason v. Shrewsbury Rly. raised in order to make it available for (L. R., 6 Q. B. 578), a canal company workine a mill is an easement : Roberts before 1800, under powers of an Act of v. Ibllowes, (1906) 94 L. T. 279. A Parliament, diverted to the canal a great right to keep an opening from an ancient part of the water of a brook which flowed ditch into a stream closed, can be estab- through plaintiff's land. The rest of lished by twenty years' uninterrupted the water continued to flow as before. user : Srewitt v. Sheard, 7 C. & P. 465 : In 1847, defendants, under an Act of 268 OF ACQUIRED RIGHTS OF WATER. " deemed absolute and indefeasible, unless it shall appear that " the same was enjoyed by some consent or agreement expressly " given or made for that purpose by deed or writing." By sect. 4, it is provided, that each of the respective periods before mentioned are to be deemed and taken to be the period next before some suit or action in which the right is disputed, 1 and that no act is to be deemed an interruption, unless the same shall have been submitted to or acquiesced in for one year after notice given. Sect. 5 provides that, in pleading, it shall be sufficient to claim the enjoyment as of right. Sect. 6 provides that no presumption shall be allowed in favour of any claim, upon proof of enjoyment for less than the number of years provided by the Act. 2 Sect. 7 provides that the time during which any person otherwise capable of resisting any claim, shall be infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action shall have been diligently prosecuted, until abated by the death of the party or parties, shall be excluded from the computation of the periods hereinbefore mentioned, except in cases where the right or claim is hereby declared to be absolute and indefeasible. Parliament, bought and discontinued ful act causes fresh damage, the continu- the canal. In 1864, defendants restored, ance of the wrongful act which caused by means of a cut, the water which had the damage constitutes a fresh cause of been diverted to the brook. In 1865 action. they sold the part of the canal on which The defendants, in 1866, wrongfully was the cut. The bed of the brook, obstructed a stream flowing by the owing to the diminished scour from 1800 plaintiff's lands, and continued the to 1853, had become silted up so as not obstruction down to 1873, when it caused to be sufficient to carry off the water in the flooding of his lands. Held (affirm- extraordinary floods. In 1866, such a ing the decision of the Common Pleas, but flood occurred, and damaged plaintiff's on a different ground), that the continu- lands. The Court Jteld, that there being ance of the wrongful obstruction causing no obligation imposed on the canal fresh damage in 1873 constituted a fresh company to continue the diversion of cause of action in 1873 ; and that, there- the water, plaintiff had no right of action. fore, the Statute of Limitation applicable By Blackburn and Hannen, JJ., on the to the case began to run from the time of ground that, though the claim to have the damage in 1873. The plaintiff relied the water diverted was a claim to a upon the obstruction of the stream as watercourse under the Prescription Act, the cause of action. Held, that, having yet the enjoyment was not of right, and regard to sect. 81 of the Common Law therefore, though of more than forty Procedure Act, 1853, it was open to the years, it conferred no right on the plain- plaintiff to rely upon the continuance tiff. By Cockburn, C. J., on the ground of the obstruction as the cause of action, that plaintiff, the owner of the servient Derery v. Grand Canal Co., Ir. R., 9 tenement, could acquire no right against C. L. 194 ; Ir. R., 8 C. L. 511, following the owner of the dominant tenement. Whitehouse v. Fellowes, 10 C. B., N. S. See also National Manure Co. v. Donald, 765. 4 H. & N. 8. 2 Ennor v. Harwell, 6 Jur., N. S. 1233 ; 1 Where the continuance of a wrong- affirmed 1 DeG. F. & J. 529 ; 4 L. T. 597. EASEMENTS OF WATER, HOW ACQUIRED. 269 By sect. 8, it is provided, that where any land or water, upon, over, or from which any such way or convenient watercourse or use of water shall have been or shall be enjoyed, is held for life or any term beyond three years, the time of the enjoyment of any such way or other matter during the continuance of such term, shall be excluded in the computation of the said period of forty years ; provided the reversioner contests the claim within three years after the lease expires. 1 The common law as to the acquisition of easements has not The Prescrip- been superseded by the Prescription Act, although it has given ^supersede some increased facilities to a party claiming an easement. He the common may proceed on election, either under the statute, or according to the common law, or both. 2 Where he proceeds under the statute, no presumption can be founded upon an enjoyment for a shorter period than that which is applicable under the Act to the case in question ; 3 whereas, at common law, a shorter time, if aided by confirmatory evidence, has been held sufficient to support a verdict.* As the right to an easement can only exist in respect of a By and tenement, the continued user by which the easement is to be against whom i ^ i i , i .- , . claims by acquired must be by the person in possession of, or claiming prescription under the owner of, the dominant tenement ; and as such user is may ^ made> evidence of a previous grant, and as the right claimed is in its nature not of a temporary kind, but one which permanently affects the rights of property in the servient tenement, it follows that such grant can only have been legally made by a party capable of imposing such a permanent burthen upon the property, 6 i.e., the owner of an estate of inheritance, 7 and, 1 See Mr. Gale's explanation of this 5 See Gated v. Martyn, 19 C. B., N. S. section, 8th ed., p. 211 ; and Wright v. 732 ; 34 L. J., C. P. 353 ; 13 L. T. 74 ; Williams, 1 M. & W. 77 ; Only v. Gar- where the lessee or licensee of the right diner, 4M. & W. 496 ; Richards \. Fry, 7 of digging clay, was held to have A.& E.698; 45 R. E. 816; Janes v. Price, 3 sufficient interest in the soil to claim a Bing., N. C. 52 ; Polk v. Skinner, 18 prescriptive right to the flow of water Q. B. 568 ; Clayton v. Corby, 2 Q. B. under 3 & 4 Will. IV. c. 71 ; see Ivimey 813 ; Pye v. Mumfwd, 11 Q. B. 675. v. StocUer, L. R., 1 Ch. 396 ; Outran, v. 2 Gale, pp. 199, 563 ; Phear, Rights of Maude, post, p. 270. Water, p. 79 ; WarricTt v. Queers College, 6 See A.- G. v. Great Northern Rail. L. R., 6 Oh. 728 ; Ladyman v. Grave, Co., (1909) 1 Ch. 778 ; 78 L. J., Ch. 577 ; L. R., 6 Ch. 764, n. ; Aynsley v. Glocer, 28 J. P. 41, C. A. L. R., 10 Ch. 283. ' Daniel v. North, 11 East, 372 ; see 3 See note 2, on p. 268, ante. Phear, Rights of Water, pp. 80, 85 ; 1 4 Per Lord Ellenborough in Bealey v. Wms. Saund. 346 ; 2 Wils. 258. See also Shaw, 6 East, 215 ; 8 R. R. 466 ; per as to rights of lessees of mines, Chamber Chambre, J., in Woodyer v. Hodden, 5 Colliery Co. v. Hopwood, post, p. 285, Taunt. 125 ; and see Reg. v. Petrle, 4 E. n. 4. & B. 737. 270 OF ACQUIRED RIGHTS OF WATER. therefore, in order that such user may confer an easement, the owner of the servient inheritance must have known that the easement was enjoyed, and also have been in a situation to interfere with and obstruct its exercise, had he been so disposed ; his abstaining from interference will then be construed as an acquiescence, 1 contra non volentem agere non currit prascriptio? In the case of Outram v. Maude, 3 in 1791 A. obtained a demise from B. of an underground goit or drain to be then constructed in B.'s land, for the purpose of conducting water from A.'s mill so long as an annual rent should be paid by A. to B. In 1836 the demise of 1791 was put an end to, and liberty was given to A., who was at that time yearly tenant from B. of the land through which the goit ran, to change the goit or drain of 1791, and to substitute a new cut for con- ducting pure and clean water at the like rent. The new cut was made and used for pure water, and the old goit (as the plaintiff alleged) continued to be used for foul water. In 1866 the land through which the goit ran was sold to C., and in 1867 A.'s yearly tenancy of the land was determined. In an action by A. in 1897 to restrain C. from interfering with his use of the old goit, to which he claimed title by prescription from alleged open and uninterrupted use and enjoyment thereof from 1856, it was held, that until 1867 A. could not acquire an easement in the land of which he was yearly tenant, distinct from the use and enjoyment of such land, as against B. his landlord, and "accordingly that, assuming the open and uninterrupted user from 1836 to have been proved, he had failed to establish any title by prescription as against C. No easement As by the common law, the title to an easement is from a can be presumed grant by the owner of the servient tenement, and claimed when * . UI-JV^UTJ the servient as only such easements can be claimed by the Prescription under a" Act as could be lawfully claimed at common law, by custom, disability prescription, or grant, no claim can be founded by long user to any easement which the servient owner is under a legal or physical disability to grant. Thus, in the case of Chasemore v. Richards* where the action was for intercepting percolating 1 Gray v. Bond, 2 Brod. & Bing. 667 ; W. R. 818. 22 R. R. 530. * 7 H. L. C. 349. See also Ewart v. 2 Gale, p. 215. Belfast Guardians, 9 L. R., Ir. 172 ; 8 17 Ch. D. 391 ; 50 L. J., Ch. 783 ; 29 ante, pp. 248 et seq. EASEMENTS OF WATER, HOW ACQUIRED. 271 water, the House of Lords held that as no grant could have been made of such percolating water, length of time could raise no presumption of such a grant. 1 So, in The Staffordshire Canal v. Birmingham Canal, 2 where a prescriptive claim, by user of forty years, was set up to a use of water which a canal company was not empowered to make by their Act, Lord Chelmsford, L. C., says, "To impose such a "servitude upon the water in their canal as that contended " for by the appellants, would have been ultra vires of the " respondents, and consequently length of user could never "confer an indefeasible claim upon appellants under the " Prescription Act, as no grant of the use of the water could " have been lawfully made by the respondents." 3 So, in The Rochdale Canal v. Raddi/e* the owners of land within twenty yards of a canal were empowered by statute 34 Geo. III. c. 78, to take water from the canal for the sole purpose of condensing steam for their engines, such water to be returned to the canal (allowing for inevitable waste) so that no obstruction should accrue to the navigation, the surplus water to go to the Bridgewater Canal. The company sued the defendant for taking more water than was sufficient for condensing steam, and for using it for other purposes. The defendant pleaded a user as of right for twenty years to draw off so much water as was necessary for other purposes. The jury found the twenty years' user as of right, and a verdict was ordered to be entered for the defendant. On a motion by the plaintiffs for judgment, non obstante veredicto, the Court of Queen's Bench held, that the company could not, consistently with the Acts of Parliament regulating their canal, have granted the water for other purposes than that permitted by the statute 34 Geo. III. c. 78. That an actual grant, if proved, for the purposes mentioned in the plea, would have been illegal and no justification, and, therefore, that 1 Where a riparian owner of land as a watercourse or otherwise : Roberts adjoining plaintiff's mill and higher up v. Fellowes, (1906) 94 L. T. 279. the river abstracted water by pipes and 2 L. E., 1 H. L. 254 ; Rochdale Canal syphons, and thereby interfered with v. Radcliffe, 18 Q. B. 287 ; National the flow of water to the mill, it was Manure Co. v. Donald, 4 H. & N. 8 ; see held that he could not justify the ab- also Ellwell \. Birmingliam Canal, 3 straction on the ground that if the bank H. L. 812 ; see post, pp. 336 et seq. of the river had not been made water- 8 See Brymbo Water Co. v. Lester's tight by the plaintiff (who had the Lime Co., (1894) 8 R. 329. right to repair it) he would have been * 18 Q. B. 287 ; 21 L. J., Q. B. 297 ; entitled to the same amount of water see also Manchester Ship Canal v. Rock- by percolation such a claim was not dale Canal Co., 81 L. T. 472, C. A. ; sustainable under the Prescription Act affirmed by H. L. (1902), 85 L. T. 585. 272 OF ACQUIRED RIGHTS OF WATER. Enjoyment mast be nee ri, nee clam nee precario the grant for such purposes, implied from twenty years' user, was no legal defence. The foregoing cases all relate to presumed grants by canal com- panies of water which they were held unable to grant a claim, however, by a canal company against riparian owners on a river to take more water from the river than they were entitled to by their Act has been held to be a claim which may be established by prescription. 1 In McEvoy v. Great Northern Railway, 2 prior to 1849 the plaintiff's predecessors had enjoyed the right to take water from a natural stream flowing near their holding. In 1849, the defendant railway company, in constructing their line, interfered with or tapped the subterraneous course of this stream, which ceased thenceforward to flow : the water that had supplied it finding its way to the surface at a cutting on the company's line. This water the company conveyed along and away from their line in a new artificial channel. The water of this new stream was not until 1898 used by nor was it of any use to the company. In 1898 the company commenced to make use of this water supply for their own purposes, and the plaintiff, who had been taking the water thereof since 1849 for domestic purposes, brought an action for disturbance of a prescriptive right. The jury found that the new stream was substituted for the old, and that the company had not constructed the new channel until they should require to use the water for their own purposes. Held, that, this new artificial watercourse being made for the benefit of the company on the company's own land, no enjoy- ment of the water thereof while the water was of no use to the company could create a prescriptive right in the plaintiff; and, further, that the existence of such a right would be inconsistent with the purposes of the incorporation of the company, and with the obligations of the company to provide for the security of their permanent way and the safety of the public ; and that the new artificial stream not being the same as the stream formerly in existence, no contract in regard thereto, as an " accommodation work " within sect. 16 of the Railway Clauses Act, 1845, could be presumed. The enjoyment which, by length of time, both at common law and under the statute, will confer the right to an easement must 1 A.-G. v. ante, p. 242. Grand Junction Canal, a (1900) 2 Ir. R. 325, C. A. EASEMENTS OF WATER, HOW ACQUIRED. 273 be uninterrupted, 1 open, 2 and of right, nee vi, nee clam, nee precario. 3 Where, therefore, the right * claimed has been inter- rupted by any lawful impediment, or where the easement has, either from the mode in which the party enjoys it, or from the nature of the easement itself, been secret, or where again the enjoyment has originated under licence or permission from the owner of the servient tenement, no right will be gained by length of time. 5 Under the statute, however, where the right to a watercourse has existed for forty years, it will not be invalidated unless such licence be by deed of writing. 6 In French Hoek Commissioners v. Hugo, 1 which was an appeal from a judgment of the Supreme Court of the Cape of Good 1 An act of partial interruption may qualify an easement without destroying it. Thus in Rolle v. Wliyte (L. R., 3 Q. B. 286 ; 37 L. J., Q. B. 105 ; 17 L. T. 560), where a weir was claimed across a river by prescription, and a miller on the banks was proved to have occa- sionally interrupted it by shutting down a fender, it was held that this did not destroy the right, as there was nothing to prevent a second easement being acquired, as subordinate to one already existing, where the subject-matter admitted of it. 2 See Angus v. Dalton, 3 Q. B. D. 85. Civ. Law, 1, ff. de serv. 1. 10, ff. ; Co. Litt. 113 b ; Bracton, lib. 2, f. 51, f . 52 a, 222 b. See also Chamber Colliery v. Hopujood, 32 Ch. D. 549 ; 55 L. J., Ch. 859 ; 55 L. T. 149 ; Burrows v. Lang, (1901) 2 Ch. 503, post, pp. 285, 299. 4 Angell, p. 369 ; see Gaved v. Martyn, post, p. 293, where the question of right is fully treated ; Mason v. Shrewsbury Ely., L. R., 6 Q. B. 578. 5 See per Erie, C. J., 17 Q. B. 275 ; Bright v. Walker, 1 C., M. & R. 219 ; 40 R. R. 536 ; Gardner v. Hodgson's Brewery Co., (1901) 2 Ch. 198; 84 L. T. 373 ; 49 W. R. 421, C. A. ; Gale, pp. 204, 208. The defendant in 1834 demised to the plaintiifs the coal under the Chamber Hall Estate for fifty years, with power to sink pits, make soughs, &c., erect engines, and make drains, &c., for supplying such engines with water, and also to do certain other acts on the surface for the better draining and working the demised mines of which the plaintiffs might become lessees under the lands of any other persons. In 1836 the plaintiffs took a lease for thirty-five years of the Oak Colliery from a neighbouring landowner. In L.W. 1846 the plaintiffs made a drain about a mile long, chiefly on the Chamber Hall Estate, by which they diverted a small natural stream on the Chamber Hall Estate, and brought it down to the Oak Colliery, where they made reservoirs for the water at considerable expense. They did not ask leave to make the drain, but the defendant's agent saw the work going on and encouraged it. In 1872 the plaintiffs became owners in fee of the Oak Colliery. In 1884, when the lease from the defendant expired, the defendant stopped the drain and diverted the water. The plaintiffs, claiming a right by prescription to the water, com- menced this action to restrain him from doing so. The Vice-Chancellor of the County Palatine held that the watercourse was made under the powers of the lease, and he dismissed the action. Held, on appeal, that this dis- missal was right, for that if the making of the drain was not authorized by the lease (as to which the Court gave no opinion), it was made and enjoyed, either under the belief of both parties that it was authorized by the lease, or under a comity between landlord and tenant, and that there was no enjoy- ment as of right so as to give the tenant a right to the water after the lease had expired : Chamber Colliery Co. v. Hopwood, 32 Ch. D. 549; 55 L. J., Ch. 859 ; 55 L. T. 449 ; 51 J. P. 164, C. A. 6 2 & 3 Will. IV. c. 71, s. 3 ; see per Blackburn, J., in Mason v. Shrewsbury Ely., L. R., 6 Q. B. 578. i 10 A. C. 336 ; 54 L. T. 92 ; 34 W. R. 18, P. C. See also Breda v. Silber- bauer, L. R., 3 P. C. 84. 18 274 OF ACQUIRED RIGHTS OF WATER. Hope, the respondent's predecessor in title in 1820 constructed a watercourse on Crown lands, by means of which he diverted the water of two springs which rose thereon, so that they mingled with the waters of a private stream admittedly belonging to the farm of which the respondent owned a portion. He did so with the licence of those who acted as agents for the Government, in order to have the permanent use of the water for his farm, and continued his user for the period of prescription ; after which the respondent applied for and obtained from the Colonial Government a renewal of the licence originally granted to his predecessor. The Judicial Committee held that the user of the diverted water by the respondent's predecessor was not precarious, and that the act of the respondent had not deprived him of the prescriptive right acquired by his predecessor so as to enable the Crown to give to the plaintiffs in 1881 a title to the said water. So in Brymbo Water Co. v. Lester's Lime Co. 1 it was held that the fact that an embankment was occasionally out of repair during a term of years, or too low when the water was high (e.g. in a flood), and so allowed water to overflow into other land, could give the owner of that land no prescriptive right to the overflow. Interruptions, though not acquiesced in for a year, may shew that the enjoyment never was of right, but contentious through- out, though, if once the enjoyment as of right has begun, no interruption for less than a year can defeat it. 2 and adverse. I n order, moreover, to raise the presumption of a grant of an easement in a watercourse, the user or enjoyment must have been adverse, 3 that is, have interfered with the enjoyment of the owner of the servient tenement. "By usage," says Cresswell, J., delivering the judgment of the Court in Sampson v. Hoddinot* " (a man) may acquire a right to use the water in a manner not " justified by his natural right ; but such acquired right has no " operation against the natural right of a landowner higher up " the stream, unless the user by which it was acquired affects the " use that he himself has made of the stream or his power to use " it, so as to raise the presumption of a grant, and so render the " tenement above a servient tenement. If the user of the stream " by the plaintiff for irrigation was merely an exercise of his (1894) 8 R. 329. 8 Angell, p. 368. 8 Eaton v. Swanxta Waterworks Co., * 1 C. B., N. S. 611. 17 Q. B. 269; 20 L. J., Q. B. 482. EASEMENTS OF WATER, HOW ACQUIRED. 275 " natural right, such user, however long continued, would not " render the defendant's tenement a servient tenement, or in any " way affect the natural rights of the defendant to use the water. " If the user by the plaintiff was larger than his natural rights " would justify, still there is no evidence of its affecting the " defendant's tenement, or the natural use of the water by the " defendant, so as to render it a servient tenement. But if the " user by the defendant has been beyond his natural right, it " matters not how much the plaintiff has used the water, or " whether he has used it at all. In either case his right has " been equally invaded, and the action is maintainable." User, moreover, which is neither physically capable of preven- tion by the owner of the servient tenement, nor actionable, cannot support an easement either affirmative or negative. 1 An easement may also be claimed by particular custom, as in Claim to the inhabitants of a district to use a common watering place ; and an action will lie by an inhabitant for the infringement of the right, without proof of special damage. 2 Thus, in Harrop v. Hirst, 3 where the plaintiff had, in common with the inhabitants of a particular district, enjoyed a customary right at all times to take water from a spout in a highway for domestic purposes, and defendant, a riparian owner, stopped the water, the Court held that an action was maintainable without any proof of special damage, inasmuch as the act of defendant might, if repeated often enough, without interruption, furnish evidence in derogation of the plaintiff's legal rights. So, in Race v. Ward 4 and Manning v. Wasdale* a right to go on another's land and take water for domestic purposes was held to be an easement, and not a profit a prendre, and so capable of being claimed by custom by the inhabitants of a district. Where a well situate on private property was freely used without hindrance or interruption, as far back as living memory went, principally by the inhabitants of some neighbouring houses, but also by all persons who had occasion to resort to the well, and a path existed during all that time affording access to the well from a public road, it was held that although it was a public well 1 Sturyes v.Bridgman, 11 Ch. D.852 ; v. Hoveden, Cro. Eliz. 664. Webb v. Bird, 13 C. B., N. S. 841 ; 3 L. R., 4 Ex. 43 ; 38 L. J., Ex. 1 : 19 Chatemore v. Richards, 7 H. L. 349 ; L. T. 426 ; see hinu-y v. Stacker, L. R., see Angm v. Dalian, 3 Q. B. D. 85 ; 4 1 Ch. 396 ; 35 L. J., Ch. 467 ; 14 L. T. 427. Q. B. D. 162. * 4 E. & B. 702. 2 \Vestbury v. Powell, cited in Fineux 5 5 A. & E. 758 ; 44 R. R. 576. 183 276 OP ACQUIRED RIGHTS OF WATER. under sect. 74 of the Public Health (Ireland) Act, 1878 (41 d 42 Viet. c. 52), a right in the public to enter and take water from the well could not be supported by prescription, that it was too wide to be the subject of a custom, and that it could only arise from a dedication to the public by the owners from time immemorial of the land on which the well existed. 1 In Carlyon v. Love-ring* a right was claimed by custom to use a natural stream for the purpose of washing ore, and carrying away sand, stones, rubble, and other stuff dislodged and severed from the soil in working a mine. The Court found the custom to be good, and Watson, B., in delivering judgment, thus states the law with regard to customs : " It is settled that a custom to " be valid in law must be reasonable, certain, and defined. It " was objected that the custom pleaded in the present case was " unreasonable and indefinite, as the exercise of the custom " might go to the destruction of the plaintiff's land adjoining the " stream : that there was no limit to the user as to the times and " extent of the user. No doubt if that were so, the pleas would " be bad; but we think they were not open to these objections. " The exercise of the privilege as claimed was in respect of " working a mine and winning the ore where the stream passed " through defendant's land. Thus, the user is limited to the " necessary working of the mine, and the quantity of water sent " down, although not expressly so alleged. . . . We think that " the custom alleged is sufficiently definite, and is not unreason- " able. It is possible more stuff may come down at one time " than another ; but that does not shew that the custom is bad " (see Tyson v. Smith). 3 We think it is to be confined in user to " the necessary working of the mine, &c." Particular Easements of Water. The right which a riparian owner has to the flow of a natural stream in its natural state may be interfered with by the acquisition of easements, the effect of which may be to alter its quantity, velocity, or quality, to his prejudice. Thus, a right to divert and obstruct the flow of the stream, or to pollute its waters, may be gained by Act of Parliament,* 1 Dungarran (ruardiam v. Mansfield, L. R., 1 Ch. 396, and Gaved v. Martyn, (1897) 1 Ir. R. 420 ; see ante, p. 206, n, 4. 34 L. J., C. P. 353 ; 13 L. T. 74 ; 14 W. R. 2 1 H. & N. 784 ; 26 L. J., Ex. 251. 62, as to acquisition of watercourse by 8 6 A. & E. 745 ; 9 A. & E. 406 ; tin-bounders under custom of Cornwall. 48 R. .R. 639. See Ivimey T. Stacker^ A water company, who were autho- PARTICULAR EASEMENTS OF WATER. 277 by express grant, or by long enjoyment, as prescribed by law. 1 " The general rule of law," says Lord Ellenborough, 2 " as " applied to this subject, is, that, independent of any particular " enjoyment used to be had by another, every man had the right " to have the advantage of a flow of water in his own land, with- " out diminution or alteration ; but an adverse right may exist " founded on the occupation of another; and though the stream be " either diminished in quantity, or even corrupted in quality, as by " means of the exercise of certain trades, yet, if the occupation of " the party so taking or using it have existed for so long a time as " may raise the presumption of a grant, the other party whose land " is below must take the stream subject to such adverse right." " The right of diverting water," says Cockburn, C. J., in Mason Easement of v. Shrewsbury Railway Co., 3 " which, in its natural course, would obstruction. " flow along the land of a riparian owner, and of conveying it to " the land of the party diverting it, the servitus aqua ducenda of " the civilians, is an easement well known to the law of this, as " of every other country. Ordinarily, such an easement can be " created by the laws of England only by grant or by long- " continued enjoyment from which the existence of a former " grant may be reasonably presumed. But such a right may, like " any other right, be created in derogation of a prior right by " the action of the legislature. But, however it is called into " existence, the right is essentially the same." From the above case, it would seem that a right to divert the waters of a natural stream, for the purposes of a canal, is an easement which may be conferred on a company by their Act of Parliament, and, as such, subject to the law of easements generally. Of the acquired right to divert the waters of a stream, the rized in 1869 by their Act to make his diversion at the suit of a lower a reservoir with a dam across a stream, riparian owner, but not to stop any and to impound all waters of that person using water above who had a stream and of other streams then flowing right to do so at the time their Act was into that stream above the dam, and so passed : Brymbo Water Co. v. Lester's become owners of the reservoir through Lime Co., (1894) 8 R. 329. the site of which the stream originally l Sampson v. Hoddinot, 1 C. B., N. S. flowed, have the right to stop any person 590 ; Enibrey v. Owen, 6 Ex. 353 ; from diverting the water which at that Howard v. Wright, 1 Sim. & Stu. 190 ; time came down, or but for a stoppage 24 R. R. 169. would come down, as part of that stream 2 Sealey v. Shaw, 6 East, 208 ; 8 or its tributaries above the dam, and as R. R. 466. to which the person diverting could L. R., 6 Q. B. 586 ; 40 L. J., Q. B. have been restrained from continuing 293 ; 25 L. T. 239. 278 OF ACQUIRED RIGHTS OF WATER. Diversion or obstruction cannot be materially increased. cases of Beef ton v. Weate 1 and Saunders v. Newman* afford examples. In the former case, it was held that a right by the owners of the dominant tenement to go from time to time upon the servient tenement for the purpose of diverting the water of a natural stream flowing along it, so as to cause it to pass through that tenement by an artificial cut to the dominant tenement for the purpose of supplying cattle with water, might be inferred from a user of forty years, and that for the interruption of such easement an action was maintainable. The Court further held, that the fact that the water was diverted by means of an artificial cut did not destroy the right of action by the owner of the dominant tenement. In Saunders v. Newman, 3 the plaintiff proved a right to the flow of water to a mill for forty years, which mill was burnt down and another erected in its place, with a wheel of the same dimensions as the former one. Since that time, he had erected a new wheel of different dimensions, and requiring less water. The action was brought for injury to this last wheel by a hatch dam or mill head of defendants being raised to a greater height than it had formerly been, and the Court held that the right of action which the plaintiff had for an interference with a stream which had immemorially flowed to his mill was not destroyed by the alteration of the wheel. "If," says Bayley, J., "a person " stops the current of a stream which has immemorially flowed in " a given direction, and thereby prejudices another, he subjects " himself to an action."* Where, however, an easement has been acquired, the diversion or obstruction cannot be materially altered or increased to the further detriment of the servient owner. Thus in the case of Bealey v. Shaw 5 it was held, that where a mill owner had acquired a right by twenty years' uninterrupted user to divert a part of a stream for the use of his mill, he was liable to an action at the suit of a lower mill owner for a further subsequent diversion to the lower mill owner's injury. So in Brown v. Best, 6 where defendant had enlarged certain ancient pits by which he had a right to divert water, and thereby damaged the plaintiff, 1 5 E. k B. 986. 2 1 B. & A. 258; 19 li. II. 312. 1 B. & A. 258 ; 19 R. R. 312. 4 See also as to diversion for irri- gation, Ward v. Robbing, 15 M. & W. 237. 5 6 East, 208 ; 8 R. R. 466 : see also Mason v. Hill, 5 B. & A. 1 ; 39 R. R. 354 ; Alder v. Sarile, 5 Taunt. 424 ; 15 R. R. 551. 6 1 Wils. 174. PARTICULAR EASEMENTS OF WATER. 279 it was held that he might have cleaned the pits, but could not enlarge them. 1 A mere alteration in the mode of enjoyment, as the change of A mere a mill from a fulling to a grist mill or the like, whereby no does not n injury is caused to the servient heritage, 2 or a trifling alteration destroy the in the course of a watercourse, does not destroy the right. Thus in Hall v. Sicift 3 it appeared that plaintiff had, three years ago, slightly altered the course of a stream, which flowed from lands of defendant through a spout and across a lane to plaintiff's land. The stream had formerly run a few yards down the road before it crossed to plaintiff's land, but the plaintiff altered it so as to make it run straight from the spout to his premises. The Court held this alteration did not destroy the plaintiff's right of action for obstruction of the stream by defendant. 4 A right to pollute the waters of a natural stream is an ease- Easement of ment within the Prescription Act, and may be acquired, like P llatlon - any other easement, by user ; 5 but there can be no prescriptive right to pollute a stream in such a manner and to such an extent as to be injurious to public health. 6 Thus a claim to let off upon neighbouring land water from pits impregnated with metallic substances, and thereby rendered noxious, may be acquired by forty years' user under the Pre- scription Act. 7 So a right to use a natural stream for the purpose of washing ore and carrying away sand, stones, rubble, and other 1 See as to the Civil law of Quebec on this subject, Imie Frechette v. La Compagnle de St. Hyacinths, 9 A C. 170 ; 53 L. J., P. C. 20, where the English cases are discussed. 2 Luttrel'* cane, 4 Rep. 86. 3 6 Scott. 167 ; 44 R. R. 728 ; 4 Bing., N. C. 381. As to effect of alteration on the easement of light, see Barnes v. Loach, 4 Q. B. D. 494 ; Tapling v. Jones, 11 H. L. 290 ; National Plate Glass Co. v. Prudential Assurance Co., 6 Ch. D. 757 ; Blancliard v. Bridges, 4 A. & E. 176 ; 53 R. R. 26 : Ellis v. Manchester, 2 C. P. D. 13. 4 See Derey v. Grand Canal Co., Ir. R., 8 C. L. 511 ; affirmed Ir. R., 9 C. L. 194. 5 Wood v. Waud, 3 Ex. 748 ; 18 L. J., Ex. 305 ; Harrington {Earl of) v. Derby Corporation, ante, p. 190. In Mid- lothian County Council v. Oilbank Oil Co., 6 F. 887, Ct. of Sess. ; 5 F. 700, Ct. of Sess., it was held that a right to pollute a river was not saved by sect. 16 of the Rivers Pollution Pre- vention Act, 1876 (39 & 40 Viet. c. 75) ; see ante, p. 218, n. 4. 6 Blackburn v. Somers, 5 L. R., Ir. 1. No one since the Sea Fisheries Act, 1868, can acquire a right to discharge sewage into the sea so as to contaminate private oyster beds, or to pollute a public fishery : Foster v. Warblington Urban Council, (1905) 21 T. L. R. 214 ; 69 J. P. 42 ; 3 L. G. R. 605 ; per Walton, J. : Owen v. Fatersham Cor- poration, (1909) 73 J. P. 33, C. A. A prescriptive right to discharge sewage into the sewers of a local authority can be acquired under the Public Health Act, 1845, and the Thames Navigation Act, 1894 : Reg. v. Staines Local Board, 60 L. T. 261 ; Thamss Comet-rotors v. Graresend Corporation. 100 L. T. 964 ; 73 J. P. 381. 7 Wright v. Williams, 1 M. & W. 77. 280 OF ACQUIRED RIGHTS OF WATER. Can only be gained by a continuous and percep- tible amount of injury for twenty years. stuff dislodged and severed from the soil in working a mine may be claimed by prescription or custom. 1 Such a right to pollute a stream can only be gained by a continuance of a perceptible amount of injury to the servient tenement for twenty years. Thus in Murgatroyd v. Robinson, 2 where an action was brought by the owner of a mill, which of right ought to be supplied with a flow of water from a pool on the river Calder, against the owner of works higher up the stream, for placing cinders, &c., at his works so as to fall into the Calder, whence they were carried down to plaintiff's mill pool and filled it up, and the defendant pleaded that the occupiers of his works had for more than twenty years placed cinders, &c., on the banks of the stream and its channel, the Court held the plea bad, as not shewing that the defendant had, during twenty years, of right caused the refuse to go into plaintiff's pool ; as till the occupiers of the mill sustained some damage from defendant's user, no right as against them began to be acquired. 8 In Goldsmid v. Tunbrid the absence of a prescripfive right, may be acquired by user, and is not destroyed by a mere alteration in the height of the 1 1 Wms. Saund. 321. 5 As to this, see Cawltwell v. Russell, 2 (1895) 2 Q. B. 608 ; 67 L. J., Q. B. 26 L. J., Ex. 34. 953. e 29 Oh. D. 115 ; 54 L. J., Ch. 404 : 8 11 A. & E. 571 ; ante, p. 296. . 52 L. T. 942 ; ante, p. 234. 4 3 Ex. 748 ; see also Sutcllffe v. 7 See ante, pp. 185 et seq., where this Booth, 32 L. J., Q. B. 136. question is discussed. 302 OF ACQUIRED RIGHTS OF WATER. eaves not increasing the burthen on the servient tenement. 1 No corresponding right to the flow of rain-water from the roof of a house can be acquired by prescription. 2 Extinguishment of Easements of Water. "The modes by which easements may be lost," says Gale, 3 " correspond with those already laid down for their acquisition. " 1. Corresponding to the express grant is the express renuncia- " tion. 2. To the disposition by the owner of two tenements, " the merger by the union of them. 8. To the easement of " necessity, the permission to do some act which of necessity " destroys it. 4. And to the acquisition by prescription, abandon- " ment of user." 4 By express An express release at law to be effectual must be by deed, but in equity an easement may be lost by agreement or acquiescence. 5 By merger. Easements are also extinguished by operation of law if the seisin of the dominant and servient tenements are united in one and the same person. 6 Unity of possession only suspends an easement it requires unity of seisin to destroy it. 7 A natural right to water coming from another tenement is not destroyed by unity. " There is a difference," says Whitelock, J., in Sury v. Piggott, 8 " between a way or common and a water- " course. These begin by private right, by prescription, by " assent as a way or common, being a particular benefit to take " part of the profits of the land. This is extinct by unity ; " because the greater benefit shall drown the less. A "watercourse " doth begin ex jure natures, having taken this course naturally, " and cannot be averted." 9 1 Harvey v. Walters, L. R., 8 C. P. & N. 8 ; 28 L. J., Ex. 185. 162; Tlumas v. Thomas, 2 C., M. & R. 5 Gale on Easements, p. 512 ; Goddard 34 ; 41 R. R. 678 ; see Gale on Ease- on Easements, 6th ed., 1904, pp. 555 et ments, 8th ed., pp. 275, 276, 536, 537, seq.; see Fisher v. Moon, 11 L. T., N. S. 574 ; and ante, Chap. III., p. 162. 623 ; Waterloo) v. Bacon, L. R., 2 Eq. 2 Wood v. Waud, supra; Greatrexv. 514; Johnson v. Wyatt, 9 Jur., N. S. Hayward, 8 Ex. 291. 1334 ; Danes v. Marshall, 10 C. B., 8 Gale on Easements, p. 512. N. S. 697 ; Soloman v. Glover, 10 W. N. 4 Where an easement is granted for a 117 ; and ante, pp. 239 et seq. particular purpose by Act of Parliament, 6 Goddard on Easements, pp. 552, the easement ceases when the particular 567; Gale, pp. 18, 156, 180, 516; see purpose is accomplished. Thus, where ante, pp. 252 et seq. a canal company, who had a right to 7 Thomas v. Thomas, 2 C., M. & R. take water from a canal, were recon- 34 ; 41 R. R. 678 ; Simper v. Foley, 2 stituted a railway company by Act of John. & H. 555 ; James v. Plant, 4 A. & Parliament, it was held that they could E. 761 ; 43 R. R. 465 ; Co. Litt. 313 a. not grant away their right to the water, 8 3 Bulst. 339 ; Poph. Rep. 166. for as they had ceased to require it for 9 See Briglvt v. Walker, 1 C., M. & R. their canal, the right to take it ceased: 219 ; 40 R. R. 536 ; and Goddard on National Manure Co. v. Donald, 4 H. Easements, p. 524. EXTINGUISHMENT OF EASEMENTS OF WATER. 303 It has already been stated, that a licence by the dominant By licence, owner to do an act incompatible with the existence of an easement, may work its extinguishment, even when the licence is by parol. 1 When a prescriptive right is once acquired it cannot be lost by Abandon- any subsequent act not amounting to a surrender, even though such act would have, previous to the acquisition of such right, rendered the user precarious. 2 The mere suspension of the exercise of a prescriptive right is By mm user, not sufficient to destroy the right, without some evidence of an intention to abandon it ; but a long-continued suspension may render it necessary for the person claiming the right to shew that some indication was given during the period that he ceased to use the right of his intention to preserve it. 3 Thus where the owner of an old pond had an acquired right to draw water for it from a well, and had disused the old pond for forty years, and during that time drew water for three new ponds ; it was held that the right to draw water to the old pond was not destroyed, as it was impossible to conceive that he intended to abandon the right, when he was actually drawing water into three new ponds instead of into the old one. 4 So a right of way along a stream has been held not to be lost if the owner allows part of it to be choked with mud, even though it may be impassable for sixteen years ; for the mud may be removed if the way is required. 5 In Tilbury v. Silva,* Kay, J., held that the abandonment by a holder of copyhold lands of a right claimed to fish hi the waters of the manor for four years before action brought, was a bar to that right under sect. 4 of 2 & 3 Will. IV. c. 71. Interruptions, though not acquiesced in for a year, may shew that the enjoyment never was of right but contentious through- out, though if once the enjoyment as of right has begun, no interruption for less than a year can defeat it. 7 Where the dominant tenement is altered in such a way as will By alteration make it " incapable any longer of the perception of the particular " easement," or where the alterations are of such a permanent 1 Ante, p. 243. See per Wood, V.-C., in Crossley v. 2 French Hoek Commissioners v. Lightowler, L. R., 3 Eq. p. 293. Hugo, 10 App. Cas. 336 ; 54 L. T. 92 ; s Sower v. Sill, 1 Bing. N. C. 549 ; see also Breda v. Silberbawer, L. R., 3 41 R. R. 630. P. C. 84. 45 Ch. D. 98 ; 62 L. T. 254 ; post, 3 Crossley v. Lightowler, L. R., 2 Ch. Chap. VI. 478 ; 3 Eq. 279. 1 Eaton v. Swansea Waterworks Co., * Hale \. Olroyd, 14 M. & W. 789. 17 Q. B. 26 ; 20 L. J., Q. B. 482. 304 OF ACQUIRED RIGHTS OF WATER. character as will evince an intention on the part of the dominant owner to abandon it, the easement will be extinguished, although the abandonment has not existed for twenty years. Thus, in Crossley v. Lightowler, 1 where the owners of dye works had a privilege or easement of pouring foul dye water into a river, it was held, that though the mere non user of this easement was not in itself a proof of abandonment of it, without some evidence of intention to abandon it, yet the non user of the mills for twenty years, and the fact that they had been allowed to go to ruin, was sufficient to destroy the right. By encroach- An encroachment by the dominant owner, which will render the easement necessarily more onerous to the servient tenement, will have the effect of destroying the easement ; 2 but a mere alteration, causing no injury to the servient heritage, will not destroy the right. 3 Thus, in Cawkwell v. Russell,* where the plaintiff had a pre- scriptive right to send waste water down the defendant's drain, and sent down also foul water from his privies, the Court held that defendant had a right to stop the whole drain, as the encroachment could not be prevented in any other way ; but in the subsequent case of Hill v. Cock, 5 where the plaintiff increased a prescriptive right to water by lengthening a gutter, the defendant was not held justified in stopping this extensive user, by means which altogether prevented plaintiff's enjoyment of the water. 1 L. R., 2 Ch. 478 ; L. R., 3 Eq. 279 ; A.-G. v. Kingston, 13 W. R. 888. see Reg. v. Charley, 12 Q. B. 518; Ward 8 LuttreTs case, 4 Rep. 86 ; Hall v. v. Ward, 7 Ex. 838 ; Mason v. Hill, Swift, 6 Scott, 167 ; 44 R. R. 728 ; and 5 B. & Ad. at p. 16 ; 39 R. R. 354 ; cases cited ante, pp. 279285 : Harvey Liggins v. Inge, 7 Bing. 693 ; 33 R. R. v. Walters, L. R., 8 C. P. 62 ; Thomas v. 615. Thomas, 2 C., M. & R. 34 ; 41 R. R. 678. 2 Bealey v. Shaw, 6 East, 208 ; 8 * 26 L. J., Ex. 314. R. R. 466 ; Brown v. Sett, 1 Wils. 174 ; 26 L. T., N. S. 185 ; see post, Crossley v. LigMowler, L. R., 2 Ch. 478 ; Chap. X. A.-G. v. Birmingham, 4 K. & J. 528 ; 305 ) CHAPTER V. OF CANALS, WATER SUPPLY, AND DOCKS. IT is proposed in the present chapter to treat of the rights, duties and liabilities of I. Canal Companies ; II. Water Com- panies ; and III. Dock Companies. All such bodies are either combinations or adventurers incor- These bodies porated under Acts of Parliament in order to supply a public g^tes for want for their own profit, or are public bodies invested with the individual like powers for the public benefit. In both cases, however, they are but substitutes for individual enterprise. " It is well observed," says Blackburn, J., 1 " by Mr. Justice " Mellor in Coe v. Wise, 2 of corporations like the present, formed " for trading and other profitable purposes, that though such " corporations may act without reward to themselves, yet in " their very nature they are substitutions on a large scale for " individual enterprise. And we think that, in the absence of " anything in the statutes (which create such corporations) " shewing a contrary intention in the legislature, the true rule " of construction is that the legislature intended that the liability " of corporations thus substituted for individuals should, to the " extent of their corporate funds, be co-extensive with that " imposed by the general law on the owners of similar works. " If, indeed, the legislature has by express enactment or neces- " sary intendment enacted that they shall not be subject to such " a liability, there is an end of the question." Since these bodies are almost universally incorporated by Act Rights and of Parliament, and derive all their powers to interfere with the bSueseiwr. rights of private property from the special enactment creating cising statu- i ,, / i try powers. them, it will be well to note some of the general principles regulating the liability of companies exercising statutory powers. "Where the legislature has authorized certain persons to effect 1 Delivering the opinion of the judges Cas. 686. in the House of Lords in Mertey Docks 2 5 Best & Sm. 440 ; 4 New Rep. 354. Co. v. Gibb, L. R., 1 H. L. 93 ; 11 H. L. L.w. 20 ann Reter- roir. 306 OF CANALS, WATER SUPPLY, AND DOCKS. a certain purpose, and has given them the powers necessary to effect it, they may exercise those powers to their full extent without incurring responsibility, but in so doing they must not occasion any needless injury to any one. 1 Where persons are incorporated by Act of Parliament for a particular purpose, and have full powers given them to effect that purpose, if the effecting of it may occasion (not only in the course of originally extending the necessary works for the required purposes, but at recurring intervals afterwards) incon- venience or injury to others, they may be treated as under an obligation to take, from time to time, measures to prevent the occurrence of such inconvenience and injury. 1 Geddis \. These principles were laid down in the case of Geddis v. Bonn Reseii'oir* which was an appeal heard in the House of Lords against a judgment of the Exchequer Chamber in Ireland, revers- ing a previous judgment of the Court of Queen's Bench there. A local Act of Parliament incorporated certain persons for the purpose of securing a regular and proper supply of water to mill-owners whose works were situated on the banks of the river Bann. These persons had powers given them to collect the waters of several small streams into a reservoir, and, as often as necessary, to send down those waters to the Bann through the channel of a stream called the Muddock. The second clause of the Act directed them to " make, erect, construct, maintain, " repair and keep " by means of a reservoir a due and adequate supply of water for the river Bann at all seasons of the year ; and to enter on the lands of the different streams named, to do what was necessary for the conveyance and due regulations of the supply of such waters, and " to make, erect, alter, maintain, " repair, widen, deepen, scour, cleanse, and keep proper and " sufficient conduits, aqueducts, channels and watercourses, drains, " feeders, weirs, dams," &c., &c. The 82nd clause gave similar directions, and ordered that the surplus water should be returned unto the different streams from which it had been taken ; and also made provisions for supplying with water the cattle depasturing in the fields there. 1 Geddis v. Jiann Reservoir, 3 A. P. 9 ; 94 L. T. 265 ; 10 Asp. M. C. 208 ; C. 430, H. L. Ir. ; Edinburgh Water 22 T. L. R. 165, C. A. ; The Moorcock, Truttees v. Sommerville, (1906) 95 L. T. (1889) 14 P. D. 64, and cases ante, 217 ; see also Evans v. Manchester S. p. 172. For proceedings against public and L. Rail. Co., 36 Ch. D. 626 ; Green authorities, see the Public Authorities y. Chelsea Waterworkt Co., 70 L. T. Protection Act. post, p. 704. 541 ; The Beam, (1906) P. 48 ; 75 L. J., 2 3 A. C. 430. OF CANALS, WATER SUPPLY, AND DOCKS. 307 The persons incorporated under the Act erected the reservoir, collected the waters of the different streams, and sent them through the channel of the Muddock, so that at times it over- flowed its banks, and did damage to the lands of the adjoining proprietors. It was held that the order of the Exchequer Chamber should be reversed, and the order of the Court of Queen's Bench restored, and that under the words of the Act there was an obligation on the persons so incorporated to take care that the due execution of the works and operations intended by the Act should not be injurious to the lands lying along the banks of the Muddock, and that the bed or channel of the Muddock must be cleansed and kept in a proper state for the flow and re-flow of the water that had to pass through it. In giving judgment, their Lordships distinguished the case from that of Cracknell v. Mayor and Corporation of Thetford, 1 which had been cited for the defendants. " In that case," said Lord Hatherley, 2 " which has been followed by several others, " it seems to have been laid down that persons having powers to " execute certain works, and executing those works in such a " manner as to perform that duty in compliance with an Act " of Parliament, and being utterly guiltless of any negligence, "cannot be liable to an action. If the person injuriously " affected cannot find any clause in the Act of Parliament giving " him compensation for the damage which he has received, he " cannot obtain compensation for that damage by way of action "against the parties who have done no wrong that is the " simple proposition which is laid down in that case, and when " it is expressed in these terms it is impossible for anybody to " find any fault with it. As my noble and learned friend (Lord " Selborne) has observed, there are other cases far more like this " case than that of The Corporation of Thetford. In the Thet- "ford case 3 what occurred was this: there was a power to " a company to facilitate the navigation of a river by means " of making certain alterations and improvements in it ; a part " of the necessary alterations was the placing of stanchions in " the river. When the river was altered and improved, weeds "grew up in it with which the company had nothing to do; "they grew up neither more nor less by reason of anything 1 L. R., 1 C. P. 629 ; 38 L. J., C. P. 2 3 A. C. p. 448. 353 ; see post Chap. VII 3 L. R., 4 C. P. 629. 202 OF CANALS, WATER SUPPLY, AND DOCKS. " the company had done. It was said that the silting up of "the river had been increased by means of those stanchions, " but they were necessary to the works and could not be " removed ; but nothing had been of its own accord done by " the company which could be said to be the cause of the injury " the plaintiff had sustained. Now in this case we have this " state of things. The respondents have the power to execute "a work of this description, and to make channels and cuts, " and not only so, but they have also the power to widen and " deepen cuts and watercourses. Having that power, and having " the power of using those watercourses to communicate between " the reservoir and the river Bann, they have chosen to exercise " that power in a manner injurious to the plaintiff owing " to their not having seen, in the first instance, the necessity " of making provision for the additional quantities of water "that would be sent down, and at the varying periods at " which they would be sent down. The defendants neglected "to make the provision they should have made for carrying " that water off in such a manner as would have prevented the " occurrence to the plaintiff of a damage which never had " occurred to him before, and which was, as the jury found, " attributable to the works so executed. This case is not within " the principle of the Thetford case, 1 nor within any principle " which could be laid down with regard to parties keeping thein- " selves entirely within their powers, and taking care that the " powers of an Act of Parliament when exercised shall be " exercised in a manner to prevent needless injury. We are " not bound nor entitled to suppose that they will wilfully do " injury by the exercise of the legislative powers which have " been given to them ; but it appears to me clearly and plainly " that they should use every precaution, by the exercise either " of the powers created by the Act of Parliament itself, or of " their common law powers, to prevent damage and injury " being done to others, through whose property the works or " operations are to be carried on, and to avoid subjecting them " to consequences which they were not bound to anticipate from " the Act of Parliament, seeing that the Act also enabled the " parties who had the power to do so to prevent the mischief." Lord Blackburn in the course of his judgment made the following remarks: 2 "It is agreed on all sides that the Act 1 L. R., 4 C. P. 629. a 3 A. C. 455. OF CANALS, WATER SUPPLY, AND DOCKS. 309 "requires the promoters, the defendants, to pour into the " channel of the river Muddock as much water as, on the "average, used formerly to go. It does not mean that if it " happens to be a high flood they are to keep it up to a high " flood, or that in summer they are to keep it to a mere trickle "if it was a mere trickle before ; but it means that on the " average it is to be as much as it was before. And they have "a permissive power, for the benefit of the mill-owners on the " Bann, to send down more water, both greater in quantity and " in a different way from what would have gone in the ordinary " natural state of things down the Muddock if the Act had not " been passed. Now, certainly, the result has been that the " channel of the Muddock, as it exists at present, is not able to " carry off the water they have put into it, and if they have no " power to cleanse the channel of the Muddock or to alter it, "which was the view taken by the majority of the learned " judges in the Court of Exchequer Chamber below, then they " are not liable to damages for doing that which the Act of " Parliament authorizes, namely, pouring part of the water of " the reservoir into the Muddock that it may go into the Bann. " For I take it, without citing cases, that it is now thoroughly " well established that no action will lie for doing that which the " legislature has authorized, if it be done without negligence, " although it does occasion damage to any one ; but an action " does lie for doing that which the legislature has authorized, if " it be done negligently. And, I think, that if by a reasonable " exercise of the powers, either given by statute to the promoters, " or which they have at common law, the damage could be " prevented, it is within this rule ' negligence ' not to make such " reasonable exercise of their powers. I do not think that it will "be found that any of the cases (I do not cite them) are in " conflict with that view of the law." 1 His Lordship then went on to state, that the question, therefore, depended on whether power was given under the Act to the promoters to cleanse the Muddock, and that he was of opinion that such power was so given by the provisions of the second section, and that the defendants were guilty of negligence in not cleansing it. The principles above laid down are but an affirmation of those enunciated in earlier cases. 1 See also Metropolitan Asylums District v. Hill, 6 A. C. 193, per Lord Watson, at p. 213. 310 OF CANALS, WATER SUPPLY, AND DOCKS. Thus in Allnutt v. IngUs, 1 which turned on the rights of the London Dock Company, Lord Ellenborough stated the rule, that where private property is, by consent of the owner, invested with a public interest or privilege for the benefit of the public, the owner can no longer deal with it as private property only, but must hold it subject to the rights of the public, in the exercise of that public interest or privilege conferred for their benefit; 2 and this important general principle was confirmed Mersey Mock and extended in the case of The Mersey Dock Trustees v. Gibb* v. Gibb. which turned on the liability of the plaintiffs for injuries caused by the negligence of their employes ; and where it was decided, not only that a private person or a company, having a right to levy tolls in respect of the performance of a particular work, will be liable in damages for injuries occasioned by performing it negligently, but also that a corporate body, authorized to perform such a work, and receiving tolls in respect of it, though obtaining no profit for itself from such tolls, but collecting them for the maintenance of the work, and the possible future benefit of the public, is equally responsible for injuries arising from the improper performance of such work, and the funds thus obtained must discharge that liability. On the appeal to the House of Lords, certain questions relative to the points raised in this case were put to the judges by the Lord Chancellor, and it will be well to quote, in illustration of this subject, some of the remarks of Mr. Justice Blackburn, who delivered their opinion in reply. After approving the doctrine laid down in Paniaby v. Lancaster Canal* and pointing out the distinction between dock trustees and a canal company, he continued : " If the legislature directs " or authorizes the doing of a particular thing, the doing of it " cannot be wrongful ; if damage results from the doing of that " thing, it is just and proper that compensation should be made " for it, and that is generally provided in the statutes authorizing " the doing of such things. But no action lies for what is " damnum sine injnria ; the remedy is to apply for compensation "under the provisions of the statutes legalizing what would " otherwise be a wrong. This, however, is the case, whether the " thing is authorized for a public purpose or private profit. No " action will lie against railway companies for erecting a line of 1 12 East, 527 ; 11 R. R. 482. s L. R., 1 H. L. 93 ; 11 H. L. Cas. 686 ; a Allnutt \. Inylis, 12 East, 527 ; 11 35 L. J., Ex. 225 ; 14 L. T. 677. R - R - 482. < H A. & E. 223 ; see pott, p. 340. OF CANALS, WATER SUPPLY, AND DOCKS. 311 " railway authorized by their Acts, so long as they pursue the " authority given them, any more than it would lie against the " trustees of a turnpike road for making their road under their " Acts, though one road is made for the profit of the shareholders " in the company, and the other is not. The principle is, " that the act is not wrongful, not because it is for a public " purpose, but because it is authorized by the legislature (The " King v. Pease). 1 This, we think, is the point decided in The " Governors of the BritisJi Cast Plate Manufacturers v. Meredith, 2 " Sutton v. Clarke, 3 and several other cases, as is well explained " by Mr. Justice Williams in Whitehouse v. Fellowes* "But though the legislature has authorized the execution " of the works, it does not thereby exempt those authorized " to make them from the obligation to use reasonable care " that in making them no unnecessary damage shall be done. " In Brine v. The Great Western Rail. Co., 5 Mr. Justice Crompton " says, ' The distinction is now clearly established between damage " ' from works authorized by statutes, where the party generally " ' is to have compensation, and the authority is a bar to an action, " ' and damage b}~ reason of the works being negligently done, as " ' to which the owner's remedy by way of action remains.' " 6 The learned judge pointed out that this distinction is as applicable to works executed for one purpose as another. "It is pointed out " by Lord Campbell in The Southampton Itchin Bridge v. The " Southampton Local Board of Health 7 that in every case the " liability of a body, created by statute, must be determined upon " a true interpretation of the statute under which it is created. " And if the true interpretation of the statute is that a duty is " cast upon the incorporated body, not only to make the works " authorized, but also to take proper care and use reasonable skill, " that the works are such as the statute authorizes, or, as in the " present case, to take reasonable care that they are in a fit state " for the use of the public who use them ; there is, with great " deference to Lord Cottenham, nothing illogical or inconsistent " in holding that those injured by the neglect of the statutable " body to fulfil that duty thus cast by the statute upon it, may 1 4 B. & A. 30 ; 38 R. R. 207. Sir W. Bl. 424 ; Sutton v. Clarke, 6 2 4 T. R. 794. Taunt. 29 ; 16 R. R. 563 ; Jones v. Bird, a 6 Taunt. 29 ; 16 R. R. 563. 5 B. & Aid. 837 ; 24 R. R. 579 ; see 11 4 10 C. B., N. S. 765. H. L. Cas. 714. 5 2 Best & Sm. 402, 411. ' 8 E. & B. 801812. 6 Leader v. Moxon, 3 VVils. 461 ; 2 312 OF CANALS, WATER SUPPLY, AND DOCKS. Definition of canal. Canal com- panies. Rights of canal com- panies denned " maintain an action against that body, and be indemnified out of " the funds vested in it by the statute." 3 The House of Lords gave judgment in accordance with this opinion of the judges. 2 We shall now proceed to notice in detail some of the principal points of the law relating to I. Canals ; II. Water Supply ; and III. Docks. I. Canals. A canal may be defined to be an artificial highway by water constructed for the benefit of the public by adventurers authorized by the legislature to take tolls for its use, as a compensation for their risk and labour in the undertaking. It differs from a river navigation chiefly in the fact that the company or proprietors working it do so for their own profit, and usually have the soil of the canal vested in them by the terms of their Act, whilst the trustees of a river made navigable by Act of Parliament appear usually to have a mere possession of the soil for the purposes of improving the navigation, and, like dock trustees, to be bound to apply the profits for the future benefit of the public. 3 " Canals," said Bayley, J., in Rex v. Nicholson,* " are real " property ; they are land applied to a particular purpose, and " the tolls are the profits arising from that use of the land, and " are given to the proprietors as a compensation for the use of it " in that manner." Pollock, C. B., in the case of Manly v. St. Helens Canal Co., 5 thus defined the status of the undertakers : " The owners of this " canal are to be looked on as a trading company, who, though " the legislature permits them to do various acts described in " these statutes, are to be considered as persons doing them for " their own private advantage, and are, therefore, personally " responsible if mischief ensues from their not doing all they " ought, or doing in an improper manner what they are allowed " to do." The method, therefore, hitherto pursued in treating of natural streams manifestly cannot be applied to the consideration of 1 See Ward v. Lee, 7 E. & B. 42(5 ; Clothier v. Webster, 12 C. B., N. S. 798 ; lluck v. Williams, 3 H. & N. 308 ; Whitehouse v. Fellowes, 10 C. B., N. S. 765 ; Brownlow v. Metropolitan Board of Works, 13 C. B., N. S. 768 ; 16 C. B., N. S. 546. 2 For further cases as to liability of harbour and dock authorities, see post, pp. 374 et iteq. 3 See ante, Chap. II., p. 106, and post, Chap. VII. < 12 East, 330 ; 11 R. R. 398. 5 2 H. & N. 840. CANALS. 313 artificial waterways like canals. The ownership of the soil, and and limited the rights and duties incident to canal proprietors, are in each parliament case defined and limited by a particular private Act to which reference must be made in all cases involving the consideration of any of these points. In order to ascertain the law on this subject it will be necessary to examine the construction that has been put upon this class of enactments, for the purpose of arriving at general rules with regard to it. 1 In order to consider the principles which have been followed in the construction of the private Acts incorporating canal companies, it will be well to state briefly what is the general nature of these enactments. 2 They usually vest the ownership of the soil of the bed and banks of the canal in the undertakers, with certain reservations to landowners, and empower the corporate body thus formed to levy tolls for the purpose of carrying on the navigation which exists for the benefit of the general public, though they them- selves are not precluded from being carriers on their own canals. The company are bound to abstain from any act which may cause inconvenience or injury either to public or private owners when carrying out their works, 3 and to submit in certain cases to the due exercise of the rights of others where such rights do not interfere with their own. 4 Such is the general tenor of these enactments, which are to be regarded as the form of contract between the public and the company. " Every Canal Act," as was said by Lord Tenterden, C. J., in Stourbridge Canal v. Wheely, 5 is to be considered as " a " bargain between a company of adventurers and the public, the " terms of which are expressed in the statute ; and the rule of " construction in all such cases is now fully established to be " this that any ambiguity in the terms of the contract must " operate against the adventurers, and in favour of the public : 1 There are, however, a certain number N. 121 ; London and Birmingham Rail- of general public statutes regulating the way v. GranA Junction Canal, 1 Rail, traffic on canals, the charges of com- Gas. 224 ; Slakemore v. Glamorganshire panics, and the liabilities of the owners Canal, 2 C., M. &; R. 133 ; Glamorgan- of barges ply ing on them. See for these, shire Canal v. JBlafomore, 1 C. & F. post, Chap. VII. 262. 2 See post, Chap. VII. * 2 B. & Ad. 793 ; 36 R. R. 746 ; see 3 Geddis v. Bann Reservoir, 3 A. Parnahy v. Lancaster Canal, 11 A. & E. C. 430, H. L. Ir. ; A.-G. v. Bradford 223; see, too, the remarks of Lord Eldon Navigation, 35 L. J., Oh. 619 ; Reg. v. and Lord Lyndhurst in Blakemore v. Beta-mere, 13 W. R. 757; Preston v. Glamorganshire Canal, 1 M. & K. 162, Norfolk Rail. Co., 2 H. & N. 735. 169 ; 1 C. & F. 262 ; 36 R. R. 289. 4 Monmouth Canal Co. v. Hall, 4 H. & 314 OF CANALS, WATER SUPPLY, AND DOCKS. " and the plaintiffs can claim nothing which is not clearly given " to them by the Act. This rule is laid down in distinct terms " by the Court in the case of The Hull Dock Co. v. La Marchc, 1 " where some previous authorities are cited ; and it was also " acted upon in the case of The Leeds and Liverpool Canal Co. v. " Hustler:' 2 We will now proceed to consider the various decisions on particular enactments incorporating canal companies in the following order : 1. Such as relate to the ownership of the soil ; 2. Such as turn on the rights and duties of canal companies to other proprietors ; 8. Such as refer to their duties towards the public in respect of the navigation. Ownership of The soil of canals is, as a rule, vested in the proprietors in proprietor^ absolutely by tne terms of their Act, though only for the purposes bat only for for which they are incorporated. 3 Thus 16 Geo. III. c. 28, an of theirAct! Act for making and maintaining the Stourbridge Canal, empowers the company " to purchase lands for the use of the navigation, " and vests the lands acquired by a voluntary or compulsory sale " in the proprietors for the use of the navigation, and for no "other use or purpose whatsoever." 4 They may, however, under certain circumstances, have a mere possession of land without being the owners thereof ; as where the proprietor of the soil gives permission to a company to make erections, such as a dam or mound, upon it, 5 and such possession has been held to entitle them to maintain trespass. 5 The powers of companies vary considerably in this respect ; and in each case, as was said by Lord Tenterden in Stourbridge Canal v. Wheely* " the canal having been made under the " authority of an Act of Parliament, the rights of the company " are derived entirely from that Act." As has been stated, however, whatever the extent of the ownership may be, it is permitted solely for the purposes of the Act. 1 8 B. & C. 51 ; 32 R. R. 337. 4 2 B. & Ad. 793 ; 36 R. R. 746 ; as to 2 1 B. tt C. 424 ; 36 R. R. 746, 748 ; power of a canal company to dedicate cf. Lord Brougham in Stockton and land as a public footpath, see Grand Darlington Riy. v. Jiarrett, 11 Cl. &. Junction Canal v. Petty, 21 Q. B. D. F. 590 ; 8 Scott, N. R. 641 ; Glamorgan- 273 ; 57 L-. J., Q. B. 572 ; 59 L. T. 767 ; ifiireCMnalv.Jilakeiitore, 1 Cl. & F. 262. and R. v. Leake, 5 B. & A. 469; 39 3 Boxtoclt v. North Staffordshire Rail. R. R. 521 ; and ante, pp. 104 et seq. Co., 4 E. & B. 798 ; National Manure 5 Dyson and another v. Collick, 5 B. & Co. v. Donald, 4 H. & M . 8. A. 600 ; 24 R. R. 484 ; 8. C., 1 D. & R. 225. CANALS. 315 Thus a canal company, incorporated by Act of Parliament and having powers to take water for supplying their canal, cannot by user acquire an easement to take water for any other purpose, and the easement to take water to fill a canal ceases when the canal ceases to exist. 1 So too, where an Act incorporating a canal company empowered them to acquire lands compulsorily, which were to vest by the Act in the company in fee simple, " for the use of " the said navigation, and to or for no other purpose or use " whatsoever," but reserved to proprietors of purchased lands the minerals and fishery over their lands, and the right to use pleasure boats over the whole canal and reservoir ; it was held that the North Staffordshire Railway Company, in whom such rights and property were vested by a subsequent Act, could not lawfully use the lake or reservoir for any other purpose than supplying the navigation with water, and an injunction was subsequently granted to restrain them from holding a regatta thereon, and also from letting out boats for hire. 2 In Regina v. Archbishop of York, 3 B. was empowered to make Reg. v. Arch- a canal, to supply it from brooks, &c., and to inclose and appro- y^ ~ priate lands proper for wharfs, quays, &c. Nothing was to authorize his using the lands for anything else than navigation. The works and things made in forming certain parts of the canal were to be B.'s property. A stream had been dammed up to feed the canal, forming a pool. This pool had been lowered and reduced in size. On part of the ground so recovered, B.'s successors had built limekilns, &c. Held, that no right to the soil of the lands adjoining the canal, and applied to the purposes of the canal other than those works and things used in forming the canal, passed to B. where there had been no actual purchase. In The Rochdale Canal v. Radcliffe* an Act for establishing a iiochdale canal company provided that it should be lawful for owners of lands within twenty yards of the canal to draw off water for the sole purpose of condensing steam; such water to be returned to the canal, so that no damage should be done to the navigation. Defendant being tenant of a certain mill, drew off more water than was used for condensing. He set up a claim, as a right, 1 National Manure Co. Y. Donald, 4 Co., 4 E. & B. 798. See also Hill \. H. & N. 8 ; see Staffordshire and Wor- Tapper, 9 Jur., X. S. 725 ; and ante, center Canal v. Jiinningham, L. It., 1 1 pp. 244 et geq. H. L. 54 ; see arfe, p. 270. post, p. 330. 3 14 Q. B. 81. 2 tfostock v. Xorth Staffordthire Mail. * 18 Q. B. 287 ; 21 L. J., Q. B. 297. 316 OF CANALS, WATER SUPPLY, AND DOCKS. Keser vat ions of rights to proprietors of lands adjoining. to do so by twenty years' user. It was proved that the defendant had an old mill which had existed for twenty years, and that he had added a new mill within twenty years, communicating with the old one. The water was used for both. The existence of a cistern claimed in plea was not proved : Held, first, the justifi- cation in respect of a certain mill was supported by proof of defendant having used the water of the old mill for twenty years. Held, also, the failure of proof as to the cistern did not entitle plaintiffs to an entire verdict. The plaintiffs moved for judgment non obstante veredicto : Held, that the company could not, consistently with their Act of Parliament, have granted water for uses not sanctioned by these Acts; that an actual grant, if proved for the purposes stated in the plea, would have been illegal, and that, therefore, a grant implied from twenty years' user was no legal defence. 1 " This is a claim," said Erie, J., " to acquire a servitude on " the canal by virtue of twenty years' user. The party seeking "to establish such a claim must shew a grant by a person " capable of making the grant relied on. Now the grant here is " by a person having no distinct ownership of the water, but " entitled only to the flow of it for purposes of the navigation, " and having no right to the surplus (which was given by the "Act to the Duke of Bridgwater). If it appeared by direct " evidence that the company had made a grant to the purport "now supposed, setting out this title, that grant would have "appeared to be against the right of the public, and void on the " face of it. The twenty years' user, therefore, could establish "no right." A verdict having been obtained for nominal damages only, in the above case, it was held that the plaintiffs would have been entitled to an injunction, having sufficiently established their right at law, had it not been for their negligence. 2 Eeservations of fishery, mines, roads, 3 bridges, 4 and such like rights, to the proprietors of lands on canals, are not uncommon in most of the Acts, which, it may be noted, ordinarily contain 1 18 Q. B. 287 ; cf. Rochdale Canal Co. v. King, 14 Q. B. 122, 136 ; see ante, pp. 270 et xeq., post, p. 339. As to a prescriptive claim by a canal com- pany to take more water from a river than they were entitled to by their Act, see ante, p. 242. 2 Rochdale Canal v. King, 2 Sim., N. S. 78 ; 20 L. J., Ch. 675. 8 As to road s see Rich a ras v. Rlcha rds, 1 Johnson, 2?5 ; Mold v. Wheatcroft, 29 L. J., Ch. 11 ; 1 L. T. 226. 4 As to bridges see Birmingham Canal Co. v. Hickman, 56 J. P. 598 ; Neath Canal Co. v. Ynitaewed Colliery, L. K., 10 Ch. 450. CANALS. 317 clauses empowering proprietors to sell, as well as those autho- rizing companies to buy, lands. 1 Thus, where a Canal Act empowered the lord of any manor, and the owner of any lands through which the canal should be made, to erect and use any wharves, quays, &c., in or upon their respective lands, and to land goods, &c., provided they did not prejudice or obstruct the navigation or towing-paths, it was held that an adjoining owner had a right to erect a wharf on his own soil, and to land goods on the towing-path, and convey them across to his wharf. 2 Where the right of fishery in a canal is not reserved, as it Fishery, sometimes is, 3 it is of the kind termed territorial, being identical with the ownership of the soil, though the proprietors are of course at liberty to let it. 4 An Act of Parliament incorporating a canal company provided that the lord of the manor through which the canal, reservoirs, &c. should be made, should have the right of fishery in so much of the canal, reservoirs, &c. " as shall be in the waste lands of " his manor," and that the owner of any other lands through which the canal and a collateral cut should be made, should have the right of fishing " in the said canal or collateral cut: " Held, that " commons or waste lands " meant commonable lands, the ownership of the soil of which was in the lord, and not open fields over which certain persons had rights in severally. Held, also that the right of an owner of land through which the canal passed, was limited to fishing in the canal and collateral cut, excluding the reservoir. 5 In some cases Acts contain provisions for the benefit of Roads and mine-owners with regard to the transport of minerals along canals passing through their lands. 6 Thus in Birmingham Canal Navigation Proprietors v. Hickma7i, 1 by 5 Will. IV. c. 34, the B. Canal Co. were to make such bridges over their canals as two or more justices should " from time to time judge neces- "sary, and appoint for the use of the owners and occupiers " of the lands adjoining " the canal. The respondent was an 1 See post, Chap. VII. ; Robins v. * Woolrych, Law of Waters, p. 65, Warwick Canal, 2 Bing., N. C. 483 ; 42 pout, Chap. VI. R. R. 642. s a ra nA Union Canal v. Asltby, 6 H. 2 Monmouth Canal v. Hill, 4 H. & N. & N. 394. 421. 6 Finch v. Birmingham Canal, 5 B. 3 Bofttock v. North Staffordshire Rail. & C. 820; see Mold v. Wlieatcruft, 29 Co., 4 E. & B. 798 ; Snape and Wife v. L. J., Ch. 11 ; 1 L. T. 226 as to sub- fiobbs, 1 Bing. 202 ; S. C., 8 Moore, 23 ; stitution of a railway for a tram road. 25 R. R. 616. i (1892) 56 J. P. 598. 318 OF CANALS, WATER SUPPLY, AND DOCKS. adjoining owner, and claimed to have a bridge made to connect 'his works on both sides of the canal. The justices found such bridge necessary : Held, that the B. Canal Co. were bound to erect such bridge. Reservations Reservations with regard to the right to work mines are usually Rightof" 68 made for the benefit of proprietors of purchased lands, the support. principle followed usually being to permit the working by the owner, at the same time making provisions in favour of the company, which empower them to inspect and purchase or make compensation for the mines where the operations carried on appear likely to endanger the canal. 1 Dudley Canal In the case of Dudley Canal v. Grazebrook, 2 an Act provided Irook. * na ^ no owner of any mines should work within twelve yards of the canal without leave of the company. If the owner wished to work the mines, he was to give the canal proprietors notice, and they might inspect. If they did not inspect he might work them, and if they refused to let him work them they were to buy. By another clause nothing was to defeat the right of owners of mines to work them, provided that in working the same no injury was done to the navigation. It was held that this proviso was to be construed with some qualification namely, either that the party working the mines was to do no unnecessary damage to the navigation, or no extraordinary damage by working out of the usual mode. Therefore, where notice had been given of the working of a coal-mine under a reservoir, and the canal company had not purchased the owner's rights, it was held that he was entitled to work the mine under the reservoir in the ordinary mode, and the reservoir having been damaged by such working, no action was maintainable for such damage ; but an action would be maintainable for injury to a house erected under grant from the owner of the soil. 3 Midland lily. In Midland Rly. v. Checkley* by a Canal Act, the owners of T. Checkley. 1 Cromford Canal v. Cittts, 5 Rail. Cas. Yorkshire Rly. Co., (1902) 1 Ch. 901 ; 71 442 ; Barndey Canal v. Twibill, 3 Rail. L. J., Ch. 500 ; 50 W. R. 423 ; 66 J. P. Cas. 451 ; Dudley Canal v. Grazebrooh, 631, as to interest on purchase-money of 1 B. & Ad. 59 ; 35 R. R. 212 ; Sinning- a mine ; and see ante, Chap. III. pp. 1(53 ham Canal v. Dudley, 7 H. & N. 969 ; et seq. Wightly Canal v. Badley, 7 East, 366 ; 2 1 B. & Ad. 59 ; 35 R. R. 212. Ilirmingliam Canal v. Hawltesford, 7 3 See also Wyrley and Essington East, 371 ; 8 R. R. 644, note ; Sttrnr- Canal v. Bradley, 7 East, 368 ; 8 R. R. bridge Canal v. Dudley, 3 L. J., Q B. 642. 108 ; Swindell v. Jiirmingltani Canal * L. R., 4 Eq. 19 ; 36 L. J., Ch. 380 ; Co., 9 C. B., N. S. 241 ; 29 L. J., C. P. 16 L. T. 620 ; 15 W. R. 671. 364. See Fletcher v. Lancashire and CANALS. 319 mines were prohibited from getting minerals under or within ten yards from the canal without the consent of the proprietors of the canal, who, if they refused to permit the owner of any mines to work such part thereof as should be under or within ten yards from the canal, were required to compensate such owner in the manner provided by the Act : the Court held that the provisions of the Act as to the prohibition of working and compensation extended by implication to workings more than ten yards from the canal, and that the proprietors of the canal were not entitled, by virtue of their common law right to adjacent support, to prevent the lessee of an adjacent quarry from working more than ten yards from the canal, so as to endanger the safety of the canal, without paying him compensation in the same manner as if the quarry had been within the ten yards ; but that upon paying such compensation, they were entitled to stop the working of any mine which would be injurious to the canal. In Consett Waterworks Co. v. Ritson, 1 an Inclosure Act pro- Consett vided that the lord of the manor should enjoy all mines and minerals as fully and freely as if the Act had not passed without paying damage or making satisfaction for so doing to the owners of allotments. The plaintiffs, a waterworks company incorpo- rated under an Act of Parliament which incorporated the Lands Clauses Consolidation Act, 1845, and the Waterworks Clauses Act, 1847, purchased compulsory from the representative of an allottee land forming part of one of such allotments, and con- structed a reservoir thereon. The defendant, claiming title under the lord of the manor, gave notice to the plaintiffs of his intention to work the coal under such land within forty yards of the reser- voir. The plaintiffs did not offer to purchase the minerals, and the defendant worked the coal according to the usual course and practice of mining, and thereby caused damage to the reservoir. The plaintiffs sued in respect of such damage. The Court of Appeal (Lord Esher, M. E., Lindley and Lopes, L. JJ.), held that the Inclosure Act in question (the Lanchester Act, 1773) was so special and definite in its language that they could come to no other conclusion than that it gave to the lord of the manor and his assigns the right to work the mines so as to let down the surface of the land without paying damages or making compensation to the allottees, and they therefore reversed the judgment of the Court, below ; 2 it having been agreed, on the 1 22 Q. B. D. 702. 2 22 Q. B. D. 318 ; 60 L. T. 360. 320 OF CANALS, WATER SUPPLY, AND DOCKS. opening of the appeal, that in the event of the appellant succeeding upon the question of the interpretation of the Inclosure Act, questions raised under the Waterworks Clauses Act, 1847, would become immaterial. Knotoles v. In Knowles v. Lancashire and Yorkshire Railway, 1 by a section of and C York- an Act empowering a company to make a canal, it was provided shire Riy. that nothing therein contained should affect the right of any owner of lands to the mines and minerals under the lands to be made use of for the canal, and that it should be lawful for such owners to work such mines and minerals, not thereby injuring, prejudicing, or obstructing the canal. By another section it was provided that if the owners should, in pursuing such mines, work near or under the canal so as, in the opinion of the canal company, to endanger or damage the same, or in the opinion of the owners of the mines to endanger or damage the further working thereof, it should be lawful for the canal company to treat and agree with the owners for all such minerals as might be near or under the canal as should be thought proper to be left for the security of the canal or mines ; and upon payment of such satisfaction such owners should be perpetually restrained from working such mines within the limits for which satisfaction should be declared to extend. Owners of a coal mine under or near the canal having given the canal company notice that they were going to work the coal, the company declined to purchase or pay compensation for leaving the coal, and the owners then worked the coal and thereby damaged the canal. The working was in the usual mode, without negligence and without doing unnecessary damage, save in not leaving sufficient support. The House of Lords held, affirming the decision of the Court of Appeal, 2 that the owners of the mine had a right under the Act to initiate proceedings and to receive satisfaction for such minerals as should be thought proper to be left for the security of the canal or the mine, but were liable in damages for the working the mine to the injury of the canal. Lord Macnaghten says 3 : " The language and scheme of the Act differ from the " language and scheme of the Act which came in question in " the case of the Dudley Canal Co. v. Grazebrook.^ In that case "a belt was to be left unworked on each side of the canal. 1 16 A. C. 248 ; 61 L. T. 91 ; 54 J. P. 8 16 A. C. at p. 257. 103, H. L. E. < 1 B. &; Ad. 59 ; 35 R. R. 212. 2 20 Q. B. D. 391. CANALS. 321 " They (the Canal Co.) were then to be at liberty to inspect the " mine in order to determine what minerals might be got without " damage to the canal. If they neglected to avail themselves of " this privilege the mine owner was expressly authorized to work "his mine. That express authority was, or at any rate was "considered to be, inconsistent with a provision contained in " another section of the Act, which empowered mine owners to " work their mines provided that ' no injury be done to the said " ' navigation.' In order to reconcile the two sections it was held " that the party working the mines was bound ' to do no unneces- " ' sary damage or injury to the navigation, or no extraordinary " ' damage or injury by working them out of the ordinary and "'usual mode.' With that limitation the Court thought that " all the parts of the Act were consistent with each other. In " the present case there are no inconsistencies to be reconciled. " There is no protected belt ; there is no provision for notice ; " and it is at least doubtful whether the proprietors of the canal " have any power of inspecting adjoining mines, except in a " case where the workings have been stopped by payment of " compensation, and it is apprehended that the mine owner is " working in contravention of the statutory injunction consequent " upon such payment. The scheme of the Act seems to be to " make the security of the canal depend upon the mine owner " keeping in view his statutory liability. The question is not " without authority. The exact point was determined by Lord " Cottenham in the case of Cromford Canal Co. v. Cutts. 1 In " that case, under an Act identical in language with the Act " under consideration, a mine owner had instituted proceedings " for the purpose of obtaining compensation for coal which, in " view of his statutory liability, he did not venture to work. The " company filed a bill to restrain these proceedings. The mine " owner in his answer alleged danger to the canal, but did not " suggest any case of danger to the mine. The point taken " before your Lordships was urged in that case, and Dudley "Canal Co. v. Grazebrook 2 was cited. But Lord Cottenham " dissolved an injunction which had been granted by the Vice- " Chancellor. He held that if the coal owner sustained injury by " getting less coal, or by working in a less beneficial manner for " the sake of not injuring the canal, he had a right to compensa- " tion, and that he might proceed, as he proposed to do, for the i 5 Rail. Cas. 442. 2 1 B. & Ad. 59 ; 35 R. R. 212. L.W. 21 322 OF CANALS, WATER SUPPLY, AND DOCKS. Chamber Colliery Co. v. Rochdale Canal Co. New Moss Colliery Co. v. M., S. and L. Rly. " purpose of ascertaining whether or not there would be any " injury either to the owner of the coal or of the canal company. "The decision in the Cromford Canal Co. v. Cutts 1 was pro- " nounced upon an interlocutory application : but I do not agree " that it is of any less authority on that account. The question " determined was the only question in the cause, and it depended " simply on the construction of an Act of Parliament. In such a " case an order on motion has, I think, the effect and weight of a "judgment at the hearing. I think that Lord Cottenham's " decision was clearly right, and that this appeal must be " dismissed." In Chamber Colliery Co. v. Rochdale Canal Co? the House of Lords have held, affirming the Court of Appeal, that under an Act similar to that in the last case, the owner of mines adjacent to but not under a canal does not come within a provision in the Act, for the purchase of minerals " near and under the canal " to be left for the security of the canal ; consequently that if the working of such mines near the canal would not endanger or damage the further working of the mines, although it would cause some damage to the canal, the owner could not insist against the will of the company upon minerals being left for the security and preservation of the canal, and upon receiving satisfaction from the company therefor, the company being willing that the owner should work as he pleased, and preferring from time to time to bear the expense of the necessary repairs to the canal rather than compensate the owner for his unworked minerals. In New Moss Colliery Co. v. Manchester, Sheffield and Lincoln- shire Railway, 3 under an Act identical in effect with the statutory provisions construed by the House of Lords in Knowles & Sons v. Lancashire and Yorkshire Railway Co., 4 and Chamber Colliery v. Rochdale Canal Co., 5 plaintiffs were the owners of coal mines under the canal and the lands on both sides of it, and, being advised that if they continued their workings within certain limits on both sides of the canal they would damage it, they gave the defendants (who had succeeded to the rights and obligations of the canal company) notice of their intention to work the subjacent and adjacent coal, and requiring them to 1 5 Rail. Gas. 442. 2 (1895) A. C. 564 ; 64 L. J., Q. B. 645 ; 73 L. T. 258. 8 (1897) ICh. 725 ; 66 L. J., Ch. 381 ; 76 L. T. 231 ; 45 W. R. 493. 4 14 A. C. 248. 5 (1895) A. C. 564. CANALS. 323 treat for the coal necessary to be left for the security of the canal. The defendants replied that no coal need be left and declined to treat. Plaintiffs then sued defendants for (a) a declaration that they were entitled to work all their adjacent coal, although the result might endanger or damage the canal, 1 or in the alternative (b) a declaration that plaintiffs were entitled to be paid, under sect. 38, satisfaction for adjacent coal left as protection. The Court held that the plaintiffs were entitled to declaration (a), but that on the plaintiffs and defendants making admissions that the costs, if any, of repairing damages to be sustained to the canal and works by getting all the coal would be trifling compared with the value of the coal required to be left for the absolute protection of the canal and works, and that such damage could be repaired from time to time, and would not interfere with the navigation, and on the defendants undertaking not to claim damages in the future in respect of the plaintiffs working the subjacent coal, and at their own expense to repair any damage thereby caused, the plaintiffs were not entitled to any declaration respecting the subjacent coal. In L. & N. W. Ely. v. Evans? by a private Act of Geo. II. ^ $ ^ w the undertakers were authorized to make an existing brook Riy-^-Ecans navigable, and to maintain and use such navigation, and to make such new cuts and canals as might be necessary for the purpose, the undertakers first giving satisfaction to the owners of lands which should be made use of, or prejudiced, which satisfaction might be by a yearly payment or by a sum in gross. The Act contained no reference to minerals. The brook was made into a canal, compensation being made to the landlords by annual payments. The navigation subsequently became vested in the plaintiffs. The defendants, who were owners of coal under the canal, worked it so as to cause a subsidence, and the plaintiffs brought their action for an injunction on the ground that they had a right to support : Held, by Kekewich, J., that the grant of a right to make and maintain the navigation without any grant of the land, did not carry with it the right of support so as to prevent the landowners from working their mines. The Court of Appeal held that where an express statutory right is given to make and maintain something requiring support, the 1 See also Wyrley and Essington Canal 2 (1893) 1 Ch. 16 ; 62 L. J., Ch. 1 ; 2 Co. v. Bradley, 7 East, 368 ; 8 E. B. K. 120 ; 67 L. T. 630 ; 41 W. E. 149, 642. C. A. 212 324 OF CANALS, WATER SUPPLY, AND DOCKS. statute, in the absence of a controlling context, must be taken to mean that the right of support shall accompany the right to make and maintain that if the Act does not provide any means of obtaining compensation for the loss occasioned to the landowner by his having to leave support, this is a strong argument against the legislature having intended to give such right ; but that if it contains provisions under which compensation can be obtained, it needs a strong context to show that the right to support is not given that under the Act in the present case compensation could have been successfully claimed for the damage occasioned to the landowners by making their mines unworkable that the legislature, therefore, must be taken to have intended to give a right of support, and that the plaintiffs were entitled to an injunction. A. L. Smith, L. J., says 1 : " It is a correct proposition of law that when an Act of Parlia- " ment empowers undertakers to make and maintain works for " the benefit of the public upon the land of others, and such " works of necessity require the support of the subjacent soil, " and the Act provides for compensating the landowners for " damages, both to the surface and subjacent minerals, by reason " of the execution of the contemplated works, then, unless there " be something in the Act to the contrary, a necessary implica- " tion arises that the Act gives to the undertakers a right to " subjacent support for the works authorized to be constructed " and maintained. In stating this proposition I do not wish to " be understood as holding that nothing less than the above will " suffice to raise the implication of the right to subjacent support, " but this case does not, in my opinion, necessitate an inquiry "as to what, if anything else, will suffice. In my judgment, if " the conditions above stated are to be found in an Act of Parlia- " ment, a necessary implication does arise that the under- " takers are entitled to subjacent support for their works as " against the mineral owner below. This proposition appears "to be one which is irresistible, for it is impossible to sup- " pose in the premises mentioned that the legislature con- " templated that the mineral owner might let down and destroy " the works authorized to be constructed for the benefit of the "public." 2 Liabilities of It is usual in canal Acts to insert clauses providing for the 1 (1893) 1 Ch., p. 31. v. Nixon's Navigation Co., (1901) 85 a See also Glamorganshire Canal Co, L. T. 53, C. A. CANALS. 325 amount of compensation 1 to be given by companies for damage canal corn- done to the interests of neighbouring proprietors. Where an compensation Act injurious to another is authorized by an Act of Parliament under their the remedy is under the Compensation Clauses. 2 Thus a canal Act provided that no mine owner should work within forty yards of certain tunnels without leave of the company ; and if the company, instead of insisting on full forty yards, should require less than thirty yards, a quantity not exceeding thirty yards was to be left for the security of the mine. Whenever a mine should become workable within forty yards, the mine owner should give notice, and the company should pay him for so much of the forty yards as they required to be left : Held, that where a mine had become workable within forty yards of the tunnels, and the company had required the whole forty yards to be left, the owner of the mine was entitled to compensation for the forty yards. 3 In Halliday v. Mayor of Wakefield* a special Act, incorporating Halliday v. the Waterworks Clauses Act, 1847, empowered the making of a ^ reservoir in lands containing coal mines. The waterworks undertaker having given the mine owners notice to treat for part of the coal, the mine owners claimed compensation (to be settled by arbitration), not only for the value of the land to be taken (as to which no question arose), but also for injurious affection and prospective damage. The arbitrator found that the workings of the mine owners had not as yet approached the reservoir so as to cause any present risk to the mines from the existence of the reservoir ; that if the mine owners were free to work their mines without risk of interruption from the under- takers' works, they could and would have got the whole of certain seams of coal under the reservoir and within forty yards of the boundary, and that if the undertakers purchased and retained in situ the coal which they had given notice to take and no other coal, the mine owners, by reason of the undertakers' works and of apprehension of injury therefrom to one seam, could not get 1 In order to induce the Court to issue 2 Ridler v. Great Western Ely. Co., a mandamus to a canal company to (1906) 96 L. T. 98, H. L. E. make compensation to a claimant a clear 8 Fentan v. JYent and Mersey Naviga- refusal on the part of the company must tion Co., 2 Rail. Cas. 837 ; cf. Cromford be shown ; mere delay in attending to Canal v. Cutts, 5 Rail. Cas. 442 ; Dunn the claim is not sufficient : Reg. v. v. Birmingham Canal Co., L. R., 8 Q. B. Wilts and Berks Canal, 8 D. P. C. 623 ; 2 ; Reg. v. Delamere, 13 W. R. 757. 4 Jur. 848 (see Reg. v. Thames and Isis < (1891) A. C. 81. Navigation, 8 A. & E. 201). 326 OF CANALS, WATER SUPPLY, AND DOCKS. more than 50 per cent, of the coal under the reservoir or within twenty yards of its boundary ; that a prudent lessee working without right to compensation would be compelled by reason of such apprehension of injury to abstain from working more than 50 per cent, of the coal within the defined area ; and that there was no reason to apprehend injury, present or future, from the undertakers' works to any part of the mines if 50 per cent, of the coal in the defined area were retained in situ. The House of Lords held, affirming the decision of the Court of Appeal, 1 that the mine owners were not entitled to claim or recover compensation for the prospective prevention of the working of more than 50 per cent, of the coal within the defined area : inasmuch as though the word " lands " in sect. 6 of the Waterworks Clauses Act, 1847, includes "mines," the mine owners were not " injuriously affected " within the meaning of sect. 6 ; 2 neither could they at present claim or recover under the mines clauses of that Act, sects. 18 to 27. Where under a canal Act commissioners were appointed for settling all matters in dispute between the company and the owners of lands prejudiced, and the amount of compensation was to be assessed by a jury, and to be binding and conclusive to all intents and purposes ; it was held that the verdict and judgment were conclusive as to the amount, but not as to the claimants' right to compensation. 3 It was provided by an Act for making a canal, that in case of disputes a jury should assess the value of the land, and award recompense either for damages which should or might before that time have been sustained, or for the future, temporary, or per- petual continuance of any recurring damages. It was also enacted that all the works should be completed within fifteen years. A jury having assessed the value of land at 6Z., the present damage at nil, but the future damage at 2,8007. ; it was held that this verdict was wrong, since, in order to enable the jury to assess future damages, the cause of the injury must already exist in some of the work done ; and it was also held, that unless the undertakers had finally abandoned the work, they might take the land on payment of 6Z. at any time during the fifteen years. 4 1 20 Q. B. D. 699. 8 Barker v. Nottingham Canal Co., 2 As to the right to compensation for 15C. B., N. S. 726. See Glamorganshire withdrawal of support by the abstraction Canal Co. v. Nixon's Navigation Co of water under the section, see Fletcher (1901) 85 L. T. 53, C. A. v. BirUenheaA Corporatism, (1907) 1 4 Lee v. Milner, 2 M. & W. 824. K. B. 205, antft, p. 233. CANALS. 327 In the somewhat similar case of Thicknesse v. Lancaster Canal Co., 1 where no specified time was assigned within which the canal should be completed, it was held that a Court of law could not interfere, since no limitation as to time could be assigned to the powers conferred by an intendment that they were to be exercised within a reasonable time. It has been held that the owner of tithes from land taken for the purposes of a navigation being land covered with water, was not entitled to compensation as the owner of a hereditament under an Act giving compensation to all persons seised, possessed, or interested of or in any lands, tenements or hereditaments which should be taken thereunder. 2 So, too, a person entitled to an easement over certain lands has been held not qualified to maintain trespass for acts done on such land, though he might have claimed compensation under a canal Act as soon as actual damage was sustained. 3 In Kennett and Avon Navigation v. Witherington, 4 ' the plaintiffs were authorized by an Act to maintain a navigation, and alter dams, &c., from time to time. Persons injured were to receive compensation from commissioners under the Act. The com- missioners were named, and power was given them to appoint successors. They all died without doing so. The company afterwards raised a certain dam to the injury of the defendant, a mill-owner below ; Held that, although the mill-owner should have no longer any means of obtaining compensation as to which point the Court gave no opinion the power to alter the dam still existed. In addition, however, to the duty imposed on them by statute Liability at to make compensation, companies will be held liable at common ^w for 1 law for damage done by them through negligence or mismanage- negligence, ment of their works. 5 Where a canal Act contained provisions for compensation, it was held that such provisions related to the due and proper management of the works, and not to their negligent manage- ment, and, therefore, did not oust the right of action against a canal company for so negligently keeping their sluices open that their canal overflowed. 6 This case appears to be in conflict with 1 4 M. & W. 472. 18 Q. B. 530. 2 Rex v. Commissioners of the Nene 5 Preston v. Norfolk Railway, 2 H. & Outfall, 9 B. & C. 875. N. 735. 3 Thicknesse v. Lancaster Canal Co., 6 Cockburn v. Erewash Canal, 11 4 M. & W. 472. W. R. 34 ; see Rochdale Canal v. King, 328 OF CANALS, WATER SUPPLY, AND DOCKS. a decision of Kekewich, J., where it was held that a canal com- pany were guilty of negligence in allowing water to leak from a canal into a mill, but that where compensation is given under special provisions of an Act it must be recovered as directed by the Act, and not by action, 1 and an injunction was refused. The learned judge also held that the fact of the damage having been caused by the wrongdoing of a mine owner did not affect the case. So too, where a canal company so negligently managed a swivel bridge as to cause the death of a person passing over it, they were held liable to an action for nuisance as having a beneficial interest in the tolls, as any private person would be, and the representative of the deceased was held entitled to maintain an action against them under 9 & 10 Viet. c. 93. a In the last-named case, it was contended for the company that they were no more liable than the trustees of a highway would be. Martin, B., however, said: "With respect to the first point, " viz., that there is no distinction between this company and the " trustees of a highway, it seems to me there is a most obvious "one. It appears that in the 28th year of the reign of King " George II. a certain number of persons were authorized to " make this canal ; and I find, by the recital of 11 Geo. IV. c. 1, " that these works were made. The property in them was divided " into 480 shares. Now, I have no doubt, that the shares in " this canal constitute a most valuable property, and that there " is no analogy whatever between the condition of this company " and that of persons who exclusively and entirely act for a public " trust. These are persons to whom the legislature gave the "privilege of forming and completing a most valuable private " property, and are as much responsible for any injury from works " connected with it, as any other owner of private property " would be." 3 In the absence Where, however, companies keep strictly within the terms of of negligence, their Acts, they will not be held liable, either for compensation 14 Q. B. 102 ; Shand v. Henderson, 2 16 L. T. 17 ; Binlts v. South YorksRly., Dow, H. L. C. 519 ; 14 R. R. 202 ; and 3 Bingh. 244 ; Lang v. Kerr, 3 A. C. post, p. 334. 529 ; see also A.-G. v. Bradford Navi- 1 Evan* v. Manchester, Sheffield and gation Co., 35 L. J., Ch. 619 ; L. R., 2 Lincolnshire Railway, 36 Ch. D. 626 ; Eq. 71 ; 14 L. T. 248. 57 L. J., Ch. 153 ; 57 L. T. 194. 8 See Mersey Docks v. Gibb, L. R., 1 2 Manley v. St. Helen* Canal, 2 H. & H. I,. 93 ; 2 H. & N. 849 ; Parnaby v. N. 840 ; see also Shoebottom v. Egerton, Lancaster Canal, 11 A. & E. 227 ; and 18 L. T. 364, 889 ; Gaittret v. Egertan, see port, pp. 340 et seq. 36 L. J., C. P. 191 ; L. R., 2 C. P. 371 ; CANALS. 329 or at common law, for injuries caused in the due execution of their works. All actions for injury caused thereby must be founded on negligence. So where a canal company discharged water from their canal into a stream, and so injured certain works situated thereon, the jury having found that the canal company did all in their power under the circumstances, a verdict was directed for them, on the ground that there was no negligence. 1 A canal formed under Act of Parliament had three levels, A., B. and C., and the proprietors, without authority, erected engines and pumped back water from the lowest level C. to the others. The plaintiff was possessed of a mill forge on the river Tame, into which the surplus water from C. level would flow. In 1826, the canal proprietors obtained, by means of a new Act, the right to maintain the engines, and to raise the water from one level to another, and to have reservoirs supplied from streams, making full satisfaction to all mill-owners, &c., for any damage. They were forbidden to take any water out of the river above the plaintiff's forge, and were to maintain flood weirs, so that all waste water not required should flow into the river above plaintiff's forge. The company pumped water from C., and in consequence thereof, except on extraordinary occasions, no water escaped over the weirs into the river : Held, they were entitled to do so, and the plaintiff had no right to compensation ; the water, which could be used again, and was pumped back again, not being waste water. 2 Where a swing bridge over a canal crossing a public highway, when open for the passage of a barge left a gap, whereby a passer by, being on the bridge when it was dark, fell into the canal and was drowned, it was held that there being no negli- gence on the part of the company, and the deceased having been guilty of contributory negligence, no action would lie. 3 And in the same way, a canal company was held not liable for the death of a person drowned by falling into their canal where an ancient footway was twenty-four feet distant from their towing- path, and the intermediate space between the two had become obliterated by the act of unauthorized persons ; since the owner of land near a public road is not under an obligation to fence 1 }\'hiteh(tu#e v. Birmingham Canal, H. L. 812. 27 L. J., Ex. 25 ; Mayor of King's Lynn 3 Witherly v. Regent 1 * Canal, 12 C. B., v. Pe-mbertan, 1 Sw. 244, 250 ; 18 R. R.' 62. N, S. 2. 2 Ellicell v. Birmingham Canal, 330 OF CANALS, WATER SUPPLY, AND DOCKS. where the their power, Vis major, how far an excuse. excavations in his land, unless they are substantially adjoining the road, and so near as to be dangerous. 1 N'o action of tort will, however, lie against a canal company for damage done to a mine near their canal by flooding it, when they have done all in their power to prevent such flooding. In the case of Dunn v. Birmingham Canal Co., 2 the defendants were authorized under their Act to take land, doing as little harm as possible, and making satisfaction for all damage to any hereditaments prejudiced. The minerals under the canal were reserved to the owners, who were at liberty to work them pro- vided no damage was done to the navigation. The owners were not to work the minerals without giving three months' notice to the defendants, who might inspect the mines and prevent the working of them, paying the owners the value. The canal having been used many years, the plaintiff gave defendants notice that he was going to work certain mines, but the defendants did not inspect, and refused to buy. Plaintiff worked his mines without negligence, but without regard to supporting the surface, and defendants did all they could to keep the canal watertight. The result of the working was that the water of the canal escaped through the cracks and flooded the plaintiff's mine, whereupon he brought his action. It was held that no action of tort would lie, though Kelly, C. B., and Piggott, B., were of opinion that the plaintiff was entitled to compensation under the Act. " Striking out the charge of negligence," said Kelly, C. B., " the defendants are charged with nothing but that they " brought water into the canal near the plaintiff's mine. They " had full power under the Act to bring the water where they " brought it." If, moreover, the damage be caused by circumstances over which the company had no control, and can be proved to result from vis major, canal companies will not be held liable. A canal company placed planks across their canal, when it was threatened with an overflow from a neighbouring river, in order to keep out the flood-water from their premises. The insertion of the planks raised the water, and the flood broke into the canal higher up than the planks, and, being penned back by the planks, flooded the plaintiff's premises. It was held that the canal com- 1 Sinks v. South York Railway, 3 Bing. 244. See Lang T. Xftrr, 3 A. C. 529. 2 L. R., 8 Q. B. 42 ; see Evans v. Ma n- chexter L. and S. Mail. Co., 36 Ch. D. 626 ; 57 L. J.. Ch. 153 ; 57 L. T. 194. CANALS. pany (the defendants) were not liable, since the water which did the mischief were not brought there by them. 1 " The flood," said Bramwell, B., "is a common enemy against which every " man has a right to defend himself, and it would be most " mischievous if the law were otherwise, for a man must then " stand by and see his property destroyed out of fear lest his " neighbour might say ' You have caused me an injury.' The " law allows what I may term a reasonable selfishness in such " matters ; it says, ' Let every one look out for himself and " protect his own interest.' " 2 Amphlett, B., said, " The plaintiffs cannot succeed unless it " can be shown that the canal, through what was done by the " defendants, did bring a larger amount of water on to the " plaintiff's premises than would have gone there if the canal had " never been made, or had been previously filled up." 3 A similar principle was followed in Boughton v. Midland and Great Western Rail. Co.* where the defendants, who were authorized by statute to make a canal, and required to keep it in good order, preparatory to making some repairs, turned the water into a drain (made for the purpose), whence it ought to have flowed (as it did on a previous occasion) into a public sewer, but, owing to an obstruction therein, flooded the plaintiff's premises. The defendants heard of the flooding, but not of the cause, and took no steps to stop the discharge into the drain. It was held, that while acting under their statutory powers, they could not, in the absence of negligence, be made responsible for the injury, and, the jury having found that the damage was caused by the obstruction in the corporation sewer, that there was no evidence of such negligence on the part of the defendants. So in Thomas v. Birmingham Canal Co., 5 upon the occasion of an universal rainfall unprecedented in duration and quantity for many years in the district, there was imminent peril of the defendants' canal bursting ; and the defendants, in order to prevent it, raised a sluice, by which a large quantity of water escaped into a neighbouring brook, and thence into a colliery. The water having filled up this colliery flowed into some collieries of the plaintiffs and destroyed their works. It was found that if 1 As to this question, see further ante, Rail. Co., L. R., 10 Ex. 4 ; 44 L. J., Ex. Chap. III., pp. 167 et seq. 15. 2 Nield v. London and North Western * Ir. R., 7 C. L. 109. Rail. C5;.,L.R.,10Ex.4; 44L.J., Ex. 15. 5 43 L. T. 435; 49 L. J., Q. B. 851 ; 8 Nield v. London and North Western 45 J. P. 21. 332 OF CANALS, WATER SUPPLY, AND DOCKS. relief had not been afforded to the canal banks at this time, an inundation must have very shortly ensued, which would have equally destroyed the plaintiffs' works and also caused far greater devastation to property and probably loss of life throughout a very wide area ; that the course adopted by the defendants was prudent and proper, and the only effectual measure which was possible in the emergency. It was held, that the plaintiffs' injury was due not to the defendants' wrongful acts, nor to the effect of any of the provisions of the defendants' Act of Parlia- ment, but to vis major or an act of God, and that, as in any event the plaintiff's works would have been equally destroyed, the immediate damage caused by the defendants' own act in raising the sluice was injitria absque damno and irrecoverable. Such acts of self-defence must, however, be done to avoid a common danger, and no one can transfer such a danger coming on to his land to the land of another. 1 Ordinary The terms of conveyances of land to companies are regulated tnwUona in eac ^ case ^ v *^ e P rov i s i ns of eac ^ particular Act, but the to convey- ordinary rules with respect to such contracts would appear to be ances binding . . _. ,, 9 on canal com- binding on them. 2 panics- A local Act empowered proprietors to contract for the sale of, and sell their lands to, a canal company ; and such contracts, sales, &c., were to be valid to all intents and purposes, and were to be enrolled with the clerks of the peace. Copies thereof were to be evidence ; and on payment of the sums agreed on, the lands were to vest in the company. It was held that conveyances of land under the Act must be in writing. 3 A canal company, empowered to purchase lands for gross sums, or rent-charges, took possession of lands of an infant on agreement with his steward, and, after an award by com- missioners of the gross sum or rent-charge, such sum was paid to the steward. No person being party to his award who had power to bind the infant, it was invalid, and no conveyance was executed, and the purchase-money was returned. The company, however, used the land for the canal, paying rent for forty years to the landowner after he attained his majority. It was held 1 \\Ttalley v. York*, and Lanes. Rail. sorily, Tone Conservators v. Ash, 10 O>., 13 Q. B. D. 131 ; 50 L. T. 472 ; B. & C. 349 ; as to license to take ice ante, p. 181. from a canal, see Ncwby v. Harrison, 4 8 As to enrolling conveyances of pur- L. T. 424. chased lands, see Reg. v. Leeds and * Robins v. Warwick Canal, 2 Bing. Lirerpool Canal Co., 11 A. & E. 316 ; as N. C. 483 ; 42 R. R. 642 ; see Har- to limit of time for purchasing compul- borough v. Shadlow, 7 M. & W. 37. CANALS. 333 that no agreement for sale of the fee, in consideration of the rent-charge, could be presumed to have been entered into or ratified by the landlord, but that an action of ejectment, as well as the intended erection of a bridge by the latter, should be restrained by injunction, on the ground of acquiescence, the company undertaking to put in force their parliamentary powers for the purchase of land. 1 In another case, lands were demised in 1779 by P. to M. and Company for sixty-five years. In 1794 an Act was obtained for making Swansea Canal through part of the lands in question ; and it was enacted that on payment or tender of certain sums for the purchase of such lands, and, by leave of the owners, such lands should invest in the canal company. In 1797 the Duke of Beaufort made arrangement with the company to extend the canal through certain other of the lands. No payment or satis- faction was made, but the owners, &c. consented. On the termination of the lease of 1779, the assignees of the reversion brought ejectment against the assignee of the Duke of Beaufort, who remained in possession of the canals : Held, the mere consent of the owner of the land to the construction of the canal did not bring the case within the Act, and the lessors of the plaintiff were entitled to the land. Per Parke, B., " The " reversioner could not create such an interest except by " deed." 2 A question as to copyhold lands arose in the case of Dimes v. Grand Junction Canal. 3 There an Act of Parliament gave the defendants powers to purchase lands, and also provided a form of conveyance. S. was tenant of copyhold land, and sold part to the company, the then lord not objecting. On the death of S., the lord made proclamation for the heir of S. to come and be admitted. No one appeared, and the lord seized the land " quousque" and brought ejectment against the defendants, and obtained judgment on the ground that the conveyance, under the Canal Act, only vested in the defendants an equitable estate. He interfered to stop the navigation, and the defendants, having filed a bill praying that the customary heir of S. might be admitted on their paying all fees, and having sought a perpetual injunc- tion, the Vice-Chancellor made a decree directing the customary 1 Somerset Canal v. Harcaurt, 2 De G. L. J., Ex. 251. & J. 546. 8 3 H. L. 794. 2 Patrick v. Beaufvrt, 6 Ex. 498 ; 20 334 OF CANALS, WATER SUPPLY, AND DOCKS. heir of S. to be admitted to hold as trustee for the canal company, and granted an injunction. On appeal, the House of Lords affirmed this decision. The Court will not grant a mandamus to compel a canal company to proceed to assess the value of land taken by them, if the parties interested in the land do not apply within a reasonable time, especially where there is another remedy by ejectment. 1 Where a canal company had powers under their Act to take and give leases of other canals, and sold their rights under another Act to the Oxford Railway Company, it was held that the latter had authority to take a lease of another canal. 2 Remedies for Where a particular jurisdiction is appointed under a Canal canal corn^ Act to determine all questions as to things to be done under the panics. j^ct, if the canal proprietors do anything not exactly in accord- ance with the terms of the Act, and not strictly within the powers thereby given, the person aggrieved is not restricted to the particular jurisdiction, but the complaint is to be entertained by the ordinary jurisdiction, on the principle that anything done not in exact conformity with the Act is not done in pursuance of it 8 Parties injured, however, are bound to use due diligence in applying for redress. So where a canal company had deviated from the line prescribed by the Act, and had not adhered to the previous steps required thereby, in occupying the appellants' grounds, Lord Eldon, though he held that the company were trespassers, and liable to damage, said, " Where a person stands by while an act not " strictly legal is done, having the means to prevent it, the remedy "by injunction is gone." 3 Right* to sur- A question as to the right to the use of the surplus water of a ter - canal under special Acts of Parliament arose in the case of Blake- Blithfmore v. Glamorgan- more v. liie Glamorganshire Canal* The Acts of Parliament 5 l - authorizing the formation of the canal contained a reservation, in favour of the owners of certain iron works, of the surplus water flowing from the canal, down a certain cut or watercourse. 1 Rex v. Stainforth, 1 M. &S.32 ; 14 C. 519 ; 14 R. R. 202. R. R. 389 ; cf. Shand v. Henderson, 2 * 1 M. & K. 154 : 36 R. R. 289 ; 1 C. Dow, H. L. C. 519 ; 14 R. R. 202. & F. 262 ; 2 C. M. & R. 133 ; 3 Y. & a Rogers v. Oxford Rail. G>., 25 Jerv. 60. Beav. 322. i 30 Geo. III. c. 82 ; 36 Geo. III. c. 69. S/iand v. Iletiderton, 2 Dow, H. L. CANALS. 335 The canal works were to be completed within two years. Some years after the passing of these Acts, the plaintiff purchased the iron works aforementioned, and brought a series of actions against the defendants for making certain alterations in, and widening and deepening the canal for the purpose of increasing the traffic, whereby the flow of water to his works was diminished. At the first trial of this case the jury found that there had been a wilful waste of water in the management of the canal, with damages for the plaintiff, upon which judgment was entered up in the Court of Exchequer. 1 Judgment afterwards came by writ of error before the Court of Exchequer Chamber, and ultimately before the House of Lords, and on both occasions was affirmed. At the second trial 2 it was held, that the company, having after the two years erected an engine to force up more water into the canal, whereby they were enabled to pass more barges down it, the plaintiffs were entitled to consequential damages on account of the surplus water having been diminished. On the hearing before the House of Lords, 3 Lord Lyndhurst, inter alia, held, that the making of the canal fixed the rights of the parties, and the canal owners had no right afterwards to enlarge the canal, and draw much larger quantities of water, so as to injuriously affect the plaintiff's works ; and that the clauses in the second Act (36 Geo. III. c. 69) directing that the canal should be completed in two years, and that the money to be raised should not be applied to the expense of any other work not made within the time, not only limited the application of the money to the works completed within the time, but that no works should be carried on adversely to the interests of individuals after the two years. The plaintiff, Mr. Blakemore, subsequently obtained a series of injunctions to restrain the works of the company, in all of which he succeeded, the Court holding the canal company to be bound by the terms of their Acts. 4 " If my opinion upon the effects of the Acts of Parliament be " right," said Lord Eldon, 5 " then, although the owners of these " works must take the surplus water, subject to the diminution " which an increase of trade upon the present canal shall occa- 1 3 Y. & Jerv. 60. * 1 M. & K. 162 ; 36 R. R. 289. 2 2 C. M. & R. 133. > 1 M. & K. 168 ; 36 R. R. 289. 1 C. & F. 262. 336 OP CANALS, WATER SUPPLY, AND DOCKS. sta/ord$hire v. Binning- ham Canal. " sion, let it increase ever so much, or ever so little, I can never "agree to the proposition as laid down in some parts of the " answer, that the proprietors of the navigation are at liberty to " improve the canal for the purpose of bringing upon it an " increase of trade, and by such improvements, with a view to a " contemplated increase of traffic, to affect the surplus water, " which was, I apprehend, to be preserved for the benefit of the " plaintiff's works." The case of The Staffordshire and Worcestershire Canal v. Birmingham Canal l raised a somewhat similar point, and turned on the right to the use of the surplus water of one canal by the other. The S. and W. Canal was formed under an Act of Parliament. Two years later another Act passed, authorizing the formation of the B. Canal, and requiring the latter company to make a " communication " between the B. and the S. and W. Canals at A., giving the latter company power to make this communication if the B. Company should not make it within a given time. The communication was made by the S. and W. Company under an agreement between the two companies, and some years after- wards improved by B. Company, who saved much water by substituting two locks for one at one particular spot, the original communication being effected by means of twenty locks. A consolidating Act was passed 2 which contained in the 15th section provisions enabling the B. Company, the proprietors of several canals, to raise the water of the canals from one level to another by reservoirs and machinery, &c. The 83rd section, with a view to preserve the communication at A., forbade the B. Com- pany to use water from or out of the W. level (which was the highest level of the B. Company the communication at A. being 182 feet below it) for any purpose whatever when the depth of the water in the lowest lock of the B. communication should stand at less than three feet perpendicular, to be reckoned from the sill of an upper gate in the S. and W. Canal adjoining thereto, and in case of breach of this prohibition, and consequent injury to the S. and W. Company, directed that any damages sustained should be assessed by a jury. The 258th section prohibited the B. Company from doing anything to obstruct the navigation of the S. and W. Canal, or " in any wise to shorten or vary all or 1 L. R., 1 H. L. 254 ; 35 L. J., Ch. 757. a 5 Will. IV. c. 34. CANALS. 337 " any of the company's canals, so as thereby to impede the navi- gation of the S. and W. Canal" without the consent of the S. and W. Company. By the interpretation clause the word " canals " was to include " communications." The B. Company proposed to construct machinery which should pump back some of the water coming from the W. level, and so would affect the supply to the S. and W. Canal, but would not prevent the existence and free use of the communication at A. The S. and "W. Company filed a bill to prevent the construction of this machinery, alleging that it was contrary to the intention of the legislature, as shown in the various Acts, and to the deed of arrangement, and also contrary to the right which must now be taken as vested in the S. and W. Company by user and prescription. The appellants relied on Tapling v. Jones, 1 and Elwell v. Birmingham Canal ; 2 for the respondents, Rochdale Canal v. Radcllffe , 3 Magor v. Chadwick* and Arkwright v. Gellf were, inter alia, cited. f It was held, affirming the decision of the Lords Justices, that the bill must be dismissed, and that the powers granted by the Acts were granted for specific purposes, which were those of making and maintaining a free communication between different places by navigable canals ; and that the ordinary doctrines as to the permissive use of water did not apply in such a case, and that no grant could be made by the B. Company of the use of any water which might injuriously affect these purposes. That consequently no right by prescription could in this case have any foundation in grant. Nor could any prescriptive right by user be founded on the fact that the B. Company had for many years allowed the water to pass out of the B. Canal in a par- ticular manner, so as to prevent the B. Company from after- wards improving its machinery and economizing the water, for the water so passing into the S. and W. Canal did not constitute a stream or watercourse within the meaning of the Prescription Act, 2 d- 3 Will. IV. c. 71. The object of the communication being fully secured, the proposed works, it was held, were not an impeding or obstructing of the S. and W. Canal, such as was prohibited by the Act. 1 11 H. L. Cas. 290. 11 A. & E. 571 ; 9 L. J., Q. B. 159. 2 3 H. L. Cas. 812. 5 5 M. & W. 203 ; 8 L. J., Ex. 201. 8 18 Q. B. 287 ; 21 L. J., Q. B. 297. L.W. 22 338 OF CANALS, WATER SUPPLY, AND DOCKS. " The 2nd section of that Act " (2 t C 3 Will IV. c. 71), said Lord Chelmsford, L. C., " applies to a claim to the use of water " which may be lawfully made at common law by custom, pre- " scription or grant. 1 Custom and prescription are here out of " the question, and if the respondent could not have granted the " use of the water to the appellants, the Act is wholly inapplic- " able ; but to impose such a servitude upon the water in their "canal, as that contended for by the appellants, would have " been ultra vires of the respondents, and consequently length " of user could never confer an indefeasible claim upon the " appellants under the Prescription Act, as no grant of the use of " the water could have been lawfully made by the respondents." Lord Cranworth observed, " The water flowing from the " Wolverhampton level to the Atherley junction is not a natural " nor even an artificial stream. The water in the canal is not " flowing water. It is accumulated under the authority of the " legislature in what is in fact a tank or reservoir, which the " respondents are bound to economize and use in particular " manner for the convenience of the public. It never flows. It " is let down artificially for the convenience of persons wishing " to pass in boats. To such water none of the doctrines, either " as to natural or artificial streams, is applicable ; and the only " way in which appellants could have obtained a right to insist " on having a lock full of water discharged into their canal, "must be by express grant or covenant by respondents. Of " such grant there is no trace whatever, and it cannot be pre- " sumed. To have entered into any such engagement would " have been a clear breach of duty in respondents." 2 In The Manchester Ship Canal Co. v. Rochdale Canal Co. 3 it was held by the House of Lords, affirming the Court of Appeal and Byrne, J., that the defendant company being a canal company and not a waterworks company, the true meaning of " waste water " in the statutes was " water not legitimately needed " for navigation or other purposes authorized by such statutes," and that the defendants had no right to sell such waste water to the injury of the plaintiffs, the owners of the Bridgwater Canal. 1 As to a claim by prescription to Canal, ante, p. 242. take more water for the use of a canal a See ante, p. 270. than the company were entitled to by (1899) 81 L. T. 472, C. A. ; affirmed their Act, see A.-O. v. Grand Junction by H. L., 1900, 85 L. T. 585. CANALS. 339 In the case of Mason v. Shrewsbury Rail. Co., 1 a canal com- Claim against pany, under the powers of their Act, diverted before 1800 a great p a ny to C have part of the waters of a brook flowing through the plaintiffs land water to their canal, the rest of the water continuing to flow as before. In 1847 the defendants, under Act of Parliament, bought and discontinued the canal, and in 1864 restored by means of a cut the water which had been diverted. In 1865 they sold the part of the canal on which was the cut. The bed of the brook, owing to the diminished scour from 1800 to 1853, had become silted up, so as not to be sufficient to carry off the water in extra- ordinary floods. In 1866, such a flood having damaged the plaintiff's land, it was held by the Court, that there being no obligation imposed on the canal to continue the diversion of the water, plaintiff had no right of action. The opinion of Blackburn and Hannen, JJ., proceeded on the ground that, though the claim to have the water diverted was a claim to a watercourse under the Prescription Act, 2 3 Will. IV. c. 71, yet the enjoy- ment was not of right, and, therefore, though of more than forty years, it conferred no right on the plaintiff. That of Cockburn, C. J., was based on the ground that the plaintiff, the owner of the servient tenement, could acquire by the mere existence of the easement, no right against the owner of the dominant tenement. " The question appears to me to depend on " principles of the law relating to easements, which would have " been equally applicable if the Act in question (Prescription " Act) had never been passed." 2 Where the statutory rights of companies are infringed, they Canal are entitled to the ordinary remedies at law. 3 entiSecTto " Such a company," said Erie, J., in Rochdale Canal Co. v. ordinary King, 4 " has all the rights and remedies which an individual H e "owner of property has, unless the statute contains some " provision to take them away." In that case the plaintiffs were empowered to purchase lands for making a canal, and manufacturers within a certain distance were authorized to lay pipes and to use water for the sole purpose of condensing steam ; disputes with any person desirous of taking or using the same were to be referred to commissioners. 1 L. R., 6 Q. B. 578 ; 40 L. J., Q. B. 8 Rochdale Canal v. King, 14 Q. B. 293 ; 25 L. T. 239 ; cf. Rochdale Canal 122, 136 ; 15 Jur. 896. Co. v. Radcliffe, 18 Q. B. 287 ; Hodgson 4 Ibid. ; cf. Roclidale Canal \. Had- v. Mayor of York, 28 L. T., N. S. 836. cliff e, 18 Q. B. 287 ; see ante, p. 815. 2 See ante, Chap. IV., pp. 292, et *eq. 222 340 OF CANALS, WATER SUPPLY, AND DOCKS, Duties with regard to navigation. The declaration stated that the company had made the canal and that the defendants had used the water for purposes other than that of condensing steam. It was objected in arrest of judgment that the declaration did not show any ownership of the canal or water, or any invasion of a private right, inasmuch as the act complained of, if wrongful, was clearly prohibited by statute, so that the repetition of the act could never be used as evidence of a right ; that the remedy was by indictment, and that the complaint should have been referred to the com- missioners who had exclusive jurisdiction. It was held, however, that the declaration was good, as it must be held that the company was in possession of the canal, and that without special damage the wrongful act was a damage to the company's right ; and also that the jurisdiction of the commissioners was over disputes between persons in the use of or about to use the water for a rightful purpose, and not over wrongdoers. 1 Erie, J., observed, " It is said the company could " have no property in this water ; perhaps not in the identical " passing atoms, but they had in the flow, the flumen aqncp." In bringing actions, canal companies, like individuals, are liable to be deprived of their remedy by laches. Where a canal company made a demand in May, 1842, for penalties for obstructing their canal, such obstruction having been caused in November, 1840, and June, 1841, and brought no action till July, 1842, it was held that they were too late, since by the Act of the railway companies who had caused the obstruction, no action was to be brought against them for injury done in pursuance of the Act after six months, which six months were held to begin to run from the ceasing of the obstruction, and not from the demand for non-payment of the penalty. 2 The owners of a canal taking tolls for the navigation are bound, at common law, to use reasonable care in making the navigation secure. 3 Parnaby v. Lancaster Canal 3 was an action which came before 1 See CocTiburn v. Erewash Canal, 11 W. R. 34 ; and aide, p. 327 ; Shand v. Henderxon, 2 Dow, H. L. C. 519 : 14 R. R. 202 ; ante, p. 334. 2 Keniiet and Avon Canal v. Great Western Rail. Co., 4 Rail. Cas. 90 ; cf. Rochdale Canal v. King, 2 Sim., N. S. 78 ; Lord Oakley v. Kensington Canal Co., 5 B. &. A. 138 ; Fraser v. Swansea Canal, 1 A. & E. 354 ; S. C., 3 N. & M. 391 ; see Lord Brougham in Slake- more v. Glamorganshire Canal, 1 M. & K. 161 ; 36 R. R.289 ; Shand v. Hender- son, 2 Dow, H. L. C. 519 ; 14 R. R. 202. 9 Parnaby v. Lancatter Canal, 11 A. & E. 223 ; see Mersey v. Gibb, L. R., 1 CANALS. 341 the Exchequer Chamber on error from the Court of Queen's Bench. The declaration in the case stated that by 32 Geo. III. c. 101, the Lancaster Canal Company was formed to make and maintain the canal, with power to take tolls, and that all persons had free liberty to navigate the canal ; but if any boat should be sunk in the canal, and the owner or person having care of it should not, without loss of time, weigh it up, the Act empowered the company to weigh it up and detain it till payment of expenses. That the company completed the canal, and took tolls on it ; that a boat sunk in the canal, so that vessels passed with difficulty in the day, and at night were in danger of running foul of it ; that, although the company could and ought to have requested the owner to weigh it up, and, if that was not done without loss of time, could and ought to have weighed it up, and, in the meantime, have caused a light or signal to be placed to enable boats to avoid it ; yet the company did not cause the owner, &c. to weigh it up, nor themselves weigh it up, nor place a light or signal, whereby the plaintiff's boat, navigating the canal, ran foul of the sunken boat and was damaged. On the trial, before Coleridge, J., at the Liverpool Summer Assizes, 1836, it was objected that, admitting the facts as laid in the declaration, no breach of duty was shown. Verdict being given in favour of the plaintiffs, leave was reserved to move for a nonsuit, but judgment was entered up for the plaintiffs. The defendants brought error in the Exchequer Chamber, when the judgment of the Court of Queen's Bench was affirmed. Tindal, C. J., says at p. 242 of the report : l " The facts stated " in the inducement shew that the company made the canal for " their profit, and opened it to the public upon the payment of " tolls to the company ; and the common law, in such a case, " imposes a duty upon the proprietors, not, perhaps, to repair " the canal, or absolutely to free it from obstructions, but to take " reasonable care, so long as they keep it open for the public use " of all who may choose to navigate it, that they may navigate " without danger to their lives or property. We concur with the H. L. 93 ; 35 L. J., Ex. 225 ; 14 L. T. to liability of canal commissioners for 677 ; Winch v. Cuntereators of Thames, not giving notice to lessees to repair, L. R., 9 C. P. 738 ; L. R., 7 C. P. 456 ; see Priestley v. Foulds, 2 Scott, N. R. Forbes v. Lea Conservancy, 4 Ex. Div. 265 ; 2 Man. & G. 1751. 116 ; Lane v. Newdigate, 10 Ves. 192 ; 1 11 A. & E.. p. 242. 7 R. R. 381 ; and post, Chap. VII. ; as 342 Right to recover for damage to navigation. What are works neces- sary for maintaining navigation. OP CANALS, WATER SUPPLY, AND DOCKS. ' Court of Queen's Bench in thinking that a duty of this nature " is imposed upon the company, and that they are responsible for " the breach of it, upon a similar principle to that which makes "a shopkeeper, who invites the public to his shop, liable for " neglect on leaving a trap-door open without any protection, by " which his customers suffer injury." l It follows from the principle above noticed, that canal pro- prietors will not be enabled to recover damages for injuries to their navigation unless they keep it in good order. A canal company, who were bound to repair the banks of their navigation, brought an action against an adjacent landowner for digging clay pits on his land, and so causing the plaintiffs banks to give way. There was some evidence that the banks were not in good repair ; but the learned judge directed the jury to find for the plaintiffs if they thought the falling in of banks was caused by the digging the clay pits -.Held, that the plaintiffs were not entitled to recover unless the banks were in good repair. 2 In Walker v. Goe, 3 commissioners of a navigation were authorized to lease the canal, and, in case the lessees should permit the canal to be out of repair, the commissioners were authorized and required to give them notice, and to specify the repairs which ought to be done. In case the lessees neglected to do the repairs, the commissioners might seize the tolls. The canal having been leased, the lessees allowed the canal to get out of repair ; but the commissioners gave no notice to them, and a barge going through a lock was damaged by the lock falling in. It was held that the barge owner, assuming a duty on the part of the commissioners to give notice, had no right of action against them, as the damage to the barge was not a damage naturally flowing from their neglect ; it being pointed out by Wightman, J., that the primary duty to repair was on the lessee. In Llewellyn v. Swansea Canal,* where the company had by their Act the usual powers for maintaining the navigation, the question as to what constitutes acts necessary for maintaining navigation, was raised. The defendants had agreed to pay the 1 Cf. Harris \. Baker, 4 M. & S. 27 ; 16 R. R. 370 ; The Beam, (1906) P. 48 and Tlie Moorcock, (1889) 14 P. D. 64, and atUf, p. 310. In Cro*lfy and Song v. Manchexter Ship Canal, (1905) 22 T. L.R. 192, C. A., it was held that under the Manchester Ship Canal Acts, 1885 and 1896, traders at Warrington were en- titled to sue the company for breach of their statutory obligations to dredge. See further as to Navigation and the duties of persons navigating, post, Chap. VII. 2 Staffordshire Canal v. ffallen, 6 B. & C. 317 ; 30 R. R. 333. 4 H. & N. 350. < 2 H. & N. 509. CANALS. 343 plaintiffs 101. a week for any water above a certain lock, when they should consider it necessary for maintaining the navigation of the canal below that lock. It was held when, boats having twice sunk in going through the lock, the plaintiffs each time emptied it, in order to get them up, and then filled from above the lock that this was not using the water for the purposes of maintaining the navigation below the lock, and, therefore, that the Wl. a week could not be recovered. But when, on another occasion, they did the same for the purpose of repairing the lock below, it was held that the 10L was recoverable, since the latter object did not constitute such a purpose. Where a canal company were authorized to make a canal, and do other acts necessary for the making, improving, and using it, it was held that they were empowered to deepen and widen it after it had been completed, and to charge for so doing. 1 A company were authorized by a Navigation Act to maintain a navigation, and to alter dams, &c., from time to time ; and it was provided that persons injured were to receive compensation from commissioners under the Act. The commissioners were named ; and power was given to them to appoint successors, but they all died without doing so. The company afterwards raised a certain dam, to the injury of a mill-owner below, who pulled it down. It was held that the power to alter the dam still existed, although the mill-owner' should have no longer any means of obtaining compensation, on which point the Court gave no opinion. 2 Canal companies are usually empowered by the incorporating Bridges. Act to construct and maintain bridges a provision which is rendered necessary to remedy inconveniences arising from their powers to interrupt highways. Thus, in Rex v. Lindsey, 3 a canal company having such powers, who had made a cut and deepened a ford crossing a highway, and had thereby rendered a bridge necessary, were held bound to maintain it, and unable to throw the burthen of the repair on the inhabitants of Lindsey, county Lincoln. Bridges thus constructed must be adequate to meet the wants of the public. This point was thoroughly discussed in the case of Manley v. St. Helens* already referred to. 1 Rex v. Glamorganshire, 1 B. & C. ' 14 East, 317 ; 12 R. R. 529. See as 722. to " BRIDGES,";?^, Chap. VIII. 2 Kennet and Avtm Navigation v. 4 2 H. & N. 840. See also Shoebottom Witheringtun, 18 Q. B. 530. v. Egerton, 18 L. T. 364 ; Gautret v. 344 OP CANALS, WATER SUPPLY, AND DOCKS. There the defendants were authorized by an Act of Parliament to make a canal, and to take tolls and make bridges, and to turn and alter highways as necessary. By a subsequent Act, 11 Geo. IV. c. 1, to consolidate and amend the former, it was recited that the navigation cut or canal, and other the works authorized to be made by the recited Act, have been long since made and com- pleted. By sect. 48, the company were empowered to maintain the canal, bridges, &c. ; and by sect. 124, all persons were to have free liberty with boats to navigate the said canal, for the purpose of conveying goods, &c. The company made a cut through a public highway near to St. Helens, then a small village, and made a swivel bridge over it. Penalties were imposed on persons leaving open bridges. A boatman having left a swivel bridge open, a person coming along fell in and was drowned. It was proved that when the bridge was open there was no fence between the road and the water, and that two lamps, which used to be there, were removed. The jury having found that the deceased was drowned by neglect of the company, it was held that they were liable to an action for nuisance, as having a beneficial interest in the tolls, as any private person would be ; that the representative of the deceased was entitled to bring an action against them under 9 d- 10 Viet. c. 93, and that the bridge being in their possession the action was rightly brought against them and not against the boatman. It was further decided that whether or not the bridge was sufficient when built, the company were bound to maintain it sufficient with reference to present circumstances. What amounts to a dedication of a bridge erected by a com- pany to the public can only be decided by the evidence in each particular case. 1 Navigation The navigation of canals 2 is, of course, open to all the public on e paying bl C on the payment of tolls, and it has been held that there is a tolls. public right of user of a canal with boats propelled by steam, provided they do no more injury than is occasioned by traction by horses. 8 It has been held that a provision in a local Act (9 Geo. III. Egerton, L. R., 2 C. P. 371 ; 36 L. J., C. P. Case v. M. Rail. Co., 5 Jur., N. S. 191 ; 16 L. T. 17 ; and ante, p. 328. 1007. The case was ordered to stand 1 See Grand Surrey Canal Co.\. Hall, over for experiments to be made by an 1 M.&G. 392, and cases pout, Chap. VIII. engineer appointed by the Court to 1 See further as to " NAVIGATION," ascertain the damage to the canal by jHut, Chap. VII. the use of steam. CANALS. 345 c. Ixxi), empowering a company to make bye-laws for the govern- ment of a navigation, bargemen, &c., and to impose tolls, did not authorize them to make a bye-law closing the navigation on every Sunday in the year, and declaring that no business should be done thereon, nor should any person navigate any boat, &c., on penalty of 5Z. 1 The subject of tolls will be found treated at length in a Tolls, subsequent chapter, 2 and therefore it will be only necessary here briefly to allude to it. Where a canal is made by Act of Parliament, the right to take tolls being derived solely from the Act, is to be considered as a bargain between the owners and the public ; and where there is any ambiguity, it must be construed against the canal proprietors, who can claim nothing which is not given them by the Act. 3 Such was the principle laid down in the case of Stourbridge Canal v. Wheeley.* There a canal was formed upon two levels, which were connected by a chain of locks (there being no lock whatever on the upper level), and where the Act of Parliament making the canal authorized all persons to navigate thereupon with boats, upon payment of such rates and dues as should be demanded by the company, not exceeding the rates therein mentioned ; and also by another clause, authorized the company to take certain rates and duties for every ton of iron and other goods navigated on any part of the canal, and which should pass through any one or more of the locks, but gave the owners of adjoining lands power to use pleasure-boats on the canal without paying dues, so as the same did not pass through any lock, and were not used for carrying goods : it was held, that the Act gave the company no right to demand tolls for boats navigating the upper level of the canal, in which there were no locks. 5 In Britain v. Cromford Canal, 6 where, by a Canal Act, a toll of Is. per ton was imposed upon all coal, &c., navigated upon any part of the canal from a place A., or from any place within two miles thereof : it was held, that this only applied to voyages commencing within those limits, and that no such toll was 1 Colder and Hebble Navigation v. 36 R. R. 746. Pilling, 3 Rail. Cas. 735. * 2 B. & A. 793 ; 36 R. R. 746. 2 See post, Chap. IX. * Stourbridge Canal v. Wlieeley, 2 B. 3 Leeds and Liver pool Canal v. Hustler, & A. 793 ; 36 R. R. 746. 1 B. fc C. 424 ; 36 R. R. 746, 748 ; Staur- 6 3 B. & Aid. 139. bridge Canal v. Wheeley, 2 B. & A. 793 ; 346 OP CANALS, WATER SUPPLY, AND DOCKS. payable for coal loaded at a place more than two miles from A., although conveyed upon a part of the canal within two miles of A. The regulation of traffic and tolls is now provided for by various general statutes. 1 It has been held that the mortgagee of the tolls of a canal, held by him in trust to pay creditors and discharge incumbrances, is a proprietor of a river navigation, so as to be liable to the payment of the salary to the clerk. 2 We will conclude this section with a few remarks as to canal shares, 8 though a full consideration of this branch of law does not properly come within the scope of this work. Canal shares. Canal shares are not estate and interest in land within the meaning of the Statute of Mortmain ; and it does not matter if the Act of Parliament incorporating the company does not contain a clause declaring the shares to be personal property. 4 " Where an Act of Parliament declared that canal shares "should be deemed personal estate, and transmissible as such," they were held to be personal property, though the profits arose out of land, and to pass as such upon the bankruptcy of the holder. 5 Where by Act of Parliament canal shares were to be deemed to be personal estate, it was held that they did not bear the character of realty so as to make a bequest of them specific." 6 By a Canal Act the shares were to be deemed personal property. The canal ran through the diocese of Worcester and Lichfield. The transfer of shares and payment of dividends was in Lich- field : Held, that for purposes of probate, the shares, being per- sonal property, might be considered locally situate in Lichfield. 7 1 8 & 9 Viet. c. 28 ; 8 & 9 Viet. c. 42 ; Huddergjuild Canal v. Buckley, 1 T. R. 10 & 11 Viet. c. 94 ; 17 & 18 Viet. c. 31 ; 36 ; Weald of Kent Canal v. Robinson, 36 &. 37 Viet. c. 48 ; 37 & 38 Vict.c. 40 ; 5 Taunt. 801 ; Norwich and Lowestoft 51 & 52 Viet. c. 25 (the Railway and Navigation v. TJieobald, Moo. & Malk. Canal Traffic Act, 1888) ; see Strick v. 151 ; Thames Tunnel Co. v. Sheldon, 6 Swansea Canal, 16 C. B., N. S. 245 ; In B. & C. 341 ; see Woolrych, pp. 50 re Oxlade and N. E. Rail. Co., 15 C. B., et seq. N. S. 680 ; Jn re Jone* and E. Counties * Edward* v. Hall, 6 De G., M. & S. Rail. Co., 3C. B.,N.S. 718; InreNichol- 74. The shares in the navigation of the ton and S. W. Rly., 5 C. B., N. S. 366. Avon under Statute 10 Anne are real Cf. also Staft'ordthire and Worcestershire estate and liable to dower : Pitcher id ye Canal v. Trent and Mersey Navigation, v. Ingram, 2 Ves. J. 652 ; 53 R. R. 220. 6 Taunt. 151 ; lie* v. Leicerterxhire and See House v. Chapman, 4 Ves. 542; 4 Northamptonshire Canal, 3 Rail. Cas. R. R. 292. 1 ; also Keppel v. Bailey, 2 Myl. & K. & Ex parte Lancashire Canal Co., 1 517 ; 39 R. R. 264 ; Woolrych, pp. 308, Dea. & Ch. 411. 309 ; see alsojwrf, Chap. VII. e Robinson v. Addison, 2 Beav. 515 ; 8 Tibbit* v. Yorke, 5 B. & A. 605. 50 R. R. 264. ' As to calls for canal shares, see 7 Ex parte Borne, 7 B. & C. 632. WATER SUPPLY. 347 The Court will grant a mandamus to a canal company to enter on their books the probate of the will of a shareholder, leaving any question as to validity of probate to be raised by return to the writ. 1 The law relative to canal tolls, and the rateability of canals and canal tolls, is fully discussed in a future chapter. 2 II. Water Supply. Water is supplied 3 to the public (1) By companies having Water supply parliamentary powers ; (2) By companies which have no such kinds' of parliamentary authority ; or (3) By local authorities. 4 bodies. (1) In the case of companies having parliamentary powers, a Companies special Act is obtained, with which it is customary to incorporate n^ntafy 1 " 1 " the following general enactments : The Waterworks Clauses Acts, powers. 1847 and 1863 ; The Lands Clauses Consolidation Acts, 1845, 1860 and 1869; and The Companies Clauses Consolidation Acts, 1845, 1863 and 1869. 5 The preamble of The Waterworks Clauses Act, 1847 (10 d- 11 The Water- IT- . i n\ R it i *i ' i' * ' i works Clauses Viet. c. 17), states that it is expedient to comprise in one Act Act 1847 sundry provisions usually contained in Acts of Parliament authorizing the construction of waterworks for supplying 7 towns with water, and that as well for avoiding the necessity of repeating such provisions in each of the several Acts relating to such undertakings as for ensuring greater uniformity in the provisions themselves. The Act extends " only to such waterworks as shall be " authorized by any Act of Parliament hereafter to be passed, 8 1 Rex v. Worcester Canal, 1 M. & R. 529. special Act : Simpson v. South Stafford- 2 See post, Chap. IX. shire Waterworks Co., 11 Jur., N. S. 453 ; 8 The law relating to water supply 34 L. J., Ch. 380. is manifestly too wide a subject to be 7 As to meaning of the word " supply " treated exhaustively in a work like see A.-G. v. Gloucestershire Water Co., the present. The reader is referred as (1909) 1 Ch. 636 ; W. N. 60. 141, C. A. ; to a full general statement on this sub- Gas Light and Coke Co. v. South Metro- ject to the introduction to Michael & Will politan Gas Co., 62 L. T. 126. on the Law relating to Gas and Water 8 Sect. 28 of the Act, 1847, merely Supply, 2nd ed. (1877), and for details enables a water company to lay pipes as to later decisions and legislation to under streets in connection with the the 5th ed. (1901) by Shiress Will. undertaking authorized by their special 4 Michael & Will, 5th ed., pp. cxxix, Acts, and if pipes are being laid in con- cxxx. i nection with unauthorized works, the 5 Michael & Will, 5th ed., pp. 236 et owner of the soil can sue the water com- seq., 779 et seq., 763 et seq. pany in trespass, raise the question of 6 An Act for consolidating in one Act ultra tires, and obtain an injunction certain provisions usually contained in without joining the Attorney-General. Acts authorizing the making of water- Semble, a public street or footpath is works for supplying towns with water. "land dedicated to public use" within the Sect. 12 does not empower a company to meaning of sect. 29, so that pipes in con- execute any works not authorized by the nection with authorized works could be 348 OP CANALS, WATER SUPPLY, AND DOCKS. " which shall declare that this Act shall be incorporated there- " with ; and all the clauses of this Act, save so far as they shall " be expressly varied or excepted by any such Act, shall apply " to the undertaking authorized thereby, so far as the same shall " be applicable to such undertaking, and shall, with the clauses " of every other Act which shall be incorporated therewith, form " part of such Act, and be construed therewith as forming one " Act." (Sect. 1.) The term " special Act " is denned (sect. 2) to mean " any Act which shall be hereafter passed authorizing " the construction of waterworks, &c., and with which this Act " shall be incorporated." By the same section the word " pre- " scribed," used in this Act in reference to any matter herein stated, shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word occurs shall be construed as if instead of the word ''prescribed" the expression "prescribed " for that purpose in the special Act " had been used : and the expression " the lands and streams " l shall mean the lands and streams of water which shall, by the special Act, be authorized to be taken or used for the purposes thereof ; and the expression " the undertaking " shall mean " the waterworks and the works " connected therewith by the special Act authorized to construct " the waterworks." 2 " Water rate " is defined by sect. 3 to include laid without consent of the owner of the " suages, lands, tenements and heredita- foil : Marriat v. E. Grinstead Gag and " ments, or heritages of any tenure ; " Water Co., (1909) 1 Ch. 70; Liverpool "streams" include "springs, brooks, v. Uiorley Waterworks Co., 2 D. M. & G. " rivers, and other running waters." 852, 860, and Cardiff Corporation \. The Act places the taking of streams on Cardiff Waterworks Co., 5 Jur., N. S. the same footing as the taking of land 953 ; 4 De G. & J. 696, applied. The under 8 & 9 Viet. c. 18; see Ferrand v. fact that the damage is small is imma- Bradford (Mayor of), 21 Beav. 412 ; terial : Gooden v. Richardson, (1874) 2 Jur., N. S. 175. L. R., 9 Ch. 221, applied. 2 Sect. 3 defines "waterworks" to In Ucltjield Rural Council v. Crow- mean " the waterworks and works con- borovgh Water Co., (1899) 2 Q. B. 664 ; "nected therewith, by the special Act 68 L. J., Q. B. 1009; 81 L. T. 559 ; 48 "authorized to be constructed." A W. R. 63. it was held that sect. 93 of water company authorized by their this Act did not exempt a water company special Act to supply water to certain from the provisions of the Public Health places defined by the Act to be the Act, 1875 (38 &. 39 Viet. c. 55, s. 157), limits of the Act, cannot supply water and that they were bound to comply outside the limits although not expressly with the bye-laws made by a local sani- forbidden by the Act to do so : A.- 6. tary authority under that Act, TheCourt v. West Gloucestershire Water Co., will not restrain a company from apply- (1909) 1 Ch. 636 ; W. N. 60, 141, C. A. ing to Parliament for a new Act, at the A notice under sect. 22 of the Act of instance of a shareholder, as a right of the intention to work coal under land making such an application is incident adjoining waterworks does not affect the to a joint-stock company of that descrip- common law right to support of the tion : Ware v. Grand Junction Water adjacent soil : New Moss Colliery Co. v. Co., 2 RUM. & M. 470 ; 34 R. R. 13<5. Manchester Corporation, (1908) A. C. 1 By sect. 3, " landt" include "mes- 117 ; 77 L. J., Ch. 392 ; 91 L. T. 467 ; WATER SUPPLY. 349 " any rent, reward or payment to be made to the undertakers " for a suply of water." This statute was amended by the 26 & 27 Viet. c. 93, The Waterworks Waterworks Clauses Act, 1863, 1 sect. 1 of which, after reciting the ises!*" Act of 1847, states that " sundry provisions of the like nature, " but not comprised in the said Act, are now frequently intro- " duced into Acts of Parliament relating to waterworks, and it " is expedient to comprise such last-mentioned provisions also " in one Act ;" and sect. 2 of which provides that the terms used in the Act shall have the same meaning as the same terms when used in The Waterworks Clauses Act, 1847, and the provisions as to the recovery of penalties contained therein are incorporated with this Act. 2 The Lands Clauses Consolidation Act, 1845 3 (8 Viet. c. 18), The Lands consolidates the provisions usually introduced into Acts relative soiidatLn n to the purchase of land for public purposes. By sect. 1, it Act ' 1845 applies " to every undertaking authorized by any Act which shall " hereafter be passed, and which shall authorize the purchase or " taking of lands for such undertaking." It enacts that " this " Act shall be incorporated with such Act ; and all the clauses "and provisions of this Act, save so far as they shall be "expressly varied or excepted by any such Act, shall apply "to the undertaking authorized thereby, so far as the same shall " be applicable to such undertaking, and shall, as well as the " clauses and provisions of every other Act which shall be incor- " porated with such Act, form part of such Act, and be construed " therewith as forming one Act." Sect. 2 defines " special Act " to mean " any Act which shall be hereafter passed which shall 72 J. P. 169 ; 6 L. G. R. 809 ; 24 T. L. R. 381, H. L. E. 1 An Act for consolidating in one Act certain provisions frequently inserted in Acts relating to Waterworks. 2 By sect. 1, " The two Acts may be " cited together as the Waterworks "Clauses Acts, 1847 and 1863." For decisions on points connected with these Acts, cf. Atkinson v. Gateshead Water- works Co., 2 Ex. Div. 441 : 46 L. J., Ex. 775 ; 36 L. T. 761 : Bush v. Trowbridge Waterworks Co., L. R., 10 Ch. 459; 44 L. J., o'h. 45 ; 33 L. T. 137 ; Metro- politan Board of Works v. New River Co., 37 L. T., N. S. 124 ; Edgemore Highway Board v. Colne Valley Water Co., 46 L. J., Ch. 889 ; New River Co. v. Mather, L. R., 10 C. P. 442 ; 44 L. J., M. C. 105 ; 32 L. T. 658 ; zee post, note 5, p. 352, and note 1, p. 359. See, too, Hildreth v. Adamson, 8 W. R. 470. 8 An Act for consolidating in one Act certain provisions usually inserted in Acts authorizing the taking of lands for undertakings of a public nature. The preamble states the expediency of com- prising in one general Act sundry pro- visions usually introduced into Acts of Parliament relative to the acquisition of lands required for works of a public nature, and to the compensation to be made for the same, " and that as well ' for the purpose of avoiding the neces- 'sity of repeating such provisions in 'each of the several Acts relating to 'such undertakings, as for insuring ' greater uniformity in the provisions 4 themselves." (Sect. 1.) 350 OF CANALS, WATER SUPPLY, AND DOCKS. The Lands Clauses Con- solidation Acts, 1860 and 1869. The Com- panics Clauses Consolidation Acts. Rights of water com- panies. " authorize the taking of lands for the undertaking to which the " same relates, and with which this Act shall be so incorporated " as aforesaid ; " and sect. 5 provides the form in which portions of the Act may be incorporated with other Acts. 1 The Acts amending this enactment, and cited with it, are The Lands Clauses Consolidation Acts 0/1860 and 1869 (23 & 24 Viet. c. 106, and 82 6 88 Viet. c. 18). The Companies Clauses Consolidation Acts of 1845, 1868, and 1869 (8 Viet. c. 16, 2 26 d 27 Viet. c. 118, 8 32 & 83 Viet. c. 48) 4 consolidate the law regulating the constitution of companies incorporated for carrying on undertakings of a public nature. Of the powers of companies incorporating these statutes, the authors of " The Law relating to Gas and Water " write : " Thus authorized, a company may take compulsorily lands 5 and " streams, 6 subject to the provisions and restrictions of the Lands 1 "Prescribed" is defined as in the Waterworks Clauses Act, 1847, s. 2. The same section defines " the works " or 11 the undertaking*" to mean the works or undertakings of whatever nature which shall by the special Act be authorized to be executed, and "the "promoter* of the undertaking" to include the parties, whether company, undertakers, commissioners, trustees, corporations, or private persons, by the special Act empowered to execute such works or undertaking. "Land" in- " eludes messuages, lands, tenements, "and hereditaments of any tenure." (Sect. 3.) By sect. 6, power is given U> promoters of untlertakings to pur- chase lands by agreement, and sect. 7 enables parties under a disability to sell and convey. For decisions on points connected with these Acts, cf. Stvne v. Corporation of Yeovil, 2 C. P. D. 99 ; Hnxli v. Trowbridge Water Co., L. R., 10 Ch. 459 ; North Eastern Rail. C\>. v. Elliot, 6 Jur., N. S. 817 ; New Hirer Co. v. Midland Rail. Co., 36 L. T., N. S. 529 ; see note 5, p. 352, and note 1 , p. 359. a An Act for consolidating in one Act certain provisions usually inserted in Acts with respect to the constitution of companies incorporated for carrying on undertakings of a public nature. 8 An Act for consolidating in one Act certain provisions frequently inserted in Acts relating to the construction and management of companies incorporated for carrying on undertakings of a public nature. 4 An act to amend the Companies Clauses Act, 1863. 5 " Lands " include " mines" : Halli- day v. Mayor of Waltejield, (1891) A. C. 81. As to meaning of "other " minerals," see Glasgow (Mayor of) v. Fa-rie, 13 A. C. 657 ; 58 L.' J., P. C. 33 ; 60 L. T. 274. A waterworks under- taking which by voluntary agreements purchases, under the powers of its special Act, land without the minerals, and then purchases other adjoin ing land with the minerals, is entitled to lateral support for the adjoining land so pur- chased and for the buildings thereon, derived from the mines under the land purchased without the minerals, and such support is not confined to but extends beyond the 40 yards limit specified in sect. 22 of the Water- works Clauses Act, 1847. In such a case the common law rights of the under- takers are unaffected by the statute : New Moxs Collier i/ Co. v. Manchester Corporation, (1908) A. C. 117 ; 77 L. J., Ch. 392 ; 98 L. T. 467 ; 72 J. P. 169 ; 6 L. G. R. 809 ; 24 T. L. R. 386. 6 A water company, who were autho- rized in 1869 by their Act to make a reservoir with a dam across a stream, and to impound all the waters of that stream and of other streams then flowing into that stream above the dam, have the right to stop any person from diverting the water of that stream or its tribu- taries above the dam, but not to stop any person using water above who had a right to do so at the time their Act was passed. A person who makes an artificial cut- ting and so brings water to a stream which did not go there before, can _/>//? facie cut it off if he chooses. Brymbo WATER SUPPLY. 351 " Clauses Act in exercising such powers. The undertakers must " make to the owners and occupiers of and all other parties " interested in any lands or streams taken or used for the "purposes of the special Act, or injuriously affected by the " construction or maintenance of the works thereby authorized, " or otherwise by the execution of the powers thereby conferred, "full compensation for the value of the lands and streams so " taken or used, 1 and for all damage sustained by such owners, " occupiers and other persons by reason of the exercise, as to " such lands and streams, of the power vested in the under- " takers." 2 The amount of the compensation 3 is to be deter- mined, and the payment enforced in the manner provided by the Lands Clauses Consolidation Acts. For the purpose of construct- ing waterworks, the undertakers may enter upon the lands and places described on the plans 4 and in the books of reference, and Water Co. v. Lester's Lime Co., (1894) 8 R. 329. There is no penalty for taking water from an unoccupied house under the Waterworks Acts : Piercy v. Pope, 45 L. T. 477 ; 30 W. R. 60. As to covenants for supply of water between two com- panies, see Hartlepool Gas and Water Co. v. West Hartlepool Harbour Rail. G>.,12 L. T. 366. 1 Where land is compulsorily taken for the purpose of making a reservoir, and the land has a special adaptability for the construction of a reservoir, the tribunal assessing the compensation is not precluded from taking into con- sideration the special adaptability as an element of value, by reason of the fact that the land could not be utilized for the construction of a reservoir by other possible competitors unless statutory powers for its compulsory purchase were first obtained : In re an arbitration between Lucas and Chesterfield Gag and Water Board, (1909) 1 K. B. 16, C. A. As to the right to compensation for the withdrawal of support by the abstrac- tion of water under sects. 6 and 12 of trie Waterworks Clauses Act, 1845, see Fletcher v. Birkenhead Corporation, (1907) 1 K. B. 205 ; ante, p. 233. 2 Cf. as to the powers and duties of water companies, Michael & Will, 2nd ed., pp. Iviii et seq, 5th ed., pp. cxxix et eq. See also Consett Water Co.v. Ritson, 22 Q. B. D. 702. Mine-owners are not en- titled under sect. 6 to compensation for the prospective prevention of the work- ing of part of their coal by the formation of a reservoir under a special Act, inas- much as though the word " lands " in- cludes " mines " the mine-owners were not "injuriously "affected" within the meaning of the section : Halliday v. Mayor of Wakefield, (1891) A. C. 81. See also Stone v. Corporation of Yeovil, 2 C. P. D. 99 \post, p. 359, n. 1. 3 As to meaning of " price " and " com- " pensation " under a special Act, see Stockton and Middlesboro' Water Board v. Kirkleatham Local Board, (1893) A. C. 464 ; 62 L. J., Q. B. 356 ; 69 L. T. 661 ; see also Blantyre v. Batbie. 13 A. C. 631, H. L. Sc.. As to the right to recover compensation and penalties under a local Act and the Railways Clauses Consolidation Act, 1845 (8 & 9 Viet. c. 20), s. 145, see Meltham Spinning Co. v. Huddersfteld Corporation, (1903) 89 L. T. 403; 67 J. P. 448 ; 2 L. G. R. 32, C. A. ; Beau- mont v. Huddersjield Corporation, (1902) 67 J. P. 57 ; 1 L. U. R. 128, C. A. 4 Errors, misstatements, and wrong descriptions of any lands, streams, or the owners, lessees, or occupiers thereof, on the plans or books of reference may be corrected before the justices subject to the conditions prescribed by the Act. As to meaning of " plan " see East Moleney Local Board v. Lambeth Water- works, (1892) 3 Ch. 289 ; 62 L. J., Ch. 82 ; 67 L. T. 493. The deposit of plans of their underground works, pursuant to sects. 19 and 20 of the Waterworks Clauses Act, 1847, is a condition pre- cedent to the right of a company incor- porated under that Act to recover for injuries caused to their pipes by the ordinary and usual workings of a sub- jacent mine : South Staffordshire Water- works Co. v. Mason, 56 L. J., Q. B. 255 ; 352 OF CANALS, WATER SUPPLY, AND DOCKS. may take the levels and set out parts thereof, and dig and break up the soil, 1 and trench and sough the same, and remove and use earth, stone, mines, minerals, trees, and other things. They may sink wells, 3 make, maintain, alter, or discontinue reservoirs, waterworks, cisterns, tanks, aqueducts, drains, cuts, sluices, pipes, culverts, engines, and other works 3 and erect buildings ; they may also divert and impound water from the streams mentioned for that purpose in the special Act or the plans or books of reference, and alter the course of such streams not being navigable, and take such waters as may be found in and under or on the lands to be taken for constructing the works. In the exercise of these powers, the undertakers are to do " as little " damage as can be ; 4 and in all cases where it can be done, they " are to provide other watering places, drains, and channels for " the use of adjoining lands in place of any such as shall be taken " away or interrupted by them, and are to make full compensation " to all parties interested for all damage sustained by them " through the exercise of such powers." 5 Provision is made for the settlement by justices of differences as to the construction of accommodation works, for cases where the undertakers take land containing minerals or interfere by the works with the working of mines, and for the mode in which streets are to be broken up 6 for the purposes of laying pipes. 7 57 L. T. 116; see In re Corporation to supply "compensation" water in of Dudley, 51 L. J., Q. B. 121 ; L. R., 8 place of water taken from certain Q. B. D. 86. streams, see Beaumont v. Huddersjield 1 As to cutting through girders of a Corporation, (1902) 67 J. P. 57 ; 1 L. G. railway bridge, see Glasgow Corporation R. 128, C. A. ; Melt/tarn Spinning Co. v. v. Glasgow and S. W. Rail. Co., (1895) Huddersjield Corporation, (1903) 89 A. C. 376 ; 64 L. J., P. C. 171 ; 72 L. T. L. T. 403 ; 67 J. P. 448 ; 2 L. G. R. 32, 809 ; Tltompson v. Sunderland Qax Co., C. A. ; Michael & Will, 5th ed.,pp.cxxix, 2 Ex. D. 429. cxxx et seq. Unless otherwise autho- 3 See as to this point, South Shield* rized by their special Act, the under- Wateripork* Co. v. Cooltxon, 15 L. J., takers must not deviate from the line of Ex. 315. the works laid down in the plan more 8 These words include surface works, than ten yards when constructing their such as valve covers : East London waterworks, nor may they lay down any Water Co. v. St. Matthew, Btthnal pipe or other work in any land not dedi- Green, 17 Q. B. D. 475 ; 55 L. J., Q. B. cated to public use without the consent 571 ; 54 L. T. 919. of the owners and occupiers thereof. As to negligence in leaving a stop- As to sects. 48 and 52 if 10 & 11 cock box uncovered, see Smith v. Smith- Viet. c. 17, on this point, see Glorer v. work and Vaurhall Co., 53 J. P. 424 ; East London Waterworks, 16 W. R. 310 ; Chapman v. Fylde Wetenoorlu Co., 17 L. T., N. S. 475, C. P. ; and as to (1894) 2 Q. B. 599; 64 L. J., Q. B. 15 ; minerals, see Ifiiddersfald Corporation 71 L. T. 539 ; Moore v. Lambeth Water and Jacomb.Jn re, 17 L. R., Eq. 476 ; 30 Co., 17 Q. B. D. 462 ; A'empv. Worthing L. T., N. S. 78 ; 31 L. T., N. S.466. As Loral Hoard, 10 Q. B. D. 118. As to to breaking up a private road, see Hill liability for escape of water, see ante, v. Wallasey Local Board. (1894) 1 Ch. Rights and pp. 170 et sea. 133. liabilities of As to the duty of a water company 1 Michael & Will, 5th ed., pp. cxxix, WATER SUPPLY. 353 cxxx. et scq. For the rights and duties generally of bodies exercising statutory powers, see ante, pp. 305 et seq. It will be useful here, however, to note some of the leading decisions relating to the rights and liabilities of water companies who, while prevented by the law from unduly trenching ou the rights of the public, are at the same time protected from harassing actions by individuals which otherwise interfere with the dis- charge of their functions. The mere fact that the breach of a statutory duty has caused damage, does not vest a right of action in the person suffering against the person guilty of the breach. This is regulated by the wording and object of each statute. The mere passive omission of a road authority to rectify a subsidence in a road originally caused by the neg- lect of a water company to make good the road after having broken it up for the purpose of their undertaking does not exonerate the water company from liability for an injury to a person using the road : Hartley v. Rochdale. Corpora- tion, (1908) 2 K. B. 591 ; 77 L. J., K. B. 884 ; 99 L. T. 275 ; 72 J. P. 343 ; 6 L. G. R. 858 ; 24 T. L. R. 625. In Sovthwark and Vanxhall Water Co. v. Wandsworth District Board of Works, (1898) 2 Ch. 603 ; 67 L. J., Ch. 657 ; 79 L. T. 132 ; 47 W. R. 107 ; 62 J. P. 756, C. A., where a water company under statutory powers laid down pipes under the surface of a street and a highway authority under sect. 98 of the Metropolis Management Act, 1855, 18 & 19 Viet. c. 120 proposed to lower the surface of the street without disturbing the pipes but leaving only a few inches of soil over them, it was held that the highway authority were not bound to relay the pipes at a corresponding depth : Gas Light Co.v. Vextryof St. Mary Abbotts, 15 Q. H. D. 1 ; and Geddis v. Bonn Reservoir, 3 A. C. 430, distinguished and explained. In Atkinson v. Gateshead Water Co., 2 Ex. Div. 441 ; 46 L. J., Ex. 775 ; 36 L. T. 761, the plaintiff brought an action for damages against the company for not keeping their pipes charged as required by their Act, whereby his premises were burnt down. Under the Waterworks Clauses Act, 1847, the com- pany were bound (1) to maintain fire plugs, sects. 33 43 ; (2) to furnish a sufficient supply of water for certain public purposes, sect. 37 ; (3) to keep pipes to which fire plugs are affixed at a certain pressure at all times, and to allow all persons to use it for extinguish- ing fire at all times, without payment, L.W. sect. 42 ; (4) to supply all owners with water corn- sufficient water for domestic purposes, panics, sect. 35. A penalty of 10Z., of which one-half may be awarded to the in- former, is imposed for each breach, and for breaches of duties (2) and (4) they are to forfeit 40Z. a day, sects. 37 and 43 : Held (reversing the decision of the Court of Exchequer), that the statute gave no right of action. Per Cockburn. C. J., " If any person is injured " by a breach of such duty, he must " have recourse to the statutory remedy, " and cannot maintain an action for " damages." See, too, J\ew Ricer Co. v. Johnson, 6 Jur., N. S. 374 ; Blagrore v. Bristol Waterworks Co., 1 H. & N. 369 ; 26 L. J., Ex. Ch. 57 ; Barber v. Notting- ham and Grantham Rly. and Canal Co., 15 C. B., N. S. 726 ; 33 L. J., C. P. 193. A water company had laid mains along a turnpike road under an Act which declared the soil to be in the owners on each side. On an action being brought by a firm who had con- tracted with K., owner of the soil on both sides, to make a cut through the embankment on which the road and pipes were carried over his soil for the stoppage of their works by an escape of water Irom the company's pipes ; it was held that, assuming K., the owner, could have maintained an action against the defendants (as to which the Court gave no opinion), the plaintiffs could not. If we did so (i.e. held defendant ' liable), we should establish an autho- ' rity for saying that in such a case as : Fletcher v. Ryla/ids, the defendant ' would be liable, not only to an action ' by the owner of the drowned mine, ' and by such of his workmen as had ' their tools destroyed, but to an action ; by every workman employed in the 1 mine, who in consequence of its stop- ' page made less wages." Blackburn, J.; Cattle v. Stockton Water Co., L. R., 10 Q. B. 453 ; 44 L. J., Q. B. 139 ; 33 L. T. 475. An Act, incorporating the Water- works Clauses Act, 1847, empowered the Trowbridge Water Company to divert the water of certain springs forming the principal supply of a brook. The owner of a water meadow below through which the brook subsequently flowed, alleged by bill that the water was materially diminished, and prayed that defendants might be restrained and compelled to treat for the purchase of her interest under the 18th clause of the Lands Clauses Act. It was held, that not being an owner of anything " taken " under the Act, she could not 23 854 OF CANALS, WATER SUPPLY, AND DOCKS. compel defendants to treat for purchase, and her proj>er remedy was to apply for compensation for lands injuriously affected. James, L. J., said, " I am of "opinion that it is impossible in any li legal or other sense of the words to "say that she was the owner or occupier " of "anything which they entered on or " took. They entered on the channel or bed of a stream somewhere above Elaintiff's land, and there they took, y way of diversion, water for purposes ' of their waterworks, which water, to ' put the case in the highest for the plaintiff, would in due course, if they ' had not so diverted it, have gone down to her land, and would then and so ' long as it was over her land, be water of which she was the owner and occupier in the sense in which a person is the owner or occupier of a stream ' running through his land, that is to ' say, the water would have then become within the ownership, and to some 'extent, within the occupancy of the ' plaintiff. But when it was intercepted ' by defendants just as if it had been intercepted by any other riparian ' proprieter, although it might have ' become part of her property the water which was actually intercepted was 'not her property:" Bush \. Trow- bridge Water Co., L. R., 10 Ch. 459 ; 44 L. J., Ch. 45 , 33 L. T. 137. See, too, Simmon v. South Staffordshire Water- work* (\>., 11 Jur., N. 8. 453 ; 34 L. J., Ch. 380 ; 13 W. R. 729 ; A.-G. v. lirixtol Watencork*, 10 Ex. 884 ; 24 L. J., Ex. 205. In Waller v. Mayor of Manchester, 6 H. & N. 667, the defendants were emj>owered to construct a reservoir, but were not to divert the waters of the river Etherow till it was completed. They were to discharge seventy-five cubic feet of water per second for twelve hours a day under 50/. penalty, and they were not to divert any water from the river Etherow till they had com- menced to discharge seventy-five feet per second. Defendants made a reservoir which, through engineering difficulties, was never completed, but they diverted the waters of the river Etherow in 1857, and supplied certain quantities less than seventy-five feet. In 1860, the plaintiff, a mill-owner, brought an action 1st count, for diverting the water ; 3rd and 4th counts, claiming damages from the defendants for not supplying seventy-five cubic feet. Defendants paid money into Court as to the 1st count ; as to the 3rd and 4th they pleaded that the reservoir had not been finished so as to make it their duty to supply the water : Held, that the plea was good, and the plaintiffs were only entitled to damages for the diver- sion of the water, and not for the non- discharge of seventy-five feet from the reservoir. " The plaintiffs did not think ' fit to interfere by mandamus or injunc- 'tion, but suffered the defendants to ' intercept the water for more than ' six years. Under the circumstances ' plaintiffs are only entitled to damages " for getting less water from the natural "stream." Pollock, C. B. Sect. 43 of the Waterworks Clauses Act, 1847 (10 & 11 Viet. c. 17), enacts that, " if, except when prevented as ; aforesaid (that is to say, by frost, ' unusual drought, or other unavoidable ' cause or accident, or during necessary ' repairs (sect. 42), the undertakers ' neglect or refuse to furnish to any ' owner or occupier entitled under this ' or the special Act to receive a supply ' of water during any part of the time for ' which the rates for such supply have ' been tendered, they shall be liable to ' a penalty of 10Z., and shall also forfeit ' to every person having paid or tendered " the rate, the sum of 40*. for every day " during which such refusal or neglect " shall continue after notice in writing ;1 shall have been given to the under- " takers of the want of supply." This provision only applies to a total cessation of the supply, and not to a neglect 1o supply sufficient quantity of water : Simpson v. South Oxfordshire G/ix ninl Water Co., (1908) 1 K. B. 917 ; 77 L. J., K. B. 46 ; 98 L. T. 585 ; 72 J. P. 162 ; 6 L. G. R. 454 ; 24 T. L. R. 407. By sect. 74 of the same statute, it is provided that " if any person supplied " with water neglect to pay the water " rate, the undertakers may stop the " water from flowing into the premises, li by cutting off the pipe to such pre- " mises, or by sucli means as the " undertakers shall think fit." A tenant of premises supplied by a com- pany with water having failed to pay the water rate, the compan}', under the powers conferred on them by sect. 74, severed the communication with their main pipes. A subsequent tenant de- manded a supply of water for the same premises, tendering to the company the current quarter's rate, and the estimated expense of restoring the communication, but the company refused to supply the water until the arrears due from the former tenant were paid. A magistrate having convicted the company under sect. 43 of the Act for such refusal, it was WATER SUPPLY. 355 On the other hand, as respects the rights of the public, Rights of the " Owners and occupiers are entitled to demand a supply of pure P ubllc - "and wholesome water 1 for domestic purposes, 2 and at such a held that, although the company were not warranted in refusing to supply water to the incoming tenant until the arrears due to them as above stated were paid, they could not be made liable to the penalties imposed by sect. 43 until he himself had restored the communication with their main pipes : Sheffield Waterworks Co. v. Wilkinson, 4 C. P. D. 411. If a water company wrongfully cut a communica- tion made by the owner of a house between the main and the house they are guilty of a common trespass and the owner has a right of action for damages and an injunction and is not restricted to proceedings for penalties under sect. 43 of the Act of 1847 : Gale v. Rhymney das and Water Co., (1903) 89 L. T. 399 ; 67 J P. 430 ; 2 L. G. R. 80, C. A. As to unlawfully refixing a pipe which had been cut off, see Kyffin v. Metro- politan Water Board, 72 J. P. 517. There is no obligation on a water com- pany to exercise the powers given by sect. 74 of cutting off the supply of water to premises as a condition prece- dent to their right to recover arrears of water rate : It. v. Button; Metro- politan Water Board, ex parte, (1907) 2 K. B. 578 ; 76 L. J., K. B. 1001 ; 97 L. T. 400 ; 71 J. P. 424 ; 5 L. G. R. 914 ; 23 T. L. R. 642. See, too, Purnell v. Woleerhamptoti Xew Waterworks Co., 10 C. B., N. S. 576 ; \\'eale v. West Middlesex Waterworks Co., 1J. & W. 358 ; 21 R. R. 183 ; West Middlesex Wateriaorki Co. v. Sverkrop, 4 C. & P. 87 ; Cardiff (Mayor of) v. Cardiff Waterworks Co., 5 Jur.. N. S. 9.">3 ; Bateman v. AslttoH-under-Lyne, 27 L. J., Ex. Ch. 458 ; 3 H. & N. 323; see also Industrial Dwellings Co. v. East London Water Co., 58 J. P. 433 ; as to an injunction to restrain cutting off of water for non-payment of water rate, see Hay ward v. East London Waterworks, 28 Ch. D. 138 ; 54 L. J., Ch. 523, and post, p. 359, n. 1. 1 A water company who supplied water from unfenced reservoirs without nitration fed by streams receiving drain- age from farm-yards held not to be supplying pure and wholesome water : A.-G. v. Rhymney and Aber Valley dux and Water Co., (1907) 71 J. P. 435. Where under bye-laws made under a special Act, the undertakers, at the consumer's request and cost, laid down lead service and communication pipes between their mains and the plaintiffs house, which pipes were entirely under the control of the undertakers, and the water, which was pure and wholesome, in the mains became contaminated by the lead and poisoned the plaintiff, the House of Ix>rds held, affirming the Court of Appeal, that the undertakers were not liable : Mil ties v. Huddersfield Corporation, 11 A. C. 511 ; 56 L. J.. Q. B. 1 ; 55 L. T. 617. S. C. in Court of Appeal, 12 Q. B. D. 443. As to supply of " pure and wholesome water " under a contract by a water company, see Shaw's Water Co. v. Greenock Ma^in- trates, 2 Macq., H. L. 151. 2 As to what are " domestic purposes," see Busby v. Chesterjield Waterworks. E. B. & E. 176 ; 27 L. J., M. C. 174 ; Barnard Castle District Council v. Milton. (1902) 2 Ch. 946 ; 71 L. J., Ch. 825 ; 87 L. T. 279 ; 51 W. R. 102, C.A. ; and ante, Chap. III., p. 139. A supply to a fixed bath held to be water for " domestic purposes " under a special Act : Wearer v. Cardiff Corporation. 48 L. T. 906 ; held not to be water for "domestic purposes'" under a special Act : Walker v. Lambeth Waterworks Co., 63 L. J., Ch. 374 ; 8 R. 622 ; 71 L. T. 75 (1894). A " workhouse " is a house entitled to a supply for " domes- " tic purposes " : Liskeard Union v. Liskeard Waterworks Co., 7 Q. B. D. 505 ; (as to what are " domestic pur- " poses " in a workhouse, see Chester Watenvorks Co. v. Chester Union, (1908) 72 J. P. 121) ; so is a " boarding-house "' : Pidgeon v. Great Yarmouth Water Co., (1902) 1 K. B. 310 ; 71 L. J., K. B. 61 ; 85 L. T. 632 ; 66 J. P. 309 ; 18 T. L. R. 97 ; so is a school : South West Suburban Water Co. v. St. Marylebone Guardians, (1904) 2 K. B. 174 ; 73 L. J., K. B. 347 ; 52 W. R. 378 ; 68 J. P. 257 ; 2 L. G. R. 567 ; 20 T. L. R. 299 ; Fred- erick v. Bognor Water Co., (1909) 1 Ch. 149 ; 78 L. J., Ch. 48 ; 72 J. P. 501 ; 25 T. L. R. 31 ; but water supplied to a school swimming bath where a fee was charged for the use of the bath and a swimming master kept is not water sup- plied for " domestic purposes " : Barnard Castle District Council v. Wilson; (1902), 2 Ch. 746 : 71 L. J., Ch. 825 ; 87 L. T. 279 ; 51 W. R. 102, C. A., reversing Buckley, J., (1901) 2 Ch. 813. Water supplied to and used by a medical man for washing a motor car used for the purposes of his profession is : Harro- gate Corporation v. Mackay, (1907) 2 232 356 OF CANALS, WATER SOPPLY, AND DOCKS. " pressure as will reach the top storey of the highest house in " the district l only where they have laid down communication " pipes, and paid or tendered the water rate 2 payable in respect K. B. 611 ; 76 L. J., K. B. 977 ; 97 L. T. 689 ; 71 J. P. 458 ; 5 L. G. R. 876 ; 23 T. L. E. 632. Water supplied by agreement for domestic use and the washing of carts, as well as iu the case of fire, but not for street washing or sewer flushing held not to include water for trade purposes: Andrews v. Witts $ Holly, (1901) 84 L. T. 124 ; 65 J. P. 281 ; 19 Cox, C. C. 633. Water supplied for sanitary conveniences at gas works under the Factory and Workshops Act, 1901, is water for "domestic purposes" under the Metropolitan Water Board (Clauses) Act, 1907 (7 Ed. VII. c. clxxi.), ss. 8, 9, 13, 16,25 ; South Suburban Gas Co. v. Metropolitan Water Board, (1909) 2 Ch. 666 ; 79 L. J. Ch. 27 ; 101 L. T. 560 ; 73 J. P. 505 ; 26 T. L. R. 12. See also South West Suburban Water Co. v. Marylebone Union, (1904) 2 K. B. 174, 179 ; Frederick v. Soy nor Water Co., (1909) 1 Ch. 149, 157. As to what is a water closet, see Roberta v. South Essex Water Co., (1903) 67 J. P. 404 ; 1 L. G. R. 719. 1 This does not apply to water in bulk: Wombwell Urban District Council v. Dearne Valley Water Co., (1907) 71 J. P. 415 ; 5 L. G. R. 1132. 2 Sect. 3 of 10 & 11 Viet. c. 17 defines " water rate " as " any rent reward, or " payment to be made to the undertakers " for a supply of water." See Slwffield Waterworks Co. v. Wilkinson, supra. With regard to the charges of water companies, it may be noted here that rent has been held to mean actual value where payment of rents is dependent on it. In Sheffield Water Co. v. Bennett, (1873) L. R., 8 Ex. 196, the defendant was the owner of various tenements, for which he paid poor rates, water rates, &c. By their Act the plaintiffs were bound to supply houses within a certain district with water at following rate per annum i.e., where the rent was 71., at not exceeding 6 per cent. Held, that in estimating the rents, defendant was entitled to deduct the rates so paid by him (affirming the same case in L. R., 7 Ex. 409). See, too, Sidebottom v. Glossop Reservoir, 1 Ex. 611 (Ex. Ch.) ; Rook v. Liverpool (Mayor of), 7 C. B., N. S. 240. A water company under their special Act held not to be bound to charge for water at an equal rate in the pound to all consumers in the absence of any express provision to that effect. : Northampton Corporation v. Ellen, (1904) 1 K. B. 299 ; 73 L. J. K. B. 829 ; 90 L. T. 71 ; 52 W. R. 305 : 68 J. P. 197; 2 L. G. R. 473; 20 T. L. R. 168, C. A. A trustee in bank- ruptcy has been held not to be liable for arrears of water rate under sect. 48 of the Metropolis Water Act, 1871 (34 & 35 Viet. c. 113), and entitled to recover from the water company the amount he had paid under protest. In re Flack, Ex parte Berry, (1900) 2 Q. B. 32 ; 69 L. J. Q. B. 258 ; 82 L. T. 503 ; 48 W. R. 446 ; 7 Manson, 141. See also In re Mannesmain Tube Co. : Von Siemens v. Mannesmain Tube Co., (1901) 2 Ch. 93 ; 70 L. J. Ch. 565 ; 84 L. T. 579. "Annual value" and "annual rack " rent or value " for the purposes of water rate means " net annual value " or " rateable value," not " gross estimated "rental": Dobbs v. Grand Junction Waterworks Co., 9 A. C. 49 ; 53 L. J., Q. B. 50 ; 49 L. T. 541 ; Warrington Waterworks Co. v. Longxhaw, 9 Q. B. D. 145 ; 51 L. J., Q. B. 498 ; 46 L. T. 815 ; Wilkinson v. Bury Water Board, (1905) 92 L. T. 417 ; 69 J. P. 214 ; 3 L. G. R. 716. "Annual rack rent and value" held to mean " gross estimated rental " under the Bristol Waterworks Acts, 1862, 1865 (Bristol Waterworks Co. v. Uren, 15 Q. B. D. 637 ; 54 L. J., M. C. 97 ; 52 L. T. 655), and the Bar net Gas and Water Act, 1872 (Stevens v. Barnet Gas and Water Co., 57 L. J., M. C. 82). For definition of annual value under the Water Rate Definition Act, 1885 (48 & 49 Viet. c. 34), seejiost, p. 368, n. 1. See also as to " voids " and " owner compounding for rates." Smith v. Birmingham Cor- poration, 11 Q. B. D. 195; 52 L. J., M. C. 81 ; 49 L. T. 25 ; R. v. Mella- dew, (1907) 1 K. B. 192 ; 76 L. J., K. B. 262 ; Bootle Overseers v. Lirerpool Warehouse Co., 85 L. T. 45 ; as to annual value of a public-house, see Went Middlesex Waterworks Co. v. Colema/i, or Coleman v. West Middlesex Water- works Co., 14 Q. B. D. 529 ; 54 L. J., M. C. 70 ; 52 L. T. 578 ; as to gardens, see Bristol Waterworks Co. v. Uren, 15 Q. B. D. 637 ; 54 L. J., M. C. 97 ; 52 L. T. 655 ; Grand Junction Waterworks Co. v. Paries, (1897) 2 Q. B. 209 ; 66 L. J., Q. B. 633 ; 76 L. T. 833. For cases as to recovery of water rates, see East London Water Co. v. Ky.ffin, (1895) 1 Q. B. 55 ; 64 L. J., M. C. 52 ; 15 R. 38 : 71 L. T. WATER SUPPLY. 357 " thereof. Any owner or occupier wishing to have water from " the waterworks brought into his premises is empowered by the " Act of 1847, upon paying or tendering the portion of water rate " in respect of such premises, by that or the special Act directed " to be paid in advance, to open the ground (having first obtained " the consent of the owners and occupiers thereof) between the " pipes of the company and his premises, and lay any leaden or " other pipes from such premises, to communicate with the pipes " of the undertakers. . . . The connection of the service pipes " with the company's pipes must be made under the superin- " tendence of their surveyor, and two days' notice of the hour " and day when such connection is to be made, must be given to " the company. . . . Any person who either has laid down " service pipes, or has become the proprietor of them, is entitled " to remove the same at any time after giving six days' notice in " writing to the company ; and he must make compensation to " the company for any injury or damage to their pipes or works " caused by such removal. . . . For the purpose, whether of " laying or of removing such service pipes, any owner or occupier " is entitled to open or break up so much of the pavement of any " street as shall be between the pipes of the company and his " house, building, or premises, or any sewer or drain therein," but doing as little damage as possible. The owners of all dwell- ing-houses, or parts of dwelling-houses, occupied as separate tenements, where the annual value does not exceed WL, are liable to the payment of the water rates, instead of the occupiers thereof. 1 615 ; East London Water Company v. 255 ; 20 T. L. R. 583 ; Handcoch v. Charles, (1894) 2 Q. B. 730 ; 63 L. J., Folkestone Waterworks, 1 T. L. R. 329 ; M. C. 209 ; 10 R. 435 ; 71 L. T. 200 ; East Slater \. Burnley Corporation, 59 L. T. London Water Company v. Keller man, 636 ; Colne Valley Water Co. v. Tre- (1892) 2 Q. B. 72 ; 67 L. T. 319 ; Badcock kerne, 50 L. T. 617 ; Elliot v. Russell, v. Hunt, 22 Q. B. D. 145 ; 58 L. J., Q. B. (1902) 2 K. B. 748 ; 72 L. J., K. B. 15 ; 134 ; 60 L. T. 314; Chelsea Water Co. v. 86 L. T. 204; Rualon Water Co. v. Paulet, 52 J. P. 724 ; Lea v. Abergarenny Erans, (1906) 22 T. L. R. 541. Improvement Commissioners, 16 Q. B. D. J Michael & Will, 5th eel. pp. cxxix. 240 18; 53 L. T. 728; Richards v. West etseq. SeeWardv. Folkestone Water Co., Middlesex Water Co., 15 Q. B. D. 660 ; 24 Q. B. D. 334 ; 62 L. T. 321, as toscrew- 54 L. J., Q. B. 551 ; South end Water Co. down valves to prevent waste. As to v. Howard, 13 Q. B. D. 215 ; Whiting v. " unoccupied houses " ander this section, East London Water Co., 1 Cab. & E. see British Empire Assurance Co. v. 331 ; Direct Spanish Telegraph Co. v. Southward and Vauxhall Co., 59 L. T. Shepherd, 13 Q. B. D. 202 ; 53 L. J., Q. B. 321 ; East London Water Co. v. Foulkes, 420; 51 L. T. 124 ; Bourne # Tant v. (1894) 1 Q. B. 819 ; 10 R. 243. Where Salmon, (1907) 1 Ch. 616 ; 76 L. J., Ch. a house is let to a tenant at a rent not 374 ; 96 L. T. 629 ; 71 J. P. 329, C. A. ; exceeding 10Z. a year so that the owner Meadows v. Grand Junction Water- is liable under sect. 72 of the Waterworks works, (1905) 3 L. G. R. 910 ; 69 J. P. Clauses Act, 1847, to pay water rates, 868 OF CANALS, WATER SUPPLY, AND DOCKS. Parts of towns and districts not supplied with water are empowered to demand a supply from companies under the Act of 1847, if they comply with certain regulations ; and a penalty is imposed on the company on their neglect or refusal to supply. 1 The undertakers are bound to keep a supply of water for public purposes, such as fire plugs,' 2 cleansing sewers, drains, &c., and for supplying public pumps. They are also authorized to provide a supply for trade and other purposes ; and special regulations are made for the case where companies are employed to supply by meter. 3 The Act of 1847 entitles them to the payment of water rates by those requiring a supply of water ; but it also strictly limits their profits. 4 By both the Waterworks Clauses Acts, the waste of water is prohibited by strict provisions. 5 The the owner is a " person supplied with ' water" within the meaning of a special Act, and under a duty to take care that the water is not wasted : Brock v. Harriton, (1899) 1 Q. B. 958 ; 80 L. T. 568 ; 68 L. J., Q. B. 730. 1 As to exemption of a company on account of drought or unavoidable cause, see Industrial Dioellings Co. v. Eagt London Water Co., 58 J. P. 430 ; and ante, p. 354, note. As to " refusal to ' supply " where the consumer has neglected to repair, sec Grand Junction Wateruiorto Co. v. Itodocanaclt i,]tost, p. 369, n. 1. As to duty of consumer to lepair pipes, see Colne Valley Water Co. v. Hull, (1907) 72 J. P. 25, C. A. ; 6 L. G. R. 115. The word " premises'" in sect. 70 of the East London Water- works Act, 1853 (16 &i 17 Viet, c. clxvi.), has been held not to include land for building operations so ns to make a water company liable to a conviction for neglecting to afford a supply of water for those purposes : Metropolitan Water Board v. Paine, (1907) 1 K. B. 285 ; 76 L. J., K. B. 151 ; 96 L. T. 63. a As to this, see Bey. on the prosecution of the Well* I'rban Sanitary Authority v. Well* Water To., 55 L. T. 188 ; Grand Junction Waterworks Co. v. Brentford Lttcal Board, 2 Q. B. 735 ; 6t L. J., Q. B. 717 ; 9 R. 788 ; 71 L. T. 240. As to the right of a water company to compensation for water used for extin- guishing fire from a fire plug on private property, see Weardale and Conxett Water (\>. v. Che*ter-le-8treet Co-opera- tire Society, (1904) 2 K. B.240 : 73 L. J., K. B. 659 ; 91 L. T. 293 ; 52 W. R. 84 ; 68 J. P. 386 ; 2 L. G. R. 808 ; 20 T. L. R. 464. As to the right of a water com- pany to use hydrants for other purposes than the extinction of fire, see London County Council v. Eaxt London Water Co., (1900) 1 Q. B. 330 ; 69 L. J., Q. B. 304 ; 82 L. T. 268 ; 48 W. R. 252. 8 As to supply by meter of water for other than domestic purposes and mean- ing of " any consumer of water," and of ' ; dwelling-house " under the New River Co.'s Act, 1852, see Cooke v. New Hirer Co., 14 A. C. 698 ; 59 L. J., Ch. 333 ; 61 L. T. 816 ; see also as to meters for baths, Sheffield Water Co. v. Bing. Jiai, 25 Ch. D. 443 ; 52 L. J., Ch. 624 ; 48 L. T. 604 ; Sheffield Water Co. v. Carter, 8 Q. B. D. 632 ; 51 L. J., M. C'. 97. By sect. 41 of the New River Com- pany's Act, the company shall at the request of any consumer of water for purposes other than those in respect of which rates are charged afford a supply by means of a meter, and charge the same at certain limited rates. The Metropolitan Board of Works demanded a supply of water by meter to water the Victoria Embankment during one-third of the year only : Held, that the defendants were not bound to supply it at the limited rates, but might claim rates fixed by sect. 37 of the Water- works Clauses Act, 1847 ; Metropolitan Board of Worlig v. New Birer (\>.. 37 L. T., N. S. 124. 4 It is provided, " that the profits to ; be divided among the undertakers in any year shall not exceed 10 per cent. ; on the paid-up capital, unless a larger ; dividend be at any time necessary to make up the deficiency of any previous " dividend which shall have fallen short " of that rate " : Michael & Will. 5th ed. p. 348. Shares in waterworks are a legal estate and corporate inheritance : Tmontend v. Axh, 3 A. C. 336. * See note, ante, p. 357. WATER SUPPLY. 359 undertakers are required to keep a copy of their special Act at their office, and to deposit another with the clerk of the peace or sheriff clerk as aforesaid, for the inspection of all persons interested therein. 1 1 Some of the principles regulating the duties of water companies may be here conveniently noticed. It is a primary duty where persons are by an Act of Parliament incorporated for a special purpose with full powers for executing it, that the body thus created should from time to time take measures to prevent the occurrence of any incon- venience or injury which the effecting such purpose may occasion, not only in the original execution of the necessary works, but at recurring intervals. Thus, where a company incorporated for supplying mill-owners on the Bann were emi>owered to make a reservoir, and to send the water, when necessary, down a special channel, and also to enter on the lands of different streams, and to scour the channels, it was held, that they were responsible for damage caused by an overflow arising from their neglect- ing to keep the special channels scoured, since they were bound under the Act to see that the due execution of their works should not be injurious to the lands on the banks of the channel : Geddist v. Bann Xeterroir, 3 A. C. 430 (H. L. Ir.) : see ante, p. 306. So, too, it is incumbent (under the Waterworks Clauses Act. 1847. sect. 31) on a water company intending to break up roads to communicate beforehand the plan to the road authority, and this is sufficient to enable the road authority to judge whether it requires any modifi- cation, and it rests with the water com- pany, in case of its disapproval, to apply for the determination of two justices before proceeding to commence opera- tions : Edgentore Highway Board v. Colne Valley Water Co., 48 L. J., Ch. 889. With regard to questions of compen- sation for injuries to land which may arise with reference to the Lands Clauses Act, 1845, a company would appear to be bound by the terms of their agreement, even though they fail to carry them out in entirety. On this point Stone v. Corporation of Yeocil (2 C. P. D. 99) is instructive. There the defendants, a water company, were empowered by an Act incorporating the Lai ds and Waterworks Clauses Acts to take, use and divert certain streams, and, amongst others, that of the plain- tiff, a mill-owner. Defendants gave plaintiff notice of their intention to take all the stream, but actually took Duties of half only. To a statement of claim by Water Com- the plaintiff for 939Z. permanent dam- panics, ages awarded to him by a surveyor for the abstraction of the whole stream, the defendants demurred, on the ground that they had no power to agree to make compensation for all the stream, but only for such damage as was done from time to time. It was held, how- ever (affirming the decision in the Com- mon Pleas Division), that they had such power, and that, having given notice of an intention to purchase the whole, they were bound to make compensation at once for all the interest of the mill in the stream. It was further held that, if the case was to be considered as one of injuriously affecting property, the state- ment showed a good agreement by a limited owner for permanent injury under sects. 9 and 68. In cases of disputes regarding the pay- ment of rates, sect. 68 of the Water- works Clauses Act, 1847. provides that the question of annual value is to be determined by two justices. This pro- vision would appear to override any- thing to the contrary in any private Act incorporating it. Sect. 46 of the New River Act, which incorporates the Waterworks Clauses Act, enacted " that ' nothing in this Act, or any Act in- 'corporated therewith, is to prevent ' the company from recovering any sum not exceeding 501., due as water ' rates, &c., by an action as provided." But it was held in The New Hirer Co. v. Mather (L. R., 10 C. P. 442 ; 44 L. J. f M. C. 105 ; 32 L. T. 658), that where a bond fide dispute as to value arises, the company, before they can sue, must obtain a decision of justices ; and ante, p. 352, n. 5. Closely connected with the duty incumbent on companies to prevent injury, noticed above, is the question of responsibility for mischief caused through negligence ; ante, pp. 170 et seq., 305 et %eq. In an action against a water company for so managing their pipes that they burst, and, water escaping, injured the plaintiff's premises, it was shown that there was an extraordinary frost, and that the turncock had examined the plug, and packed it with straw and ice on the 29th November : it was doubtful, OF CANALS, WATER SUPPLY, AND DOCKS. Com panics having no parliamen- tary jx)wcr. Such are a few of the main provisions relating to companies having parliamentary powers. We go on to notice more briefly (2) Companies having no parliamentary powers. Where such however, whether he had looked at it after. It burst on the 2ith December. Held, that there was some evidence of negligence to go to the jury : SUggbt v. Xeu> Jtirer Co., 18 W. R. 413. In 1/arriwn v. Great Northern Rail. Co. (10 Jur., N. S. 992) the defendants were charged with the duty of repair- ing a drain, the outlet of which was in a channel under the management of commissioners bound to keep it clear, and of certain dimensions. Owing to an extraordinary rainfall, the drain burst, and it was held that defendants were liable, although there was an obligation on others which they did not perform ; Pollock, C. B., observing, inter alia, that ' there was nothing in the matter of so 'extraordinary a character as that the 1 defendants were not bound to antici- ' pate it. The storm, though unusual 'and extraordinary in a sense, yet as ' happening once a year, or in a few ' years, was not unusual. This is not a ' case of a sudden wrong done by others ' in stopping the outlet. It is a per- ' manent long-continuing state of things ' which it was the duty of defendants ' to guard against." In order to meet the charge of negli- gence, a plea must be express and not too general. Thus where damages were claimed by a plaintiff from the East London Waterworks Company for neg- lect in supplying him with water, they being bound, under sect. 79 of their Act, to supply water by measure at the request of owners of premises for pur- poses other than those in respect of which rates were paid, it was pleaded by the company : 1st. That the fire-ping in the main pipe was open to put out a fire. 2nd. That they were prevented by an unavoidable accident. It was held on demurrer that the first plea was a good answer, but the second was bad, as too general : Campbell v. E**t I^tulim Water Work*, 26 L. T., N. 8. 475. Where, however, a water company have observed the directions in their Act of Parliament in laying down their pipes, they are not liable for an escape of water not caused by their own negligence, and the fact that their pre- cautions were not sufficient in an exceptional circumstance (as, for in- stance, a winter of extreme cold, such a* no man could have foreseen) will not render them so : Blyth v. Birmingham Water Co., 11 Ex. 781. As to rig major, see ante, pp. 170 et tteq. In Edinburgh Water Trustees v. Suinmerrille, (1906) 95 L. T. 217, H. L. Sc., where the company were empowered to construct a reservoir on a stream, and the Act provided that a fixed amount of com- pensation water should be allowed to flow from the reservoir for the benefit of riparian owners down the stream, it was held that, in the absence of negli- gence, the water company was not liable for the pollution of the compensation water from accidental causes. Again, no action at common law lies against the owner of land by a person who has strayed from the public high- way, and fallen into a reservoir or any excavation near to but not substantially adjoining it : Hardcaxtle v. South York Rail. Co., 4 H. & N. 67. A company claiming a statutory power to take land compulsorily is bound to prove distinctly from the Act of Parliament the existence of the power, and where there is a doubt, the landowner is to have the benefit of it. When, as is often the case, a special Act incorporates a general Act, it is to the special Act that reference must be made in order to ascertain the contract be- tween the landowner and the company. A water company incorporated by a special Act incorporating the Lands and Waterworks Clauses Acts deposited plans showing their intention to make a tun- nel through the plaintiff's land forty-five feet below the surface. They also claimed to hold the land permanently for other purposes, namely, to erect steam engines and sink wells. Held, per Lord VVestbury, L. C., they were not entitled to do so : Simpson v. South Staffordshire Wateru-orlts, 11 Jur., N. S. 453; 31 L. J., Ch. 380. It may be convenient to note here that the principle that a grantor knowing the purposes for which his conveyance is accepted cannot derogate therefrom, applies to a compulsory sale by Act of Parliament; but that such principle does not apply to an accidental state of circumstances, such as the flooded state of a mine at ths time of the conveyances : N. E. Mail Co. v. Elliot, 6 Jur., N. S. 817; 10 H. L. Cas. 333. It would appear that a water com- pany has no right to interfere with the sale of water for a profit so supplied by WATER SUPPLY. bodies undertake to supply water it is to be noted that they lay their pipes in streets and public ways at their peril, being liable to an indictment 1 or action for damages, joined with a claim for an injunction at the instance of any individual whenever they break up or obstruct a highway. 2 They have also no power to acquire lands and water, or to levy tolls or charge rates or rents, save by agreement. 3 Both projected companies and those already existing 3 can, however, by means of The Gas and Water Facilities Act, 1870 (38 c- 34 Viet. c. 70) , 4 obtain certain powers for supplying water. Sect. 3 provides that the Act may apply where powers are required "to construct or to maintain and continue waterworks " and works connected therewith, or to supply water in any " district within which there is not an existing company, corpora- " tion, body of commissioners, or person empowered by Act of " Parliament to construct such works and to supply water " (sub-sect. 2). By sub-sect. 3 additional capital can be raised for any of these purposes, and under sub-sect. 4, " two or more " companies or persons duly authorized to supply gas or water " in any district, or in adjoining districts," may " enter into " agreements jointly to furnish such supply, or to amalgamate " their undertakings." Lastly, by sub-sect. 5, " two or more " companies or persons supplying gas or water in any district, or " in adjoining districts," can be authorized " to manufacture gas " or to supply water, and to enter into agreements jointly to " furnish such supply and to amalgamate their undertakings." " Such purposes, or any one or more of them, as the case may " be, shall, for the purposes of this Act, be deemed to be included " in the term ' gas undertaking,' or ' water undertaking,' according " as the same relate to the supply of gas or water ; provided that them to a township, where the agree- Waterworks Co., 2 L. T., N. S. 521. ment merely stated that the company 1 Reg. \. Longton Gas Co., 2 El. & El. should supply not more than 75,000 651 ; Preston {Mayor of) v. Fulwood gallons, nor less than 25,000, and the Board, 57 L. T. 719. township took more than 25,000 gallons, 2 Goodson v. Riclmrdson, L. R.. 9 Ch. and sold the surplus : Halifax v. Soot- 221. hill, 31 L. T., X. S. 6. 8 Michael & Will, 5th ed. pp. cxxix, 20 It has been decided that a water com- et seq. ; as to an agreement to purchase pany has no claim to compensation water for mining purposes, see Kimber- for interest in land under sect. 68 of the ley Water Co. v. De Beers Consolidated Lands Clauses Act, 1845, because their Mines, (1897) A. C. 515 ; 66 L. J., P. C. pipes are laid under such land: Xew 108; 77 L. T. 117, P. C. River Co. v. Midland Rail. Co., 36 L. T., * " An Act to facilitate in certain N. S. 5h9. See, too, Ward v. Wolter- "cases the obtaining of powers for the Itamjrton Waterworks Co., 41 L. J., Ch. " construction of Gas and Waterworks, 308; Clowes v. Staffordshire Potteries " and for the supply of Gas and Water." 361 802 Fx>cnl autho- rities supply- ing water. 10 k 11 Viet. c. 34. 11 & 12 Viet, c. 03. OF CANALS, WATER SUPPLY, AND DOCKS. " any gas or water company empowered as aforesaid may apply " for and avail themselves of the facilities of this Act within their " own districts respectively." Provisional orders (to be subsequently confirmed by Parliament (sect. 9) ) can be obtained in any district by any company, associa- tion, or person for carrying out the above purposes (sect. 4), the Board of Trade being empowered to consider any application or objection thereto (sect. 6), and if it be deemed expedient to make the provisional order. The Waterworks Clauses Acts, 1847 and 1868, and the Lands Clauses Consolidation Acts 0/1845 andlSQQ, are, by sect. 10, 1 to be incorporated with such provisional order, save where varied thereby. This enactment was amended by 86 it- 37 Viet. c. 89 ( The Gas and Waterworks Facilities Act, 1870, Amendment Act, 1873), 2 by sect. 12 of which the Board of Trade may amend and extend or vary provisional orders, and by sect. 15 of which the Act is not to extend to the metropolis as denned by The Metropolis Management Act, 1855. It remains to notice a few points respecting (3) Local authorities empowered to supply water 10 d- 11 Viet, c. 34 (The Towns Improvement Clauses Act, 1847), 3 made some provision in this respect (sects. 121 124), and incorporated The Lands Clauses Consolidation Act, 1845 (sect. 19). It was how- ever superseded as regards water by 11 d 12 Viet. c. 63 (The Public Health Act, 1848), under which local authorities were empowered under certain circumstances and conditions to supply their districts with a proper and sufficient supply of water for the purposes of the Act, and might, for that purpose, contract from time to time with any person whomsoever, or purchase, take on lease, hire, construct, lay down and maintain such water- works, and do and execute all such works, matters and things as may be necessary for those purposes (sects. 75 80). Local authorities might, by agreement, purchase land, and the Act incorporated The Lands Clauses Consolidation Act, 1845 (sect. 48), 1 Cf. sect. 1 of 33 & 34 Viet. c. 70. Sect. 10 excepts, so far a? regards the incorporation of the Lands Clauses Con- solidation Acts, the provisions (1) with resj>ect to the purchase and taking of lands, otherwise than by agreement ; and (2) with respect to the entry upon lands by the promoters of the under- taking. 2 ' An Act to amend the provisions of " the Gas and Waterworks Facilities " Act, 1870." 8 " An Act for consolidating in one " Act certain provisions usually con- ' tained in Acts for paving, draining, " cleansing, lighting, and improving li towns." WATER SUPPLY. 363 excepting such enactments as related to the purchase and taking of lands otherwise than by agreement. 1 These powers were supplemented by 21 d- 22 Viet. c. 98 (The 21 & 22 Viet. Local Government Act 0/1858), 2 which (by sect. 75) incorporated the whole of the Lands Clauses Consolidation Act, except the provisions relating to access to the special Act ; and provided the machinery for enabling local authorities to put in force the powers of that Act, as regards the compulsory acquiring of land, by obtaining a provisional order, to be afterwards confirmed by Parliament. This Act was further amended by 24 d- 25 Viet. c. 61. The Sanitary Acts of 1866 and 1874 3 extended to sewer 29 & 30 Viet, authorities the powers given to local boards ; the latter statute 37 ^"33 vj ct incorporating the powers of the Lands Clauses Act, and autho- c. 89. rizing sanitary authorities to purchase, either within or without their districts, any land covered with water, or any water, or right to take or convey water 4 (sects. 31 33). The PuMic Health Act, 1875 (38 & 39 Viet. c. 55), amended by 38 & 39 Viet. The Public Health Act, 1878 (41 it- 42 Viet. c. 25), repeals all the c ' 55- statutes noticed above, consolidating, and, in some respects amending, the law. 5 By sect. 51, urban authorities may provide their district or any part thereof, and any rural authorities may provide their districts or any contributory place 6 therein, or any part of such place, with " a supply of water proper and convenient for public " and private purposes," and for these purposes or any of them may (1) Construct and maintain waterworks, dig wells, 7 and do all other necessary acts ; (2) Take on lease or hire any waterworks, and, with the sanction 8 of the Local Government Board, purchase any water- 1 Cf . Michael & Will. 5th ed. pp. cxxx, Clauses Act shall not be exercised, cxxxii. except in pursuance of a provisional 2 " An Act to amend the Public order of the Local Government Board 4i Health Act, 1848. and to make further (.sect. 33). " provisions for the local government of 5 Michael & Will. pp. cxxxi., cxxxiii. " towns and populous places." Sects. 51 As to the repayment out of rates of 53 deal specially with water. The Act loans for expenses of construction under was amended by the Local Government this section, see Horn v. Sleaford Rural Act, 1858, Amendment Act, 1861 Council, (1898) 2 Q. B. 355 ; 67 L. J., (24 & 25 Viet. c. 61). . Q. B. 724 ; 78 L. T. 722 ; 46 W. R. 8 29 & 30 Viet. c. 90, Sanitary Act, 588 ; 62 J. P. 502. 1866 (ss. 1113) ; 37 & 38 Viet. c. 89, 7 As to Public Wells, see ante, p. 206. the Sanitary Law Amendment Act, 1874. 8 Under sect. 61 the Local Govern- 4 But the compulsory powers of pur- ment Board has the power to give a chase contained in the said Lands limited sanction. /".., a sanction of a 364 OF CANALS, WATER SUPPLY, AND DOCKS. works or any water or right to take or convey water either within or without their district, and any rights, powers, and privileges of any water company ; and (8) Contract with any person for a supply of water. 1 Local authorities are given full powers (sects. 175 181) to purchase lands and easements by agreement, for the purposes of the Act, either within or without their districts, but must obtain a provisional order for the purpose (sect. 176), unless they have acquired by agreement the necessary lands and easements for their waterworks ; 2 and in order to do this they must publish the same notices by advertisement in the local papers, and serve the same notices 3 on owners, lessees, and occupiers, as if they were proceeding for an Act of Parliament (sect. 176). Water supply to a specified district of an adjoining local authority and after such a limited sanction has been given a contract for a supply of water to a larger area requires a fresh sanction : Stwthill Urban District Council v. \VakfJield Rural Council, (1905) 2 Ch. 516 ; 74 L. J., Ch. 703 ; 93 L. T. 71 ; 3 L. G. K. 1208 ; 69 J. P. 447 ; 21 T. L. R. 766, C. A. 1 Their powers are, however, limited in that where there exists a water com- pany empowered by Act of Parliament, or any order confirmed by Parliament, to supply water within the district of the local authority, and exercising such powers within the limits of their special Act, local authorities must give written notice to any such water company, within whose limits of supply they are desirous to supply water, before begin- ning to construct ; and so long as any company are able and willing to supply water, proper and sufficient for all reasonable purposes for which it is required by the local authority, it is not lawful for the latter to construct any waterworks within such limits (sect. 52). The omission to specify a l>enalty to be paid in case the contract be broken does not render such contract invalid under sect. 174, sub-sect. (2) : Soothill Urban Dittrict Council v. Wake- Afield Rural Council, ante, n. 8, p. 363. A local authority may, notwithstand- ing sect. 52 of the Public Health Act, 1875, construct and use waterworks for the supply of water for their use only in the district of a water company able and willing to supply such water. Works erected and maintained by a local authority to provide the water necessary to carry out a scheme for the disposal of sewage of its district, are not " waterworks " within the meaning of sect. 52, as defined by sect. 4 of the Public Health Act, 1875 ; nor can the local authority be said to be supplying water within the meaning of those sections. There is no provision in the Waterworks Clauses Act, 1847, which compels a local authority to take water to " cleanse sewers " from a water com- pany within whose limits of supply the sewers are situate : West Surrey Water Co. v. Chertsey Union, (1894) 3 Ch. 513 ; 63 L. J., Ch. 806 ; 71 L. T. 368. Differences as to being able and willing to supply to be settled by arbitration ; see sects. 52 and 179 181 ; and cf. sects. 53, 54, for provisos as to notice. 2 Sect. 4 defines " lands " as " mes- " suages, buildings, lands, easements, and " hereditaments of any tenure " ; but as this definition does not include water rights, local authorities must obtain a private Act, and not a provisional order, where their intended waterworks involve the abstraction of water from rivers, streams, &c. ; sect. 1 76 ; see Michael & Will, 5th ed. pp. cxxxii., 567. As to the meaning of " land covered with water " in sect. 211, sub-sect. 1 (6), see Smith's Dock Co. v. Tynemouth Corporation, post, p. 678. As to the release or waiver of water rights belonging to the Crown under sect. 8 of the Crown Lands Act, 1894 (57 & 58 Viet. c. 63), see ante, p. 27, n. 4. 8 Such notices only apply to new waterworks, and 'not to additions and alterations of existing works : Cleveland Water Co. v. Redcar Local Hoard, (1895) 1 Ch. 168 ; 64 L, J., Ch. 64 ; 13 B. 18. WATER SUPPLY. 365 companies are empowered to contract to supply water, or lease their waterworks to any local authority, or to sell and transfer to such authority on such terms as may be agreed on all the rights, powers, privileges, and all or any of the waterworks, premises, and other property of the company, but subject to all liabilities to which the same are subject at the time of such purchase. The duty of providing a pure and wholesome supply of water l is imposed on local authorities (sects. 55, 176), and they have now all the powers of The Wateru-orks Clauses Act, 1863, and many of those of The Waterworks Clauses Act, 1847 such, for instance, as those relating to the breaking up of streets for the purpose of laying pipes, 2 the laying of communication pipes, and the waste and misuse of water and recovery of water rates. 3 The above brief sketch of the statutes dealing with water supply may be fitly concluded by a mention of the following other enact- enactments which are connected with the subject. 14 d 15 Viet. c. 34 (The Labouring Classes Lodging Houses i4&i5Vict. Act, 1851) authorizes water companies and commissioners or c ' 34 ' trustees of waterworks or other persons having the management thereof, to supply in their discretion water to lodging houses established under the Act, " either without charge, or on such fi other favourable terms as they shall think fit." 4 85 d 36 Viet. c. 91 (The Municipal Corporations (Borough 35 & 35 Viet. c. 91. 1 See ante, p. 355, n. 1. provisions for the protection of water ; 2 As to the right to break up a private sects. 270 and 279, as to the formation road, see Hill v. Wallazey Local Board, of united districts for water supply ; and (1894) 1 Ch. 133 ; 7 R. 51 ; 63 L. J., Oh. sects. 229, 277, as to special drainage 1 ; 69 L. T. 641. districts, for the purpose of charging 8 The following provisions are note- thereon exclusively the expense of worthy : They may supply water by works ; cf. Michael & Will, 5th ed. pp. measure (sect. 58), and supply baths and 558 564, 572 etseq. washhouses (sect. 65). The duty is By sect. 52, it is required that a water imposed on them of supplying fire-plugs company, contracting to supply a dis- (sect.66),and watering streets (sect. 148). trict, must be both " able and willing " ; But the Waterworks Clauses Act, 1847, and such company must be able there- and the Public Health Act, 1875, impose fore to show not only that it has the no obligation on an urban local autho- necessary powers, but also that it can rity to bear the expense of maintaining furnish the requisite supply of water, in repair the fire-plugs in their district, Where there were two companies, one of unless such fire-plugs have been fixed by which had powers, but no water, and them, or by some water company or the other water, but no powers, and the person at their request : Grand Junction first company sold its plant, &c., to the Waterworks Co. v. Brentford Local other, several members of which bought Board, (1894) 2 Q. B. 735 ; 63 L. J., all the shares in the first, with the view Q. B. 717 ; 9 R. 788 ; 71 L. T. 240 ; 59 of exercising all its powers, it was held J. P. 51 (C. A.). Sect. 64 vests in them that such powers could not be so dele- all existing public cisterns, pumps, wells, gated : Richmond and Soutkwark Water- &c., and places them under their control : ivork* Co.v. Richmond Vegtry, 3 Ch. D. and sect. 61 empowers local authorities 82. to supply water to the districts of other * Michael & Will, 5th ed. p. 37. authorities. See also sects. 68 70, as to 360 OF CANALS, WATER SUPPLY, AND DOCKS. Funds) Act, 1872) provides for the manner in which local authorities must proceed in order to oppose or promote any bill in Parliament. 1 88* 39 Viet. 88 tC- 89 Viet. c. 86 (The Conspiracy and Protection of Property Act, 1875) is noteworthy as containing provisions to protect local authorities and communities from malicious breaches of contract in connection with water supply. 2 40 & 41 Viet. The Limited Owners' Reservoirs and Water Supply Further c. 31. Facilities Act, 1877 (40 <<; 41 Viet. c. 31), enables landowners of limited interest to construct waterworks and charge their estates with sums expended by them thereon, as well as to charge their estates with sums subscribed by them for the construction of waterworks by a water company, on the same conditions and terms as those on which they can now charge them with sub- scriptions for the construction of railways and navigable canals under The Improvement of Land Act, 1864, sects. 6, 7, 8, &c. 3 41 & 42 Viet. The Public Health (Water) Act, 1878 (41 & 42 Viet. c. 25), which amends sect. 62 of The Public Health Act, 1875 (38 Jc 39 Viet. c. 55) as to the meaning of the term " reasonable cost " 4 (sect. 8), and is to be construed as one with that Act, imposes the duty of providing or requiring the provision of a sufficient water supply for their district upon rural sanitary authorities 5 (sect. 3), and requires them "from time to time to take such steps as may be necessary" to ascertain its condition (sect. 7). Sect. 6 prohibits the erection or rebuilding of houses without a sufficient water supply in rural districts. By sect. 10 urban sanitary authorities are empowered to charge water rates on the application of any ten persons rated to the relief of the poor in their district ; and by sect. 11 the Local Government Board may, by order, invest them with all or any of the duties given by the Act to rural sanitary authorities. 56 Jc 57 Viet. The Local Government Act, 1894(56 it- 57 Viet. c. 73), also c. 73. ' Michael & Will, pp. 13, 677 et teq. Where under sect. 62 of the Act of 1875 8 Ibid. p. 696, " An Act for amending an owner is required to obtain a water ' the Law relating to Conspiracy and to supply from an unreasonable distance " the Protection of Property, and for the remedy of the owner is by appeal to " other purposes " ; sects. 4, 5, 14, 15, the Local Government Board under sect. 268 of that Act : West Lancashire 27 & 28 Viet. c. 114. Rural Council v. Ogilvie, (1899) 1 Q. B. The limitation as to the cost of 377 ; 68 L. J., Q. B. 215 ; 80 L. T. 162 ; providing water supply to a house in 47 W. R. 363 ; 63 J. P. 166. sect. 3 of the Act of 1878 does not > See as to this Colne Valley Water apply to sect. 62 of the Act of 1875. Co. v. Treherne, 50 L. T. 617. WATER SUPPLY. 367 empowers parish councils to " utilize any well, spring, or stream " within their parish and provide facilities for obtaining water " therefrom, but so as not to interfere with the rights of any " corporation or person " (sect. 8 (1) (e) ) ; but it is provided by sub-sect. 3 of this section that nothing therein " shall derogate " from any obligation of a district council with respect to the " supply of water or the execution of sanitary works." In addition to their special Acts, London water companies are London subject to the provisions of three general Acts 15 < 16 Viet' pan ies. c. 84 (The Metropolis Water Act, 1852), and 34 41. c. 17 ; 38 & 39 Viet. c. 13 ; 39 & 40 Viet. a Mertey Dock* v. Gibb, L. R., 1 c. 36, s. 8) apply to persons employed in H. L. 93 ; 35 L. J., Ex. 225 ; 14 L. T. 677. docks. 8 Reg. v. Jirixtd Dock Company, 2 By 24 & 25 Viet. c. 96 (the Larceny Railw. Cas. 599. Act, 1861), s. 63, stealing from docks, or * Gunning on Tolls, p. 123. ships lying therein, is made a felony, * Allnut v. Inglif, 12 East, 527 ; 11 punishable by penal servitude or im- R. R. 482, and see Gunning, p. 123. For prisonment. Setting fire to or injuring the subject of dock dues, see pott, docks are also constituted felonies by Chap. IX. sects. 4, 30 and 31 of the Malicious 6 The following other general statutes Damage Act, 1861 (24 & 25 Viet. c. 97). DOCKS. are consolidated, and it extends to such " harbours, docks, and " piers as shall be authorized by Acts hereafter to be passed, " which shall declare that this Act shall be incorporated there- " with " (sect. 1) ; the term " the undertakers " being defined by sect. 2 to mean " any person authorized by a special Act to " construct any harbour, dock, or pier." l By sect. 83, the undertakers authorized by any special Act to construct a dock may from time to time make such bye-laws as they shall think fit for (amongst other purposes) regulating the shipping, unshipping, and removing of all goods within the limits of the dock, and for regulating the duties and conduct of all persons, as well the servants of the undertakers as others, employed in the dock.' 2 It is, however, to the special Act that reference must be made, to ascertain the rights of the dock proprietors ; that Act con- stituting the form of contract 3 between them and the public, and being regarded in the light of a bargain, any ambiguity in its terms will be construed as against the undertakers and in favour of the public. 4 1 A barge propelled by oars only is not a vessel within the 3rd section of 10 Viet. c. 27, and the 100th and 101st sections of 27 & 28 Viet. c. 178 (London and St. Katherine's Docks Co. Act, 1864 (local) ), so as to render the owner liable to the penalty imposed by the latter Act, as being the owner of a vessel left in the Royal Albert Docks without any person on board : Hedges and Son* v. London and St. Catherine Docks Co., 55 L. J., M. C. 46 ; 16 Q. B. D. 597 ; 54 L. T. 427. The 63rd section, which imposes a penalty upon the master of any vessel who shall without permission of the harbour-master moor the same in the entrance (or within the prescribed limits) of any dock or harbour, and who shall not remove the same upon notice, overrides and extinguishes all local and private rights of property therein. The assertion of such local or private rights does not exclude the jurisdiction of the justices under the Act : Gardner v. Whitford, 4 C. B., N. S. 665. For other general statutes relating to docks, see ante, Chap. I. pp. 63 et seq. ; and pout, Chap. VII. 2 A dock company, who were the under- takers under a special Act, made bye- laws that no lumpers should be allowed to work on board any vessel in the dock but such as were authorized by the company, unless permission in writing bad been previously obtained from the superintendent of the dock, and that the servants of the company only should be allowed to work within the dock premises whether on ship, lighter, or shore : Held, that the bye-laws were in excess of the power conferred on the dock com- pany by sect. 83, and were therefore invalid : Dick v. Saddart, 10 Q. B. D. 387 ; 84 L. T. 391. As to effect of regulations not confirmed as bye-laws under this section, see Londo-n Associa- tion of Shipowners v. London and Indian Docks, (1892) 3 Ch. 242; 67 L. T. 238; 7 Asp. M. C. 195. See also Anglo- Algerian Steamship Co. v. Houlder Line, post, p. 377, note 5, as to liability for negligence by a third party. 8 A contract for the use of a dock between the owners and the public is not an interest in land within the 4th section of the Statute of Frauds, and does not require to be under seal : Wells v. Kingston-on- Hull Corporation, L. R. 10 C. P. 402 ; 44 L. J., C. P. 257 ; 52 L. T. 615. As to the construction of a contract for exclusive use of a pier, see City of Dublin Steam Pacltet Co. v. JR., 24 T. L. R. 657, 796. 4 Hull Dock Co. v. La Marche, 8 B. & C. 51 ; 32 R. R. 337. See too Leeds and Liverpool Canal v. Hustler, 1 B. & 374 OF CANALS, WATER SUPPLY, AND DOCKS. Liability of harbour and dock autho- rities. By Act of Parliament, the Hull Dock Company were authorized to make a dock, c., and all goods which should be landed or discharged upon any of the quays, &c., should be liable to pay the like rates of wharfage as were usually taken for goods, &c., loaded or discharged on quays in the port of London. It was held, that as the premises were only vested in the company for the purposes of the Act, they had no common law right to com- pensation for the use of them, and that the statute did not give them any right to claim wharfage for goods shipped off from their quays; Lord Tenterden, C. J., saying, "The plaintiffs " cannot claim anything that is not distinctly given." l The principle on which a private person or a company is liable for damages occasioned by the neglect of servants 2 applies to a corporation which has been entrusted by statute to perform certain works (as, for instance, to erect and manage docks), and to receive tolls for the use of the works ; although these tolls, unlike tolls received by a private person, are not applicable to the use of individual members of the corporation, or to that of the corporation generally, but are devoted to the maintenance of the works, and, in case of any surplus existing, the tolls are themselves to be diminished. If knowledge of the existence of a cause of mischief makes persons responsible for an injury, they will be equally responsible when, by their culpable negligence, its existence is not known by them. 3 0. 424; 36 R. K. 746, 748; Lord Tenterden 's remarks in Stonrbridge Canal \. Wheely, 2 B. & A. 793 ; 36 R. R. 74(5 ; Blakemore v. Glamorgan- shire ('until, 1 M. & K. 162, 169; 36 R. R. 289 ; and Lord Brougham's judg- ment in Stockton and Darlington Mail- tray v. Barrett, 11 C. & F. 590 ; 8 Scott, N. R. 641. 1 Kingston-on-Hull Dock Co. v. La Marche, 8 B. & C. 42 ; 32 R. R. 337. 2 A dock-master exercises an exclusive control and direction over the move- ments and navigation of vessels entering, using or quitting the docks owned by the corporation whose servant he is. The dock authority, whether it be a corporation trading for profit, e.g., a dock company, or a public body having merely the power of levying tolls on shipping using the port and applying them for the benefit of the port, e.g., the Mersey Docks and Harbour Board, is liable for the acts and defaults of its servants and for the proper condition of its docks (Tliomjuon v. A. E. Bail. Co., 2 B. & S. 106 ; Lancaster Canal Co. v. Parnaby,U Ad. & E. 223 ; Mersey Docks v. Gibb, L. R., 1 H. L. 93) ; Encyclo- pedia of the Laws of England, 2nd ed., Vol. IV. p. 684 ; and with respect to the duties of a dock-master and lia- bilities of the dock company employ- ing him, see also The Excelsior, 57 L. J., Adm. 54 ; L. R. 2 A. & E. 268 ; 19 L. T. 87 ; Lloyd v. Iron, 4 F. & F. 101 ; Reney v. Kirkcudbright Magis- trates, 61 L. J., P. C. 23 ; (1892) A. C. 264 ; 61 L. T. 474 ; 7 Asp., M. C. 221, H. L. (Sc.) ; DuckJtam v. Gibbs, 69 L. J., Q. B. 127 ; (1900) 1 Q. B. 394 ; 48 W. R. 239; The Apollo, (1891) A. C. 499; The Bilbao, Lush. 149 ; The Cynthia, 2 P. D. 52 ; The. Belgic, 2 P. D. 57 ; The Rhosina, 10 P. D. 24, 131. 8 Mersey Docks v. Gibb, L. R., 1 H. L. 93 ; 11 H. L. Cas. 686 ; 12 Jur., N. S. 571 ; Gibson v. Inglis, 4 Camp. 72 ; 15 R. R. 727 ; The Beam, (1906) P. 48 ; Tlie Moorcock, (1889) 14 P. D. 64, and ante, p. 310. DOCKS. 375 On these principles, harbour and dock authorities are liable to the owners of ships in actions for damages caused to them by negligently managing harbours, or berthing or towing operations, under their control. 1 Thus, in The Apollo v. Port Talbot Company? the House of The Apollo, Lords have held, reversing the decision of the Court of Appeal (Lords Bramwell and Morris dissenting), that a dock company regulated by statute which empowered the owners to take tolls for ships entering the docks, and required persons in command of vessels to place them as the harbour-master should direct, were liable under the following circumstances : A ship entered a dock to load. While crossing the dock her propeller got foul of a rope so that the shaft was jammed and the engines could not be worked. There being no dry dock the ship was, with the assent of the harbour-master, put into a lock which served as the entrance to the dock, in order that the water might be drawn off and the propeller cleared; the harbour- master representing to the captain of the ship that the bottom of the lock was level and that the ship might safely ground there. When the ship took the ground, being then heavily laden, she sustained serious injury owing to the existence of a sill which projected several inches above the level of the bottom across the middle of the lock. 3 Lords Bramwell and Morris were of opinion that the harbour- master had authority to permit the ship to use the lock for the purpose for which she used it, but that he had no authority to undertake that the lock was safe or to undertake any duty of care ; nor did he, in fact, so undertake ; that the captain took the ship into the lock, not of right, but only under a licence and at his own risk, the use of the lock being for an abnormal and extraordinary purpose ; and that the dock owners were not liable. East London .Harbour Board v. T/ie Beam, (1906) P. 48 ; The, Moor- Caledonian Skipping Co. and East Lon- cock, (1889) 14 P. D. 64 ; Queen of don Harbour Board v. Colonial Fisheries the River Steamshijt Co. v. Conserca- Cv., (1908) A. C. 271 ; 77 L. J., P. C. tors of the River Thames and Easton, 111 ; 98 L. T. 682; 11 Asp. M. C. 59 ; Gibb # Sons, 23 T. L. R. 478 ; 96 24 T. L. R. 516, P. C. ; Mersey Docks v. L. T. 901 ; 12 Comm. Cas. 278 ; 10 Gibb, L. R., 1 H. L. 93 ; 11 H. L. Cas. Asp., M. C. 542. 686 ; see also Tlie Burlington, 72 L. T. 2 (1891) A. C. 499 ; 66 L. J., Adm. 890 ; 8 Asp., M. C. 38 ; Williams v. 25 ; 65 L. T. 590. Swansea Harbour Trustees, 14 C. B., 8 See Tlie Burlington, 72 L. T. 890 ; N. S. 845 ; Metcalfe v. Hetherington, 11 8 Asp., M. C. 36, C. A. (1895). See Ex. 257 ; 5 H. & N. 719 ; Burrell v. also Williams v. Swansea Harbour . (1898) 2 Ir. R. 271, Q. B. D. ; Trustees, 14 C. B., N. S. 845 ; Wilson v 376 OF CANALS, WATER SUPPLY, AND DOCKS. The Rhotina. So, in The Rhosina or Edwards v. Falmouth Harbour Commis- sioners, 1 a harbour-master went on board a vessel which he had directed to be beached within the jurisdiction of the Falmouth Harbour Commissioners. While on board, and while the vessel was passing through a part of the harbour which was within the limitsof the property of the Falmouth Dock Company, the harbour- master gave certain orders, the result of which was that the ship was damaged by her anchors. The Court of Appeal held (affirming the judgment of Sir James Hannen 2 ), that the harbour-master was acting as harbour-master ; that he was giving directions within 10 Viet. c. 27, s. 52, for regulating the manner in which the vessel should enter into or lie in or at the harbour ; that the manoeuvre was an unskilful one ; and that the harbour commissioners were liable for the damage. Thitmjwit v. I n Thompson v. North-Eastern Railway Company,* where part of a dock basin was obstructed by a temporary bank and the ship was in charge of a river pilot, it was held by the Exchequer Chamber, affirming the Queen's Bench : (1) That it was the duty of the defendants to take reasonable care to make their dock and basin safe for navigation before they opened them to the public ; and, therefore, they were liable for negligence ia opening them before the channel had been well cleared. (2) That, assuming the knowledge of the state of the basin by the pilot to be the knowledge of the plaintiffs, it was no excuse for the defendants, inasmuch as they contended that the state of the basin was not such as to make it imprudent to take the vessel out ; and the jury had negatived mismanagement on the part of those who had charge of the vessel. The Moor- In The Moorcock* it was held that wharfingers who in con- sideration of charges for lading, &c., allowed shipowners to discharge cargoes at their jetty in the Thames where they had no control over the bed of the river were liable for damage arising from the uneven condition of the bed, as they must be deemed to have impliedly represented that they had taken reasonable care to ascertain that the bottom of the river adjoin- ing the jetty was in such a condition as not to cause injury to Neioport Dock Co., L. R, 1 Ex. 177 ; 3 2 B. & S. 106 ; 31 L. J., Q. B. 194 ; 53 L. J., Ex. 97 ; 14 L. T. 230. 61 L. T. 127. See also Beds Steamship 1 54 L. J., Adm. 72 ; 10 P. D. 131 ; 53 Co. v. Hirer Wear Commissioners, (1907) L. T. 30 ; 33 W. R. 794 ; 5 Asp., M. C. 1 K. B. 318 ; 76 L. J., K. B. 434 ; 96 * 6 . C. A. L. T. 370 ; 10 Asp. M. C. 370. C. A. 2 54 L. J., Adm. 42. < (1889) 14 P. D. 64. DOCKS. 377 the vessel ; and in The Beam, 1 trustees who had a harbour The Seam. vested in them by statute, and a railway company, owners of a wharf, were both held liable for injury caused by the defective state of a berth. 2 The Court of Appeal held further that the harbour trustees could not shift this duty on to local pilots who were not their servants, nor plead as a defence that the obstruc- tion was caused by the wrongful act of a steamer in throwing stokehold refuse overboard immediately prior to the accident so that it was not reasonably possible for the trustees to be aware of the defect. The railway company were held liable under the rule in The Moorcock because as owners of the wharf they had invited the vessel alongside for profit to themselves, and could not rely upon the pilots performing the duty cast on them by the trustees, for they had the opportunity of ascertaining the condition of the berth and had not warned the vessel that it was not in a reasonably fit condition. 8 So in Bede Steamship Co. v. River Wear Commissioners, 4 where the Commissioners advertised that there was a certain depth of water on the sill of their dock, the Court of Appeal held, affirming Jelf, J., that they thereby incurred towards shipowners who send their ships to the docks on the faith of the advertisement the obligation of at least using reasonable care to provide for an access from and to the sea and to and from the dock with a sufficient depth of water under normal conditions of the time of year, and that, where they had not used such care, but had allowed silt to accumulate so as to detain a ship for four days in the dock, they were liable for damages for such detention. 5 In The Ratata,, 6 the appellants (the Mayor and Corporation of Preston), who are a port and harbour authority, undertook for payment to tow the respondents' vessel, with others, by hired tugs 1 (1906) P. 48;' 75 L. J. P. 9 ; 94 434 ; 96 L. T. 370 ; 10 Asp. M. C. 376. L. T. 265 ; 10 Asp. M. 0. 208 ; 22 C. A. T. L. R. 165, C. A. 5 Where a ship was detained owing 2 See also Steamship Fulwood v. to damage done to dock gates by the Dumfries Harbour Commissioners, (1907) defendant ship it was held that the S. C. 456 ; Thompson v. Gree/wck negligent act of the defendants was too Harbour Trustees, (1876) 3 Ct. of Sess. indirectly related to plaintiff's loss to Cas., 4th series; 3 R. 1194; Mackenzie consti tute a good cause of action : Anglo- T. Stornaway Pier and Harbour Com- Algerian Steamship Co. v. Houlder Line, mitxioners, (1907) S. C. 435. (1908) 1 K. B. 659 ; 77 L. J., K. B. 187 ; 8 For liability of Harbour Commis- 98 L. T. 440 ; 24 T. L. R. 235 ; 13 Com. sioners for defective state of a moor- Cases, 187 ; 11 Asp. M. C. 48. ing ring in a harbour of refuge, see 6 (1898) A. C. 513 ; 67 L. J. 73 ; 78 Burrell v. Tnohy, (1898) 2 Ir. R. 271, L. T. 797 ; 47 W. R. 156 ; 8 Asp., M. C. Q. B. D. 427, H. L. (E.). * (1907) 1 K. B. 318 ; 76 L. J., K. B. 378 OF CANALS, WATER SUPPLY, AND DOCKS. up a tidal river, to lighten the respondents' vessel if necessary, and to conduct the whole operation of the towage upon a certain tide, including the arrangement of the time and order of pro- cession, the river being too narrow for two vessels to go abreast or pass one another. The tug towing the leading vessel was so slow and inefficient that the respondents' vessel, which was last in the line, was stranded on the ebb-tide and damaged. The House of Lords held, affirming the Court of Appeal, that the appellants were bound to exercise reasonable care and skill in the conduct of the towage, and that, there being evidence of failure in that respect, the respondents were entitled to sue the appellants for damages. In Smith v. London and St. Katherine Docks Company, 1 the plaintiff, on the invitation of an officer of a vessel lying in docks of which the defendants were proprietors, went on board such vessel on business connected therewith, and on his return back stepped on a gangway which formed the communication between the vessel and the shore, when it tilted over and threw him into the water. The gangway was the means of access to the vessel which the defendants had provided for that purpose ; it was their property, and, at the time of the accident, was about to be rearranged by their servants to make it secure, it having been rendered unsafe by reason of their having just previously shifted the position of a vessel on which it rested. The defendants' servants were aware of the gangway being dangerous, but the plaintiff was not. Held, that there was a duty on the part of the defendants to the plaintiff to have made the gangway safe, or to have given him notice of the danger ; and that, for the breach of such duty, the plaintiff had a right of action against the defendants. In the case of Coe v. Wise, 2 it was held, that commissioners, authorized by Act of Parliament to make and maintain a sluice, which burst owing to the negligence of their servants, were not exempt from liability, by reason of their being com- missioners for public purposes ; and the duty being imposed on them to maintain the sluice, they were liable for damage caused by negligent performance of that duty of their servants. Liability to When the Bristol Dock Company were authorized to make a repair. 1 37 L. J., C. P. 326 ; 18 L. T. 403 ; 262 ; 14 L. T. 891, following Mersey 16 W. R. 728. Docks v. Gibb, L. R., 1 H. L. 93 ; 35 1 L. R., 1 Q. B. 711 ; 37 L. J., Q. B. L. J. 225 ; 14 L. T. 677. DOCKS. 379 new course for the river Avon, of equal depth and breadth at the bottom, and of equal inclination at the sides as the old course, it was held, that a duty was thereby cast on them generally to repair the banks of the new channel, and that a mandamus would lie to compel them, though they might also be liable to indictment. A return, that they were not liable to repair, and that, as near as circumstances permitted, they had maintained the new channel of equal depth, breadth, and inclination, was, therefore, held not sufficient. 1 The same company, being authorized as above, were also required by their Act to compensate persons interested in lands injured. They purchased certain lands and closes, and sold parts in lots a strip of land being left for a public road between the new channel and the lots. A portion of the road was washed away, and the owners of houses built on the said lots applied to the company to repair the bank, but they refused. On application by the corporation of Bristol, who were conservators of the river, and on affidavit stating these facts, and also stating apprehension of injury to the navigation, though no actual injury, it was held that a mandamus should issue to compel the defendants to repair. 2 Their Act of Parliament directed the Bristol Dock Company to make a common sewer in a certain direction, &c., and to alter other sewers, so as to discharge considerably below the surface of the water of their floating harbour, and to make such other alterations, &c., in the sewers as might be deemed necessary in consequence of the floating of the said harbour. The company altered certain sewers, so as to discharge them considerably under the surface, but the sewage became a nuisance. It was held that, under the latter part of the above clause, they were required to make a new sewer, if necessary, to remove the nuisance, the mode of remedying the evil being left to their discretion by the Act. 3 Dock companies, acting strictly in accordance with the terms of their statutes, will not be held liable to make compensation, even where such lawful acts prove indirectly injurious to the rights of others. 4 1 Reg. v. Bristol Dock Co., 2 Railw. of an ancient ferry by river navigation Cas. 599. trustees, see Clyde Navigation Trustees 2 Reg. v. Bristol Dock Co., 11 Railw. v. Lord Blantyre, (1893) A. C. 703, Cas. 542. H. L. (Sc.). 8 R. v. Bristol Dock Co., 6 B. & C. * As to liabilities of companies gene- 181 ; 30 R. R. 280. As to repair of piers rally, see ante, pp. 305 et seq. 380 OF CANALS, WATER SUPPLY, AND DOCKS. The London Dock Company were empowered to make a new entrance to their dock, and to take down houses, &c. Every person having an estate or interest, not less than a tenancy from year to year, who should be injured in his said estate or interest by the making of any cut, sluice, bridge, road, or other work, was to be compensated. The company pulled down certain houses and made a cut which intercepted several thoroughfares, and the tenants of a neighbouring public-house demanded compensation for the loss of custom not for loss of value as a private house. It was held that they were not entitled to such compensation, Lord Denman, C. J., saying, " It is the necessary consequence " of the lawful act done by the company." 1 By a section of a statute empowering commissioners to maintain a sluice, any person who, after the commissioners or any person authorized by them had begun to carry the statute into execution, should sustain any injury thereby, was to be compensated, and the damage or injury was to be ascertained by a jury before the sheriff. The sluice having burst and injured the property of the plaintiff, it was held, that the section only applied to damage resulting from acts authorized by the statute ; but, if not, yet as the cause of action was for an omission or non-feasance, it was not within the subject of compensation. 2 1 11. v. London Dock Co., 5 A. & E. L. J., Q. B. 262 ; 14 L. T. 891 ; see as 163 ; 44 R. R. 387. to compensation ante, p. 324. Coe v. Wise, L. R., 1 Q. B. 711 ; 37 ( 381 ) CHAPTER VI. OF FISHERY. The various Rights of Fishery. THE right of fishing is a right which may exist either in Definition of connection with or independent of the ownership of the soil filing over which water flows. When this right is connected with the ownership of the soil, it is a right of property, one of the profits of the land, and has been called a territorial fishery. 1 When it is independent of the ownership of the soil, it is either a common right like the public right of fishery in the sea and tidal waters or it is a profit or easement over the soil of another, founded on grant or prescription from the owner of the soil, or from the Crown as owner of the bed of tidal waters. When unconnected with the ownership of the soil, a right of in dlieno solo. fishery is an estate of inheritance, which will pass by a grant of all other estates of inheritance, 2 an incorporeal hereditament, which can only be granted by a deed, 3 and which cannot be the subject of an exception in a deed, 4 or be " abandoned." 5 It is, moreover, not, strictly speaking, an easement, but a profit d prendre in the soil of another, and cannot be claimed by prescription by the public, 6 or by a large and indefinite class such as " owners and occupiers." 7 In Goodman v. Saltash Corporation, 8 a prescriptive right to a 1 See Woolrych on Waters, p. 110 ; A. C. 135. Schultes' Aquatic Rights, p. 87 ; Angell 6 Ibid., O'Xiel v. Johnson, (1908) 1 lr. on Watercourses, p. 80 ; Eckroyd v. 358 ; see as to a claim by custom by the Coultard, (1898) 2 Ch. 248 ; 67 L. J., Ch. public to kill wild fowl on the foreshore, 458 ; 78 L. T. 702 ; Devonshire v. Fitzhardinge v. Purcell, ante, p. 56, O'Connor, 24 Q. B. D. 468 ; 59 L. J., n. (5). Q. B. 206 ; Bennett v. Coster, 8 Taunt. Tilbury v. Silva, 45 Ch. D. 98; 62 183 ; 2 Moore, 83 ; 19 R. R. 491. L. T. 254 ; Chesterfield (Earl) v. Harris, 2 Cooper v. Phibbs, L. R., 2 H. L. (1908) 2 Ch. 397 ; 43 L. J., N. C. 417 ; 150. 77 L. J., Ch. 688; 99 L. T. 558; 24 8 Duke of Somerset v. Fogwell, 5 B. T. L. R. 763, C. A. See Goodman v. & C. 875 ; 29 R. R. 449 ; Bird v. Hig- Mayor of Saltash, 7 A. C. 633 ; A.-G. genson, 2 A. & E. 696. v. Jones, 6 C. B. 81 ; 17 L. J., C. P. * Corker v. Payne, 18 W. R. 436 ; 206 ; see also post, p. 412. \VicTtham v. Hawker, 7 M. & W. 63. 8 7 A-. C. 633. 4 Neill v. Devonshire (Duke of), 8 382 OF FISHERY. several oyster fishery in a navigable tidal river was proved to have been exercised from time immemorial by a borough corpora- tion and its lessees, without any qualification except that the free inhabitants of ancient tenements in the borough had from time immemorial without interruption, and claiming as of right exercised the privilege of dredging for oysters in the locus in quo from the 2nd February to Easter Eve in each year, and of catch- ing and carrying away the same without stint for sale and other- wise. This usage of the inhabitants tended to the destruction of the fishery, and if continued would destroy it. The House of Lords ' held (Lord Blackburn dissenting), that the claim of the inhabitants was not to a profit d prendre in alieno solo ; that a lawful origin for the usage ought to be presumed if reasonably possible, and that the presumption which ought to be drawn, as reasonable in law and probable in fact, was that the original grant to the corporation was subject to a trust or condition in favour of the free inhabitants of ancient tenements in the borough in accordance with the usage. Kay, J., remarks on this decision of the House of Lords in the case of Tilbury v. Silva 2 as follows : " There is another equally " difficult point for the plaintiff to get over, which is this that "he comes here claiming this right, not merely on behalf of " himself, but on behalf of himself as a member of a class which " he describes as ' owners and occupiers of ancient copyhold " ' tenements, and of ancient tenements, formerly copyhold but " ' now enfranchised, of the manor of Chilbolton.' ' Owners and "'occupiers' constitute a very large and indefinite class, and "ever since Gateward's case 8 it has been held that you cannot "claim by prescription a right like this which is a profit d "prendre on behalf of a large and indefinite class of that kind. " Such a claim cannot be maintained by prescription. Of course " reference lias been made to the exception introduced by the " case of Goodman v. Mayor of Saltash.* That was a case in " which certain persons claimed against a corporation a right of " dredging for oysters, and there, the usage having been shown " to have existed as of right and without interruption in such a " manner as would justify a claim by prescription, the Court felt " themselves bound to refer that usage to some legal origin, and 1 Lords Selborne, Cairns, Watson, 6 Rep. 59 b, Bramwell and Fitzgerald. * 7 A. C. 633. 46 Ch. D. 98, at p. 107 ; 62 L. T. 254. THE VARIOUS RIGHTS OF FISHERY. 383 " invented a most ingenious legal origin by supposing a grant to " the corporation in trust for certain persons, the free inhabitants " of ancient tenements within the borough. In that way they " got over the difficulty which Gateivard's case had introduced, "namely, that such a right could not be claimed by prescription. " But here I have nothing of the kind. There is no possibility " of inventing such a mode of escaping from the difficulty in this " case as was invented in the case of Goodman v. Mayor of Saltash. " Here there is no corporation who could be trustee for this " indefinite class of the right claimed. Therefore the case does "not seem to me to come within the exception which that "authority has introduced. It seems to me that, for either of "these reasons, a claim simply by prescription cannot possibly "be maintained in this case." 1 In Chesterfield (Earl) v. Harris 2 the Court of Appeal held that a prescriptive claim on the part of freeholders of a hundred or manor in parishes adjoining a non-tidal river to a free fishery or common of fishery without stint and for gain as appurtenant to land is unreasonable as tending to the destruction of the fishery and incapable of a legal origin ; that there is no difference in this respect between a common of fishery and other rights of common ; that there is no difference between a free fishery so claimed and common of fishery, 3 and that the Court will not presume an incorporating charter from the Crown for the mere purposes of supporting a right otherwise incapable of having a legal origin, where the presumption is inconsistent with the past and existing state of things and there is no trace of such a corporation having ever existed.* Per Buckley, L. J. : " I rest my judgment upon the proposition " which I think is sound in law, that one cannot prescribe in a " que estate for a commercial profit d prendre measured by the " nature, size and necessities of the estate. A prescription in a "que estate for a profit to be taken without limit, not with "reference to the wants of the estate, but commercially for "purposes of sale, is unknown to the law. That is the right 1 The Court of Appeal (Cotton, L. J., 1 Ch. 230) reversed. Bowen, L. J., and Fry, L. J.) were 8 See Clayton v. Corby (14 L. J., unanimous in affirming Kay, J.'s judg- Q. B. 364 : 5 Q. B. 415 ; and Bailey v. ment. Stevens, 31 L. J., C. P. 226 ; 12 C. B., 2 43 L. J., N. C. 417 ; 77 L. J., Ch. N. S. 91. 688 ; (1908) 2 Ch. 397 ; 99 L. T. 558 ; < River* (Lord) v. Adams, 48 L. J., 24 T. L. R. 763, C. A. Decision of Ex. 47 ; 3 Ex. D. 361, followed. Neville, J. (77 L. J., Ch. Ill ; (1908) OF FISHERY. " which the defendants here claim. It is, I think, impossible in " law, and cannot be maintained. There is no question of their " being entitled to something less namely, to a common of "piscary for the purposes of sustenance. They are not free- " holders of any ancient tenement. Under these circumstances "I think that their defence fails, and that the plaintiffs are " entitled to the relief which they claim, with the costs of the "action." 1 As such profit d prendre, a fishery may exist either in gross, or as appurtenant to a manor, 2 and, in some cases, as appurtenant to a house or to land. 3 A right of fishery in gross is not within the Prescription Act (2 See Paterson's Fishery Laws, pp. 4, 390 ; see Edgar v. Fishery Commit- 45 ; Woolrych on Waters, p. 75 ; Houck sionfrs, 23 L. T.. N. S. 732. on Navigable Rivers, p. 138. Stuart 4 Shuttlnrorth v. Le Fleming, supra ; Moore's Hist, and Law of Fisheries, Bland v. Lipscombe, 4 E. & B. 713 ; pp. 32 et seq. THE VARIOUS RIGHTS OF FISHERY. 385 fishery ; (2) A several fishery ; (3) A free fishery ; (4) A common of fishery. A fishery in gross is also sometimes mentioned ; but such a fishery is merely any of the last three kinds when enjoyed apart from the ownership of the soil over which the water flows. We shall make use of the words " territorial fishery " to define that kind of several and exclusive fishery arising from and con- nected with the ownership of the soil in non-tidal waters. A common fishery is that kind of right which all the public Common have to fish in the sea and in tidal navigable rivers, as far as the flux and reflux of the tide. This right cannot exist in non- tidal waters, whether they be navigable or not. 1 A several fishery is a right of fishing in a particular place Several exclusive of all others/* This right may exist, as will be seen hereafter, in tidal waters as a royal franchise to the exclusion of the public in which case it is sometimes called a free fishery. The word " several " or " separalis " piscaria is not necessary to create a several fishery. 3 It exists prima facie in the owner of the soil of non-tidal waters in which case it may be called a territorial fishery. Finally, it may be enjoyed in non-tidal waters by a stranger by grant or prescription to the exclusion of the owner of the soil. The owner of a several fishery, whether owner of the soil or not, can maintain trespass for breaking his several fishery and taking his fish, 4 and has a privileged property in the fi=h before they are caught. 5 A several fishery or exclusive right to take all the fish at a certain place, when not a territorial right, would appear to be always claimed in gross, or as appurtenant to a manor, 6 as such a right is too exclusive to be claimed as appurtenant to land. 7 A free fishery, also sometimes called a common of fishery, is a Free fishery, fishery in a certain place, not exclusive, but co-extensive with the rights of others. 8 It may exist in tidal waters, to the 1 Pearct v. Scotcher, 9 Q. B. D. 162 ; 2 Salk. 637 ; Kinnersley v. Orpe, 1 Smith v. Andrews, (1891) 2 Ch. ^75: Doug. 56. Mussel v. Burch, 35 L. T., N. S. 486; 3 Haiibury v. /&*, (1901) 2 Ch. 401. Hargreai-eg v. Diddams, L. R., 10 Q. B. 4 Holford v. Bailey, 13 Q. B. 426 ; 18 587 ; Bloomfield v. Johnson, Ir. R., 8 L. J., Q. B. 109. C. L. 68 ; see also A.-G. v. Emerson, * Child v. Greenhill, Cro. Car. 553. (1891) A. C. 649 ; Hindson v. Aghby, 6 Rogers v. Allen, 1 Camp. 311 ; 10 (1896) 2 Ch. 1. R. R. 689. 2 Malcolmon v. O'Dea, 10 H. L. 593 ; 7 Edgar v. Commissioners of Fisheries, 9 L. T. 93, per Willes, J. : Bloomfield v. 23 L. T., N. S. 732. Johnson, Ir. R., 8 C. L. 68; Holford v. 8 Seymour v. Courtfnay, 5 Burr. 2814 ; Buileij, 13 Q. B. 426; Seymour v. Malcolmson v. O'Dea, 10 H. L. 593; Courtenay, b Burr. 2815 ; Co. Litt. 9 L. T. 93 ; Holford v. Bailey, 13 Q. B. 122 a ; Hale de Jure Maris, p. 1 ; Gipps 445 ; Qipps v. Woollicot, 3 Salk. 291 ; v. Woollicot, Skin. 677 ; Smith v. Kemp, Co. Litt. 122 a. L.W. 25 386 OF FISHERY. exclusion of the public; in which case it resembles a several fishery, except that it is enjoyed by two or more persons. It may exist in the owner of the soil of non-tidal waters in con- junction with others, or it may exist in two or more strangers, to the exclusion of the owner of the soil. 1 The main distinction between a several and a free fishery is, that the one is exclusive, and the other is not ; 2 and that, in non-tidal waters, a several fishery implies a right to the soil, while a free fishery does not. 3 Formerly also, when different forms of action could not be joined, there was an important distinction between the owners of a several, and of a free fishery ; for the owner of a several fishery could maintain an action of trespass for the breaking of his fishery, and taking his fish, whether he was owner of the soil or not ; whereas the owner of a free fishery, unless also owner of the soil, could not maintain trespass, but had only a right of action on the case for disturbance. 4 The owner of a free fishery has not, it appears, such a property in the fish before they are caught, as to enable him to maintain trespass for taking fish, such fish not being property till they are caught. 5 A free fishery may be claimed in gross or as appurtenant to land. 6 The term " free fishery," however, is frequently used to express a several fishery in a public river; and much confusion has arisen from the ambiguous use of the term. Willes, J., remarks in a case, already cited, 7 " Some discussion took place during the " argument as to the proper name of such a fishery, whether it " ought not to have been called in the pleadings, following " Blackstone, a 'free,' instead of a 'several' fishery. This is " more of the confusion which the ambiguous use of the word ' ' free ' has occasioned, from as early as the Year Book, ' 1 Hen. VII., 13, down to the case of Holford v. Bailey, 8 where " it was clearly shown that the only substantial distinction is " between an exclusive right of fishery, usually called ' several,' 1 See Paterson's Fishery Laws. p. 53 ; Emerson, (1891) A. C. 649. Stuart Moore's Hist, and Law of Fish- * Bloonifield v. Johnson, per Fitz- eries, pp. 38 et seq., 46 ft seq. gerald, B., Ir. R., 8 C. L. 68 ; Holford 2 In Bloomjield v. Johnson, Ir. R., 8 v. Bailey, 13 Q. B. 426 ; Gippsv. Wool- C. L. 106, it was held, that the grant of a licot, Skin. 677, per Holt, C. J. ; Upton free fishery, especially by the Crown, is v. Lawkins, 3 Mod. 97. the grant of a fishery not exclusive, and 5 Bloom field v. Johnston, supra. evidence cannot be received to show that 6 See Per Willes, J., in Edgar v. it was intended to exclude the grantee. Commissioners of Fisheries, 23 L. T., 8 Holford v. Bailey, 13 Q. B. 426 18 L. J., Q. B. 109 ; Marshall v. Ulles water, 3 B. & S. 732 ; 41 L. J., Q. B. 41 25 L. T. 793 ; see also Bloomfeld v Johnson, Ir. R., 8 C. L. 105; A.-G. v N. S. 732 ; Rogers v. Allen, 1 Camp. 311; 10 R. R. 689 ; Hayes v. Bridges, 1 R., L. & S. 390. 1 Malcolmson v. O'Dea, 10 H. L 593. e 13 Q. B. 426. THE VARIOUS BIGHTS OF FISHERY. 387 "sometimes 'free' (used as in free warren), and a right in "common with others, usually called 'common of fishery,' some- " times ' free ' (used as in free port). The fishery in this case is " sufficiently described as a several fishery, which means an " exclusive right to fish in a given place, either with or without " the property in the soil." Where the owner of a several fishery grants a free fishery, the Effect of grantee takes a free fishery ; but where he grants his fishery without specifying what kind of fishery, the whole fishery will pass. 1 An exclusive fishery, it seems, may be divided, without losing its proper character; for where a grantor granted a several fishery, with the exception of an oystery, and reserving to himself to take fish for the supply of his own table, it was held that this was the grant of a several fishery ; for, said the Court, " In order " to constitute a several fishery, it is requisite that the party " claiming it should have the right of fishing, independent of all " others, as that no person should have a co-extensive right " with him in the subject claimed ; for where a person has a " co-extensive right, there is only a free fishery. But we think " that a partial independent right in another, or a limited liberty, " does not derogate from the right of the several owner." 2 A common of fishery appears to be much the same as a free common of fishery i.e., a right not exclusive to fish in a particular place, fishery, and is often used in this sense, but it is generally used to express the right acquired by tenants of a manor to fish in the waters of the lord. This right is on the same footing as other commons, and depends much in each case on the custom of the manor. It is generally appendant or appurtenant to the copyhold tenements of the manor, but in some cases is held in gross. 3 " A common of fishery," says Paterson, 4 " is of three kinds " common appendant, common appurtenant, and common in " gross. A common appendant is a right inseparably annexed " to the possession of a particular house, and the extent of the " right is measured by the reasonable requirements of the family. 1 Alderman of London v. Hasting*, 2 the law of Scotland, Lord Advocate v. Sid. 8 ; Paget v. Millet, 3 Dougl. 43. Sinclair, L. R., 1 H. L. Sc. 176 ; Lord 2 Seymovr v. Courtenay, 5 Burr. 2815 ; Advocate v. Lor at, 5 A. C 273 ; 3fcDou-a.il see also Holford v. Pritchard, 3 Ex. v. Lord Advocate, L. R., 2 H. L. Sc. 401. 793 ; Bird v. Higgemon, 2 A. & E. 696, 3 Patersou's Fishery Laws. p. 55 ; as to the right of letting part of a Woolrych, p. 1 27 ; 4 Edw. IV. c. 29. fishery ; see also 1 Mod. 1C6 ; see as to * Fishery Laws, p. 56 ; Stuart Moore's effect of barony grants of fishing under Hist, and Law of Fisheries, p. 35. 252 388 OF FISHERY. " It is a right of a permanent nature attached to a house, and is " not available to mere inhabitants or lodgers, but is restricted to "him who has an estate or interest in the house. 1 Hence it is " that the inhabitants of a vill or city cannot prescribe for such " a right, as there would be an uncertain measure of claimants. 2 " A common of piscary appurtenant is a right claimed by a " person in respect of a house not necessarily connected by way " of tenure or otherwise with the liberty of the fishery ; the right " must have been granted by deed within the time of legal " memory. 3 It may also be severed from the house and land to " which it is appurtenant. 4 Common in gross is a right claimed " by a person not in respect of any land, but under a grant, or, "what is equivalent, by prescriptive user." A common of fishery is not correctly described by alleging it to be a common fishery. 6 Licences to A right of fishery apart from the ownership of the soil, being an incorporeal hereditament, can only be conveyed by deed. 6 A licence to fish is distinct from a right of fishery, and is revocable at will. A licence (in order to be binding on the grantor), even for an hour, must be granted by deed. 7 But the fishery may be let by verbal agreement, and even where no rent has been agreed upon, the landlord is entitled to sue the tenant for a reasonable rent for use and occupation. 8 A grant by deed to the plaintiffs for a term of years of " the " exclusive right of fishing " in a defined part of a river, with a proviso that "the right of fishing hereby granted shall only " extend to fair rod and line angling, and to netting for the sole " purpose of procuring fish baits,", has been held by the Court of Appeal not to give a mere licence to fish, but a right to fish and to carry away the fish caught ; that this was a profit a prendre, and was an incorporeal hereditament ; and that the plaintiffs had a right of action against anyone who wrongfully 1 Gateward'g case, 6 Rep. 59 b ; Cro. 6 Duke of Somerset v. Fogwell, 5 B. Jac. 152. & C. 875; 29 R. R. 449; Bird v. a Ordeway v. Orme, 1 Bulst. 183 ; Higgenxon, 2 A. & E. 696. Jinney \. Fi*her, 2 Bulst. 87 ; English 1 Ifolfordv. Bailey, 13 Q. B. 426, per v. Burnell, 2 Wils. 258. See ante, Parke, B. ; Hopkins v. Robinxon, 2 Lev. 2. pp. 381 ft *eq. 8 Holford v. Fritchard, 3 Ex. 793. s Cuwlam v. Slack, 15 East, 107 ; 13 The grant of a licence to fish by a lessee K. K. 401 ; Pretty v. Butler, 2 Sid. 87. has been held not a breach of a covenant 4 Tenlel v. Ilartlop, 3 Keb. 66 ; Hayes not to underlet or assign: Grace v. v. Bridge*, 1 R., L. & S. 890. Portal, (1902) 1 R. 727 ; 71 L. J., Ch. s Bennett v. Cotter, 3 Taunt. 183 ; 2 277 ; 86 L. T. 350. Moore, 85 ; 19 R. R. 491. FISHERY IN THE SEA. 389 did any act by which the enjoyment of the rights given to them by the deed was prejudicially affected. 1 Having now defined the various kinds of fishery recognized by the law, we now propose to consider how and where such rights can be enjoyed. Fishery in the Sea. On the high seas the right of fishing is common to all Fishery in the world without any restriction or limitation whatever, either j^^^s as to the description of fish that may be caught, or the means of all the world, catching them, except as provided in the conventions with certain foreign states, which are considered post, p. 425. When, how- ever, disputes of a private character arise on the open sea between fishermen of different countries, the solution of these disputes is regulated by the custom of the locality where they occur. But such custom to be binding must be clearly understood by all those who frequent the locality in question. 2 The rights of fishery within the territorial waters of the realm Fishery in within the distance of three nautical miles of low water mark would appear to be vested exclusively in the subjects of the realm realm, by international law, evidenced by treaty or immemorial user, the subjects of one country not being entitled to fish within the territorial sea of another without a licence from the Crown or sovereign authority. 3 Within the ports and harbours and in the sea within the body of a county, or intra fauces terra, and between high and low water mark, the fishery is, by common law, common to all the subjects of the realm, subject to legal restrictions mentioned hereafter. By a convention entered into with the French government, convention which is embodied in the Sea Fisheries Act, 1868, 4 it is provided with FraQ ce. that British fisherman shall enjoy the exclusive right of fishery within three nautical miles from low water mark of the British coast, and that French fishermen shall enjoy the same privilege within three nautical miles of the French coast, except as to that 1 Fitzgerald v. Firlank, (1897) 2 Ch. Laws, pp. 6, 7, and cases cited there ; 96 ; 76 L. T. 584, C. A. Littledale v. Scait/t, 1 Taunt. 243 a ; 9 2 Aberdeen Arctic Co.. v. Suiter, 4 R. K. 762 ; Hogarth v. Jackxon, M. &M. Macq., App. Cas. 355 ; Penning* v. Lord 58 ; Skinner v. Chapman, M. & M. 59, n. Orenville, 1 Taunt. 147 ; 9 R. R. 760 ; s See Paterson's Fishery Laws, p. 6 ; Young v. Hitchens, 6 Q. B. 606 ; D. & M. Hale de Jure Maris, c. 4 ; Selden, Mare 592 ; and as to whale fishery under 28 Clausum, bk. 11, c. 81 ; see also Reg. v. Geo. III. c. 20, see Lacon v. Cooper, 1 Keyn, 2 Ex. Div. 205 ; 46 L. J., M. C. 17. Esp. 246 ; see also Paterson's Fishery 4 31 & 32 Viet. c. 45. 390 OF FISHERY. portion of the French coast between Cape Carteret and Point Meinga. The distance of three miles with respect to bays, the mouths of which do not exceed ten miles in width, is to be measured from a straight line drawn from headland to headland. Various regulations and restrictions on the manner of taking, and the seasons for taking fish, are imposed by this and by conventions with other states, confirmed by statute, as to the fisheries outside the territorial waters. 1 The right of fishing in the sea being common to all subjects of the realm, a prescription for such a right annexed to a tenement is bad. 2 Fisheiy in Tidal Waters. The public The right of fishing in the sea between high and low water K ht - mark, in tidal waters, in estuaries and arms of the sea, and in public navigable rivers, so far as the tide ebbs and flows, is primd facie vested in all the subjects of the realm. 3 It seems somewhat doubtful whether this right is to be considered as belonging to tbe public of common right, or whether they derive it from the Crown as owner of the bed and soil of tidal waters ; 4 but, how- ever acquired, this right is now absolute and cannot be barred or interfered with by grant or charter from the Crown. 5 This public right includes the right of fishing on the shore between high and low water mark, and of taking shell-fish there, though it appears doubtful whether the public have a right to take fish shells. 8 The right includes the right of depositing oysters and other shell-fish on any part of the foreshore, but there is no right as incidental to the exercise of the public right of fishing to appropriate a portion of the foreshore for the storage of oysters to the exclusion of the rest of the public. 7 This right of using 1 See ywjrf, pp. 425 rt seq. 24 B. R. 353, per Holroyd, J. a Ward v. (!rf**uvll, Willes, 265. "> Truro Corporation v. Rowe, (1902) 8 Malrolmtun v. O'Dea, 10 H. L. 593 ; 2 K. 13. 709; 71 L. J., K. B. 974 ; 89 Murphy v. Ryan, lr. R., 2 C. L. 143 ; L. T. 386 ; 51 W. R. 68 ; 66 J. P. 821. Urixtou'e v. Cornrican, 3 A. C. 641, This was an appeal from a decision of per I/jrd Blackburn : Wy*e v. Leahy, Wills, J., on further consideration after Ir. R., 9 C. L. 384 ; Crifhton v. Galley, trial before a jury, reported (1901) 2 19 W. R. 107 ; Ilfg. \.Stimxon, I B. & S. K. B. 870. The oysters in a certain 301 ; Carter v. Miircott, 4 Burr. 2163; oyster fishery were when freshly dredged Fitzwalter't cans, 1 Mod. 106 ; Hale de unfit for consumption by reason of their Jure Maris, p. 1, c. 4. being contaminated with certain impuri- 4 As to this, see Woolrych on Waters, ties in the water in which the oyster p. 76 ; and Mayor of Carlisle v. Graham, beds were situate, and the fishermen, L. R., 4 Ex. 361 ; 38 L. J., Ex. 226 ; 21 in order to render the oysters market- able, had been used from time imme- Waarren v. Maihews, 6 Mod. 73. morial to deposit them for a time after v. Catttntl, 5 B. & A. 299 ; dredging, upon the foreshore in another FISHERY IN TIDAL WATERS. 391 the shore, however, does not, in the absence of prescription, extend to the right of using the adjoining land for the purposes of fishery, either in the way of fixing nets by stakes, or drying nets, 1 or drawing them ashore, or of drawing up or leaving boats for future use, or of loading and unloading fish or other goods at all times and not under peril and necessity ; 2 as such rights would be inconsistent with the nature of permanent private property, such rights may, however, it seems, be gained by custom by the fishermen of a particular locality. 3 It would appear that, by common law, the public have the interference right of catching in the sea and public rivers all the fish they can a bi e '. 1 by all means which are not inconsistent with the rights of others, but that any undue interference with the rights of others is a nuisance and indictable. 4 The right of public fishery, however, includes the right to use lawful nets. 5 It has been held by the Irish Court of Exchequer, that an and action- infringement of the public right of fishery is actionable on proof ^ f s e p ec of special damage, and that a member of the public who was damage part of the fishery leased to the defend- ants where the water was pure. Held, by Wills J., that this practice might be justified as against the owners of the soil of the foreshore as being incidental to the enjoyment of the public right of oyster fishing both by custom and by the common law. Held, by the Court of Appeal, that the defendant had no right, as incidental to the exercise by him of the public right of fishing, to appropriate a portion of the foreshore for the storage of oysters to the exclusion of the rest of the public, and that where a municipal corporation, empowered by charter to hold lands, tenements and hereditaments, and goods and chattels, has obtained an order from the Board of Trade conferring a right of regulating an oyster fishery under the Sea Fisheries Act, 1868, it may lawfully take a lease of the foreshore of the fishery to enable it to carry out the purposes of the order. " The proper course will be to vary ' the judgment by making such a ' declaration as is needed to settle the ' real questions raised between the ' parties in this action. Declare that 'the defendant in common with the rest of his Majesty's subjects is entitled ' to enter on the hereditaments demised ' by the indenture of lease in the state- ' ment of claim mentioned, and on 1 every part thereof for the puropose of " fishing and taking and carrying away ' oysters and other shell-fish, and also 'for the purpose of depositing oysters ' and other shell-fish thereon, but is not 'entitled to the exclusive occupation of ' any part of the said hereditaments, and ' is not entitled to any such oysters or 'shell-fish so long as the same shall ' continue to be deposited." 1 An immemorial custom for fisher- men inhabitants of a parish to spread their nets to dry on private land was held to be valid in Mercer v. Denne, (1905) 2 Ch. 538 ; 74 L. J. Ch. 723 ; 93 L. T. 412 ; 3 L. G. B. 1293 ; 21 T. L. B. 760 ; 70 J. P. 65 ; 54 W. B. 303. The modern custom of oiling the nets comes within the custom, provided no un- reasonable burden is thereby cast on owner : ibid. 2 Ilchester v. Rashleigh, 5 T. L. K. 739 ; 61 L. T. 477 ; as to mooring of fishing boats as an incident of naviga- tion, see A.-O. v. Wright, (1897) 2 Q. B. 318, post, p. 493. 3 Year Book, 13 Hen. VIII. 15, 6 ; 8 Edw. IV. 19, pi. 30 ; Hale de Port. Maris, p. 86 ; Year Book, 15 Edw. IV. f. 29 A, pi. 7 ; Padwiclt v. Knight, 7 Ex. 861 ; Blundell v. Catteral, 5 B. & Aid. 291 ; 24 B. B. 353 ; see also Alton v. Stephens, 1 A. C. 456, H. L. Sc. 4 As to this, see Paterson, p. 33 ; Lecon- field v. Lonsdale, L. B., 5 C. P. 664 ; Hamilton v. Donegal, 3 Bidg. P. C. 267 ; see also Young v. Hitchens, 6 Q. B. 606. 5 Warren v. Mathews, 6 Mod. 73. OF FISHERY. licensed to fish in the upper waters of a tidal river could maintain an action against a person who by unlawfully fishing in the lower waters of the river, within certain limits prohibited by statute, caused damage to the plaintiff in the exercise of his right to fish. 1 Royal fish. The public have no right to take royal fish, i.e., whale, sturgeon, or porpoise, which, whether caught in the sea or thrown on the shore within the realm, are the property of the Crown and not of the finder. 2 Public right The public common fishery is, it would appear, confined to the sea and tidal waters, and cannot exist at law in non-tidal waters, although navigable and navigated from time immemorial, for the purposes of commerce, the right to navigate giving no right to fish. Moreover, no prescriptive right can be acquired by the public by user beyond living memory. 3 It has been held by the Court of Queen's Bench, that where a non-tidal river was made navigable by an Act of Parliament which did not expressly interfere with the rights of the riparian owners, none of the incidents attaching to a navigable river up to the flow and reflow of the tide can properly attach, and that, therefore, a claim on the part of the public to fish there is a claim to a right which cannot exist at law. 4 Following this, the Court of Exchequer has held, that such a right cannot exist at law in a non-tidal river which had been made navigable by locks, although evidence was given of user by the public of the right of fishing for more than forty years. 5 From these cases it is clear that where a non-navigable river has been made navigable by artificial means, the public right of fishery cannot exist. The question, however, as to the right of the public to fish in non-tidal waters which have been navigable and navigated from time immemorial, is one on which much difference of opinion has prevailed. In the Irish Court of Common Pleas, 6 this question 1 Whelan v. Hewton, IT. R., 6 C. L. Pearce v. Scotcher, 9 Q. B. D. 162 ; 283. No one can acquire by prescrip- Smith v. Andrews, (1891) 2 Ch. 678 ; tion a right to pollute a public fishery Neill v. Devonshire, 8 A. C. 135 ; 0' Ned so as to be a nuisance ; per Walton, J., v. Johntton, (1908) 1 Ir. 358. in Fatter v. Warblington Urban Council^ 4 Hargrcaces v. Diddams. L. R.. 10 (1905) 21 T. L. R. 214 ; 69 J. P. 42 ; 3 Q. B. 582 ; 44 L. J., M. C. 78 ; 32 L. T. L. G. R. 605 ; Owen v. Farertliam Cor- 600. poration, (1909) 73 J. P. 33, C. A. * Mutset v. Burch, 35 L. T., N. S. a See Hall on the Seashore, p. 80 ; 486 ; see also O'Neil v. McElaine, 16 Paterson's Fishery Laws, pp. 24, 265, Ir. Ch. R. 280. and ante, Chap. I. p. 59. Murphy v. Ryan, Ir. R., 2 C. L. 3 Murphy v. Ryan, Ir. R., 2 C. L. 143 ; 143. FISHERY IN TIDAL WATERS. 393 arose as to the right of fishing in the river Barrow, which was proved to be in the place in question, a non-tidal navigable river which had been navigated from time immemorial, and in which there had been an immemorial usage of fishing by the public. The Court held, that as the right of the public to fish in the sea and its arms and estuaries, and in tidal waters, depends on the ownership of the soil by the sovereign as trustee for the public, such a right could not be claimed by the public in non-tidal waters where the soil belongs primd facie to the riparian owners usque ad medium filum aqua, and not to the Crown ; and that, moreover, such a right could not be established by immemorial user being a claim to a profit a prendre in the soil of another, which might involve the destruction of his property. 1 " Upon " full consideration of the cases," says O'Hagan, J., " it will, I " think, appear, that no river has been ever held navigable, " so as to vest in the Crown its bed and soil, and in the public " the right of fishing, merely because it has been used as a " general highway for the purpose of navigation ; and that " beyond the point to which the sea ebbs and flows even in a " river so used for public purposes, the soil is primd facie in the " riparian owner, and the right of fishing private." In the cases of Pearce v. Scotcher? and Smith v. Andrews, 3 the Courts have fully adopted the law laid down in Murphy v. Ryan, and held that there can be no public right of fishery in non-tidal waters, even where an immemorial usage has been proved. So it has been held in Reece v. Miller* 1 that in the part of a navigable river where the water was not salt and in ordinary tides unaffected by any tidal influence, though upon the occasion of very high tides the rising of the salt water in the lower part of the river dammed back the fresh water, and caused it upon those occasions to rise and fall with the flow and ebb of the tide, no public right of fishing could exist. In the case of Mayor of Carlisle v. Graham, the English Court of Exchequer held, following Murphy v. Ryan, that as the public right of fishing in public navigable rivers arose from the owner- ship of the Crown of the bed of such rivers, where a public navigable river changed its bed and flowed over a channel in the 1 See Hudson v. Me Roe, 4 B. & S. 3 (1891) 2 Ch. 678. 585 ; Race v. Ward, 4 E. & B. 713 ; 4 8 Q. B. D. 626 ; 51 L. J., M. C. 64 ; Bland v. Lipscombe, 4 E. & B. 713, seea]soHindgonv.Aihby,(l89G)2 Ch. 1, note (c). per Lindley. L. J., at p. 9. 2 9 Q. B. D. 162. 394 OF FISHERY. soil of a subject, the public right of fishing was lost. 1 In Orr Ewing v. Colquhoun, it is expressly decided, that the right of navigation on non-tidal waters confers no right of property on the public navigating. 2 Inland lake*. In the case of Bloomfield v. Johnson, 3 the Irish Court of Exchequer Chamber affirmed, with some hesitation, a judgment of the Court of Common Pleas, which determined that there is no public right of fishery in large inland non-tidal navigable lakes. The same point was raised on demurrer in a subsequent Irish case,* and the Court of Exchequer held themselves bound by the prior decision of the Exchequer Chamber in Bloomfield v. Johnson. No appeal was brought from this judgment on the demurrer; but on appeal to the Exchequer Chamber for a new trial on the ground of misdirection or other grounds, Whiteside, C. J., strongly expressed his dissent from the principle affirmed in the judgment of the Court of Common Pleas on the demurrer. 5 The case subsequently went to the House of Lords, but the point as to the right of the public to fish not being before the House, no decision was given on it, but their Lordships held unanimously, that the Crown has no primd facie right to the soil or fishery of non-tidal waters, though they were doubtful whether the rule, that the riparian owners on non-tidal waters are primd facie entitled to the soil ad medium filnm aqiue, applied to large inland lakes. 6 In Blower v. Ellis, 1 and Micklethwaite v. Vincent, 91 claims by members of the public to fish in the Norfolk Broads, where the water was proved not to be tidal, were held not to be founded on law. 9 If, therefore, it be law that the public right of fishing is a right arising from the ownership by the Crown of the bed over which the water flows, it seems to follow from necessity, that in rivers above the flux and reflux of the tide, in which the owner- ship of the soil is undoubtedly in the riparian owners, and in large navigable non-tidal lakes where it is undoubtedly not in the Crown, such a right cannot exist. It being, however, undecided to whom the bed of such lakes belongs, another 1 L. R., 4 Ex. 361 ; 38 L. J., Ex. 226 ; 5 Ir. R., 10 C. L. 434. 6 3 A. C. 641. See also ante, Chap. 2 A. C. 839. II. pp. 123 et sea. 3 Ir. R.. 8 C. L. 68. See also post, (1886) 50 J. P. 326 p. 419 et eq. 8 (j^) 67 L T> 2 28. 4 Bnttowe v. Curmican, Ir. R.. 10 C. See also Home v. Mackenzie, 6 Cl. & L. 398; O'Neil v. Johnston, (1908) 1 F. 628 Ir. 358. FISHERY IN TIDAL WATERS. 395 element of difficulty enters into the subject with regard to them. In the case of Reg. v. Burrow^ which was an appeal from a conviction by justices of a defendant who set up a bond fide claim of right as one of the public to fish in Ulleswater, Cockburn, C. J., seems rather to doubt the principles of law as stated in Murphy v. Ryan. " If," he says, " it had been clearly settled that the " public could not have any right to fish in a navigable river " above the flow of the tide, it might be different ; but I, for " one, am not prepared to assent to that proposition without " further argument ; and though there is recent authority for " the proposition, that case may be taken by appeal to a higher " Court ; and in my opinion, it is a point of so much importance, " that it should be taken, if necessary, to the very highest Court " in the realm ; such being the state of the question involved, " and seeing that the defendant gave the very highest proof of " liona fides, I think the justices ought to have held their hands ; " and I must say, it is the strongest instance of such a course " being necessary that I have met with in my experience." Although primd facie every subject is entitled to fish in the Several sea and tidal waters, yet prior to Magna Charta, the Crown could tidewaters by its prerogative exclude the public from such primd facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. The Great Charter restrained this exercise of prerogative for the future, but left untouched all fisheries which were made several to the conclu- sion of the public by act of the Crown not later than reign of Henry II. 2 Where, therefore, an individual claims a several How claimed, fishery in the sea or tidal waters, he must prove his right to it, either by express grant from the Crown prior to Magna Charta, or by prescription from which such right will be presumed. In all cases the presumption is against the claimant, and he must establish affirmatively his exclusive right. 8 Where he can prove an express grant or charter from the By grant. Crown, his right is without question. 4 Where the claim is by prescription, the effect of the evidence in such cases is thus By prescrip- tion. 1 34 Justice of Peace, p. 53. 8 Crichton v. Colley, 19 W. R. 107, 2 Malcolm*on v. O'Dea, 10 H. L. 593 ; Ir. Ex. ; Carter v. Murcott, 4 Burr. 2163, 9 L. T. 93 ; Crichton v. Colley, 19 W. R. per Lord Mansfield ; Reg. v. Stimson, 4 107, Ir. Ex. ; Carters. Murcott, 4 Burr. B. & S. 301 ; Hale de Jure Maris, p. 1, 2163; Fitzwalter's cane, \ Mod. 106; c. 4. see also Duke of Northumberland v. 4 Hale de Jure Maris, p. 1, c. 5. Cf. Houghton, L. R., 5 Ex. 127 ; 39 L. J., Ex. Stuart Moore's Hist, and Law of 66 ; 22 L. T. 491. Fisheries, p. 137. 396 OF FISHERY. explained by Willes, J. : " If evidence be given of long enjoyment " of a fishery, to the exclusion of others, of such a character as " to establish that it has been dealt with as of right as a distinct " and separate property, and that there is nothing to show that " its origin was modern, the result is, not that you say, this is " usurpation, for it is not traced back to Henry II., but that you " presume that the fishery, being reasonably shown to have been " dealt with as property, must have become such in due course " of law, and, therefore, must have been created before legal " memory." l In the case cited, the plaintiff brought an action for breaking and entering his several fishery on the Shannon ; and defendant set up as a defence that the river was a navigable river, and that the public had a right to fish there. The plaintiff put in evidence a patent of Queen Elizabeth, purporting to grant the several fishery in question, and defendant contended that the sovereign had no power by patent or otherwise to create a several fishery in a navigable river. It was held by the Irish Exchequer Chamber, that the grant by Elizabeth, and the user under it, was no evidence of a grant before Magna Charta, but the House of Lords reversed the judgment, and held that the fact of the Crown dealing with such a right in the days of Elizabeth was primd facie evidence that the right had a legal origin, i.e., had been exercised before Magna Charta, and, that being the case, the several fishery could lawfully be afterwards made the subject of a grant by the Crown to a private individual. 2 But though the long exclusive enjoyment of a several fishery in a public navigable river is sufficient primd facie evidence to establish the presumption that the Crown had granted a separate right before Magna Charta, yet any reasonable ground for con- sidering that the user had not been exclusive, may be sufficient to negative such right. 3 This point arose on a case stated by the special commissioner of fisheries for the opinion of the Court of Common Pleas. 4 The appellants claimed a right to a several 1 Malcolmton v. O'Dea, 10 H. L. at 6f lovers Incorporation, L. R., 2 H. L. p. 618 ; see also Oann v. Free Fishers of 70. See also CTNell v. Johnston, (1908) \Vliitstable, 11 H. L. 192; cf. also Lord 1 Ir. 358, where a right to a several Adrocate v. Lovat, 5 A. C. 273, per fishery in the whole of Lough Neagh in Lord O'Hagan, at pp. 288289. grantees of the Crown was held to be 2 Malcolmson v. O'Dea, 10 H. L. 693 ; established by inquisitions dating back l>ukr of Devonshire v. Hodnett, 1 Huds. to 1605. & Br. 332 ; see &\soAshworth v. Browne, z See Tlghe v. Stnnott, (1897) 1 Ir. R. 19 Ir. Cb. R. 421 ; Lord Advocate v. 140 ; Little v. Wingfield, 18 Ir. C. L. R. Sinclair, L. R., 1 H. L. Sc. 176 ; Neill 279. v. Drrorukire, 8 A. C. 135; Manuel * Edgars. Commissioners of Fisheries, v. Fi$her, 5 C. B., N. S. 856 ; Zetland v. 23 L. T., N. S. 732. FISHERY IN TIDAL WATERS. 397 fishery by means of a raised net on a marsh in the estuary of the tidal river Eden, and gave proof of user of it since 1797, though the right was contested by people in the neighbourhood. The fishery was claimed as part of the manor of Leonard Dacre, who was attainted in the reign of Elizabeth ; on his attainder an inventory of his things were taken, and no mention was made of this particular net claimed ; and the Court held that the omission of all mention of the right to a fishery of so peculiar a kind as to be accompanied by the right to use a fixed engine, was almost conclusive proof that the right did not exist at that time, and that, therefore, the presumption of a grant before Magna Charta was negatived. Willes, J., says at p. 736 of the Eeport, " I entirely adhere to what was said by the judges in the " Shannon case (Malcolmson v. O'Dea, 10 H. L. 593), that long " exclusive enjoyment of a right to a fishery in a public navigable " river, is sufficient evidence, and evidence upon which, in the " absence of any evidence to the contrary, it would be right to " arrive at the conclusion that the Crown had granted a separate " and exclusive right to the person under whom the claim is " made, as early as the reign of Hen. II., which is the latest " reign in which any such grant could be effected. You refer " that long and peaceable enjoyment to a legal origin, assuming " that there was a continuance of such enjoyment from the time " when such legal origin could have existed and come into " existence, or given existence to a right. But in dealing with a " case of that description, you cannot apply the same rules that " you would to a case of a right which might be created by a " subject since the time of legal memory, because you must shut " out the presumption of a lost grant to the subject since the " time of legal memory. It will not do to prove thirty years' " enjoyment of such a right, commencing at the beginning of " the thirty years, or commencing at the beginning of any other " epoch later than the end of the reign of Hen. II., and for this " reason, because as soon as you show that the origin was later " than the time of Henry II., you negative the inference of a " usage from that period, which inference is the foundation of " the conclusion, that there was a grant as early as the reign of " Henry II." In the case of Holford v. George, 1 where the owner of a several fishery in a navigable tidal river claimed a right to use certain 1 L. R., 3 Q. B. 639 ; 37 L. J., Q. B. 185 ; 18 L. T. 817 398 OJ? " FISHERY. engines which were made illegal by The Salmon Fishery Act, 1861, unless they had existed before Magna Charta; it was held that a user of them for forty-five years did not raise a conclusive presumption that they had been so used before Magna Charta, and that the fishery commissioners were not bound by a con- clusive presumption of law to say that because there was no evidence to negative an origin before the time of legal memory, the right must have existed before that period. With respect to other engines, of which a user of twenty years only was proved, the Court held that the commissioners in the case would not have been justified in assigning to them an origin before Magna Charta. In a similar case, 1 the Court of Common Pleas held that if during all living memory the enjoyment of the right claimed had been uniform and unvarying, and consistent also with the ancient documents of title, that the commissioners would have been bound to refer it to a legal origin, as by grant, charter, or immemorial usage, if possible. 2 As appurte- It has been said that rights of fishery may be claimed both in gross i.e., by special grant or prescription or as appurtenant lands. to a manor 3 or to land. It would seem doubtful whether this will apply to a several fishery in a public navigable river. It was held at nisi prius by Heath, J., 4 that a several fishery may be appurtenant to a manor ; and this is approved by Willes, J., in Shuttlen-orth v. Le, Fleming.* In the Irish case of Hayes v. Bridge*? the Court held that an exclusive right of fishery might be prescribed for as appurtenant to land. In the case of Edgar v. The Special Commissioners of Fisheries, 1 this question is discussed in an elaborate judgment by the late Mr. Justice Willes, who seems to doubt whether such an extensive right as a right to take all the fish in a public navigable river could be claimed as appurtenant to land. " You may have," he says, " a "fishery appurtenant to land and one has seen pleadings in " which this sort of thing was claimed that he and all he has 1 Pawxtorne v. Backhoute, L. R., 3 partition, 7 A. C. 633, ante, p. 381. C. P. 67; 17 L. T. 441; see Psg. v. As to title to fishery appurtenant to Downing, 11 C. C. C. 580, where evidence barony lands under Scotch law, see that the prosecutor and his father had Lord Advocate v. Locat, 5 App. Cas. for forty-five years exercised the sole and 773 ; and cases ante, p. 387, n. 2. exclusive right of oyster fishing, and that * Jtegtrs v. Allen, 1 Camp, 305; 10 a verdict had been given in 1846 for the R. R. 689 ; see also Reg. v. Stinison, prosecutor in an action to try his right, 4 B. & S. 301. was heiu sufficient to support an indict- 8 19 C. B., N. S. 702. ment for stewling oysters from the bed. 1 R., L. & S. 390. 8 See also Goodman v. Saltash Car- 1 23 L. T., N. S. 732. I1SHERY IN TIDAL WATERS. 399 " in the said house have fished as appurtenant to the land ; but " when you come to prove the right, can you show under such a '' claim as that, an exclusive right to take all the fish in a " particular place ? Can you show an exclusive right to take all " the fish in a navigable tidal river ? It has been decided over " and over again that a right of that kind must be in some way " connected with the enjoyment of the house. No doubt they " might have the use of the fishery for the house ; or even for " their pleasure it might be connected with the enjoyment of the " house. But a right to a fishery for the purpose of catching all " the fish and excluding others for purposes of trade that is, " putting them in boxes and sending them off in ice does not " appear to be at first sight connected with the enjoyment of the " house, and particularly not with the enjoyment of lands and " ancient tenements as apart from the enjoyment of the house. " It may be annexed to land, but you must have it for the use of " the house by those who hold the land. Therefore it would be " well to consider, if that question is worth anybody's while to " raise, whether you can have an exclusive right to take all fish " in a navigable river simply as appurtenant to land." The right to a several fishery in tidal waters is, as has been Several said, a franchise originally granted by the Crown. A well- known distinction exists between such franchises as upon forfeiture may exist in the Crown, and therefore be capable of re-grant, and such others as cannot exist in the Crown, but only in a grantee from the Crown, and therefore become actually extinct upon forfeiture. 1 In the case of The Duke of Northumber- land v. Houghton, 2 the plaintiff claimed a several fishery in the Tyne, which he proved to have existed from time immemorial, and therefore to have a legal origin, having been originally granted before Magna Charta to the prior and monks of a monastery. The defendants proved that after Magna Charta the original grantees had forfeited their liberties and free usages, and contended that under these words a several fishery was included and that the fishery, having been forfeited, had merged, and could not be regranted by the Crown. The Court held that plaintiff was entitled to judgment, Martin, B., being of opinion that a several 1 See Patersou's Fishery Laws, p. 18 ; Stuart Moore's Hist, and Law of as to this point and as to the claim by Fisheries, pp. 34, 63, 66. the Crown to the franchise of a several 3 L. R., 5 Ex. 127 ; 39 L. J., Ex. 66 ; fishery in non-tidal waters, see Devim- 22 L. T. 491. shire v. Pattinson, pout, p. 410. Cf. 400 OF FISHERY. fishery is one of those franchises which does not merge upon being resumed by the Crown, either by forfeiture or otherwise, Kelly, C. B., and Pigott, B., apparently being of the same opinion, but holding that as the words "liberties and free usages" did not include a several fishery, the question of merger did not arise. 1 Effect of The right of an exclusive fishery in the sea and tidal waters, being a royal franchise, is not a territorial right, and is capable of being held by a subject either with or without the ownership of the soil. Thus on the sea shore, where the Crown is owner primd facie of the soil between high and low water mark, and in public navigable rivers, where it is owner primd facie of the whole bed up to high water mark, a grant might have been made before Magna Charta by the Crown to a subject, either of the soil and the fishery together, or of the soil alone, or of the fishery alone, the two rights being separable. A grant of the foreshore between high and low water mark will not of itself convey the right to a several fishery over it. 2 In general it will be a question of construction of the ancient grants under which the claim is made, explained by user subsequent to their date, what is the measure of the right. 3 As a fact an exclusive fishery in tidal waters is generally, though not always, coupled with the exclusive ownership of the soil, as in the case of private streams, and though primd facie the Crown is entitled to every part of the shore and bed of tidal waters, proof (at any rate by the lord of an adjoining manor) of the ownership of a several fishery raises a presumption that the soil is in the owner of the several fishery. 4 1 As to this point, see also Paterson's show a grant of salmon fishings, or a Fishery Laws, p. 18, in case of Abbot of grant of fishings generally, followed, for Strata Marcella, 9 Rep. 24 a ; Heddy the requisite period, by the exercise of v. Wheelhovxe, Cro. Eliz. 591 ; It. v. the right of salmon fishing : Lord Mayor of London, 1 Shaw, 230 ; for Advocate v. Sinclair, L. R., 1 H. L. Sc. further cases as to regrante by the 176 ; see McDouall v. Lord Advocate, Crown of several fisheries, see Little v. L. R., 2 H. L. Sc. 431, per Cairns, C. Witigjicld, 18 Ir. C. L. R. 299; Tiglie Proprietors on the sea coast having v. Sinnott, (1897) 1 Ir. R. 140 ; Warrand grants from the Crown with right of v. Mackintox/t, 15 A. C., H. L. Sc. fishing limited to fishing with net and coble, cannot, on the suit of owners of 1 A.-G. v. Emerson, (1891) A. C. fisheries in a river, be restrained from 649 ; see pott, p. 401. fishing with stake nets: Kintore v. 8 Patereon, p. 20 ; see Duke of Beau- Forbes, 4 Bli., N. S. 485 ; 33 R. R. 50 ; fort v. Swansea, 3 Ex. 413. A grant of see also McDouall v. Lord Advocate, "fishings" merely is not a grant of L. R., 2 H. L. Sc. 431; Stuart v. *alm on fishings ; but a grant of " fish- McBarnet, L. R., 1 H. L. Sc. 387 ; as to " ings " merely, if followed by the Scotch barony titles to fishery, see Lord requisite endurance of ixwsession, will Advocate v. Lorat, 5 A. C. 773. establish a right of salmon fishing, even * A.-G. v. JKmerxon, (1891) A. C. against the Crown. A party claiming 649 ; Hanbury v. Jenkins, (1901) 2 Ch. a right of salmon fishings must either 401, and cases ante, pp. 37 et teq. FISHERY IN TIDAL WATERS. 401 In the case of The Duke of Somerset v. Fogwell, 1 a grant by the Crown of lands, and all waters, fisheries, &c., to the aforesaid manors, castles, and premises belonging and appendant, was held to pass a several fishery in a tidal navigable river as an incorporeal hereditament only, and not to pass the soil, Bayley, J., remarking, " Considering the nature of the franchise " and the law as to rights of fishery in other rivers, I have no " difficulty in saying that in my judgment this was not a " territorial but an incorporeal franchise." A grant of sea-grounds, oyster layings, shores, and fisheries has been held to pass the soil also, 2 as has a grant of all those fishings of the halves and halvendoles, with the appurtenants to the halves due and accustomed within the river Severn within a manor, and of all royal fishes, under, an annual rent. 3 The words used in these two cases quite admit of the larger con- struction, Lord Ellenborough, in the latter case, saying, " I " think it appears distinctly that these halves and halvendoles " are of the nature of land. I cannot consider it otherwise than " the grant of something territorial." 4 In A.-G. v. Emerson, 5 which was a claim to part of the fore- A.-O. v. shore of the sea by the lord of the adjoining manor, who was also merson ' the owner of a several fishery exercised by "kiddles," the House of Lords held that such a right raised the presumption that the freehold of the soil was in the owner of the several fishery. Lord Herschell, in delivering the judgment of the House, says " It is not now in dispute that the defendants are possessed of a " several fishery over a part of the foreshore ; but it is said, and " truly, that this is not inconsistent with the foreshore over " which this right is possessed being still in the Crown. A " grant of the foreshore between high and low water mark " admittedly would not of itself convey the right to a several " fishery over it. On the other hand, a several fishery might be " granted independently of the ownership of the soil. But it is " said that the possession of a right of several fishery is evidence " of the ownership of the soil over which it is exercised. It has 1 5 B. & C. 884 ; 29 R. R. 449 ; as to exercise of several fishery by " kiddles." private streams, see post, pp. 414 et seq. A.-G. v. Emerson, (1891) A. C. 649 ; 2 Scrattan v. Brown, 4 B. & C. 485 ; and cases ante, p. 37. 28 R. R. 344. 5 (1891) A. C. 649 : see also Beaufort 3 R. v. Ellis, 1 M. & S. 652 ; see also (Duke) v. Aird, (1906) 20 T. L R. Gray v. Bond, 5 Moore, 527 ; 23 R. R. 602 ; Hough v. Clark, (1907) 5 L. fi. R. 530 ; Hale de Jure Maris, 1 Harg. 34. 1195 ; 23 T. L. R. 682. 4 See as to ownership of sea shore by L.w. 26 402 OP FISHERY. " undoubtedly been laid down in more than one case, that the " ownership of a several fishery raises a presumption that the " freehold is in the grantee of the several fishery. And " Parke, B., in delivering the judgment of the Exchequer " Chamber in Holford v. Bailey, 1 said, ' A several fishery is, no " ' doubt, prima facie to be assumed to be in the soil of the " ' defendant.' And, although in Marshall v. Ulleswater Steam " Xarigation Co., 2 Cockburn, C. J., stated, ' That apart from " ' authority, he should have come to a different conclusion,' the " Court adopted the law laid down in Holford v. Bailey." After discussing Duke of Somerset v. Foe/well* he states that "it is " unnecessary to inquire whether the conclusion arrived at in " that case, that the terms of the grant were known, was correct ; " the presumption, so far from being denied, appears to me to " be recognized." And, he adds, " Finding, then, such high ' authority for the proposition that the ownership of a several " fishery is evidence of the ownership of the soil, I am not " disposed to depart from it." 4 The respondents exercised the right of fishing by kiddles a series of stakes forced into the ground, occupying some 700 feet in length, and a similar row approaching them at an angle, the stakes being connected by network, and remaining in the soil for long periods. As to this Lord Herschell quotes Lord Hale as to the difference between several kinds of fishery, either (1) with the net (which may be either a liberty without the soil or a liberty arising in concomitance with it) ; or (2) " a local fishing " that ariseth by and from the propriety of the soil. Such are " gurgites, weares, fishing places, borachice, stachite, &c., which are " the very soil itself, and so frequently agreed in our books." 5 After stating that it is unnecessary on the present occasion to determine whether "the right to maintain such structures as " Lord Hale refers to necessarily imparts in all cases the owner- " ship of the soil, nor whether a kiddle such as has been proved " to be in lawful use on the foreshore in question falls within " the class specified by Lord Hale," he concludes that " it is " impossible, I think, to deny that the right to maintain such a " kiddle affords cogent evidence that the person possessing this " right is owner of the soil." 6 1 13 Q. B. at p. 444. * Hale de Jur. Mar. Pars. Prima. Cap. U. & S. 732 ; 32 L. J., Q. B. 139. 5, p. 18, Hargreaves 1 Tracts. Ante, p. 40i. e (isJl) A. C. at pp. 656, 657; see 4 (1891) A. C. at po. 654, 655. also Lord Donegal v. Lord Templemore, 9 FISHERY IN TIDAL WATERS. 403 It has been held in two late cases that the right of the Where a Crown before Magna Charta to grant a several fishery in public rivers is derived from its ownership of the soil of the bed, and that, therefore, a several fishery granted by the Crown in a public navigable river, which afterwards changed its course and flowed over the land of an adjacent proprietor, could not be followed to the new channel, on the ground that the new channel was not the property of the Crown. 1 But in Miller v. Little, 2 the plaintiff and defendant and their respective predecessors in title, had respectively exercised the exclusive right of fishing in an estuary, each to the middle thread of a river flowing through it. No grant from the Crown of the fisheries was proved, but it was the common case of both parties that the right of fishing in the entire estuary was vested in them to the exclusion of the public. The river changed its course and formed a new channel, still passing through the estuary ; and the Court held that the local limit of each fishery was the middle of the new channel of the river, and not a landmark corresponding to what had been the medium filum aquce of its former course. Semble, per May, C. J. the grantee from the Crown of the fishery in such a river would not be deprived of his right to the fishery by any change in the course of the river over the foreshore, but, notwithstanding such change, would be entitled to the fishery of the river wherever its course might be found, so far as the channel traversed ground the property of the Crown, the grantor. 3 In O'Neil v.M'Eilaine,*\)y letters patent of Jac. I. and Car. II., the Crown granted a several fishery within certain limits in the river Bann in Ireland. A channel, called the New Cut, divides the river within the limits of the fishery into two branches. It was found by a verdict on an issue directed by the Court, that the New Cut is now part of the river Bann, but that there was no evidence to show whether it existed at the time of the grant, or whether it was a natural or an artificial channel. Held, that the letters patent did not give the right to a several fishery in the New Cut unless it was a branch of the river Bann at the time of the grant. 5 Ir. C. L. R. 374, and Judgment of Lindley, Ir. C. L. R. 374. L. J., in Hindson v. Ashby. ante, p. 90. 4 16 Ir. Ch. R. 280. 1 Mayor of Carlisle v. Graham, L. R., 5 Where a piece of land on the banks 4 Ex. 361 ; Murphy v. Ryan, Ir. R., 2 of a tidal river is exchanged, the right C. L. 143. of salmon fishing therein being expressly 2 4 L. R., Ir. 302, C. A. reserved, a grant in 1873 of that salmon 3 See also Donegal v. Templemore, 9 fishing, though from the Crown, will 262 404 OF FISHERY. User of fisheries. From these cases it would appear that no grant by the Crown of a several fishery in the sea below low water mark would be valid, the soil not being in the Crown, but without the realm. 1 Free fishery. A free fishery i.e., a right of fishing not exclusive may also exist in tidal waters and public rivers. The modes of origin and incidents to this right will not differ materially from those of a several fishery the main distinction being that it is a co-extensive right enjoyed by two or more persons instead of an exclusive right enjoyed by one alone. 2 The owner of a fishery has not of necessity a right to land on the shore above high water mark without the assent of the owners of the freehold. 3 In cases of grants to individuals it is often a question of construction whether the right to use the banks for the purpose of the fishery is impliedly granted, and this appears to depend on whether it is necessary to the exercise of the fishery that such banks should be used. 4 The open enjoyment of a right of landing and drawing nets, and of occasionally sloping and levelling the shore for twenty years, has been held sufficient to warrant a judge in directing a jury to presume a grant of such right. 5 The right of fishery in the sea and navigable rivers is sub- ordinate to the right of navigation, and cannot be used in any way so as to derogate from or interfere with such right. 6 A grantee of the Crown takes subject to this right, and cannot, in respect of the ownership of the soil, make any demand, even if expressly granted to him, which in any way interferes with enjoyment of this public right. Thus a claim to take toll from all vessels anchoring within the limits of an oyster fishery cannot exist merely in respect of the use of the soil. 7 N. S. 683. Semble, an incorporeal right of way along both banks of a river may be appended to an incorporeal right of fishing: Hanbnry v. Jenkins, (1901) 2 Ch. 401 ; see also Co. Litt. 121 b, Har- graves and Butler's ed., note 7. 5 Gray v. Bond, 2 B. & B. 667 ; 23 R. R. 530 ; see ante, p. 391. 6 Gann v. Free Fishers of Whitstable, 11 H. L. 192; 35 L. J., C. P. 29; 12 L. T. 150 ; Foreman v. Free Fishers of WhitstaUe, L. R., 4 H. L. 285 ; 21 L. T. 804 ; Mayor of Colchester v. Brooke, 7 Q. B. 339. 7 Gann v. Free Fishers of WhitstaUe, 11 H. L. 192. not deprive the prior owner of his right : Richardson v. Gray, 3 A. C., H. L. Sc. 1. 1 See Reg. v. Keijn, 2 Ex. Div. 63 ; 4> L. J., M. C. 17; ante, p. 6. 8 See ante, p. 385. 8 Eckroyd v. Coulttird, (1898) 2 Ch. 258 ; 67 L. J., Ch. 458 ; 78 L. T. 702, and tt7ite,p. 390 ; Woolrych on Waters, p. 167 ; Ipswich v. Hrowne, Savil. 2. See also llchetter v. Rashlcigh, 5 T. L. R. 739 ; 61 L. T. 477 ; ante, p. 24, n. 2. * Paterson's Fishery Laws, p. 30. See R. v. Ellis, 1 M. & S. 666 ; Co. Litt. 59 b; Lifford's case, 11 Rep. 52; 1 Wms. Saund. 323, n. 6 ; Shep. Touch. 89 ; Shuttleworth v. Le Fleming, 19 C. B., FISHERY IN TIDAL WATERS. 405 Where both the rights of navigation and of fishery are incom- patible, the fisherman must give way to the navigation of vessels, 1 but the navigator must do the least possible injury to the fisherman, for he is in the exercise of a lawful right. Thus, where oysters were placed in a public navigable river, so as to be a nuisance to the navigation, it was held that the liberty of passage on a public navigable river is not suspended when the tide is too low for vessels to float, and consequently it is no excess of the right if a vessel, which cannot reach her destination in a single tide, grounds on the oyster bed till the tide serves, but that a person navigating is not justified in damaging such property by running his vessel against it if he has room to pass without so doing ; for an individual cannot abate a nuisance if he is not otherwise injured by it than as one of the public, and therefore the fact that such property is a nuisance is no excuse for running against it negligently. 2 The nature of the right was not affected, even though the vessel grounding might be liable to compensation for the injury done. 3 All weirs appurtenant to fisheries, and all other fixed engines Weirs, &c., for taking fish which obstruct the whole or part of the navigation naviatioih of a public navigable river, are illegal, and a nuisance unless granted by the Crown before the reign of Edward I.* The right to maintain a weir in a public navigable river came into question in the year 1839 as to the river Severn. 5 The weir in question was proved to have existed since the time of the Domesday Book, and the question was whether the Crown had the right before Magna Charta to authorize the erection of weirs interfering with the public right of navigation. The Court held, that the common law right was and always had been paramount to the power of the Crown to interfere by grant, but that the statute of 25 Edw. III. c. 4, which directed the destruction of all gorces, 6 mills, weirs, stanks, stakes, and kiddles " which had been set up in the time of Edward I. and subsequently, legalized 1 Anon., 1 Camp. 516, n. ; see Pater- Petley, 15 Q. B. 329. son, p. 32. < 25 Edw. III. stat. 4, c. 4 ; 45 2 Mayor of Colchester v. Brooke, 7 Edw. III. c. 2 ; 1 Hen. IV. c. 12; 12 Q. B. 339 ; 15 L. J., Q. B. 59 ; see also Edw. IV. c. 7, s. 3, and of Stuart Moore's Petrie v. Rostretor (owners), (1898) 2 Hist, and Law of Fisheries, pp. nietgeq. Ir. R. 556, C. A ; The Swift, C1901) P. * Williams v. Wilcox, 8 A. & E. 314 ; 168 ; 70 L. J. P. 47 ; 85 L. T. 346 ; 9 47 R. R. 595. Asp. M. C. 244. 6 ^ d ee p p it o f water or gulf ; Co. 3 Ibid. 373, and per Coltman, J., at Litt. 5 (a). p. 355 ; see also Gann v. Free Fishers of 1 Open weirs, whereby fish are \Vlutstable. 11 H. L. 192^ Dimes v. caught; 2 Inst. 38. 406 OF FISHERY. Weirs ob- structing fishery in public rivers. by implication all those erected before that time, though in strictness they were illegal at common law. It, therefore, follows that if a weir obstructing the navigation can be shown to have existed before the time of Edward I., it must be held to be legal. 1 The question whether weirs and fixed engines for taking fish in public navigable rivers, but which do not interfere with the navigation, are illegal and a nusiance, is not quite so clear. So far as salmon are concerned, the question is practically provided for by the Salmon Fishery Acts ; 2 but as regards other fish, and where the Salmon Acts do not apply, the question is still of some importance. 3 It would appear, as has been before stated, that the public have a right in the sea and navigable rivers to catch all the fish they can by all means which are not inconsistent with the rights of others.* This authorizes them to use lawful nets, 5 but could not authorize the erection by them of weirs or the fixing to the soil of fixed engines, which would be a purpresture on the soil of the Crown. Further, no prescriptive right could be acquired to such erections, it having been held that the fishing in the sea being common, a prescription for such a right is void. 6 Moreover, though the early statutes from Magna Charta to 1 Hen. IV. c. 12, which order the destruction of all weirs through- out the kingdom with the exception of those existing prior to the reign of Edward I., and forbid the erection of new weirs, and the enhancement or enlarging of ancient ones, have been held 7 to refer to navigable rivers only, and to the obstruction of the navigation, as the sole ground for putting them down ; yet it appears to be the opinion of the Court of Queen's Bench, that the later statutes 4 Hen. IV. c. 11, 2 Hen. VI. c. 19, and 12 Edw. IV. c. 7, which recite the earlier statutes, and expressly refer to the protection of the young fry of fish as one of the objects for enforcing them, make such weirs and fixed engines as facilitate the destruction of young fish, illegal and a nuisance. 8 1 As to what evidence is necessary to prove the existence of this immemorial right, sec Holford v. George,, L. R., 3 Q. B. 639 ; Rawetorne v. Backhouse, L. R. 3 C. P. 67, and ante, pp. 393 el *rq. 8 See pout, pp. 434, 445 et #eq. 8 Fishing with stake nets on the sea coast, near the mouth of a river, is not prohibited either by the statute or the common law of Scotland : Kintore (Karl) v. Forbes, 4 Bli., N. 8. 485; 33 11. 11. 50 ; as to fishery with close cruives net and coble, see Lord Advocate v. Lorat, 5 A. C. 273. 4 Ante, p. 391. s Warren v. Matkewt, 6 Mod. 73. Ward v. Cresswell, Willes, 265; Serins v. Bird, 12 L. T., N. S. 306. ' Rolle v. Whyte, L. R., 3 Q. B. 286 ; 37 L. J., Q. B. 105 ; 17 L. T. 560 ; Lec.on- Held v. Lonsdale, L. R., 5 C. P. 657 ; '39 L. J., C. P. 305 ; 23 L. T. 155. 8 Rolle v. Whyte, per Cockburn C. J., L. R., 3 Q. B. 301 ; Holford v. George, L. R., 3 Q. B. 639. FISHERY IN TIDAL WATERS. 407 With regard to the right of the owner of a several fishery in a public navigable river to maintain a weir, inasmuch as the right to the several fishery itself must be traced to an origin before Magna Charta, his right to maintain a weir as appurtenant thereto would require an equally ancient title to make it legal, otherwise it is a public nuisance. Where a right to an ancient weir has been established, the weir must not be enhanced, straitened, or enlarged, so as to be a public nuisance. In addition to a liability to indictment for a public nuisance, Obstructions interference with the free passage of fish up a river is a wrong actionable against the proprietors of the upper fisheries, and if it materially obstructs the passage of fish will be the subject of an action for damages and can be restrained by injunction. 1 Thus where the defendant, who was the owner of an ancient weir made of brushwood, through which salmon could pass, converted the same into a solid stone weir impervious to fish, it was held that the plaintiff, the owner of a fishery above him, could recover damages for the injury to his fishery. 2 In the case of Marquis of Donegal v. Hamilton, 3 where the owner of a lower fishery on the Bann made weirs, cuts and traps, by means of which the current of the stream was altered, and so the passage of trout, salmon, and other fish was prevented, it was held that the plaintiff, an upper proprietor on the river, had a right of action. Fitzgibbon, L. C., in the case says : * "It is clear that the " plaintiff, as proprietor of the upper fishery, has a right to the " full possession of the water, the element of his fishery, in the " same plight and condition in which he enjoyed it when the " corporation, under whom the defendant derives, obtained their " grant from the Crown ; he has a right to a free passage for " fish from the sea into his fishery, and he has a right to catch " as many fish as he can catch by his industry and art which " find their way into his fishery. It is clear that the defendant " has the same rights as proprietoress of the lower fishery. She " has a right to the same full possession of the water, to a free " passage of fish from the sea into her fishery. And she has a 1 Pirie v. Kintore (Earl), (1906) A. C. 2 C. L. 148 ; Co., 2 Inst. 30 ; Woolrych, 478, H. L. Sc. ; 78 L. J., P. C. 96 ; Weld p. 197. v. Hornby, 7 East, 195 ; 8 R. R. 608, 2 Weld v. Hornby, 7 East, 195 ; 3 per Lord Ellenborough, C. J. ; Lecon- Sm. 244 ; 8 R. R. 608. field v. Lontdale, L. R. 5 C. P. 726, per 8 3 Ridg., P. C. 267. Bovill, C. J. ; Lib. assiz. 246 ; see also * 3 Ridg., P. C., at p. 323. O'Hagan, J., in Murphy v. Ryan, Ir. R., 408 OF FISHERY. Belongs vrimA facie to owners of the bed as a territorial right. " right abstractedly to catch every fish, which finds its way into " her fishery, which she can lay hold of by her art or by her " industry. But in the exercise of this right, she cannot alter " the state, plight, or condition of the water of the plaintiff 's " fishery from the state, plight, and condition in which she " enjoyed it at the time when the corporation, under whom she " derives, obtained their grant to the injury of plaintiff's fishery ; " nor can she stop or obstruct the passage of fish from the sea " into the plaintiff's fishery in any manner not essentially " necessary to enable her to exercise her right of catching fish in " their passage up the river." l Fishery in Private Streams. In all rivers and streams above the flow and reflow of the tide, whether such rivers are navigable or not, the proprietors of the land abutting on the stream are primd jade owners of the soil of the alveus or channel ad medium filum aqua, and as such have primd facie the right of fishing in front of their land. 2 " Accord - " ing to the well-established principles of the common law," says O'Hagan, J., " the proprietors on either side of the river " are presumed to be possessed of the bed and soil of it " moietively to a supposed line in the middle, constituting their " legal boundary, and being so possessed, have an exclusive right " to the fishery in the water which flows above their respective " territories." 3 Where a man possesses land on both sides of the water, he has primd facie the sole right of fishing therein. In the case of Foster v. Wright, where a river had formerly flowed wholly within the lands of one proprietor, and had by gradual and imperceptible degrees worn away its banks, and approached, and eventually encroached, upon the lands of the defendant, a proprietor adjoining, it was held, that the ownership of the soil of the bed still remained in the former proprietor, 1 As to obstruction of fishery by a weir in a trout stream, see Burlier v. Faulkner, 79 L. T. 26, post, p. 418. a Bickett v. Murrls, L. R., 1 Sc. App. 47; 14 L. T. 835; }Vi*hart v. Wyllie, 1 Macq., H. L. 389 ; Mayor of Carlisle v. Graham, L. R., 4 Ex. 361 ; Murphy v. Ryan, Ir. R., 2 C. L. 143 ; Lamb v. Kewlngge.n, 1 Car. & K. 549 ; Partherichc v. Mason, 2 Rep. 658 ; Fitzwalter's case, 1 Mod. 106 ; Hale de Jure Maris, p. 1 ; Bracton, lib. 1, c. 28, 31 ; see also Cooper v. Phibbs, L R., 2 H. L. 165, per Lord Cranworth. 8 Murphy v. Ryan, Ir. R., 2 C. L. 148 ; Pearce v. Scotchtr, and cases cited pp. 392 et seq. 4 See Paterson's Fishery Laws, p. 49 ; Orr Evoinq v. Colquhoun, 2 A. C. 856. It would seem that even & prim a facie title to fish for salmon on one side of a river will give a right of challenge against fishing for salmon on the oppo- site side : Stuart v. McBarnet, L. R., 1 H. L. Sc. 387, per Lord Cairns, L. C. FISHERY IN PRIVATE STREAMS. 409 ,and that he could maintain an action of trespass against the defendant for fishing on a strip of the bed which, before the encroachment, had been his, defendant's, property. 1 This right is a right of property, one of the profits of the land, and has been called a territorial fishery? It is not strictly speaking, a riparian right arising from the right of access to the water, 3 but is a profit of the land over which the water flows, and as such may be transferred or appropriated either with or without the property in the bed or banks to another person, whether he has land or not on the borders of, or adjacent to, the stream. 4 As this right, in the case of opposite proprietors, only extends primd facie to the middle line of the water, each can only fish, whether with rods or nets, up to that boundary ; and if either casts his net or line beyond that boundary, he is liable to an action of trespass, unless he can prove a right to the whole fishery. 5 The rights of shooting and fowling, unless specially reserved Is vested in in a lease, are vested in the occupier or tenant of the lands, and of not in the landlord. 6 In an ordinary lease of lands, including waters or streams, the right of fishing is necessarily implied as part of the general right to the soil and water unless the lessor specially reserves it. If, therefore, there is no special reservation of the right of fishery, the tenant and not the landlord will be the party entitled to the fishery. 7 Unless there is such a reserva- tion the landlord cannot go on the banks of a stream for the purpose of fishing. 8 Properly speaking, the right cannot be reserved by a lease, but what is practically the same thing, the reservation is construed as a re-grant by the tenant to landlord. 9 The presumption that the owner of the soil of the bed of a claims by non-tidal river is also owner of an exclusive right of fishing therein may be rebutted, but if not rebutted it is the legal 1 4 C. P. D. 438 ; 49 L. J., C. P. 97 ; see tion, L. R., 2 H. L. Sc. 70 ; Paterson, aide, pp. 85 et seq. ; see Hiiidson v. Askby, p. 109. per Lindley, L. J., ante, p. 90. See 2 Will. IV. c. 32. 2 Ante, p. 381. ' Paterson's Fishery Laws, p. 67, 8 See Lyan v. Fishmongers' Co., 1 approved and adopted in Davies v. A. C. 662 ; 45 L. J., Ch. 68 ; 35 L. T. Jones, (1902) 86 L. T. 447 ; 66 J. P. 569. 439 : 20 Cox, C. C. 184 ; 18 T. L. R. * Marshall v. Ulleswater Co.,3 B.& S. 367 ; Oke's Game Laws, p. 118. 732 ; 41 L. J., Q. B. 41 ; 25 L. T. 793 ; 8 Davies v. Jones, supra. Brlstowe v. Cormican, 3 A. C. 665. 9 Graham v. Ewart, 7 H. L. 331 ; 5 Beauman v. Kinmlla, Ir. R., 11 Seymour v. Cmirtenay, 5 Burr. 2817 ; C. L. 24 a claim by custom for all the inhabitants of a parish to angle and or by custom, catch fish in private waters, 3 and a custom for the commoners, copyholders, and ancient freeholders of a manor, and their tenants, and the dwellers in the parish and manor to fish in the waste waters of a manor, have been held bad and unreasonable, 4 1 Hargrearf* v. Diddam*, L. R., 10 143. See ante, pp. 392 et sea. Q. B. 587 ; 44 L. J., M. C. 78 ; Musset * Bland v. Lipscotnbe, 4 E. & B. 413. v. Jftirch, 35 L. I., N. S. 486 ; Hudson * Allgood v. Gibson, 84 L. T., N. S. v. McRae, 4 B. & S. 585. 883. Murphy v. Ityan, Ir. R., 2 C. L. FISHERY IN PRIVATE STREAMS. 413 on the ground that the right claimed was a profit d prendre on the soil of another, which might lead to the destruction of the subject-matter to which the alleged custom applied. 1 There is no difference in this respect between a free fishery so claimed and a common of fishery. 2 In Tilbury v. Silva, 3 the practice in a manor was for the lords to grant copyholds for three lives, and to renew at a fine upon the dropping of any of the lives ; but there was no custom binding them to renew. The copyhold grants did not mention a right of fishing ; but from time immemorial the copyholders had enjoyed a right of angling in a stream which formed the boundary of the manor, and of passing along the bank over the lands of other tenants of the manor for that purpose. Subject to this, the right of fishing was in the lords. In 1845 the lords enfranchised a copyhold belonging to S., which adjoined the river, and released in the most ample terms all rights of fishing and all other rights they had over the enfranchised tenement. After this various other copyholds were enfranchised, and for nearly forty years the copyholders and enfranchised copyholders exercised the same right as before of angling and going over the land of S. for that purpose. T. was the owner of several tene- ments formerly copyhold of the manor, which had been enfran- chised since 1845. In 1885 S. set up a gate and prevented T. from passing over his land to fish. T. acquiesced in the inter- ruption until 1889, when he commenced an action on behalf of himself and all other the owners and occupiers of copyholds or enfranchised copyholds, to establish the right of angling and of passing over the land of S. for that purpose : The Court of Appeal held (affirming Kay, J.), that by the enfranchisement deed of 1845 the lords gave up all their rights over the land of S., and that no reservation or exception of a power to make to other tenants grants giving rights over that land could be implied, and that the lords, therefore, had no power to give to T. by his sub- sequent enfranchisement deeds any rights over the land of S., and that T. had no title to maintain the action ; also, that lost grants of the rights to the enfranchised copyholders could not be presumed. 1 Race v. Ward, 4 E. & B. 702 ; 24 763, C. A. See also Clayton \. Corby, L. J.,Q. B. 153; see Goodmans. Mayor 14 L. J., Q. B. 364; 5 Q. B. 415; / Saltash, 7 A. C. 633, ante, p. 381. Bailey v. Stevens, 31 L. J., C. P. 226 ; 2 Chesterfield (Earl) v. Harris, 43 L. J., 1 2 C. B., N. S. 91 . N. C. 417 ; 77 L. J., Ch. 688 ; (1908) 45 Ch. D. 98 ; 62 L. T. 254. 2 Ch. 397 ; 99 L. T. 558 ; 24 T. L. B. 414 OF FISHERY. Several fishery apart from the ownership of soil. Whether grant of, ; ! WO, Where the public have been allowed to fish in private waters, even from time immemorial, the permission is revocable at any time at the will of the proprietor. 1 A several or exclusive fishery in private waters may exist in a stranger by grant or prescription from the owner of the soil as an incorporeal hereditament. 2 Such a fishery may, it would appear, be claimed as appurtenant to a manor, but not as appur- tenant to land or a tenement, as being too extensive a right. 3 The ownership of the soil of non-tidal rivers has been said to import a right to the exclusive fishery therein ; much controversy has arisen as to whether the converse of this proposition is true viz., that the ownership of a several fishery imports the owner- ship of the soil. On this point Lord Coke thus expresses himself: " If a man be seized of a river, and by deed do grant separalem " piscariam in the same, and maketh livery of seizin secundum "formam charttp, the soil doth not pass, nor the water, for the " grantor may take water there ; and if the river become drye, " he may take the benefit of the soile, for there passed to the " grantee but a particular right, and the livery being made " secundum formam chartce cannot enlarge the grant. For the " same reason if a man grant aquam suam the soile shall not " pass, but the pischary within the water passeth therewith." 4 In the case of Holford v. Bailey* Lord Denman, C. J., delivering the considered judgment of the Court, says, "No " doubt the allegation of a several fishery, primd facie, imports "ownership of the soil, though they are not necessarily united." In the case of Marshall v. Ulleswater Co., 6 this question again arose and the majority of the Court, Wightman and Mellor, JJ., held that a grant of a several fishery, together with livery of seisin, reserving a quit rent of 4d. a year to the then lord of the manor, must, in the absence of evidence to the contrary, be taken to convey a corporeal and not an incorporeal inheritance, as a feoffnient with livery of seisin and the reservation of a quit rent are not appropriate to an incorporeal estate, and that, therefore, the soil passed by the grant. Cockburn, C. J., though holding 1 See Holford v. Sa iley, 13 Q. B. 426. 732, and ante, p. 396. 1 Martfiall v. t'lletwatcr, 3 B. Si S. Co. Litt 4 b 732 per Wightman, J. ; Holford v. 8 Q. B. 1000, at p. 1016. See also Body, 13 Q. B. 426 ; 8 Q. B. 1016. same case on appeal, 18 Q. B. 426. KMMfey v. Orpe, Doug. 56. 3 B. & S. 732 ; 41 L. J., Q. B. 41 ; Per Willes, J.. in Edgar v. Com- 25 L. T. 793 mtMionrrt of Fit/tenet. 20 I,. T., N. S. FISHERY IN PRIVATE STREAMS. 415 himself bound by the case of Holford v. Bailey, was of a different opinion. After citing the opinion of Lord Coke, to the effect that a grant of a several fishery does not pass the soil, he proceeds : x " Now, independently of the high authority of Lord " Coke on such a matter, I must say that this doctrine appears " to me the only one which is reconcileable with principle or " reason. It is admitted on all hands that a several fishery may " exist independently of the ownership of the soil in the bed of " the water. Why then should such a fishery be considered as " carrying with it, in the absence of negative proof, the property " in the soil ? On the contrary, it seems to me that there is " every reason for holding the opposite way. The use of the " water for the purposes of fishing is, when the fishery is united " with the ownership of the soil, a right incidental and accessory " to the latter ; on a grant of the land, the water and the inci- " dental and accessory right of fishery would necessarily pass " with it. If, then, the intention be to convey the soil, why not " convey the land at once, leaving the accessory to follow ? Why " grant the accessory that the principal may pass incidentally ? " Surely such a proceeding would be at once illogical and " unlawyerlike." In the case of Bloomfield v. Johnson? where the Irish Court of Exchequer Chamber held, that the grant of a free fishery in Lough Erne did not pass the soil, Fitzgerald, B., in his learned and elaborate judgment, after citing with approval the opinion of Coke above mentioned, says, 3 " I am aware of no case prior to " that of Marshall v. Ulleswater Navigation Co., in which any- " thing really inconsistent with the position of Lord Coke can be " said to have been decided. It may be questioned, whether for " the decision of that case it was necessary to dispute Lord Coke's " position ; but undoubtedly the judges who made that decision, " especially Cockburn, C. J., who was dissatisfied with it, but " held himself bound by former authorities, do appear to lay it " down as law, that the grant of a fishery by the owner of the " soil in the water of that soil, would, if accompanied by livery " of seisin, pass the soil. But Holford v. Bailey, and that class " of cases which, for this purpose, decide only that the allega- " tion in pleading or otherwise of the ownership of a several " fishery generally does, primd facie, imply the ownership of the 1 3 B. & S. at p. 747. 8 Ibid, at p. 105. 2 Ir. R., 8 C. L. 68. 416 OF FISHERY. " soil, are the only authorities referred to, and this I say it " with deference appears to me quite consistent with Coke's " position." l In Attorney-General v. Emerson? cited ante, p. 401, the House of Lords have held that a right of several fishery on the sea shore exercised by the lord of an adjoining manor by means of fixed " kiddles " raises the presumption that the freehold of the soil is in him. Free fishery. A free fishery may exist in private waters by grant or prescrip- tion from the owner of the soil. It is sometimes also called a common of fishery, and is, as has been said, a right of fishery not exclusive in a particular place, and as such may exist in the owner of the soil in conjunction with a stranger, or in two or more strangers to the exclusion of the owner of the soil. " If he " who is the owner of the soil, and as such entitled to the exclu- " sive right of fishing, grant to another the right of fishing so " as not to exclude himself, the grantee has a right of fishing " not exclusive, but without the soil, and the owner of the soil " retains the soil with a right of fishing no longer exclusive. " The right of the grantee will be properly called as all, I think, " admit a common of fishery. The right of the grantor is " apparently something more ; he has the ownership of the soil, " the right of fishing incident thereto being no longer exclusive, " but abridged by his grant ; as against any one but his grantee, " his rights are what they were before. If free fishery be the " common name for this right of fishery in both cases, then, as " applied to the grantee, it may be called synonymous with " common of fishery ; as applied to the grantor, it will be " something more." 3 The ownership of a free fishery i.e., a fishery not exclusive- does not import the ownership of the soil, and a grant of free fishery by the owner of the soil has been held not to pass the soil ad medium filum aquce. Thus, in Bloomfield v. Johnson* where the question was whether a grant of lands adjacent to Lough Erne and of a free fishery in the lake passed the soil ad medium filum aquae, the Court of Exchequer Chamber in 1 See Patereon, p. 65 ; Rex v. Ellis, a (1891) A. C. 649. 1 M. & S. 665, per Bayley, J. ; I>uke of Bloomfield v. Johnson, IT. R., 8 Somerset v. Fogwell. 5 B. & C. 875 ; 29 C. L. 68, per Fitzgerald, B.. at p. 107. R. R. 449 ; Hayes v. Bridges, 1 R., L. & See also Co. Litt. 122 a. S. 420 ; & ration v. Brown, 4 B. & C. * Ir. R., 8 C. L. 68 ; see Alderman of 485 ; 28 R. R. 344. London v. Hastings, 2 Sid. 8. FISHERY IN PRIVATE STREAMS. 417 Ireland held it did not ; Fitzgerald, B., being of opinion that, assuming that the presumption that by a grant of lands adjacent to a freshwater river (the grantor being owner of the soil of the river), the soil of the river passed ad medium fihun aqua, applied to such a water as Lough Erne, the grant of a free fishery, when a several fishery might have been granted, was sufficient to rebut the presumption that the soil was intended to pass. The right of fishing in private waters is, of course, equally User of subordinate to the rights of navigation, which may have been fisheries - acquired by the public over such waters by grant or prescription or Act of Parliament, and any interference with them will be a nuisance, and indictable. 1 It has been held, however, that the provisions of Magna Charta Weire in and of the other early statutes, including 17 Ric. II. c. 9, and 12 Edw. IV. c. 7, which prohibit weirs, relate to navigable rivers only ; and that though weirs in navigable rivers are illegal unless they existed before the time of Edward I., such an easement to a weir obstructing the fishery may be acquired in private waters by grant or prescription from the other riparian owners, or by enjoyment; in short, by any means by which such rights may be constituted. 2 It would seem that a claim to a weir is within the Prescription Act, and may be established by proof of enjoy- ment for the time required to confer easements with respect to water, and that the occasional interruption of the enjoyment of a weir so claimed by the owner of a mill on the banks of the river would not necessarily operate to destroy such a right. " We think," says Cockburn, C. J., " that there is nothing to " prevent a second easement being acquired as subordinate to " one already existing where the subject-matter admits of it. " If the other riparian owners on the stream had granted to the " appellant to have a weir for the purpose of taking fish at such " times as the whole body of the stream was not needed for the " working of the mill, such a grant would have been perfectly " good, and would have conferred an easement pro tanto ; we " see no reason why such a qualified easement should not be i iniKamt v. Wilcox, 8 A. & E. 333 ; 2 Rolle v. Whyte, L. R., 3 Q. B. 286 ; 7 L. J., Q. B. 229; 47 R. R. 595; per Leconfieldv. Lonsdale, L.R.,5 C. P. 657 ; Lord Denman, C. J. ; Hale de Jure 39 L.'j., C. P. 305 ; 23 L. T. 155 ; Callis Maris, c. 2. See Orr Swing v. Culqu- on Sewers, p. 259 ; Coke, 2 Inst. p. 38 ; houn, 2 A. C. 839. Cluster Mill cage, 10 Co. Rep. 138. L.W. 27 418 OF FISHERY. Obstruction of fishery actionable. In ponds and pools. " acquired by user for the time required to confer easements in " respect of water." * The erection of a weir or other engine obstructing the passage of fish, though not a public nuisance and indictable, is, as has been said, an interference with the rights of the owners of other fisheries, and is as such primd facie actionable, as is also the enhancing and enlarging of existing weirs.' 2 Thus in the case of Weld v. Hornby? the converting of an ancient brushwood weir, through which fish could pass, into an impenetrable stone weir was held actionable at the suit of another owner prejudiced thereby. In this case the locus in quo was thought by Lord Ellenborough to be a navigable river, and he expressed an opinion that the weir was a public nuisance ; this, however, turned out not to be the case, and is thus alluded to by Bovill, C. J., in Leconfield v. Lousdale* " It was an action for " a private nuisance, and unquestionably maintainable in respect "of the plaintiff 's right of property, which was injured by the " act of the defendant in making his weir impervious to fish, " and so preventing them from arriving at the plaintiff's fishery, " a grievance long recognized as giving a right of action, inde- " pendent of any question of public nuisance. See the precedent " in the last case of year 46, Lib. Assiz" In fact, any unautho- rized interference with the passage of fish up a river would appear to be actionable at the suit of the owner of a fishery who suffers damage thereby, 5 and this principle possibly applies to a weir obstructing the passage of other fish than salmon, e.g., trout. 6 The pollution of the water of a stream, so as to render it unfit for fish to live in, is, moreover, actionable, and ground for the interference of the Court by injunction. 7 Fishery in Lakes and Pools. With regard to the law as to fishery in small ponds or pools, included in one property or manor, there can be no doubt that the owner of the property or manor has primd facie the exclusive 1 Ralle v. Whyte, L. R., 2 Q. B. at p. 302. See also per Bovill, C. J., in Lft-onfeld v. Lowdale, L. R.. 5 C. P. 726. Pint. v. Kintore (Earl), (1906) A. C. 478 H. L. Sc. ; 75 L. J., P. C. 96 ; Weld v. Hornby, 7 East, 195 ; ante, p. 407. 8 7 East. 195. 4 L. R., 5 C. P. 725. * See Marquit qf Donegal v. Hamilton, 3 Ridg., P. C. 267 : Murphy v. Ryan, Ir. R., 2 C. L. 148 ; Barker 'v. Faulkner, per Stirling, J., 79 L. T. 26. 6 Barker v. Faulkner, 79 L. T. 26. ' A.-G. v. Birmingham, 4 K. & J. 528 ; Bidder v. Croydon, 6 L. T., N. S. 778 ; A.-G. v. Luton, 2 Jur., N. S. 181 ; Oldaker v. Hunt, 6 D. M. &; G. 376 ; Aldred 1 * case, 9 Rep. 59 a : Fitzgerald v. Flrbanh, (1897) 2 Ch. 96 ; 76 L. T. 584. See ante, Chap. III. pp. 182 et seq. FISHERY IN LAKES AND POOLS. 419 right to fish therein. 1 Where the boundary of two properties passes along the pool, it is taken to coincide with the medium Jilum of the pool, and the fishery will of course follow this boundary line. 2 Though fish are animals jerte nature, which cannot be the subject of larceny at common law, it seems that fish in a small pond, tank, or stew in the owner's land, where they can be caught at pleasure, are more like chattels, and may be the sub- ject of larceny ; this seems to depend on the size of the pond, but no one has attempted to define how large the pond or lake must be, where larceny ends. 3 With regard to the right of fishing in large navigable non-tidal in large lakes, the law does not appear to be so clearly settled. As has ia^ al been said before, the public right of fishery cannot exist in non- tidal rivers where the presumption is that the respective owners on the banks are entitled to the exclusive fishery ad medium filum aquce, though this presumption may be rebutted. In accordance with this principle, the Irish Court of Exchequer Chamber, in Bloonifield v. Johnson,* has held, with some hesita- tion, affirming the judgment of the Court of Common Pleas, that there is no public right of fishery in large navigable and non-tidal lakes. The same point was raised in a later case on demurrer, and Bristowe v. the Irish Court of Exchequer held themselves bound by the prior decision of the Exchequer Chamber in Bloonifield v. Johnson, which they could not question. No appeal was brought from this judgment on the demurrer ; but on an appeal to the Irish Exchequer Chamber, from an order of the Court making absolute a conditional order for a new trial, on the ground of mis- direction on other grounds, Whiteside, C. J., strongly expresses his dissent from the above principle. 5 " If this vast sheet of water," he says, "'be navigable and navigated for the convenience of the " surrounding inhabitants, if the lake affords a common pas- " sage for public use, if its navigation be watched over and 1 See Paterson, Fishery Laws, p. 2. 8 Paterson, p. 72 ; Grey's case, Ow. As to this question between a lord and 20 ; 1 Hale, PI. C. 510, 511 ; East, PI. C. copyholder of a manor, see Clarke v. 610 ; R. v. Humdon ; Reg. v. Steer, 6 Mercer, 1 F. & F. 492, and Stuart Mod. 183. Moore's Hist, and Law of Fisheries, Mr. R., 8 C. L. 68. See ante, pp. 394 pp. 83 87. at seq., and as to the ownership of the 2 Phear's Rights of Water, p. 1 ; bed of lakes, ante, Chap. II. pp. 123 Woolrych on Waters, p. 121. See also et xeq. }>er Lord Blackburn in Bristowe v. s Bristoice v. Cormican, Ir. R., 10 Cormican, 3 A. C. 665. C. L. 434. 272 420 OF FISHERY. " assisted by the grand juries of four surrounding counties, for " the benefit of the subject, why should not the right of fishing " in this inland sea be enjoyed and exercised by the public, as " well as the right of passage for trade, traffic and enjoyment, "subject to the servitudes and prerogatives belonging to the " king ? The lake, answers the lawyer, to give the right of " fishing to the public, should be navigable. It is navigable, "answer the inhabitants of four counties. No, retorts the " lawyer, navigable in fact is one thing, navigable in law is "another. 'Navigable,' writes Lord Hale, 'means tidal,' and, " unless the salt water flows and recedes, the lough is not " legally navigable ; and if the water be fresh, though as wide "as three counties, and teeming with fish, the public cannot " take one fish in the exercise of their industry in procuring " sustenance for themselves and others ; the liberty of fishing, " which is of common right in the creeks and arms of the sea " or navigable rivers, does not exist in vast sheets of water or " inland seas, because the water is not salt an arbitrary rule " repugnant to reason, convenience, and the common sense of "mankind. Inquisitive lawyers have raised the question, did " Lord Hale really propound dogmatically that navigable in law " meant tidal, not that it really was so ? But the authorship " is made a question in a note to Calmady v. Roice. 1 It may be " fairly said this question should now be thoroughly investigated " on principle, and decided according to analogy and reason, by " the ultimate Court of Appeal, by which tribunal alone it can be " decided." The case went on appeal to the House of Lords ; but as the question of the public right of fishing in the lake was not before the House, no decision on that point was given. Cairns, L. C., says, 2 " The defendants in the action, the respondents, had " pleaded a special defence, alleging that Lough Neagh was a " public or common navigable inland sea, and every subject of "the realm had a right of fishing in it, and justifying their " trespass under this right. To this special defence there was a " replication, averring that the tides of the sea had never flowed " in Lough Neagh, and to this replication there was a demurrer, " which demurrer was overruled. Against the order overruling " this demurrer the respondents have not appealed, and the "appellants remain, therefore, the victors on that issue. My 1 6C. B. 878. a 3 A (Dynamite) ; 41 & 42 Viet. c. 78, s. 7 (Employment of Children) ; 44 & 45 Viet. c. 11 (Clam and Bait Bed*) 44 k 45 Viet. c. 12, 8. 11 (Custom*) ; 44 & 45 Viet. c. 33, s. 3 (Summary Proceedings) ; 45 & 46 Viet. These only apply to the Esk. c. 78 (Fis/iery Board Inspector) 48 & 49 Viet. c. 61, 8. 5, 50 & 51 Viet. c. 52 (Secretary for Scotland) ; 48 & 49 Viet. c. 70 (Scottish Sea Fisheries), sae pout, p. 434 ; 52 & 53 Viet. c. 23, 58 & 59 Viet. c. 42 (Herri/iff Fishery) ; and 58 & 59 Viet. c. 42 (Sea Fisheries Regulation*) ; 49 & 50 Viet. c. 29, s. 32 (Crofting Parities) ; 59 & 60 Viet. c. 42, s. 3 (Loans) ; 61 & 62 Viet. c. 56, s. 23 (Sea Fishery Grant) ; 2 Ed. VII. c. 29 (Freshwater Fish) ; 7 Ed. VII. c. 41 (Whale Fisheries), a bye-law made on June 2nd, 1908, under this Act prescribes a close time from June 1st to July 5th, for whaling off coast of Scotland ; 7 Ed. VII. c. 42 (Sea Fislteries Applica- tion of Penalties Act) ; 8 Ed. VII. c. 17 (Cran Measures Act) ; 9 Ed. VII. c. 87 (Trawling in Prohibited Areas Act, 1909). Ireland. 1 & 2 Will. IV. c. 33, s. 106 (Public Worlts Commissioners) ; 6 & 7 Will. IV. c. 13, s. 15 (Constabulary) ; 1 & 2 Viet, c. 56, s. 63 (Rating) ; 5 & 6 Viet. c. 89, s. 61 (Drainage Commissioners) ; 5 & 6 Viet. c. 106, 7 & 8 Viet. c. 108, 32 & 33 Viet. c. 92 (General) ; 8 & 9 Viet. e. 108, ss. 2, 3, 715, 19, 23, 13 & 14 Viet. c. 88 (Oyster, Salmon and Trout) ; 9 & 10 Viet. c. 3 (Fisheries, Piers, and Har- bours) ; 9 & 10 Viet, c. 86, ss. 3, 4 (Public Works Commissioners); 11 & 12 Viet. c. 92, 26 & 27 Vict.c. 114 (Salmon and Trout) ; 29 & 30 Viet. c. 88, 29 & 30 Viet. c. 97, 47 & 48 Viet. c. 48 (Oysters) ; 32 & 33 Viet, c. 9 (In- spectors) ; 37 & 38 Viet. c. 86, 45 & 46 Viet. c. 16, 54 & 55 Viet. c. 48, s. 35, 55 & 56 Viet. c. 61, s. 4 (Advances and Gifts for Fisheries) ; 40 & 41 Viet. c. 56, s. 74, 60 & 61 Viet. c. 17 (Appeals and Recognizances) ; 44 &45 Viet. c. 12, s. 11 (Customs) ; 44 & 45 Viet. c. 49, s. 5 (5) (Bights of Fishing) ; 44 & 45 Viet, c. 66, STATUTORY REGULATIONS AFFECTING FISHERY. 425 With regard to freshwater fish, except trout, char, eels, and Freshwater lamperns in a salmon river, there were no restrictions whatever fish> as to season or means of capture, until the passing of the Freshwater Fisheries Act, 1878 (41 d- 42 Viet. c. 39), amended by the Freshwater Fishery Acts, 1884 and 1886 (47 Viet. c. 11, and 49 & 50 Viet. c. 39). With regard to sea fish, there are no statutory restrictions imposed on their capture, excepj by the conventions with France and certain other states confirmed by statute. It is proposed to consider shortly the principal of these Acts, and then to treat more fully of the various restrictions imposed by them on 1st, the season, and 2nd, the means, during and by which, the various fish protected may be caught. Finally, a sketch will be given of the law relating to the poaching of fish. 1 The fisheries 2 in certain seas outside the territorial waters Foreign are the subject of conventions between Great Britain and other nations, e.g., the conventions made between Great Britain and the United States in 1818 and 1872 with regard to sea fisheries on the eastern coasts of British North America and the United States within certain limits ; the conventions between Great Britain and France concerning the fisheries in the seas adjoining these countries, made in 1839 and 1867 (the latter of which is not yet, however, in force) ; the convention between Great Britain, Germany, Belgium, Denmark, France, and Holland, made in 1882, regarding the police of the fisheries in the North Sea outside territorial waters; 3 the declaration respecting the North Sea fisheries made between Great Britain and Belgium, with the purpose of simplifying the settlement of differences between the fishermen of these countries outside territorial waters, in 1891 ; the convention made between the nations which were parties to the convention of 1882 respecting the liquor traffic in the North Sea, made in 1887 ; and the award of the 54 & 55 Viet. c. 20 {Pollen) ; 47 & 48 {Department of Agriculture'). Viet. c. 21 {Sea and Coast Fisheries 1 There are various Local Fishery Fund) ; 51 & 52 Viet. c. 30 {Trawling') ; Acts in force (the provisions of which 52 & 53 Viet. c. 74 {Steam Trawling cannot be noticed here), e.g., 18 Geo. III. {Ireland) Act) ; 1 Ed. VII. c. 38 c. 33, and 39 & 40 Viet. c. 34, as to {Steam Trawling {Ireland) Act, 1901) ; fisheries in the Severn ; 2 Geo. II. c. 19, 9 Ed. VII. c. 87 {Trawling in Prohibited 30 Geo. II. c. 21, and 31 & 32 Viet. c. 53, Areas Act, 1909) ; 1 Ed. VII. c. 38 as to the Thames and Medway ; and (1901) {Steam Trawling) ; 58 & 59 Viet. 40 & 41 Viet. c. 118, and 59 & 60 Viet, c. 29 {Salmon) ; 61 &; 62 Viet. c. 28 c. 18, as to Norfolk and Suffolk. {Mussels, $c.) ; 61 & 62 Viet. c. 37, 2 Encyclopaedia of Laws of England s. 37 {Local Gocernment) ; 62 & 63 Viet. 2nd ed. vol. xiii. p. 184. c. 50, as. 2 (1), 3, 6 (3), 15 (c), 16, 30, 34 8 See ante. pp. 13 et seq. 426 OF FISHERY. tribunal of arbitration constituted under the treaty made in 1892 between Great Britain and the United States with respect to the fur seal fisheries in the Behring Sea, delivered in 1894. All the provisions of these conventions are respectively confirmed and sanctioned by statute, viz., that of 1818 by 59 Geo. III. c. 38, and that of 1872 by 85 & 86 Viet. c. 45, that of 1839 by the Sea Fisheries Act of 1848 (6 & 7 Viet. c. 79), l which is to be repealed as soon as the convention of 1867 comes into force, and by 40 & 41 Viet. c. 42, s. 15 (Oyster, Crab, and Lobster Act, 1877), and 46 & 47 Viet. c. 22, ss. 24, 80 ; that of 1867 by 31 & 32 Viet. c. 45 ; that of 1882 by 46 & 47 Viet. c. 22 ; that of 1891 by 54 & 55 Viet. c. 37, and North Sea Fisheries Act of 1893 (56 Viet. c. 17) ; and that of 1892 by the Behring Sea Award Act of 1894 (57 & 58 Viet. c. 2). Sea Fisheries By the Sea Fisheries Act, 1868, and the convention 2 thereto Acts - annexed, between Her Majesty the Queen and the Emperor of the French, the fisheries in the seas adjoining the coasts of Great Britain and Ireland, and the coasts of France between Belgium and Spain, are regulated and protected. British fishermen are to enjoy the sole right of fishing within three miles of low water mark on the British coast ; and French fishermen are to enjoy the sole right within three miles of the French coast, except as to that part of the coast of France between Cape Carteret and Point Meinga. This distance of three miles with respect to bays, the mouths of which do not exceed ten miles in width, is to be measured from a straight line drawn from headland to headland ; all fishermen are to be licensed, and their boats numbered ; 3 and 1 By the 6 & 7 Viet. c. 79, the subjects are to be determined by articles of a certain convention between justices of the peace, who are also her Majt-sty and the King of the declared to have the power of awarding French, concerning the fisheries in the compensation for injuries. seas between the British Islands and Held, that no action could be main- France, are declared to have the force tained for an injury caused by a breach of law. By these articles, all trans- of any of the regulations, as exclusive gressions of the regulations are in both jurisdiction in such matters was given countries to be submitted to the ex- to the tribunal specified in the Act : elusive jurisdiction of the tribunal or Manhall v. Xickollx, 18 Q. B. 882 ; 21 magistrates designated by law who are L. J., Q. B. 343. to settle all differences and decide all 2 This convention is, however, not contentions between fishermen of the yet in force ; see Encyclopaedia of Laws two countries ; and the trial and judg- of England, 2nd ed. vol. xiii. p. 184. ment is always to take place in a Sects. 2224 of 31 & 32 Viet. c. 45 summary manner. This tribunal is also as to the registry of sea fishing-boats to have power to award damages for are repealed by the Merchant Shipping injuries over and above the penalties. Act, 1894 (57 & 58 Viet. c. 60). s. 745 By Met. 11 of the Act, all offences against and sched. 22, and sects. 25 and 71 and the articles committed by British sched. 2 are wholly and sect. 58 partly JUA.Jft' JLULJLJLl .& A AVI *^i Wi STATUTORY REGULATIONS AFFECTING FISHERY. 427 various articles regulate the respective rights of drift nets, and trawl fishing, and oyster fishing. The cruisers of either nation are to take cognizance of all infractions of the regulations, and all offenders' requiring exemplary punishment are to be sent to their own country for trial. Fishing-boats of either country are to be admitted to sell their fish in such ports of the other country as are designated for that purpose. The fishing-boats of one country are not to enter the fishing limits of the other, unless by stress of weather, contrary winds, &c. Officers appointed by the Board of Trade, and officers of the navy, coastguard and con- sular officers, are given powers to board and examine boats, and take offenders without warrant before any justice of the peace. Persons obstructing the officers, or acting in contravention of the Act within the exclusive fishery limits of Great Britain on board a boat, either British or French, are deemed to have committed an offence against the Act. The Act of 1883 (46 & 47 Yict. c. 22) contains similar pro. visions. 1 The Act of 1891 (54 & 55 Viet. c. 37) is merely supplemental to this Act. The Act of 1893 (56 Viet. c. 17) imposes penalties on any person on board or belonging to a British vessel, supplying, exchanging, or otherwise selling spirits to sea fishing- boats outside territorial limits in the North Sea, or any person in a British sea fishing-boat in that sea buying spirits, by exchange or otherwise, and selling to such boats provisions or other articles for use other than spirits, except in this last case that the seller have a licence from the Government according to the regulations in that respect made by Order in Council (sects. 2 5) ; for enforcing the Acts, British and foreign fishery officers have the same powers and protections as they have under the Act of 1883 (sect. 6). By Part III. of the Act of 1868 it is provided, that the Board Oyster of Trade, now the Board of Agriculture and Fisheries, 2 may make an order for the establishment or improvement of oyster s repealed by 46 & 47 Viet. c. 22 (Sea and determine a summons for an offence Fisheries Act, 1883), ss. 8, 27, 30, and against the Act, taken out by a private sched. 2. individual, discharged : Reg. v. Oitbitt, 1 The Sea Fisheries Act, 1883(46 &47 22 Q. B. D. 622 ; 58 L. J., M. C. 132 ; Viet. c. 22) creates certain offences, and 60 L. T. 638 by s. 1 1 ' The provisions of this Act ... 2 See 3 Ed. VII. c. 31, s. (2) the Board " shall be enforced by sea fishery officers." of Agriculture and Fisheries Act. 1903, who are denned by that section. Held, see post, p. 433. that the effect of the above words is that 8 It was intended that oyster fishing no one except a sea fishery officer can in beds between England and France prosecute for an offence against the Act, outside the exclusive natural fishery and a rule calling upon justices to hear limits should be regulated under the 428 OF FISHERY. or mussel fisheries on the shore or bed of the sea, or of an estuary or tidal river, and after notice given and the inquiry and report of an inspector, may either confirm such order or not as seems fit. 1 This part of the Act as to oysters is now extended to cockles by 47 & 48 Viet. c. 27 (the Sea Fisheries Act, 1884). No order is to be valid until confirmed by Act of Parliament. When such order has been confirmed, the grantee, subject to such restrictions as the order contains, is to have within the limits defined the sole right of depositing, fishing, dredging, &c., for oysters and mussels. Where an order has been made, only conferring a right to regulate such a fishery, and to levy tolls, &c., such order does not confer a right to the fishery, but only to regulate it and take tolls. Any person fishing in such a fishery without paying the tolls granted, is liable, on summary convic- tion, to pay 20J. and to forfeit all oysters and mussels taken. 2 The portion of sea shore comprised in such an order is to be deemed to be within the adjoining county for the purposes of jurisdiction ; such grants are not to be made for longer than sixty years. 3 No rights of several fishery are to be interfered with, and compensa- tion is to be paid to owners of land taken. All oysters and mussels 4 within such fishery, or in any several fishery enjoyed independent of the Act, are made the absolute property of the grantees or owners, and are to be deemed to be in their actual pos- session for all purposes, civil or criminal. 5 Various restrictions, convention of 1867, and Part II. of the Chester, L. R., 3 C. P. 575 ; 37 L. J., C. P. Act of 1868, but the convention has not 278 ; 17 C. B., N. S. 635 ; In re Free come into force (see St. R. &; 0. Revised, Fishers of Faversham, 36 Ch. D.328 ; and vol. iii. p. 238 ; cf. Encyc. Laws England, as to licences for reasonable fees, see 2nd ed. vol. xiii. p. 184). Mills v. Colchester Corporation, supra. 1 Where any portion of the sea shore 2 Sect. 58 as to appeals is in part proposed to be comprised in an order is repealed by the Summary Jurisdiction under the management of the Board of Act, 1884 (47 & 48 Viet. c. 43), s. 4. Trade the order shall not be made The definition of " fishing-boat " given without the consent of the Board; 3 in sect. 5 of the Act is applied to fishing- Ed. VII. c. 31, s. 1, sub-s. 7. Where a boats in Scotland by the Sea Fishery municipal corporation has obtained an Boats (Scotland) Act, 1886 (49 & 50 order from the Board of Trade confer- Viet. c. 53), s. 2. ring a right of regulating an oyster 8 See the Crown Lands Act, 1885 (48 fishery under the Sea Fisheries Act, & 49 Viet. c. 78), s. 3. 1868, it may by virtue of sect. 41 of that * Mussel scalps on the foreshore or Act lawfully take a lease of the fore- estuary of a navigable river form part shore of the fishery if the acquisition of of the patrimonial property of the Crown the leasehold will enable it the better to in Scotland which it can convey or let carry out the purposes of the order : in lease to a subject : Parker v. Lord Truro Corporation v. Row, (1901) 2 Advocate, (1904) A. C. 364 ; 20 T. L. R. K. B. 870; (1902) 2 K. B. 709; 71 547, H. L. Sc. L. J., K. B. 974, ante, p. 390, n.7. As to 5 Since the passing of the Act no the acquisition of private oyster fisheries prescriptive right to discharge sewage by prescription, see Ooodman v. Mayor into the sea so as to contaminate of Saltath, 9 A. C. 37 ; Mills v. Col- oyster beds can be acquired ; Foster v. STATUTORY REGULATIONS AFFECTING FISHERY. 429 which will be noticed afterwards, are imposed on the season for, and mode of, taking oysters. Sect. 5 of the Oyster, Crab, and Lobster Act, 1877 (40 <& 41 Viet. c. 42), empowers the Board of Trade, now the Board of Agriculture and Fisheries, on local application, to temporarily prohibit or restrict dredging l for oysters on certain banks ; bu " nothing in such order shall apply to a several right of fishery " in any oyster bed or bank, or to any bed or bank of oysters " which has been or shall hereafter be the subject of a grant or " regulation order under Part III. of the Sea Fisheries Act, 1868, or " any Acts amending the same." Sect. 4 of this Act prohibits, under penalties of a fine not exceeding 2J. for the first and 10L for the second or any subsequent offence, the sale, or exposure, consignment, or buying for sale of any " deep sea oysters " between the 15th June in any year and the following 4th August, or any other description of oysters between 14th May and the following 4th August in any year. Persons acting in contraven- tion of this provision are liable to forfeit all oysters exposed, consigned, or bought for sale. The Act does not apply to foreign oysters, even if stored in English waters till wanted for sale. 2 The regulation of sea fisheries in British waters is further Sea Fisheries provided for by 51 < 52 Viet. c. 54 (the Sea Fisheries Eegulation Act, 1888) which empowers the Board of Trade, now the Board of Agriculture and Fisheries, upon the application of a county or a borough council, by order to create sea fishery districts 3 com- prising any part of the sea within which British subjects have by international law the exclusive right of fishing, either with or without any part of the adjoining coast of England and Wales. The Board is to define the limits of the district and area chargeable with any expenses under the Act, and to provide for the constitu- tion of a local committee for regulating the sea fisheries in such Warblington Urban Council, (1906) 21 "other engine or device, whatsoever," T. L. R. 214 ; 69 J. P. 42 ; 3 L. G. R. 605, seemed not to comprehend shell-fish ; per Walton J. ; Owen v. Faversham and if it did, it meant a taking for Corporation, (1909) 73 J. P. 32, C. A. destruction, and not a taking of oysters' 1 Dredging for oyster spat in a com- spawn for the purpose of removing it to mon navigable river was illegal under beds, for further growth and maturity, 13 Ric. II. at. 1, c. 19 ; repealed by 24 & to make it marketable: Br'tdger v. 25 Viet. c. 109, s. 39 ; Maldon Corpora- Richardson, 2 M. & 8. 568 ; 15 R. R. tion v. Wolvft, 4 P. & D. 26 ; 9 L. J., Q. B. 355. 370. The 3 Jac. I. c. 12 (repealed by 2 Rutertxon \. Johnson, (1893) 1 Q. B. 24 & 25 Viet. c. 109), s. 39, which pro- 129. hibited persons from " wilfully taking, 8 As to measurement of the coast line "destroying, or spoiline any spawn, fry, in a fishery district, see Tweed Com- "or brood, of any sea-fish in any weir or missioners v. Wood, 46 J. P. 760. 430 OF FISHERY. district. Any order which has been laid before both Houses of Parliament for thirty days comes into force at the expiration of that period, provided that no resolution to the contrary effect has been passed by either House. Committees may make bye-laws l for regulating the fishery and impose penal ties for the breach thereof, and appoint officers (who are empowered by justices' warrant to enter suspected places) to enforce them (sects. 2, 3, 6, 7), 2 but such bye-laws are not valid until confirmed by the Board (sect. 6). Sea fish is defined by sect. 14 not to include salmon as defined by any Act relating to salmon, but with this exception means " fish of all kinds found in the sea, and shall also include lobsters, " crabs, shrimps, prawns, oysters, mussels, cockles, and other " kinds of crustaceous and shell fish." The relations of com- mittees to conservators under the Salmon Acts and harbour commissioners are regulated by sect. 12 ; and rights of several fishery, or any right with regard to the sea shore under Act, charter, letters patent, prescription, or immemorial usage are pro- tected by sect. 13. By sect. 7 of the Fisheries Act, 1891 (54 & 55 Viet. c. 37) (which is to be construed as one with the Act of 1888) the powers of local committees are extended to making bye-laws with respect to a close time for fish. The Act also gives summary jurisdiction over offences committed on the sea coast or at sea beyond the ordinary jurisdiction of a Court of summary jurisdic- tion (sect. 8) ; allows such a committee to enforce the Sea Fisheries Acts (sect. 9), and also a county or borough council to pay or contribute to the expenses of a board of salmon conservators under sect. 10 of the Act of 1888. The powers of committees are also extended to making bye-laws for regulating, protecting, and developing fisheries by sect. 1 of 57 & 58 Viet. c. 26 (the Sea Fisheries (Shell Fish) Regulation Act, 1894) . 3 Crabs and By the Fisheries (Oyster, Crab and Lobster) Act, 1877 (40t41 Viet. c. 42), which applies to all the British Islands, provision is made for the protection of crabs and lobsters. The Act forbids (sect. 8) taking, possessing, selling or exposing, consigning, or 1 For the Board of Trade Regulations of B If sewage pollutes an oyster bed in February 28th, 1902, with respect to the a fishery, this amounts to an injury to making of bye-laws, see the Statutory the bed within sect. 53 of the Act of Rules and Orders revised to December 1868, and where a local fisheries com- 31st, 1903, vol. iv. Fishery, pp. 1 3. mittee have made a bye-law prohibiting 2 As to officers' expenses, see Reg. v. the deposit or discharge of any sub- Yorkxhire County Council, (1899) 1 Q. B. stance detrimental to sea fish or sea 201 ; 68 L. J., Q. B. 93 ; 79 L. T. 521 ; fishing such pollution is illegal as a Peg\ v. Plymouth Corporation, (1896) 1 breach of the bye-law : Hobart v. South- Q. B. 158 ; 65 L. J., Q. B. 258. end-on-tiea Corporation, ante, p. 197. STATUTORY REGULATIONS AFFECTING FISHERY. 431 buying for sale edible crabs which (1) are less than 4 inches across the broadest part of the back, (2) are carrying spawn, (3) have recently cast their shell (sect. 8). The prohibition does not apply to the use of small edible crabs for bait. A like pro- hibition applies to the taking, &c., of lobsters less than 8 inches long (sect. 9). The penalties and forfeitures are enforceable under the Summary Jurisdiction Acts (sect. 11), and powers of search and seizure are given by sect. 12. The Board of Trade may also, after public inquiry held after due notice, prohibit or restrict the taking of crabs or lobsters in a particular area ; but the order does not apply to a several right of fishery. The Sea Fisheries Eegulation Act, 1888 (51 A 52 Viet. c. 54), which provides for the creation of sea fishery districts and local com- mittees, empowers a local committee to make bye-laws (sect. 2 (1) (e) ) to prevent the use of undersized crabs for bait. Under the Fisheries Act, 1891 (54 & 55 Viet. c. 37, s. 9), local committees are empowered to enforce the provisions of the Act of 1877, including the power of search and seizure ; and by the Sea Fisheries (Shell Fish) Regulation Act, 1894 (57 d 58 Viet. c. 26) they are given extended powers of making bye-laws for the regulation, protection, and development of fisheries inter alia for crabs and lobsters. 1 The Herring Fishery (Scotland) Act, 1889 (52 d 53 Viet. c. 23), Beam enacts that the Fishery Board may by bye-law or bye-laws direct trawlin g- that the methods of fishing known as beam trawling and other trawling shall not be used within a line drawn from Duncansby Head in Caithness to Rattray Point in Aberdeenshire in any area to be defined by such bye-law. Bye-law (10) under the Act declares that the foregoing provision shall apply to the whole area above specified. 2 The Sea Fisheries Regulation (Scotland) Act, 1895 (58 i 59 Viet. c. 42), imposes increased penalties on anyone contravening such bye-laws. It is, however, provided that nothing in the Act is to operate to " prohibit the landing or selling of fish " caught in any such area by the use of any such method in or " from any vessel other than a steamer, steamship, or vessel " propelled by steam." Section 8 of the Act enacts that " it " shall not be lawful to land or to sell in Scotland any fish " caught in contravention of this Act, or of any bye-law made 1 Ency. Laws of England, 2nd ed. Courts over foreign ships contravening vol. xiii. pp. 185, 186. the Act, see Mortensen v. Peters, (1906) a As to the jurisdiction of the Scotch 8 Fraser, 93 (32 e), ante, p. 16 et seq. 432 OF FISHERY. Sale of fish caught in prohibited area. " thereunder, and all superintendents and their officers employed " in the execution of the Herring Fishery Scotland Acts are " hereby empowered and required to prevent the landing or sale " of any fish so caught." Section 8 of the Steam Trawling (Ireland) Act, 1889 (52 < 53 Viet. c. 74), prohibits steam trawling within three miles 1 of low water of any part of the coast of Ireland or within the waters of any other defined area specified by bye-laws made by the Inspectors of Irish Fisheries (sub-sect. (1) ) ; and imposes a penalty for offences in contravention of such bye-laws (sub-sect. (2)). By sect. 4 every person who lands or sells any fish caught in contravention of any bye-law is subject to a fine. Section 1 of the Steam Trawling (Ireland) Act, 1901 (1 Ed. VII. c. 38), provides that every person using any trawl net or any method of fishing in contravention of any bye-law of the Department of Agriculture and Technical Instruction for Ireland made in pursuance of sect. 3 of the Steam Trawling (Ireland) Act, 1889, shall be liable on conviction under the Summary Jurisdiction Acts to a fine not exceeding 100/. Every net used in contraven- tion of such bye-laws, and " every rope, warp, tackle, beam, pole, " iron and other thing fastened to or used with any such net," shall be forfeited and may be seized by any duly authorized officer of the department or any officer appointed by the depart- ment for the purposes of the Fisheries (Ireland) Act, 1842 (5 <& 6 Viet. c. 96) , 2 and may be dealt with as provided by sect. 103 thereof, subject to the provisions of the Act of 1901 ; and for the purpose of such seizure any such officer may go on board any vessel propelled by steam employed in fishing (sub-sect. (1)). TheTrawling in Prohibited Areas Act, 1909 (9 Ed. VII. c. 8), sect. 1, prohibits the landing or selling in the United Kingdom of any fish caught by the methods of beam trawling and otter trawling within prohibited areas as defined by sect. 5 of the Act, viz., any waters within which such methods of fishing are prohibited by the Herring Fishery (Scotland) Act, 1889 (52 & 53 Viet. c. 237), or any bye-law made thereunder (sect. 5 (1) ) ; and any waters within which beam trawling or otter trawling in or from any steamer or steamship, or vessel propelled by steam is prohibited by any 1 As to the liability of a British previous Acts relating to Irish fisheries, subject illegally fishing beyond the of which the first was 5 Edw. IV. c. 6, three-mile limit, see R. v. Pettit, (1902) and the last 1 & 2 Viet. c. 76, and has 2 Ir. B. 1, ante, p. 14 et teq. 11 This Act consolidated twenty-six subsequent Acts. itself been amended by some seventeen STATUTORY REGULATIONS AFFECTING FISHERY. 433 bye-law made under sect. 3 of the Steam Trawling (Ireland) Act 1889 (52 & 53 Viet. c. 74), s. 5 (2). The expression "pro! hibited area " does not, however, include, either any such waters within three miles from low water mark of any part of the coast of Scotland, unless such waters form part of an area which, as defined for the purposes of the Herring Fishery (Scotland) Act, 1889, or bye-laws thereunder, extends more than three miles from low water mark (sect. 5 (1) ) ; or any such waters within three miles from low water mark of any part of the coast of Ireland, unless such waters form part of an area, which, as defined for the purposes of the bye-law, extends more than three miles from low water mark (sect. 5 (2) ). Any fish caught by the methods of beam trawling, otter trawl- ing and steam trawling within the prohibited areas are to be added to the table of prohibitions and restrictions contained in sect. 42 of the Customs Consolidation Act, 1876 (39 d 40 Viet, c. 36), l and upon being brought to land in the United Kingdom are to be dealt with as goods imported and brought into the United Kingdom contrary to the said prohibitions and restrictions (sect. 1). By sect. 2, any fish on board a trawling or other vessel employed in fishing by or in taking on board fish caught by the aforesaid methods within prohibited areas, within two months prior to the landing or selling fish therefrom in the United Kingdom, are to be presumed to have been caught by such methods and within such areas. The Board of Agriculture and Fisheries Act, 1903 (3 Ed. VII. Board of c. 31), s. 1 (2), transfers to the Board the powers and duties relating " solely to the industry of fishing " previously exercised by the Act Board of Trade under the Sea Fisheries Regulations Acts, 1888, 1891, 1894, and the Oyster Fisheries Acts (Sea Fisheries Acts), 1868 (Pt. III.), 1875, and 1884; Roach River Oyster Fishery Act, 1866 ; Oyster and Mussel Fisheries Orders Confirmation Acts 1869 (No. 2), and Fisheries (Oyster, Crab, and Lobster) Act, 1877. By sect. 1, sub-sect. 3, " sect. 4 of the Board of Agriculture Act, 1889, " shall have effect as respects the transfer of any powers and duties 1 By sect. 42 of the Customs Consoli- enumerated and described shall be im- dation Act, 1876 (39 & 40 Viet. c. 36), ported or brought into the United the goods enumerated and described in Kingdom contrary to the prohibitions a " table of prohibitions and restrictions and restrictions contained therein, such " inwards " at the end of the section, are goods shall be forfeited, and may be prohibited to be imported or brought destroyed or otherwise disposed of as into the United Kingdom, save as the Commissioners of Customs . may thereby excepted, and if any goods so direct. T W r>Q Ll. V> . 434 OF FISHERY. Herrings. Salmon Fishery Acts. " of a Government Department which appear to His Majesty to " relate to the industry of fishing in the same manner as with " respect to powers and duties which appear to His Majesty to " relate to agriculture or forestry, and sections two and four of that " Act shall be read as if the words ' the industry of fishing ' were " added after the word ' agriculture.' " The limitation respecting the number and term of office of inspectors contained in sect. 31 of the Salmon Fishery Act, 1861 (24 & 25 Viet c. 109), is (by sub-sect. 5) to cease to apply, and inspectors may be appointed by the Board under sect. 5 of the Board of Agriculture Act, 1889. The Board is by sub-sect. 6 also to be substituted for the Board of Trade as respects communications and returns in sect. 6 of the Sea Fisheries (Scotland) Amendment Act, 1885 (48 d- 49 Viet. c. 70). By sub- sect. 7, where any portion of the sea shore proposed to be comprised in an order under Part III. of the Sea Fisheries Act, 1868 (31 d- 32 Viet. c. 45) is under the manage- ment of the Board of Trade, the order shall not be made without the consent of that Board, and sect. 46 of that Act shall be con- strued accordingly. Sect. 3 provides that nothing in the Act shall " transfer or authorise the transfer of any powers or duties " exerciseable in or in relation to Scotland or any part of the sea " adjoining Scotland, except so far as is expressly provided by " this Act as respects communications and returns, and except so " far as respects the river Esk and its banks and tributaries "referred to in sect. 63 of the Salmon Fishery Act, 1865." Sects. 4 and 5 of 48 Geo. III. c. 110 provide for the appointment of the Herring Fishery Commissioners, and the establishment of fishery districts, and the rules to be observed by fishermen and others are regulated by that Act, and a series of statutes amending it which are recited in the preamble to 14 d 15 Viet. c. 26. 1 By the Salmon Fishery Acts, 1861 to 1886, 2 it is provided, that i These Acts are : 48 Geo. III. c. 1 10 ; 51 Geo. III. c. 101 ; 52 Geo. III. c. 153 ; 54 Geo. III. c. 102 ; 55 Geo. III. c. 94 : I Geo. IV. c. 103 ; 1 & 2 Geo. IV. c. 79 ; 5 Geo. IV. c. 64 ; 7 Geo. IV. c. 34 ; 1 Will. IV. c. 54 ; 6 & 7 Viet, c. 79 ; 10 & II Viet. c. 91. Some of these Acts have been wholly and others partially repealed, and 14 & 15 Viet. c. 26 has itself been partially amended by 30 & 31 Viet. c. 52. s. 9, 31 &; 32 Viet. c. 45. s. 71, and by the Statute Law 'Revision Acts, 1875 and 1892 ; see also the Cran Measures Act, 1908 (8 Ed. VII. c. 17), the Board of Trade Sea Fisheries Regulations, 1902, and the Board of Trade Regulations (Statutory Rules and Orders), 1908, Fishery, p. 353. These at present apply only to East Suffolk, Great Yarmouth, and Grimsby ; see also for Scotland, Statutory Rules and Orders, 1908, Fishery, Scotland, pp. 358375. 2 For list of these Acts, see ante, p. 423. STATUTORY REGULATIONS AFFECTING FISHERY. 435 for the protection of salmon fisheries the justices of a county, at any Court of Quarter Sessions, may apply to the Board of Formation of Trade to form into a fishery district, or districts, all or any of districts and the salmon rivers within their county. Where such district is boards- formed, a board of conservators may be appointed by the Court of Quarter Sessions for enforcing the provisions of the Fishery Acts within their jurisdiction. Where a fishery district does not lie wholly within one county, a fishery committee of three members from each county are to appoint a board of conservators. 1 When the justices of any county in quarter sessions have applied to the Secretary of State to form into a fishery district any river lying wholly or partly in their county, the Secretary of State has jurisdiction by his certificate to enlarge the limits of the district to any extent, in the same and the neighbouring counties, that he in his discretion may think fit. 2 All owners or occupiers of a fishery in such district, which is rated to the poor at the gross rental of 30Z. per annum, and all owners of land in the district of the annual value of 100L, having a frontage of not less than a mile on any salmon river, are to be ex oflicio members of the board ; 3 and in districts where there are any public fisheries, additional members may be elected by licensed fishermen fishing in the public waters. 4 A fishery district may be altered, by including or excluding any salmon river or part of it, by certificate from the Secretary of State. 4 The word " river " is defined as including " such " portion of any stream or lake, with its tributaries, and such " portion of any estuary, sea, or sea coast, as may from time to " time be declared by the certificate of the Secretary of State to " belong to such river." 5 Where more than one river flows into 1 Sect. 7. These provisions as to 64 L. J., M. C. 59 ; 72 L. T. 54, where the formation, alteration, &c., of fishery a brook running into a river which ran districts, and appointment, &c., of con- directly into the Severn was held to be servators now apply to all waters a tributary of the Severn within the frequented by freshwater fish: 41 & 42 meaning of the certificate; George v. Viet. c. 38, s. 6 ; 47 Viet, c. 11, s. 2. Carpenter, (1893) 1 Q. B. 505 ; 68 L. T. 2 Reg. v. (rrey, L. R., 1 Q. B. 469 ; 6 714, where the Vyrnwy reservoir was B. & S. 65 ; 35 L. J., M. C. 198; 14 held not to be a tributary of the Severn : L. T. 477. Jfarbottle v. Terry, 10 Q. B. D. 131 ; 8 36 & 37 Viet. c. 71, ss. 26, 29. 52 L. J., M. C. 31 ; 48 L. T. 219, where 4 28 & 29 Viet. c. 121, s. 20. As to the Whittle Bum reservoirs were held rejecting a vote at election of Fishery to be tributaries of the Tyne. In Moses Commissioners in Ireland, see Seech v. v. Jago, (1906) 1 K. B. 516 ; 75 L. J., Lucas, Ir. R., 11 C. L. 517. K. B. 331; 94 L. T. 548 ; 70 J. P. 251 ; 28 & 29 Viet. c. 121, ss. 3, 5. As to 21 Cox, C. C. 136, from a stream which meaning of " tributary " under sect. 6, was a tributary of a salmon river a mill see Ecu-its v. Owen, (1895) 1 Q. B. 237 ; race was conducted to certain mills. 282 436 OF FISHERY. Proceedings of board. Powers of boards. Weirs and mill-dams obstructing fishery. an estuary, the Secretary of State may define the limits of such estuary, and form it into a separate district. 1 The proceedings of the boards of conservators are regulated by sects. 21 to 26 of 28 & 29 Viet. c. 101. The boards of conservators have powers within their districts to appoint water bailiffs (for which purpose they may obtain the services of additional constables under 3 A 4 Viet. c. 88, s. 19, with all the powers and privileges of water bailiffs) ; to issue licences for fishing with rods and nets, and for fishing weirs, mill-dams, &c. ; to purchase compulsorily or otherwise, 2 for removal only, dams, fishing weirs, mill-dams, and fixed engines ; to take proceedings against persons violating the Acts ; and generally to do such acts as they may deem fit for the improve- ment of the fisheries : provided that nothing be done which may injuriously affect any navigable river, canal, or inland navigation. 3 Proprietors of fisheries and boards of conservators can, with the consent of the Board of Trade, attach fish-passes, to be approved by the Board of Trade, to every dam existing at the passing of the Act of 1861, provided no injury is done to the milling power, or to the supply of water to or of any navigable river, canal, or other inland navigation. Compensation for damage done to a dam by erecting such fish-pass may be recovered from the person or body of persons by whom it is erected. 4 "Where new weirs or dams have been erected since the passing of the Act, or old ones raised, or altered, or rebuilt to the extent of one half the length of the weir or dam, or where any obstruc- tion is caused to the passage of fish, the person causing the For the purpose of increasing the water power a triangular mill pond was con- structed opening out of the mill race and the water flowed backwards and forwards from the pond to the mill race, the water in the pond and race always being at the same level. All the water ultimately, after turning the mills, re- turned to the stream. Held that the mill pond was a tributary of the stream and that a person fishing in it required a licence ; but in Stead v. Nicholas, (1901) 2 K. B. 163 ; 70 L. J.,K. B. 653 ; 85 L. T. 23 ; 49 W. R. 522 ; 65 J. P. 484; 20 Cox, C. C. 27, a reservoir, geographically situated within a fishery district, but which does not communicate with a river except by a valve, was held not to be a tributary nor communicate with a river so as to justify a conviction for fishing without a licence under sect. 35 of the Act of 1865 (28 & 29 Viet, c. 121) or of the Freshwater Fisheries Act, 1878 (41 & 42 Viet. c. 39, ss. 6 & 7). See also Merrickg v. Cadwallader, 51 L. J.,M. C. 20 ; Hall v. Reid, 10 Q. B. D. 134, n. ; 48 L. T. 221,n. The meaning of "tributary" in all these cases is to be gathered from the wording of the special certificate in each case, and to include the tributaries of a tributary unless the wording of the certificates excludes such a construction. 1 28 & 29 Viet. c. 121, s. 49. 2 36 & 37 Viet. c. 71, s. 49. 8 28 & 29 Viet. c. 121, s. 27. For the Fishery Bye- Laws of the Thames Con- servancy, see post, Appendix II. 4 24 & 25 Viet, c. 109, s. 23. STATUTORY REGULATIONS AFFECTING FISHERY. 437 obstruction shall make a fish-pass to be approved by the Board of Trade. 1 Further, conservators may make bye-laws a to alter the limits Bye-laws. of the annual and weekly close season within their district ; 3 to determine the length, size, and mesh of nets, and the mode of using them ; 4 to determine the form and rate of licences, and the marks attached to licensed nets or boats ; to prohibit the use of nets within certain distance of any river, not being a several fishery, and to determine when the gaff may be used ; to regulate the gratings to be placed in artificial channels ; to regulate the use of nets for fish other than salmon, prejudicial to salmon fishery, during the annual and weekly close seasons ; to prohibit the use in any inland water of any net except a landing-net, or a net for taking eels, between the first hour after sunset and the last hour before sunrise. They are also empowered to alter the. close season for trout, 6 and char, 6 in their district. They may impose penalties not exceeding 51. for each offence against the bye-laws ; 7 all such bye-laws must be confirmed by the Secretary of State before coming into operation. 8 1 24 & 25 Viet. c. 109, s. 25 ; 36 & 37 Viet. c. 71,8.46. 2 See note 3, ante, p. 436. 3 Sect. 39 (1) of the Salmon Fishery Act, 1873, enables the conservators of the Severn Fishery Board " to alter the ' commencement and termination of the ' annual close season as to the whole or ' part of the district so that such close ' season when so altered should not ' be less than 154 days for all modes of 1 salmon fishing except rod and line and ' should not commence later than the ' 1 st day of November in each year." By bye-law 17 made by the conser- vators : " The annual close time as to ' the whole of the Severn fishery dis- 'trict for all modes of salmon fishing 'except with rod and line shall com- ' mence on the 16th day of August in ' each year and terminate on the 1st 'day of February following." By sect. 2 of the Salmon Fishery Law Amendment Act, 1879 (42 & 43 Viet, c. 26) : " Notwithstanding anything in 1 the Salmon Fishery Acts, 1861 to 1876, ' contained, the annual close season for ' putts and putchers shall commence on ' 1st September in each year and ter- ' minate on 1st May in the ensuing year ' both inclusive. None of the provisions 'of the said Acts as to the weekly ' close season shall apply to putts and 'putchers." Held, that the respondent was justi- fied in fishing with putchers on 22nd August, 1905. Prosper v. Cadogan, (1906) 94 L. T. 777 ; 70 J. P. 511 ; 21 Cox, C. C. 190. 4 A bye-law prohibiting the use of particular kinds of nets is not ultra vire* since the word " description " does not limit a board of conservators to making regulations as to the charac- teristics of the particular kinds of nets : Clayton v. Peirge, (1904) 1 K. B. 424, 73 L. J., K. B. 269, 90 L. T. 119 ; 20 Cox, C. C. 596. A bye-law making it unlawful for any person to use any net whatever inside the bar in any public water of a fishery district, except a trawl net, between the 1st December and the 30th April, both inclusive, was held to be ultra vires and invalid ; as the conservators had no power under sub- sect. 11 of sect. 39 of the Salmon Fishery Act, 1873, to make a bye-law which was not a mere regulation, but an absolute prohibition for a definite time, of the use of nets which were found as a fact to be not prejudicial to the salmon fishery : Puller v. Berry, 59 L. T. 230 ; 53 J. P. 6. See also Wood v. Venton, 54 J. P. 662. 5 39 & 40 Viet. c. 19, s. 4. 8 41 & 42 Viet. c. 39, s. 10. 7 36 & 37 Viet. c. 71, s. 49. 8 Ibid. sect. 41. 438 OF FISHERY. Powers of Any water bailiff may examine any weir, fixed engine or obstruction, or any artificial watercourse connected with a salmon river ; stop and search 1 any boat which he has reason- able cause to suspect contains salmon, and seize any fish or fishing instrument, &c., forfeited under the Acts ; search and examine any nets used by persons whom he has reasonable cause to suspect of having possession of fish illegally caught, and seize the fish. All persons resisting or obstructing such search to be liable to a penalty of 51. For the enforcement of the Act all water bailiffs to have the powers of constables ; and the pro- duction of the instrument of their appointment to be their warrant. 2 A water bailiff may, moreover, under special order of the Board, enter on any lands, at reasonable times, to prevent breaches of the Salmon Fishery Acts ; 3 and may, together with any assistants, apprehend any person illegally taking salmon, or found near a salmon river with the intent to take salmon, between the first hour after sunset and the last hour before sunrise. 4 A justice may further, on information on oath that there is probable cause to suspect any breach of the Acts on any premises, by warrant, empower any inspector, water bailiff, conservator, constable, or police officer, to enter such premises, and seize any illegal engines or salmon illegally taken. No such warrant is to continue in force for more than one week. 5 Gratings. For the further protection of fish it is enacted, that where salmon are led aside out of a stream into any artificial channel for supplying towns with water, or for supplying a navigable canal, the persons having the control of such artificial channel, must put up and maintain gratings, to prevent the descent of salmon or young salmon, as approved by one of the inspectors of fisheries. 6 A board of conservators may, moreover, order a 1 As to right of search under the hand, and offered it to be read, but, it Tweed Fishery Act, 1857, 20 & 21 Viet. being dark, J. said he could not read it. c. 148, s. 37, see Jackson v. Stevenson, Held, the justices were wrong in 24 Sess. Cas. (1897). refusing to convict J. for resisting (J. on 2 Ibid. sect. 36. A water bailiff must the ground that C. had not produced produce his appointment before exer- his appointment pursuant to 36 & 37 cising the authority given to him under Viet. c. 71, s. 36: Cowler v. Jones, 54 the Salmon Fishery Acts, 1861 to 1873, J. P. 660. whether such production be demanded 3 Ibid. sect. 37. or not : Prrnncott or Parnacottv. Pans- * Ibid. sect. 88. The powers of water more, 56 L. J., M. C. 99 ; 19 Q. B. D. bailiffs are now extended to all waters 75 ; 35 W. R. 812 ; 51 J. P. 821. containing " freshwater fish " : 47 & 48 0., a water bailiff, went to search the Viet. c. 11, s. 3. boat of J., and told him that he (C.) 5 24 & 25 Viet, c. 109, s. 34. had his warrant of appointment in his " Ibid. sect. 13. STATUTORY REGULATIONS AFFECTING FISHERY. 439 grating to be placed at the expense of the board, in any water- course, mill-race, or leat, during such seasons of the year as may be prescribed, 1 and may widen any channel so as to compensate for any diminution of any flow of water caused by the erection of the gratings ; 2 and may also, with consent of Secretary of State, adopt such measures as he may approve, for preventing ingress of salmon into streams unfitted for spawning, 3 the owners of lands to preserve such gratings from injury. 4 The general superintendence of the salmon fisheries in England inspectors is now vested in the Board of Agriculture and Fisheries (see Boners"" ante, p. 433), 5 which may appoint two inspectors of fisheries for three years. The inspectors are to make annual reports, 6 con- taining a statistical account of all the salmon, freshwater, or sea fisheries as far as practicable, over which the Board of Trade have jurisdiction and control. 7 Commissioners may be appointed by his Majesty to inquire into the legality of any fixed engines, and to abate and remove all such as are not proved to their satisfaction to be privileged, and to inquire into the legality of fishing weirs and fishing mill-dams, and to remove such fishing weirs, and cause to be incapable of catching fish such fishing mill-dams, as are in contravention of the Act. 8 Certificates are to be given stating the situation, size, and description of engines proved to be privileged. 9 Notice is to be given in some daily London paper, and in some paper circulating in the district, of the place where and time when the commissioners will be prepared to hold a Court for determining the legality of fishing weirs, dams, and fixed engines in such district. 10 An appeal lies from the decision of commis- sioners, by special case, to any of the superior Courts of Westminster. 11 By the Freshwater Fisheries Act, 1878, which is to be read The Fresh- as one with the Salmon Fishery Acts, 1861 to 1876, the pro- Fisheries visions of the Salmon Fishery Acts, 1865 and 1873, which relate f cte, 1878, ,. i i i j 1884, 1907. to the formation and regulation of conservancy districts, and 36 & 37 Viet. c. 71, s. 58. 8 28 & 29 Viet. c. 121, ss. 40, 42, 46, 55. Ibid. sect. 59. 9 Ibid. sect. 41. The powers of appoint- Ibid. sect. 60. ing inspectors and commissioners is Ibid. sect. 61. renewed every year by the Expiring 49 & 50 Viet. c. 39, s. 3. Laws Continuance Acts. 24 & 25 Viet. c. 109, ss. 31, 32. J0 Ibid. sect. 43. ' 49 & 50 Viet. c. 39, s. 6. Ibid. sect. 45. 440 OF FISHERY. the appointment and powers of conservators, are extended to all waters in England and Wales, except to the counties of Norfolk and Suffolk, 1 and the city of Norwich, frequented by trout and char ; and the term " salmon river " in the 4th and 19th sections of the Act of 1865, and in sect. 26 of the Act of 1873, are to mean any river frequented by salmon, trout, and char. 2 In any district subject to aboard of conservators, the provisions of the Acts of 1865 and 1873, relative to licences, are to be construed as if the words " trout and char " were inserted after the word " salmon "; 3 close seasons are instituted for trout, char, and freshwater fish, and the powers of water bailiffs under those Acts are to extend to all waters within the limits of the Act, as if the words " salmon rivers," wherever they occur, included all waters frequented by salmon, trout, and char. 4 The provision of sect. 34 of the Act of 1861, as to search warrants, is to extend to all offences within the Act. By the Freshwater Fisheries Act, 1884, 5 fishery districts may be formed and conservators appointed for water frequented by any freshwater fish, and sect. 6 of the Freshwater Fisheries Act, 1878, is to apply as if " freshwater fish " were therein substituted for " trout and char " and " salmon, trout and char," and sects. 27 and 31 of the Salmon Fishery Act, 1865, and sects. 3638 of the Salmon Fishery Act, 1873, as to the powers of water bailiffs are to apply as if " freshwater fish " were therein substituted for " salmon," and " water frequented by freshwater fish " for " salmon river," and any conservators appointed are to have all the powers of conservators under the Salmon Fishery Act, 1876. 6 Conservators may make bye-laws as to the mesh, length, size, and description of nets and for prohibiting any mode of or instru- ment for catching freshwater fish, except fixed nets for eels and 1 Extended to Norfolk and Suffolk ' powers of water bailiffs), shall extend by 47 Viet. c. 11, s. 8. 'to all waters within the limits of this 2 41 & 42 Viet. c. 39, s. 6. ' Act in like manner as if those sections 8 Ibid. sect. 7. For cases as to licences, ' were re-enacted in this Act, with the see ante, p. 435, n. 5 ; as to taking dying 'substitution of 'freshwater fish' for trout from poisoned waters, see post, ' ' salmon,' and of ' waters frequented p. 450, n. 2. " by freshwater fish ' for ' salmon river,' * Ibid. sect. 8. Sect. 3 of 47 Viet. c. 1 1 ' and with a reference to the Freshwater is as follows : " In substitution for sec- ' Fisheries Act, 1878, and this Act, in 'tion eight of the Freshwater Fisheries 'substitution for the reference to the ' Act, 1878, which shall be repealed, it is ' Salmon Fishery Acts, 1861 to 1873, or ' hereby enacted that section thirty-one ' any of them." 'of the Salmon Fishery Act, 1865, and 5 47 Viet. c. 11. The Freshwater 'sections thirty-six, thirty-seven, and Fisheries Acts, 1878 - and 1884, apply to 1 thirty-eight of the Salmon Fishery Act, Ireland and Scotland. ' 1873 (which sections relate to the 6 Sects. 2, 3. STATUTORY REGULATIONS AFFECTING FISHERY. 441 landing nets. Bye-laws may be made and penalties imposed as under the Salmon Fishery Act, 1873. 1 The Act is to be construed as one with the Freshwater Fisheries Act, 1878, and " freshwater fish " is defined as " any " fish living permanently or temporarily in fresh water, exclusive of salmon." 2 The Salmon and Freshwater Fisheries Act, 1907 (7 Ed. VII., c. 15), empowers the Board of Agriculture and Fisheries to make provisional orders for the improvement and development of salmon fisheries or freshwater fisheries (sects. 1 3). The provisional order must define the area within which it is to apply, and provide for the constitution and incorporation of a board of conservators, and for enabling the conservators to purchase or lease any part of the foreshore 3 specified in the order, together with any easement over any adjoining land necessary for securing access thereto, and by themselves or their lessees to erect and work fixed engines for salmon on the foreshore so acquired (sect. 2 (1) e). No such fixed engine shall be worked for a period exceeding five years unless the authority is from time to time extended by licence of the Board for such term, not exceeding five years, as may be specified in the licence, and after an inquiry by the Board into the effect of the working of the engine on the salmon fisheries within the area ; and all the rents and profits of the fixed engines authorized by the order are to be appropriated for the purpose of securing the restriction or abolition of the use of nets and other obstructions to the passage of salmon (sect. 2 (1) (e i. ii.) ).* The Lands Clauses Acts, so far as they relate to the purchase 1 Sect. 1. 'not more than 21. fine on first convic- 2 Sect. 6. " The substance of the ' tion, 51. on second or any subsequent ' Freshwater Fisheries Acts, 1878, 1884, 'conviction, and forfeiture of fish so 'and 1886 (41 & 42 Viet, c. 39, 47 & 48 'caught, bought, or sold, and in the ' Viet. c. 11, and 49 & 50 Viet. c. 2), ' discretion of the justices, forfeiture of ' which extend to the whole of England, ' the instruments used in taking them 'is that arrangements for the protection ' (1878 Act, s. 11) ; theuseof poison or ' and management of freshwater fish ' noxious substances for the destruction 'are made similar to those relating to 'of fish is prohibited (1884 Act, s. 7) ; ' salmon ; and a close time is instituted ' the Acts are applied to Norfolk and ' for all freshwater fish, during which ' Suffolk (1884 Act, s. 8) ; and generally ' time they may not be bought or sold ' the provisions of the Salmon Fisheries 1 or killed, with an exception in this last ' Acts as to legal proceedings, offences, ' case of so doing by the owner of a ' and penalties apply to those under 'several or private fishery, or by his 'the Freshwater Fisheries Act of 1878 '' 'permission in his private fishery, or (Encyclopedia of Laws of England, ' by leave of a board of conservators in 2nd ed. vol. vi. p. 96). a public fishery, or by a person so 3 Cf. sect. 3 of the Crown Lands Act, ' doing for scientific purposes, or if they 1906 (6 Ed. VII. c. 28). ' are taken for bait, under penalty of 4 Cf. as to obstructions, sect. 4, and 442 OF FISHERY. and taking of lands otherwise than by agreement and to entry thereon are, subject to the modifications stated in the schedule to the Act, incorporated with it for the purpose of the acquisition of the foreshore or easements necessary for giving access thereto (sect. 2 (2) and Sched.). No provisional order under the Act is to apply to any waters in which the business of artificially propagating or rearing salmon or trout is carried on under a licence granted by the Board, and any such licence may be granted, subject to such conditions as they think fit, and may be revoked if the Board are of opinion that any condition has not been observed (sect. 2 (4) ) . Provisional orders are to be submitted to Parliament for confirmation and are of no force until so confirmed ; and may be repealed, altered, or amended by further orders made by the Board in like manner as the original order (sect. 5 (1) (4) ), and no order affecting any fore- shore or fishery or land over which it is proposed to acquire any easement which is under the management of the Commissioners of Woods or of the Board of Trade shall be made without the consent of the Commissioners or of the Board ; or where such foreshore or fishery or land forms part of the possessions of the Duchy of Lancaster, or of the Duchy of Cornwall, without the consent of the Chancellor of the Duchy or of the Duke of Cornwall 1 (sect. 7). Proceedings. Proceedings against a person contravening any of the pro- visions of the Salmon and Freshwater Fishery Acts, 1861 to 1907, may be instituted before a Court of summary jurisdiction in any place in which the salmon, trout, or char, in respect whereof the proceedings are taken, may be found, and any salmon, trout, or char which may be forfeited upon the conviction of an offender shall be disposed of as the Court directs. 2 Legal proceedings for offences under the Acts may be taken : by any member of the public (54 < 55 Viet. c. 37, s. 13) ; by boards of conservators (24 & 25 Viet. c. 109, s. 27) ; or water Parts VIII. & IX. of the Salmon Fishery land, or to the river Tweed as defined Act, 1873 (36 & 37 Viet. c. 71) ; sects. by bye-law under the Salmon Fisheries 23 30, Salmon Fishery Act, 1861 (Scotland) Act, 1862, or its tributaries. (24 & 25 Viet. c. 109); and sect. 42 of "Salmon and Freshwater Fisheries the Salmon Fishery Act, 1865 (28 & 29 Acts " is defined to mean : " the Salmon Viet. c. 121). and Freshwater Fisheries Acts, 1861 to 1 The Act which may be cited with 1892 and the Fisheries (Norfolk and the Salmon and Freshwater Fisheries Suffolk) Act, 1896, and other expressions Acts. 1861 to 1892, does not apply to have the same meaning as in those Acts." Scotland (except the river Esk in Dum- 2 55 & 56 Viet. c. 50, s. 4. friesshire and its tributaries), or to Ire- STATUTORY REGULATIONS AFFECTING FISHERY. 443 bailiffs (54 d 55 Viet. c. 37, s. 13). 1 A conservator who has voted for a prosecution may not sit as a justice to determine it (28 d 29 Viet. c. 121, . 65) . 2 The proceedings may be instituted wherever the salmon, trout, or char are found to which such proceedings relate (55 & 56 Viet. c. 50, s. 6) ; on either side of a river bounding two counties (24 d 25 Viet. c. 109, . 36 ; 42 d 43 Viet. c. 49, s. 46) ; and where the offence is on the sea, in the adjoining county (24 & 25 Viet. c. 109, s. 37 ; 42 d 43 Viet. c. 49, s. 46 ; Summary Jurisdiction Act, 1878). Warrants may be issued by justices to search places in which offences are suspected to have been committed (24 d 25 Viet c. 109, s. 34 ; 28 d 29 Viet. c. 121, s. 31). Increased penalties are incurred by persons twice convicted of certain offences under the Acts (28 d 29 Viet. c. 121, **. 56, 59), which involve a right in the accused to elect for trial by jury (42 d 43 Viet. c. 49, s. 17 ; Summary Jurisdiction Act, 1878). Penalties imposed by the Acts are recoverable before a Court of summary jurisdiction, subject to an appeal to quarter sessions (28 d 29 Viet. c. 121, s. 66). 3 The procedure on appeal is regulated by the Summary Jurisdiction Acts, 1879 (s. 31) and 1884. The parties may proceed by special case in lieu of appeal. 4 On the high seas, as has been said, fish of all kinds may be statutory taken, at all seasons, and by all means. 5 The fishery for all kinds of fish in the territorial waters of the during which realm below low water mark, was, prior to the passing of the catch fish. Sea Fisheries Eegulation Act, 1888, 6 free from legal restrictions High seas. as to season, with the exception of the coast of Cornwall east of Territorial Trevose Head, where the use of drift or trawl nets is prohibited within two miles of low water mark, from sunrise to sunset, between July 25th and November 25th ; it being also illegal during that season for any boat not engaged in seine fishing, to anchor or use any implement, except for the purpose of seine fishing, within half a mile of any sea boat engaged in seine fishing. Now, by sect. 7 of the Fisheries Act of 1891, the powers of 1 Pollock v. Maxes, 63 L. J., M. C. 116 ; * Garnett v. Backhouse, L. R., 3 Q. B. 70 L. T. 378 {Anderson v. Hamlin, 699. See Encycl. Laws of England, 28 Q. B. D. 221 ; 59 L. J., M. C. 151 ; 2nd ed. vol. xiii.'p. 110. 63 L. T. 168, over-ruled) ; Williams v. 5 As to this, see article 10 of the Blackwall, 32 L. J., Ex. 174 ; 8 L. T. convention attached to 31 & 32 Viet. 252. c. 45. 2 Beg. v. Henley, (1892) 1 Q. B. 504. 51 & 52 Viet. c. 54. 8 51 & 52 Viet. c. 54. 444 OF FISHERY. local committees under the Act of 1888 are extended to the making of bye-laws with respect to a close time for fish in sea fishery districts in any part of the sea within which British subjects have by international law the exclusive right of fishery, 1 either with or without any parts of the adjoining coast of England and Wales, and by the Shell Fish Kegulation Act, 1894 (57 d 58 Viet, c. 26), these powers are extended to the making of bye-laws for the regulation, protection and the development of shell fish. By sect. 1 2 (1) the bye-laws may provide for : (a) fixing the sizes and condition at which shell fish may not be removed from a fishery and the mode of determining such sizes ; (b) the obligation to re-deposit in specified localities any shell fish the removal or possession of which is prohibited by or in pursuance of any Act of Parliament ; (c) the protection of shell fish laid down for breeding purposes ; (d) the protection of culch and other material for the reception of spat, that is to say, of spawn or young of any kinds of shell fish ; and (e) the obligation to re-deposit such culch, and other material in specified localities. Sect. 1 (2) empowers local fishery committees to stock or re-stock any public fishery for shell fish, and for that purpose to incur such expenses as may be sanctioned by the Board of Trade. " Shell fish " is defined by sect. 1 (3) to include " all kinds of molluscs and crustaceans." Oysters. By a convention between the British and French Govern- ments incorporated into the Sea Fisheries Act, 1868, fishing for oysters in the Channel beyond three miles from the coasts of England and France, within a line drawn from North Foreland to Dunkirk, and a line drawn from the Land's End to Ushant, is prohibited from June 16th to August 31st ; and during that time in the same part of the Channel, no boat may have on board any oyster dredge, unless the same be sealed up by the customs authorities, so as to prevent it being made use of. This convention is not yet in force 3 and would appear to be binding only on the subjects of England and France, so far as it relates to the sea beyond the limits of the territorial waters of either country. By the Fisheries (Oyster, Crab and Lobster) Act, 1877, 4 the 1 As to these limits, see ante, pp. 8 8 Ante, p. 435. rtseq. * 40 & 41 Viet. c. 42. 2 07 & 58 Viet. c. 26. STATUTORY REGULATIONS AFFECTING FISHERY. 445 Fisheries Act, 1891, l and the Sea Fisheries (Shell Fish) Regulation Act, 1894, 2 penalties are imposed for the sale, exposure, consign- ment or buying for sale of any " deep sea oysters " between June 15th in any year and August 4th following, or of any other description of oysters between May 14th and August 4th following, provided that a person shall not be guilty of an offence if he satisfies the Court that the oysters were taken within the waters of some foreign state. 3 Powers are given to local committees to make bye-laws for the regulation, protection and development of the fisheries, and the taking of undersized shell fish is prohibited. 4 By sect. 19 of 31 d 32 Viet. c. 45, all restrictions whatever in Other sea fish. England on the sale of sea fish (except salmon), which is not diseased, unsound, unwholesome, or unfit for the food of man, were abolished. 5 By the Whale Fisheries Act (7 Ed. VII., c. 42), and bye-laws made under it, a close time for whales off the coast of Scotland is prescribed from June 1st to July 5th. The restrictions on the sale of salmon during the close season, Salmon, do not apply to fish caught beyond the limits of the Salmon Fishery Acts ; and it seems somewhat doubtful whether the territorial waters within three miles of low water mark would be, according to the judgment in Reg. v. Keyn, 6 so within the limits of the Act, as to make the possession of salmon caught out of season, within three miles of shore, illegal. No salmon 7 may be taken in any river (the term " river " includ- inland ing such portion of any stream or lake with its tributaries, and galmon such portion of any estuary, sea, or sea coast as may be declared by the certificate of the Secretary of State to belong to such river) 8 between 1st September and 1st February, or by putts and putchers between 1st September and 1st May in the ensuing year, 9 both inclusive, under heavy penalties. 10 If the river is in 1 54 & 55 Viet. c. 37. 18 Cox, C. C. 491 ; 61 J. P. 84 (1896). 2 57 & 58 Viet. c. 26. 5 As to the prohibition of the sale of 8 This Act does not apply to foreign fish under the Trawling in Prohibited oysters, even if stored in English waters Areas Act, 1909, the Herring Fishery till wanted for sale : Robertson v. John- (Scotland) Act, and the Steam Trawling ton, (1893) 1 Q. B. 129. (Ireland) Act, see ante, p. 432. 4 The offence of removing undersized 6 2 Ex. Div. 68 ; 46 L. J., M. C. 17. shell fish from a fishery, contrary to "' For definition of " salmon," see 24 & bye-laws framed under the Sea Fisheries 25 Viet. c. 109, s. 4. (Shell Fish) Regulation Act, 1894, is 8 28 & 29 Viet. c. 121, s. 3. complete whenever such shell fish have 9 42 & 43 Viet. c. 26. been taken up from any part of the 10 24 & 25 Viet. c. 109, s. 17. The fishery with the intention of eventually time within which penalties may be carrying them away : Thomson v. recovered in a summary manner under JJurm, 66 L. J., Q. B. 176 ; 76 L. T. 58 ; sect. 62 of the Salmon Fishery Act, 1873, 446 OP FISHERY. a fishery district the board of conservators have powers to vary the close time. 1 Fishing for salmon with rod and line only may be lawfully carried on until the 1st November inclusive. 2 No person may take salmon except with rod and line during the weekly close season i.e., from noon on Saturday till six on the following Monday morning. 3 This time may be varied by the conservators of each district. 1 No person may, during the weekly close season, place any obstruction or do any act for the purpose of deterring salmon from passing up a river. 4 Any person acting in contravention of these provisions is liable to forfeit all fish taken by him, and any net or movable instrument used by him in taking the same, and further to a penalty of 51., and II. for every fish so taken. A net so used for the purposes of taking salmon has been held to be forfeited, although the defendant who used it caught nothing. 5 No person, whether the owner of a fishery or not, may take, buy, or sell or possess unclean or unseasonable salmon, unless such fish be taken accidentally or for scientific purposes ; 6 or take, destroy, buy, sell, or possess, obstruct, or injure the young of salmon, 7 or disturb a spawning bed. 8 All fixed engines must be removed during the annual close time within thirty-six hours of its commencement ; 9 and during the weekly close season a free passage must be left through cribs, boxes, and cruives. 10 is to be calculated in accordance with impede the passage of salmon, although the provisions of sect. 1 of the Summary it did to some extent delay them and Jurisdiction Act, 1848. It is therefore alter the course which they would take unnecessary that a conviction and in ascending the estuary, and so recovery of a penalty should take place facilitated their capture by the pro- within six months from the actual date prietor : Held, that the raising the of the offence, so long as an informa- embankment was not an illegal obstruc- tion has been laid within six months : tion within the meaning of the Salmon Morris v. Duncan, 58 L. J., Q. B. 49 ; Fishery Acts : Sutherland (Duke of) (1899) 1 Q. B. 4 ; 79 L. T. 379 ; 47 v. Ross, 3 A. C. 736. W. R. 96 ; 62 J. P. 823 D. R^her v. Harris, 1 Ex. Div. 97. 1 36 & 37 Viet. c. 71, s. 39. 6 24 &, 25 Viet. c. 109, s. 14. 2 24 & 25 Viet. c. 109, s. 17. 7 A., with a rod and line, caught a 8 Ibid. sect. 21. number of samlets (the young of salmon) 4 36 & 37 Viet. c. 71, s. 16. A pro- whilst he was fishing for trout, not prietor of salmon fishings in an estuary knowing the difference, and having no opposite his estate, restored the fore- intention of taking or having in his shore by an embankment sixteen inches possession samlets or the young of higher than the original, which had salmon, or the young of the salmon been swept away by the tide, and this species : Held, that he had com- he did for the legitimate purpose of mitted no offence under the statute : confining the river to its proper channel, Hopton v. Tlrirlwall, 9 L. T. 327; and to protect his shore, and not as a 12 W. R. 72. device to obstruct or catch fish. The 8 24 & 25 Viet. c. 109, ss. 15, 16. effect of thus raising the embankment 9 Ibid. sect. 20. was not to prevent or substantially 10 Ibid. sect. 22. STATUTORY REGULATIONS AFFECTING FISHERY. 447 No trout or char may be taken in any river between October 1st Trout, &c. and February 1st, both inclusive, under a penalty of 2/. for each offence, and forfeiture of all fish taken. 1 A board of conservators has power, however, to vary the close time in its particular district.' 2 No person between January 1st and June 24th may fix Eels, &c., in in any salmon river i.e., in a river frequented by salmon s or the young of salmon any basket, net, trap, or device for taking eels or the fry of eels, or place in any inland water any device whatsoever to catch or obstruct any fish descending Fish descend- J ing stream. the stream. d No person shall place at any time upon the apron of any Lamperns. weir any basket, trap, or device for taking fish, except wheels or leaps for taking lamperns, between the 1st August and 1st of March. 3 No person may, between March 15th and June 15th, both Freshwater inclusive, fish for, catch, or attempt to catch any freshwater fish than trout or i.e., any fish other than pollen, trout, and char, which live in char - fresh water, and do not migrate to the open sea. 4 Nothing in this section is to apply (a) To the owner of any several or private fishery where trout, char, or grayling are specially preserved, destroying within such fishery any fresh- water fish other than grayling ; (b) To any person angling in any several fishery with leave of the owner, or in any public fishery under a board of conservators, with leave of the said board; (c) To any person taking fish for a scientific purpose, (d) or for bait, in any several fishery with the leave of the owner of such fishery, or in any public fishery except where such taking in a public fishery is prohibited by a bye-law of any conservators. 5 A board of conservators, under the Acts of 1861 and 1876, may, however, as regards any or all kinds of freshwater fish, with the approval of the Secretary of State, exempt the whole or any part of their district from the operation of the foregoing provisions of the section. 6 No person may buy, sell, or expose for sale, or have in his Selling possession 7 for sale, any salmon, or part of any salmon, between ^ char in " close season. 1 41 & 42 Viet. c. 39, s. 5 ; 28 & 29 > 47 Viet. c. 11, s. 5. Viet. c. 121, s. 64. 6 41 & 42 Viet. c. 39, s. 11. 2 39 & 40 Viet. c. 19. ^ " Possession " within the meaning 3 36 & 37 Viet. c. 71, s. 15. of a similar section, i e. sect. 21 of the 4 41 & 42 Viet. c. 39, s. 11 (2) Salmon Fisheries (Scotland) Act, 1868 448 OF FISHERY. the 3rd September and 1st of February following, both inclusive, 1 or any trout or char between 2nd October and the 1st of February following, both inclusive, 2 or any freshwater fish other than pollen, trout, and char, between 15th March and 15th June, both inclusive. 3 This does not apply to salmon cured beyond the limits of the United Kingdom, or within the limits of the United Kingdom between February 1st and November 3rd, or to any clean fresh salmon caught within the limits of the Act, provided its capture by any net, instrument, or device other than a rod and line was lawful at the time and in the place where it was caught ; or to any clean fresh salmon caught beyond the limits of the Act, provided its capture by any net, instrument, or device other than a rod and line, if within the United Kingdom, 4 was lawful at the time and place where it was caught. The burden of proof in all cases to be on the person selling. No person shall between the 3rd September and the 1st February, both inclusive, consign or send by any common or other carrier any salmon, trout, or char, unless the package con- taining it shall be conspicuously marked by painting or branding the word " salmon," " trout," or " char," respectively, on the outside ; and customs officers, officers of conservancy boards, and officers of market authorities, acting within their respective areas, and also officers appointed by the Board of Trade and by the Fishmongers' Company may open suspected packages, and detain them when necessary. Persons offending against this section are made liable to a penalty not exceeding 51., and any unmarked package is forfeitable on the conviction of the offender. 5 Taking un- No person may wilfully take, kill, or injure, or attempt to satmo^trout ^ a ^ e> or ^ uv or se ^' or nave * n n * s possession, any unclean and char. or unseasonable salmon, trout, or char. 6 (31 & 32 Viet. c. 123) does not neces- although they were caught in a part of sarily mean actual physical possession, the United Kingdom (Ireland) to which and a complaint charging five men with the Freshwater Fisheries Act, 1878, does having within their possession two not apply : Bradley v. Price or Price v. salmon is relevant : McAttee v. Hogg, Bradley, 55 L. J., M. C. 53 ; 16 Q. B. D. 5 F. Just. Cas. 67, Ct. of Justy. 148 ; 53 L. T. 816 ; 50 J. P. 180 D. 1 36 & 37 Viet. c. 71, s 19 ; 24 & 25 < See ante, p. 445. Viet. c. 109, s. 21. 6 55 & 56 Viet. c. 50, s. 3. 2 36 & 37 Viet. c. 71, s. 20. 6 24 & 25 Viet. c. 109, s. 14 ; 36 & 37 8 41 & 42 Viet. c. 39, s. 11 (4). The Viet. c. 71, s. 18. As to measuring of exposure of eels for sale during the unseasonable salmon, trout, char, &c., close season, as limited by 41 & 42 Viet. see Oke's Fishery Laws, 2nd ed. p. 41 ; c. 39, s. 11, sub-s. 2, was held to be an Bund's Law of Salmon Fisheries, p. 336. offence under sub-sp^t. 4 of that section, STATUTORY REGULATIONS AFFECTING FISHERY. 449 There appear to be now no general l legal restrictions on the statutory means of catching sea fish, except salmon, in the sea or inland fj^e^ans waters. The various statutes regulating the kinds of nets to be by which it is used, and the size of mesh allowable, have been repealed by the catch fish. Sea Fisheries Act, 1868, 2 so far as relates to England ; 3 and the Sea fish other Freshwater Fisheries Act expressly excludes all fish which migrate to the sea. 4 In fishery districts under 51 & 52 Viet, c. 54, and 55 Viet. c. 7, and 57 & 58 Viet. c. 26, powers are given to local committees to make bye-laws for regulating fisheries. 5 The only exception to this freedom of fishery is that contained in the Fisheries (Dynamite) Act, 1877, 6 which prohibits the use of dynamite or other explosive substance for the catching or destruction of fish in any public fishery, and defines a public . fishery as including the sea within a marine league of the coast. 7 By the Sea Fisheries Act, 1868, it is made unlawful for any Oysters, person, other than the owner or grantee of an oyster bed, or their servants, to fish there with any implement except a line and hook, adapted solely for catching floating fish, or so used as to disturb the oyster bed, or to dredge for or deposit ballast, or to place any instrument prejudicial to the oyster bed, except for a lawful purpose of navigation or anchorage, or to disturb in any other way such oyster bed, 8 under penalties ; such person being at the same time liable to make compensation for all damage done in respect of disturbance of the bed and in respect of destruction of the oysters, provided only that the oyster bed be properly marked out and known. 9 With regard to salmon, the restrictions imposed by the Salmon salmon. Fisheries Acts, 1861 1886, appear only to apply to inland and tidal waters, as defined by the 24 & 25 Viet. c. 109, s. 4, including estuaries, and the sea shore to low water mark. By 41 d 42 1 As to regulation of pilchard fisheries beam, is within Bye-law 1 of the North- in the Bay of St. Ives, Cornwall, see Eastern Sea Fisheries District Bye- 4 & 5 Viet. c. 57. laws, 1894, which prohibits the use of 2 31 & 32 Viet. c. 45. any trawl or trawl net, or any net 8 As to Scotland, see Paterson's having a beam, and its use is contrary Fishery Laws, p. 165 ; also Mortensen v. to that bye-law : Colbeck v. Ashjield, Peters, (1906) 3 Fraser, 93 ; Wilson v. 67 L. L, Q. B. 333 ; 46 W. R. 302 ; 62 Rust, Ct. of Sess. Rep. 4th series (J. C.) J. P. 214 D. 56 ; Peters v. Olsen, 7 Ct. of Sess. Rep. 6 40 & 41 Viet. c. 65. 5th series (J. C.) 86, and ante, p. 16 7 Ibid. sect. 3. et seq. As to Ireland, see Paterson's 8 As to pollution of oyster beds, see Fishery Laws, p. 247 ; also R. \. Pettit, ante, p. 430, n. 3. (1902) 2 Ir. R. 1. 9 31 & 32 Viet. c. 45, ss. 51, 53, 54. 4 41 & 42 Viet. c. 39. See 28 & 29 Viet. c. 121, ss. 3, 5 ; The 5 See ante, p. 429. An otter trawl, Swift, (1901) P. 168 ; 70 L. J., P. 47 ; which has no beam, but which is used 85 L. T. 346 ; 9 Asp. M. C. 244. in fishing for sea fish as a trawl with a L.w. 29 450 OF FISHERY. Viet. c. 39, the provisions of the Fisheries (Dynamite) Act are extended to all private fisheries, and no person, even the owner, may use dynamite, or any other explosive substance to kill fish in the United Kingdom. No person may put any lime or other noxious material into any water frequented by freshwater fish with intent to destroy fish, 1 or cause, or knowingly permit to flow or be put into any waters containing salmon, or into any tributary thereof, any liquid or solid matter to such an extent as to poison 2 or kill fish, unless in the exercise of any right to which he is by law entitled, in which case he is not to be liable to any penalty, if he prove to the satisfaction of the Court before whom he is tried that he has used the best practical means, within a reasonable cost, to render harmless the liquid or solid matter so permitted to flow or put into such waters. 3 No person may, in any non-tidal water, use any device to obstruct fish descending the stream 4 between January 1st and June 1st. No person may use, or have in his possession, any otter lath, jack, wire, or snare, light, spear gaff, strokeall, or snatch for taking salmon, or use for fishing, or have in his possession, any fish roe. 5 No person may fish for salmon with a net having a mesh of less dimensions than two inches in extension from knot to knot, 6 the measurement to be made on each side of the square, or eight inches measured round each mesh when wet; but the conservators of any district may, by bye-law, determine the length, size, and description of net to be used in their district. 7 1 24 & 25 Viet. c. 97, s. 32 ; 47 Viet. 6 24 & 25 Viet. c. 109, ss. 8, 9 ; 36 & c. 11, s. 7 ; 36 & 37 Viet, c. 71, s. 13 ; 37 Viet. c. 71, s. 8. A net of such a see post, p. 460, n. 5. description that the use thereof for a To take dying trout by hand from catching salmon would constitute an a poisoned stream is an offence within offence under sect. 10 of the Salmon sect. 22 of the Salmon Fishery Act, Fishery Act, 1861, is not within the mean- 1873 (36 & 37 Viet. c. 43), as extended ing of sect. 8 of the same Act as amended to trout and char by sect. 7 of the by sect. 18 of the Salmon Fishery Freshwater Fisheries Act, 1878 (41 & 42 Act, 1873, so as to render anyone found Viet. c. 39, s. 71) ; and the offence is in possession of such a net with the complete even when there is no evidence evident intention of presently using it that the offender has poisoned the to catch salmon liable to a conviction stream: Stead v. Tillotson, 69 L. J., under sect. 8 of the Act of 1861 : Juries v. Q. B. 240 ; 48 W. K. 431 ; 64 J. P. 343. Paries, 67 L. J., Q. B. 294 ; (1898) 1 8 24 & 25 Viet. c. 109, ss. 5, 6. See Q. B. 405 ; 78 L. T. 44. Kivers Pollution Act, 39 & 40 Viet. c. 75, 6 As to measurement of nets under ante, pp. 212 et teq. stat. 1 KHz. c. 17, s. 5, see Thomas v. 4 36 & 37 Viet. c. 71, s. 15. In Evans, 27 L. J., M. C. 172 ; El., B1.&E1. Sriggsv. Swanwick, 10 Q. B. D. 510 ; 52 171. L. J., M. C. 63, a permanent structure 7 24 & 25 Viet. c. 109, s. 10 ; 28 & 29 for the purpose of catching eels erected Viet. c. 121, s. 27. D. had a net fixed before the passing of the Act was held and kept up and closed in salmon waters, to be within the section. capable of taking salmon during the STATUTOKY REGULATIONS AFFECTING FISHERY. 451 No person may fish for salmon in any fishery, either with Licences, rod and line, or net, or weir, or fixed engine, without a proper licence. 1 Licences shall be granted at fixed prices to all persons using any rod and line for fishing for salmon, and in respect of all fishing weirs, fishing mill-dams, putts, putchers, nets, or other instruments or devices, except rods and lines, whereby salmon are caught. 28 & 29 Viet. c. 121, s. 35, imposes a penalty on fishing with rod and line without a licence. Sect. 36 subjects to a penalty " any person using any fishing weir, fishing mill-dam, " putt, putcher, net, or other instrument or device, not being " a rod and line, for catching salmon without a licence." The using a putt, though not with the intention of catching salmon, is within sect. 36, though the putt had at its mouth an iron grating which prevented salmon from getting in, but which could be removed at any minute. 2 No person may shoot or work any seine or draft net, reaching across the whole or two-thirds of the width of a river within 100 yards of another, until the first is drawn in. 3 weekly close time provided by the bye- laws, and in which, in fact, salmon had been taken, and in respect of which he had taken out a salmon licence. The mesh of the net was smaller than that allowed by the bye-laws. Held, that provided the justices found " intention " there was evidence of fishing for salmon otherwise than by rod and line during the weekly close time and of attempting to take salmon with smaller meshes than that allowed by the bye-laws: Davieg v. Evans, (1902) 86 L. T. 419 ; 66 J. P. 392 ; 20 Cox, C. C. 177. 1 28 & 29 Viet. c. 121, ss. 3337 ; 36 & 37 Viet. c. 71, s. 22. Fishing for bait with a rod and line without a licence with no intention of catching pro- hibited fish is not an offence under sect. 35 of 28 & 29 Viet. c. 121 : Marshall v. Richardson, 58 L. J., M. C. 45 ; 60 L. T. 608. A rod and line licence does not include the use of a night line : Williams v. Long, 57 J. P. 217 ; even if only set to catch eels, if such line be reasonably calculated to catch trout or char : Hill v. George, 44 J. P. 424. Where a scale of licence duties was one shilling " for each " and every rod and line," it is an offence to fish with three rods and three lines : Cambridqe v. Harrison, 64 L. J., M. C. 175 ; 72 L. T. 592. A. and B. had each a licence for the use of a net, and on a certain day they and the two respondents were together using two coracle nets, each of which required the assistance of two persons. A. and B. were using one net, and the two respondents, who had no licence, were using another. The justices (upon an information against the two respon- dents) found that no fraud was intended, and as one of the licences would have conferred the right to the assistance of one of the respondents, and the two licences therefore would have protected all four of the parties, they dismissed the information : Held, that they were right. Lewis v. Arthur, 24 L. T. 66. Sect. 22 of 36 & 37 Viet, c. 71, only applies to taking living fish and not to taking dead fish left on the tide retir- ing : Gazard v. Cooke, 55 J. P. 102 ; but to take dying trout by hand from a poisoned stream is an offence under sect. 22 as extended to trout and char by sect. 7 of 41 & 42 Viet. c. 39, and the offence is complete notwithstanding the absence of evidence to connect the person so taking them with the poison- ing of the stream : Head v. Tillotson, 69 L. J., Q. B. 260. 2 Lyne v. Leonard, L. K., 3 Q. B. 156 ; 9 B. & S. 65. * 36 & 37 Viet. c. 71, s. 14. 292 OF FISHERY. Dams, fishing No person may use any fixed engine, 1 dam or fishing weir for fixed 'engines, taking salmon, unless lawfully existing at the passing of the Act. 2 No person may catch or kill, or attempt to catch or kill, except with rod and line, or scare, or disturb, or attempt to scare or disturb, any salmon within fifty yards above, or a hundred yards below, any weir or dam, or in any waters under, or appurtenant to, a mill, or in the head-race or tail-race of a mill, or in any waste race or pool communicating with the race, or in any artificial channel connected with such weir; and no person may fish with rod and line in such a manner, or in such a place, so as unlawfully to scare or hinder salmon from passing through any fish-pass. These restrictions do not apply to any legal mill-dam not having a crib box or cruive, 3 or to any box, coop, apparatus, or net, or mode of fishing in connection with, or forming part of, the weir, for purposes of fishing ; or to a weir which has attached to it a fish-pass, approved of by the Home Office, through which there is a constant flow of water, such as will enable salmon to pass up and down it, until compensation for such right of fishery has been made by the conservators of the district to the owner of the fishery. 4 No ancient right or usage will justify fishing i 24 & 25 Viet. c. 109, s. 11 ; 28 & 29 Viet. c. 121, s. 39. The right to take possession of or destroy any engine placed or used for catching salmon in contravention of that sections extends to all persons and is not limited to con- servators or overseers appointed under sect. 33 : Williams v. Ulackwall, 2 H. & C. 33 ; 32 L. J., Ex. 174 ; 9 Jur., N. S. 579 ; 8 L. T. 252 ; 11 W. K. 621 (1863). In a prosecution for using a fixed engine to catch salmon in the Solway Firth, con- trary to the English Act, 24 & 25 Viet, c. 109, s. 11, and the Salmon Fisheries (Scotland) Act, 1 862 (25 . grounds upon which it had been granted, 6 See ante, p. 417. and show jurisdiction upon the face of 6 L. R.. 3 Q. B. 639 ; 37 L. J., Q. B. it : Alexander v. Shiel, (1872) Ir. R., 6 185 ; 18 L. T. 817 ; and see further as to C. L. 510. evidence necessary to support such a 8 24 & 25 Viet. c. 109, ss. 4, 11 ; 28 & claim, ante, pp. 395 et teq. 29 Viet. c. 121, s. 39. A prima facie OF FISHERY. others ; there was no evidence of previous user, nor was there any evidence to the contrary. The commissioners found the engines illegal. On a case stated for the Court of Queen's Bench, the Court held, that the user of forty-five years did not raise a conclusive presumption of law that the putchers and stop nets had been used from time immemorial, and were not of recent origin. In the case of Raivstorne v. Backhouse, 1 a claim was made by a lord of a manor to use reasonable fixed engines within the provisions of the Salmon Fishery Acts, 24 & 25 Viet. c. 109 ; 28 d- 29 Viet. c. 121. He proved the existence of a fishery in that part of the river from the earliest times, and gave evidence that before 1844 fixed engines had been used in various hollows formed in the sands of the river ; that in 1844 a wall was built under an Act of Parliament to improve the navigation of the river, and through the building of the wall the bed of the river was changed, and convenient hollows formed for placing the engines close to the wall. The engines claimed to be used were placed in these newly-formed hollows in 1844, and had been used there ever since. In a case stated by the commissioners for the opinion of the Court, whether they were bound, as a matter of law, to find that the claimant was entitled to use the fixed engines : the Court held that it was a mixed question of fact and law, whether the using of the engines in places since 1844, different from those in which they had been used pre- viously, amounted to an enhancement of the engines, and that the commissioners were not bound, as a matter of law, to find that the claimant was so entitled. " If," says Bovill, C. J., delivering the judgment of the Court, " during all living memory " the enjoyment of the right claimed had been uniform, and " unvarying, and consistent also with the ancient documents of " title, we think the commissioners would have been bound to " refer it to a legal origin, as by grant, charter, or immemorial " usage, if possible, and to have presumed that the three baulks " in question were legal and privileged engines within the " meaning of the Salmon Fisheries Act. The difference in the " situation of the baulks since 1844, however, at once introduces " a difficulty in the way of the appellant, which is of more " importance in these cases, because by the 41st section of the " Act of 1865, the commissioners are bound to fix the situation, 1 L. R., 3 C. P. 67 ; 17 L. T. 441. STATUTORY REGULATIONS AFFECTING FISHERY. 455 " size and description of the engines which they are to certify as " privileged. The use of the engines in the particular situations, "where they have existed of late years, certainly could not be " carried back earlier than the year 1844, and this, under the " circumstances, would not be sufficient to found the presump- " tion of a right to have them at those particular places ; and " if the right to have them in the situations where they existed " previously to 1844 was relied upon, the appellant was met by " the fact that they had not been so used in those places during " the open season of either of the five years, 1857 to 1861, as " required by the Act of 1865. " In order to avoid these difficulties, the appellant's counsel " was driven to contend that the appellant had proved a right to " have reasonable engines in reasonable places with reference to " the changing of the bed of the river, and that the commis- " sioners were bound to make a presumption, and to find " accordingly in favour of such right. The utmost extent, how- " ever, to which that argument could, in our opinion, prevail, " would be that the commissioners might be at liberty to "presume such a right in the terms in which it was contended " for by the appellant." A stop net has been held to be a fixed engine within the What is a definitions in these Acts. A stop net is used as follows : The eng ^ e > fisherman fixes his boat athwart the current of the river by lashing it at each end to a pole driven in the bed of the river. The net, which is thirty feet wide at the mouth, and tapers to a point, is stretched by two poles twenty-two feet long, which are tied together at the upper end and kept extended (to the width of the net at the mouth) by a pole lashed across at about seven feet from the upper end. The net is lowered overboard until the two poles rest at about eight feet from the upper end on the side of the boat. The net and poles are thus nearly on a balance, and the fisherman presses slightly on the upper end and so keeps the net steady. At about an angle of twenty degrees he also holds a string attached to the bottom of the net, and when he feels the fish he presses down the upper ends of the poles with both hands, using the edge of the boat as a fulcrum, and so raises the. net out of the water and catches the fish. 1 A net fixed to the bank by a stone, so as to give way on being 1 Gore v. Commissioners of Fisheries, L. R., 6 Q. B. 561 : 40 L. J., Q. B. 252 ; 24 L. T. 702. 456 OF FISHERY. touched by salmon and so entangle the fish, was held, in the case of Thomas v. Jones, 1 not to be a fixed engine within sect. 11 of 24 & 25 Viet. c. 109. To define with more certainty what the legislature meant by " fixed engine," sect. 39 of 28 d- 29 Viet, c. 121 was passed ; and under this section a net temporarily fixed to a pole driven into the soil at one end, half the net being stretched across the channel and anchored to a buoy, and the other half, when the opportunity arrived, being rowed round to the stake so as to sweep the river, was held a fixed engine. 2 The hook and haul net used in the estuary of the Tay, is fastened by a rope at one end to the shore. The net is then placed in a boat or coble ; the boat with its net is pulled out by means of an overhaul rope to an anchor in the stream ; the boatman on reaching the anchor attaches the net at about twenty yards from its end to a floating rope fastened to the anchor ; the end of the net is then turned inward towards the shore, forming a bend or hook, and the men on shore haul the net taut. Another rope attached to the boat keeps the net upright. The net is retained in this upright position until a fish strikes it, when the outer end is freed and hauled in by fishermen on shore, so as to encircle the fish : Held, affirming the decision of the First Division of the Court of Session, that this mode of fishing for salmon was an illegal method within the meaning of the Salmon Fishery Acts. The drift or hang nets used in the river Tay, are from 80 to 220 yards long, and 12 to 19 feet in depth, and are shot into the river about an hour before the turn of the tide, both at high and low water, when the current is least. They are run out of a boat over the stern, in a straight line across the river, and followed with the current by a man in a boat, who, when he sees or feels the net struck by a fish, rows to the spot and captures the fish entangled in the net, or, if the fish is getting away, he secures it with a gaff. The net is not fixed to any post on the shore : Held, reversing the decision of the First Division of the Court of Session, that fishing in the tidal portions of the river Tay with 1 5 B. & S. 916. for want of evidence as to ownership. 2 Olding v. Wild, 14 L. T., N. S. 402. Held, that possession was good primA The defendants were seen in salmon facie evidence of ownership, and that waters to tie one end of their trammel the justices were wrong in not convict- net to the bank, and the other end to ing : Vance v. Frost, 58 J. P. 398. See the boat, and there leave it for fifteen Reg. v. Pomfret, 4 W. R. 267, as to fixed minutes. The justices held it was a engines under 1 Geo. I. st. 2, c. 18, s. 14, fixed net, but dismissed the information STATUTORY REGULATIONS AFFECTING FISHERY. 457 drift or hang nets was an illegal method of fishing for salmon within the meaning of the Salmon Fishery Acts. 1 The mere using of a net fixed to the soil in tidal waters within the limits of a salmon fishery, but which net is not peculiarly an instrument for taking salmon, and is not fixed for that pur- pose, is not an offence within sect. 11 of 24 & 25 Viet. c. 109. 2 No dam, except such fishing weirs and fishing mill-dams Privileged as were lawfully in use in the year 1861, by virtue of grant, charter, or immemorial user, may be used for catching or facilitating the catching of salmon, under a penalty of 5L for each offence, and a further penalty of 11. for each fish, and the forfeiture of all contrivances used, and of all salmon caught. No fishing weir extending more than half-way across any stream at the lowest state of the water, although lawfully in use, may be used for catching salmon, unless it has a free gap as regu- lated by the Act ; and no fishing mill-dam may be so used unless it has attached to it a fish-pass as approved by the Home Office. Any proprietor or board of conservators may, with the consent of the Home Office, attach to a mill-dam such a pass, provided no injury is done to the milling power. 3 A mill-dam built solely for milling purposes, and without any contrivances for catching fish, is not a fishing mill-dam within sect. 4 of 24 & 25 Viet. c. 109, although it does, in fact, render it more easy to catch fish, and such dam cannot be abated under sect. 42 of 28 The statute has been held to apply 5 See ante, p. 418. to persons illegally fishing in a several 6 24 & 25 Viet. c. 96. As to convic- fishery, in tidal waters as well as in tions for stealing fish and oysters under private waters : Paley v. Birch, 8 B. & 7 & 8 Geo. IV. c. 29, s. 36, see Thomas S. 336. As to what is sufficient evidence v. Russell, 9 Ex. 764 ; 25 L. J., Ex. 233 ; of a private fishery, see Greenback v. Hughes v. Bvcltland, 15 M. & W. 345 ; Saunderson, 49 J. P. 40. A person who 15 L. J., Ex. 233. took or attempted to take " cray-fish " 7 The meaning of the word " adjoin- in a private fishery held not to be " ing " is defined as " in, actual contact, guilty of an offence under this section : " and not separated by a ivalk or fence." Caygill v. Thwaite, 49 J. P. 616; 33 See P. v. Hodges, Moo. ic M. 341 ; 53 W. R. 581. The lessor of land who has STATUTORY REGULATIONS AFFECTING FISHERY. 459 thereof before a justice of the peace, forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money not exceeding 51. as to the justice may seem meet : Provided that nothing hereinbefore contained shall extend to any . persons angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset ; but who- soever shall, by angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset, unlawfully take or destroy, or attempt to take or destroy, any fish in any such water as first mentioned, shall, on conviction before a justice of the peace, forfeit or pay any sum not exceeding 51. , and if in any such water as last mentioned, he shall, on like conviction, forfeit and pay any sum not exceeding 2Z. as to the justice may seem meet ; and if the boundary of any parish, township, or vill shall happen to be in or by the side of any such water as is in this section before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto. 1 The word "unlawfully" in this section means without any claim of right or title in the offender, such as can exist in law : 2 and if such claim appears to the justices to be set up bond fide, and with some show of reason, their jurisdiction in the case is ousted ; 3 and a certiorari may be obtained to quash any convic- tion they may have made ; 4 or the decision may be reviewed by a superior Court under 20 & 21 Viet. c. 43. 5 An angler in the day-time, that is, between the beginning of the last hour before sunrise, and the expiration of the first hour after sunset, cannot be arrested ; but a person angling at night, not expressly reserved the right of fish- the land is covered or not with water : ing cannot prosecute : Jones v. Davien, Einbleton v. Brawn, 30 L. T., N. S., M. C. 86 L. T. 447 ; 66 J. P. 439 ; 20 Cox, C. C. 1 ; 3 E. & E. 234 ; Reg. v. Musson, 8 E. & 184 ; 18 T. L. R. 367. Fish taken at B. 900 ; and see ante, Chap. I. p. 22. sea are in the possession of the owner of 2 Hudson v. McRae, 5 B. & S. 485 ; 33 the smack by which they are taken as L. J.,M. C. 65; Hargreaves v. Diddams, soon as they are taken, and are conse- L. R., 10 Q. B. 482 ; 44 L. J., M. C. 78 ; quently the subject of larceny. The 32 L. T. 600 ; Burton v. Hudson, (1909) skipper of a smack put into port sold 2 K. B. 564 ; Anderson v. Jacobs, (1905) the fish he had taken and appropriated 21 T. L. R. 453 ; 93 L. T. 17. the property. Held, he was properly con- s Reg. v. Peak, 8 L. T., N. S. 536; victed of larceny : R. v. Mallison, 86 Leath v. Vine, 30 L. J., N. S., M. C. L. T. 600 ; 66 J. P. 503 ; 20 Cox, C. C. 204. 207; Cornwell v. Saunders, 32 L. J., 1 Sect. 24. The part of the shore M. C. 6 ; Reg. v. Burrow, 34 J. P. 53 ; between high and low water mark is ante, p. 395. within the adjoining county : and the 4 Reg. v. Stiinson, 4 B. & S. 301. justices of the county have jurisdiction 5 See White v. Feast, L. R., 7 Q. B. over offences committed there, whether 353. 460 OF FISHERY. or fishing by other means than angling, may be arrested, and then without warrant by any person. 1 The property in fish taken unlawfully vests in the taker unless they are taken from a tank or small pond, and the owner cannot recover them except in certain cases under the Salmon Acts, though he can their value. 2 The tackle of persons found fishing against the provisions of the Act may be demanded, and, if refused, may be seized by the owner of the fishery, or his servant, or any person authorised by him. A person angling in the day-time from whom any implement shall have been taken, is exempted from any further fine. 3 Sect. 32 of The Malicious Damage Act, 1861,* enacts as follows: "Whosoever shall unlawfully and " maliciously cut through, break down, or otherwise destroy " the dam, flood gate, or sluice of any fish pond, or of any " water which shall be private property, or in which there shall " be any private right of fishery, with intent thereby to take " or destroy any of the fish in such pond or water, or so as " thereby to cause the loss or destruction of any of the fish, or " shall unlawfully and maliciously put any lime, or other noxious " material, in any such pond or water, with intent thereby to " destroy any of the fish that may then be, or that may thereafter " be put therein, or shall unlawfully and maliciously cut through, " break down, or otherwise destroy the dam or flood gate of " any mill pond, reservoir, or pool, shall be guilty of a mis- " demeanour ; and being convicted thereof, shall be liable, at the " discretion of the Court, to be kept in penal servitude for any " term not exceeding seven years, and not less than three years ; " or to be imprisoned for any term not exceeding two years, with " or without hard labour, and with or without solitary confine- " ment ; and if a male under the age of sixteen years, with or " without whipping." A person bond fide exercising his right of fishing who does damage to adjoining property is not liable criminally, though he may be civilly. 5 1 Sect. 103 (24 & 25 Viet. c. 96). cannot be construed grammatically, the 2 Paterson, Fishery Laws, 85, 86. section as amended must be construed 8 Sect. 25 ; Fishing with night lines as making it a misdemeanour punish- is not angling within this proviso : able with penal servitude, unlawfully Barnard v. Roberts (1901), 96 L T. (548 ; and maliciously to put any lime or 71 J. P. 277 ; 23 T. L. R. 439. other noxious material into any salmon 4 24 & 25 Viet. c. 97. river with intent to injure fish : H. 5 24 k 25 Viet. c. 97, s. 32. Although v. Vasey, (1905) 2 K. B. 748; 75 sect. 23 of the Malicious Injuries to L. J., K. B. 19 ; 93 L. T. 671 ; 54 W. R. Property Act, 1861 (24 & 25 Vict.c. 97), 218 ; 69 J. P. 455; 21 Cox, C. C. 49 ; as amended by sect. 13 of the Salmon 22 T. L. R. 1. Fisheries Act, 1873 (36 & 37 Viet. c. 71), ( 461 ) CHAPTER VII. OF NAVIGATION, AND THEREIN OF CONSERVANCY. The Right of Navigation. THE right of navigation is a right of way exercised for the Definition, purposes of trade and commerce, which may be enjoyed in the sea, in public and in private waters ; and as such it includes all rights necessary for the full enjoyment and exercise of the rights of convenient passage, and of commerce, such as the right to pass, and to ground and to anchor, to remain for a reasonable time for the purposes of loading and unloading, or for a wind. 1 The consideration of this right involves not only the discussion of the nature of the right itself, but also that of the rules governing its exercise. These, in the case of the sea, embrace (in addition to the mere rules of the road) matters of considerable extent and importance, such as the seaworthiness of vessels, the liability of ship owners and the management of lighthouses, harbours, and ports, all of which are regulated by the Mer- chant Shipping laws, as well as the various questions arising in connection with the jurisdiction of the Court of Admiral ty. a It would be manifestly as impossible as inappropriate to attempt to treat this subject at all exhaustively in a work like the present ; but as, on the other hand, the authors feel that it is equally unadvisable to omit all notice of it, they have 1 Orr Eunng v. Colquhoun, 2 App. hulk moored in Ihe harbour for the Cas. 839 ; Gann v. Free Fig/tern of purpose of opening a shop for the sale Wlritstable, 11 H. L. 192; Foreman v. of coal, &c., was not exercising the right Free Fishers of Whitatable, L. R., 4 of navigation, and might properly be H. L. 266 ; Mayor of Colchester v. removed by the Harbour Master, subject Brooke, 7 Q. B. 339 ; Rex v. Russell, 6 to whose directions the right to anchor B. & C. 566 ; 30 R. R. 432 ; Original must be exercised. Hartlepool Collieries v. Gibb, 5 Ch. D. 2 The reader is referred for a full 713; Dimes v. Petley, 15 Q. B. 276; consideration of these subjects to White's Anvn., Durham Assizes, 1808, per Wood, Merchant Shipping Acts, 4th ed. (1908) ; B. In Denaby and Cadeby Main Marsden's Collisions at Sea, 5th ed. Collieries Co. v. Anson (1910), 102 L T. (1904) ; Williams & Bruce's Admiralty 76, 26 T. L. R. 310, it was held by Practice; Boyd's Merchant Shipping Lawrence, J., that the soil of Portland Laws ; and Abbott's Law of Merchant Harbour was in the Crown, and a coal Ships and Seamen (1901). 462 OF NAVIGATION, AND THEREIN OF CONSERVANCY. The sea is the highway of all nations. Jurisdiction over ships navigating. endeavoured to give in the present chapter a brief general view of the law regarding navigation I. In the sea. II. In inland waters. In the Sea. 1 The sea is the necessary highway of all nations 2 and the free navigation and commerce thereon is, therefore, the common right of all mankind. 3 The ships of all nations, whilst navigating the high seas, 4 are subject only to the laws of their own country, and no one nation has the right to exercise civil or criminal jurisdiction over the ships of other nations during their passage between one foreign port and another. 1 By 41 & 42 Viet. c. 73, foreigners on board foreign ships, passing within three nautical miles of the English coast, are made subject to English criminal law. 6 The criminal jurisdiction over English ships on the high seas has, from the earliest times, been vested in the Court of Admiralty; and foreigners on board such ships are subject to English law. 7 By 15 Ric. II. c. 3, it was provided, that the admiral should have no jurisdiction within the body of counties, either by land or sea, save for mayhem or murder done in estuaries and mouths of rivers, below the bridges where he should have a concurrent jurisdiction with the Courts of Common Law. This juris- diction of the admiral was transferred to the Central Criminal Court by 4 <& 5 Will. IV. c. 36, and further changes have recently been made as to the civil jurisdiction of the Admiralty Courts, which are thus stated by Mr. Boyd in " The Merchant " Shipping Laws " : 8 " By 3 d 4 Viet. c. 65, s. 6, jurisdiction was " given to the Admiralty Court to decide all claims and demands 1 For the greater portion of this section, the authors have had recourse to Mr. A. C. Boyd's excellent work on The Merchant Shipping Laws (1876), to which the reader is referred for fuller particulars. Cf. also throughout Chap. I. 2 Phillimore's International Law, vol. i. pp. 210, 211. 3 Wheaton's International Law, by Boyd, p. 251. * For definition of the high seas, and the limitations of territorial waters, see Chap. I. Territorial waters, as well as the high seas, are free to the peaceful navigation of foreign as well as English ships ; The Saxonia, 1 Lush. 410 ; cf. Sir R. Phillimore, 2 Ex. D. 82. 5 Reg. v. Keyn, 2 Ex. D. 217, per Kelly, C. B. ; The Vigilantia, 1 C. Rob. 1 ; The Vrou Anna CatJierina, 5 C. Rob. 161 ; The Success, 1 Dodd's Ad. 131. 6 See ante, Chap. I. p. 8 ; and the case of Reg. v. Keyn, ante, pp. 6 et seq. 7 Reg. v. Sattler, Dears. & B. Cr. C. 525 ; Reg. v. Anderson, L. R., 1 Cr. C. 161 ; Reg. v. Lesley, Bell, C. C. 220. 8 Page 262. See also for the origin and jurisdiction of the Admiralty Court, Williams' & Bruce's Admiralty Practice. IN THE SEA. 463 " whatsoever in the nature of damage received by any ship or " sea-going vessel, and to enforce the payment thereof, whether " such ship or vessel may have been within the body of a county, " or upon the high seas, at the time when the damage was " received, in respect of which such claim was made. And The " Admiralty Court Act, 1861 (24 Viet. c. 10, s. 7), enacts in general "terms, that the Court shall have jurisdiction over any claim "for damage done by any ship. The Court was therefore " empowered to try any cause whatsoever, of such a description, " even if all the parties to it were foreigners, and the cause of " action arose out of the jurisdiction. However, in deciding " causes of the latter kind, the Court must be guided by the " rules of law to which both parties were subject when the " damage was committed, and not by the Merchant Shipping " Acts." 1 Pirates being the common enemies of all mankind, and all Pirates. nations having an equal interest in their apprehension and punishment, may be lawfully captured on the high sea by the armed vessels of any particular State, and brought within its territorial jurisdiction for trial at its tribunals. 2 No tolls are demandable from vessels navigating the sea, save Tolls. such as are chargeable for the formation of harbours, and the maintenance of buoys, lights, and beacons, which are a good consideration for a toll ; 3 " It being required," says Hale, " that any man who will prescribe for a toll on the sea must " allege a good consideration." * Hence no tolls can be taken for anchorage save in a port or harbour. 5 1 " It is the general rule in construing 'case (under 24 Viet. c. 10, s. 7). Dr. " Acts of Parliament, that the legislature ' Lushington exercised the jurisdiction ' must be presumed to have intended by ' in the case of a collision in foreign ' its enactments to regulate the rights ' inland waters the Great North of ' which should subsist between its own ' Holland Canal {The Diana, Lush. ' subjects, and not to affect the rights ' 539). The Common Law Courts have ' of foreigners, unless the contrary be ' jurisdiction whether the ships are ' expressed or implied from the absolute ' British or foreign and whether the ' necessity of the case; " Boyd, Merchant 'collision occurs in foreign waters or Shipping Laws, p. 262. As to the 'elsewhere." Marsden's Law of Colli- jurisdiction of the English Courts over sions at Sea, 5th ed., p. 199. foreign ships in cases of damage and as 2 Wheaton, International Law, p. 168, to the " load line " and unsafe ships, see and ante, Chap. I. ante, Chap. 1. p. 3. " It has been held 3 Hale de Portibus Maris, Harg. Tr. 'that a county court has Admiralty 51 ; Qann v. Free Fishers of IVhitstable, 'jurisdiction in respect of damages by 11 H. L. 193. 'a collision which occurred in a dock 4 1 Mod. 105. ' connected with a tidal river (the 5 Gann v. Free Fishers of Whitstable, ' Thames) by a lock. And it seems that supra. See on this subject, ante, 'the Admiralty Division of the High Chap. I. pp. Wetseq., and post, Chap. IX. ' Court also lias jurisdiction in such a 464 OF NAVIGATION, AND THEREIN OF CONSERVANCY. The main ocean is incapable of being the property of any one State ; but a nation may acquire exclusive right of navigation therein as against another nation by virtue of the specific pro- visions of a treaty, 1 or by the tacit acquiescence of such other nation in its appropriation of certain portions for navigation. 2 Similarly, though the soil of the bed of the sea cannot be the exclusive property of one nation, the beneficial occupation thereof for a sufficient time by any one nation may give a prescriptive right to such portion by the tacit consent of other nations ; for the uninterrupted possession of territory or other property for a certain time by a State excludes the claim of every other. 3 Also, when the sea or the bed thereof can be physically occupied permanently by erections, it may be the subject of occupation ; and hence, piers, harbours, and breakwaters become, in such cases, permissible, and, being for the benefit of navigation, are readily acquiesced in. 4 Ports and A harbour or haven is a place naturally or artificially made harbours, f or j. ne ga f e r idi n g O f ships. 5 A port is a haven, and something \ more, it is a harbour where customs officers are established, and where goods are either imported or exported to foreign countries, 6 and comprehends a city or borough, called caput portiis, with a market and accommodation for sailors. 7 In virtue of its prerogative, the Crown is conservator of all ports and havens, creeks and arms of the sea, and protector of the navigation thereof, 8 and may grant to a subject the right to erect a port on his own land or on the land of another, provided, in the latter case, no vested interests are interfered with. 9 The ports of this country are now, however, almost exclusively the property of corporate bodies by ancient grant or charter from the Crown, or by Act of Parliament, by which the powers and duties of the trustees and the public in each particular port are regulated. 10 & 11 Viet. c. 27 (The Harbours, Docks, and Piers Clauses Act, 1847), consolidated the provisions usually embodied in local Acts for the construction of harbours and piers ; and by 24 Jc 25 Viet. c. 45, the Board of Trade may make provisional 1 Phillimore, International Law, Houck's Navigable Rivers, p. 175. vol. i., pp. 210, 211. 7 Hale, c. 11. For the law relating 2 Vattel, Droit des Gens, t. 1, c. xxiii. to ports and harbours, see further ante, 8 Wheaton's International Law, by Chap. I. Boyd, p. 220. 8 Hale de Jure Maria, Harg. Tr. 23. * Cockburn, C. J., Reg. v. Keyn, 2 9 Mayor of Exeter v. Warren, 5 Q. B. Ex. D. 198. 773. * Hale de Portibus Maris, c. 2. IN THE SEA. 465 orders authorizing the erection of such works ; while 25 & 26 Viet. c. 69, transferred to that body various duties and powers relative to harbours and navigation which were formerly vested in the Admiralty. 1 The Public Works Loan Commissioners are authorized by sect. 9, Schedule 1, of 38 & 39 Viet. c. 89, 2 to make loans to any person authorized, for the purpose of the construction and improvement of docks, harbours, and piers, under The Harbours and Passing Tolls Act, 1861. 3 By 57 (C- 58 Viet. c. 60, 4 ss. 530, 534, harbour and conservancy authorities are empowered to remove vessels sunk, stranded, or abandoned in tidal waters or harbours, where sueh wreck is or is likely to become an obstruction to navigation, or to destroy and, under certain conditions, to sell such wreck, and thereout defray expenses incurred under the Act. By sect. 531 (1) similar powers are given to general lighthouse authorities. Where questions arise between these various authorities as to their powers under the Act, the Board of Trade is authorized to determine them (sect. 533). The regulations respecting the ownership, measurement, and The Merchant registry of British ships; the law governing the liability of shipowners, the relation between masters and seamen, and the procedure with regard to wrecks, casualties, and salvage ; as well as the rules for preventing accidents in navigation, for the management of lighthouses, for the appointment and supervision of pilots, and for the administration of the Mercantile Marine Fund, are all under the direction of the Board of Trade, and are provided for by The Merchant Shipping Act, 1894 (57 ) All vessels when engaged in fish- ing with drift nets shall exhibit two white lights from any part of the vessel where they can be best seen. Such lights shall be placed so that the vertical distance between them shall be not less than 6 feet and not more than 10 feef ; and so that the horizontal distance between them measured in a line with the keel of the vessel shall not be less than 5 feet and not more than 10 feet. The lower of these two lights shall be the more forward, and both of them shall be of such a character, and contained in lanterns of such construction as to show all round the horizon, on a dark night with a clear atmosphere, for a distance of not less than three miles. (c) A vessel employed in line fishing with her lines out shall carry the same lights as a vessel when engaged in fishing with drift nets. (d) If a vessel when fishing becomes stationary in consequence of her gear getting fast to a rock or other obstruction, she shall show the light and make the fog-signal for a vessel at anchor. (e) Fishing-vessels and open boats may at any time use a flare-up in addition to the lights which they are by this Article required to carry and show. All flare-up lights exhibited by a vessel when trawl- ing, dredging, or fishing with any kind of drag net shall be shown at the after part of the vessel, except- ing that, if the vessel is hanging by the stern to her trawl, dredge, or drag net, they shall be exhibited from the bow. (/) Every fishing-vessel and every open boat when at anchor between sunset and sunrise shall exhibit a white light visible all round the hori- zon at a distance of nt least 1 mile. (jr) In fog, mist, or falling snow, a drift net vessel attached to her nets, and a vessel when trawling, dredging, or fishing with any kind of drag net, and a vessel employed in line fishing with her lines out, shall at intervals of not more than two minutes make a blast with her fog-horn and ring her bell alter- nately. Lights for Trawlers under Order of Council, December 30th, 1884. Whereas by an Order in Council made in pursuance of the Merchant Ship- ping Act Amendment Act, 1862, and dated the llth day of August, 188-J, her Majesty, on the joint recommendation 476 OP NAVIGATION, AND THEREIN OF CONSERVANCY. In the case of collisions, it is provided by sect. 419 (4), that where it is proved to the Court before whom the case is tried of the Admiralty and the Board of Trade, was pleased to direct that on and after the first day of September, 1884, the Kegulations in the Schedule thereto should, so far as regarded British ships and boats, be substituted for the Kegulations for preventing collisions at sea contained in the First Schedule to an Order in Council made as aforesaid and dated the 14th day of August, 1879. And whereas by the Regulations con- tained in the Schedule to the same Order in Council of the llth day of August, 1884, it is provided as follows, viz. : AET. 3. A sea-going steamship when under way shall carry (a) On or in front of the foremast, at a height above the hull of not less than 20 feet, and if the breadth of the ship exceeds 20 feet, then at a height above the hull not less than such breadth, a bright white light, so constructed as to show an uniform and unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the ship, viz., from right ahead to two points abaft the beam on either side, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least 5 miles. (J) On the starboard side, a green light so constructed as to show an uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the star- board side, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles. (?) On the port side, a red light, so constructed as to show an uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least 2 miles. (d) The said green and red side lights shall be fitted with inboard screens projecting at least 3 feet forward from the light, so as to prevent these lights from being seen across the bow. ART. 6. A sailing-ship under way, or being towed, shall carry the same lights as are provided by Article 3 for a steamship under way, with the excep- tion of the white light, which she shall never cany. ART. 10. (a) All fishing-vessels and fishing- boats of 20 tons net registered tonnage, or upwards, when under way and when not required by the following Regulations in this Article to carry and show the lights therein named, shall carry and show the same lights as other vessels under way. And whereas the Admiralty and the Board of Trade have, in pursuance of the said recited Act, jointly recom- mended to her Majesty that the Regulations contained in the Schedule to the said recited Order in Council of the llth day of August, 1884, shall as regards British fishing-vessels and boats when in the sea off the coast of Europe, lying north of Cape Finisterre, be modified and added to in manner following ; that is to say, That as regards steam-vessels engaged in trawling, such vessels, if of 20 tons gross register tonnage or upwards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, should, if they do not carry the lights required by the said recited Article 3 of the Regu- lations aforesaid, be permitted to carry and show in lieu thereof and in substitution therefor, but not in addition thereto, whilst so engaged in trawling, and having their trawls in the water, and not being stationary as aforesaid, other lights of the description set forth in Part T. of the Schedule hereto ; and that when under way, and not having their trawls in the water, they should carry and show the lights required by Article 3 above recited : And that as regards sailing-vessels engaged in trawling, such vessels, if of 20 tons net register tonnage or upwards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, should, if they do not carry the lights required by the said recited Article 6 of the Regulations IN THE SEA. 477 that any of the collision regulations have been infringed, the ship by which the regulations have been infringed shall be deemed to aforesaid, be permitted to cany and show in lieu thereof and in substitution therefor, but not in addition thereto, whilst so engaged in trawling, and having their trawls in the water, and not being stationary as aforesaid, other lights of the description set forth in Part II. of the Schedule hereto ; and that when under way, and not having their trawls in the water, they should carry and show the lights required by Article 6 above recited. Now, therefore, her Majesty, by virtue of the powers vested in her by the said Act, and by and with the advice of her Privy Council, is pleased to direct that on and after the first day of January, 1885, the Regulations con- tained in the Schedule to the said recited Order in Council of the llth day of August, 1884, shall, as regards British fishing-vessels and boats when in the sea off the coast of Europe, lying north of Cape Finisterre, be modified and added to as follows, viz. : As regards steam-vessels engaged in trawling when under steam, such vessels, if of 20 tons gross register tonnage or upwards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, shall between sunset and sunrise either carry and show the lights required by the said recited Article 3 of the Regula- tions aforesaid, or shall carry and show in lieu thereof and in substi- tution therefor, but not in addition thereto, other lights of the descrip- tion set forth in Part I. of the Schedule hereto ; As regards sailing-vessels engaged in trawling, such vessels, if of 20 tons net register tonnage or upwards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, shall between sunset and sunrise either carry and show the lights required by the said recited Article 6 of the Regulations afore- said, or shall carry and show in lieu thereof and in substitution there- for, but not in addition thereto, other lights of the description set forth in Part II. of the Schedule hereto. The red and green lights, which are by this order permitted as aforesaid to be carried in lieu of the lights required by Articles 3 and 6 of the said recited Regulations respectively, shall be of such a character as to be visible at a distance of not less than two miles on a dark night, with a clear atmosphere. And her Majesty is pleased further to direct that steam-vessels of 20 tons gross register tonnage or upwards, and sailing-vessels of 20 tons net register tonnage or upwards, engaged in trawl- ing, when under way between sunset and sunrise, but not having their trawls in the water, shall, if steam-ships, carry and show the lights required by Article 3 above recited, and if sailing- ships, shall carry and show the lights required by Article 6 above recited : Provided, however, that the modifica- tions and additions set forth in Parts I., II., of the Schedule hereto shall not be applicable to the fishing vessels and boats of any foreign country, unless and until the same shall have been made applicable thereto by Order in Council. SCHEDULE. Part I. Steam-Vessels. (1) On or in front of the foremast head and in the same position as the white light which other steam-ships are required to carry, a lanthorn, showing a white light ahead, a green light on the starboard side, and a red light on the port side ; such lanthorn shall be so constructed, fitted, and arranged as to show an uniform and unbroken white light over an arc of the horizon of four points of the compass, an uniform and unbroken green light over an arc of the horizon of ten points of the compass, and an uniform and unbroken red light over an arc of the horizon of ten points of the compass, and it shall be so fixed as to show the white light from right ahead to two points on the bow on each side of the ship, the green light from two points on the starboard bow to four points abaft the beam on the starboard side, and the red light from two points on the port bow to four points abaft the beam on the port side : and (2) a white light in a globular lanthorn of not less than 8 inches in diameter, and so constructed as to show a clear, uniform, and unbroken light all round the horizon ; the lanthorn con- taining such white light shall be carried lower than the lanthorn showing the green, white, and red lights as afore- said, so, however, that the vertical 478 OF NAVIGATION, AND THEREIN OF CONSERVANCY. distance between them shall not be less than 6 feet nor more than 12 feet. Part II. Sailing- Vextelt. (1) On or in front of the foremast head a lanthorn having a green glass on the starboard side and a red glass on the port side, so constructed, fitted, and arranged that the red and green do not converge, and so as to show an uniform and unbroken green light over an arc of the horizon of twelve points of the compass, and an uniform and unbroken red light over an arc of the horizon of twelve points of the compass, and it shall be so fixed as to show the green light from right ahead, to four points abaft the beam on the starboard side, and the red light from right ahead to four points abaft the beam on the port side : and (2) a white light in a globular lanthorn of not less than 8 inches in diameter, and so constructed as to show a clear, uniform, and unbroken light all round the horizon ; the lanthorn con- taining such white light shall be carried lower than the lanthorn showing the green and red lights as aforesaid, so, however, that the vertical distance between them shall not be less than 6 feet and not more than 12 feet. Lights for Trawlers under Order of Council, June 24th, 1885. Whereas by an Order in Council made in pursuance of the Merchant Shipping Act Amendment Act, 1862, and dated the 30th day of December, 1884, her Majesty, on the joint recom- mendation of the Admiralty and the Board of Trade, was pleased to direct that on and after the first day of January, 1885, the Regulations con- tained in the Schedule to an Order in Council made as aforesaid, and dated the llth day of August, 1884, should, as regards British fishing-vessels and boats, when in the sea off the coast of Europe lying north of Cape Finisterre, be modified and added to, inter alia, as follows, viz. : As regards sailing-vessels engaged in trawling, such vessels, if of 20 tons net register tonnage or upwards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, shall between sunset and sunrise either carry and show the lights required by Article 6 of the Regu- lations aforesaid, or shall carry and show in lieu thereof, and in sub- stitution therefor, but not in addition thereto, other lights of the description set forth in Part II. of the Schedule to the said recited Order in Council of the 30th day of December, 1884. And whereas the Admiralty and the Board of Trade have, in pursuance of the said recited Act, jointly recom- mended to her Majesty that the Regula- tions contained in the Schedule to the said recited Order in Council of the llth day of August, 1884, shall, as regards sailing-vessels when engaged in trawling, be further modified and added to in manner following ; that is to say, As regards sailing-vessels engaged in trawling, such vessels having their trawls in the water and not being stationary in consequence of their gear getting fast to a rock or other obstruction, if they do not carry and show the lights required by Article 6 of the Regulations afore- said, or the other lights of the description set forth in Part II. of the Schedule to the said recited Order in Council of the 30th of December, 1884, shall carry and show in lieu of the lights required by Article 6 of the Regulations aforesaid, or the other lights of the description set forth in paragraph 2 of the Schedule to the said recited Order, other lights as follows ; that is to say, A white light in a globular lanthorn of not less than 8 inches in diameter, and so constructed as to show a clear, uniform, and unbroken light all round the horizon, and visible on a dark night, with a clear atmo- sphere, for a distance of at least 2 miles ; and also a sufficient supply of red pyrotechnic lights which shall each burn for at least thirty seconds, and shall, when so burning, be visible for the same distance under the same conditions as the white light. The white light shall be shown from sunset to sunrise, and one of the red pyro- technic lights shall be shown on approaching, or on being ap- proached by, another ship or vessel in sufficient time to prevent collision. Now, therefore, her Majesty, by virtue of the powers vested in her by the said Act, and by and with the advice of her Privy Council, is pleased to direct that on and after the 24th day of June, 1885, the Regulations contained in the Schedule to the Order in Council of the llth day of August, 1884, shall, as regards British sailing fish ing- vessels IN THE SEA. 479 be in fault, until it is shown to the satisfaction of the Court that the circumstances of the case made departure from the regula- tion necessary. 1 and boats, when in the sea off the coast of Europe lying north of Cape Finisterre, be further modified and added to accordingly ; that is to say, such sailing- vessels shall, whatever be their tonnage, be at liberty to carry the substituted lights hereinbefore described in lieu of, and in substitution for, but not in addition to, the lights prescribed to be carried by such sailing-vessels by the Orders in Council dated respectively the llth day of August, 1884, and the 30th day of December, 1884. Lights for Steam Pilot Vessels under Order in Council of July 1th, 1897. SCHEDULE. A steam pilot vessel exclusively employed for the service of pilots licensed or certified by any pilotage authority or the committee of any pilotage district in the United Kingdom when engaged on her station on pilotage duty and in British waters and not at anchor shall in addition to the lights required for all pilot boats carry at a distance of 8 feet below her white masthead light a red light visible all round the horizon and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least 2 miles and also the coloured side-lights required to be carried by vessels when under way. When engaged on her station on pilotage duty and in British waters and at anchor she shall carry in addition to the lights required for all pilot boats the red light above mentioned but not the coloured side-lights. When not engaged on her station on pilotage duty she shall carry the same lights as other steam-vessels. 1 As to the effect of the Merchant Shipping Act, 1894, with respect to collisit>ng due to a "breach of the regula- tions under that Act, see Marsden's Law of Collisions at Sea, 5th ed., 1 904. After citing sect. 419 (4) of the Act the learned * 2 C. B.. X. S. 740 ; on appeal, 5 C. B., N. S. 573. In this and other cases Morrison v. General Steam Navigation Co., 735 ; TJie Vivid, 10 Moo., P. C. 472 ; Tlie Aliwal, 1 Sp. 96 ; The Telegraph, ibid. 427 ; The Juliana, Sw. 20 : The Fairy, 1 Sp. 298 ; Tlie Wansfell, 1 Sp. 271 it was held upon the construction of 14 & 15 Viet. c. 79, s. 28, and 17 & 18 author says, at p. 38 : " To understand " the effect of this enactment it will be " necessary to refer to previous legisla- " tion on the subject. By 14 & 15 Viet. " c. 79, s. 28, and afterwards by 17 & 18 " Viet. c. 104, s. 298, it was enacted in " effect, that if a collision was occasioned "by the non-observance of any of the " rules as to lights or navigation contained ' ; in or made under those Acts, the owner "of the ship by which the rule was " infringed should recover no damages " for injury to his ship, unless it was "proved that the departure from the " rule was necessary. The effect of these enactments was to abrogate the rule " of the Admiralty, that a wrong-doing " vessel shall recover half her loss if the " other ship also is in fault, in the case " of a vessel which had unnecessarily in- " fringed the statutory rules. In each " case the question had to be tried "whether the infringement was negli- " gence contributory to the collision. "... The effect of these enactments " so far as they abrogated the Admiralty " rule was probably not apprehended by " the legislature. The next alteration " in the law was made by 25 & 26 " Viet. c. 63, s. 29. The effect of this " enactment was to restore the Admiralty " rule as to the division of damages " where both ships are in fault, and a " vessel guilty of an infringement of " the statutory regulations was enabled " to recover in the Admiralty Court (as " she could previously to 14 & 15 Viet. " c. 79) half her loss against a defendant " vessel which was also in fault. The " question whether a ship which had " infringed a regulation applicable to " the case was guilty of negligence con- ' tributing to the collision had still to " be tried in every case. The application " of the doctrine in Tuff v. Warman* " prevented the above statutes from " having the effect desired by those who " framed them. Attention appears to " have been called to the subject by the ' ; decision in The Fenham ; f and 36 & Viet. c. 104, s. 298, that though the plaintiff had infringed the regulations, and by his negligence had brought the ship into danger, yet if the defendant could not by reasonable care have avoided the collision the plaintiff could recover. f L. E., 3 P. C. 212. 480 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Sect. 420 provides for the enforcement of the regulations by means of surveyors empowered to inspect vessels, and to point out to masters and owners any deficiencies, and the mode of meeting the same, and to grant certificates that vessels are properly provided with lights, and the means of making signals in pur- suance of the regulations, it being enacted that no collectors of customs at any port shall clear any ship outwards without such certificate. l " 37 Viet. c. 85, s. 17, which in effect is "identical with 57 & 58 Viet. c. 60, " s. 419 (4), the enactment now in force, ' was passed in consequence. The ' change in the language of this enact- 1 ment was made with the following ' objects : First, to take away the ratio 1 decidendi in Tuff v. Warman ; * 'secondly, to render it unnecessary to ' have resort to an artificial rule as 1 to the inference to be drawn from ' evidence ; thirdly, to enable the ' courts to adjudicate upon collision 'cases without the necessity of deter- ' mining upon conflicting evidence the 'question of fact (often a very nice ' one) whether or no an infringement of ' a regulation applicable to the case, and that might by possibility have con- ' tributed to the collision, did, in fact, ' contribute to the collision ; and lastly, to increase the stringency of the regu- lations.f The statute, therefore, im- poses on a vessel which has infringed a regulation, which is primd facie ap- plicable to the case, the burden of proving not only that such infringe- ment did not, but that it could not, by possibility, have contributed to the collision. It is therefore the duty of the Court to inquire into the facts in order to ascertain whether the infringement could possibly have contributed to the collision " (pp. 38 41). 1 It may be useful to note here some of the main points of the law on the duties of masters of vessels in case of collisions, as stated by Mr. Boyd (Merchant Shipping Laws, pp. 258, 262), and in Marsden's Law of Collisions at Sea, 5th ed., 1904. " Collisions. Ships are held liable for "damage occasioned by collision, either " on account of the culpable neglect or "complicity, direct or indirect, of their " owners, or on account of the negli- " gence, unskilfulness or carelessness of " those employed in their control and " navigation. When employed in navi- gation ships must be kept seaworthy " and be well manned and equipped for " the voyage, and where this is not done " and a collision ensues between such " ship and one without fault in that " respect, the owners of the deficient " vessel cannot escape responsibility if " the deficiency caused or contributed to "the disaster (Jflie Continental, 14 " Wallace, Amer. Rep. 354 ; The Glanna- ' banta, 1 P. D. (C. A.), 291). Where ' a ship is deemed to be in fault under ' the statute, the owner will usually be ' liable at law, and the ship herself in ' Admiralty proceedings in rein. Where " the infringement is proved to have " been the act of persons not the owner's " servants, and the ship is under charter "or demise, the ship would appear to " be liable in proceedings in rem,^ " though the owner is not liable at law, " but if it is the act of a compulsory " pilot, it would probably be held that " neither the ship nor her owners are "liable. . . . The statute affects with " the usual consequences of negligence " persons on board the ship deemed to " be in fault whose duty it was, per- " sonally or by their agents, to comply " with the regulation : Marsden's Law " of Collisions, pp. 59, 60, supra. " The person by whose negligent act the " collision was occasioned is primarily 'liable to the sufferer thereby. The " shipowner navigating his own vessel, " the master, mate, pilot, or other person " in charge giving a wrong order to the 'helm, || the helmsman directing the " ship's course, the seaman on the look- "out negligently failing to report the " approach of the other vessel, may all " be sued as wrong-doers, and liable for * See note * ante, p. 479. t See The Khedive, 5 A. C. 893, per Lords Blackburn and Watson. J See The Lemington, 2 Asp. M. C. 475 ; The Tasmania, 13 P. D. 110. The Hector, 8 P. D. 218. || See Start v. CUmc7its,\ Peake, 107. IN THE SEA. 481 The law of pilotage is governed by Part X. of the Act, Pilotage, sect. 573 of which defines pilotage authorities to include " all "damages.* . . . Though as a carrier the " master may apparently be liable for the " negligent and wrongful acts of his crew " as well as for his own acts,f he has " never been held liable in tort for wrong- " ful acts of the crew,J and for wilful " injury to another ship by pilot or crew " he clearly is not liable. When a pilot " is on board, whether by compulsion of " law or by the master's or owner's ' choice, it seems clear that the master ' is not answerable for a collision caused ' by the fault of the pilot, who has been ' placed in charge of the ship properly 'and in the ordinary course of naviga- 1 tion.|| The statutory limitation of ' liabilitylT does not apply to protect an ; owner or part owner, by whose actual ; fault or with whose privity the collision occurred. ... In a collision with one ' of his Majesty's ships, by the fault of ' those on board her, the actual wrong- ' doer is the only person against whom ' there is a right of action.** Where the ' actual wrong-doer is a seafaring man of small means who may be not worth ' suing, the substantial remedy is to be ' sought, either in Admiralty against the ' ship, or in a common law court against his employer. ... In most cases the owner of the ship is the employer of ' those on board and in charge of her, and is liable for their negligent acts, ' and it has been held that, in the ab- sence of proof to the contrary, those in charge of a ship will be presumed to be in the employment of herowners,ff who prima facie are the persons so described upon her register. . . . The liability for damage by a ship does not attach to her owner qud owner, but only as master or employer of the persons * Stort v. Clements, 1 Peake, 107; Smith v. Voss, 2 H. & N. 97 ; Lawson v. Dumlin. 9 C. B. 54. t Story on Agency, ss. 314 317, Molloy, bk. 4, c. 3, s. 113. Cf. Pilk v. Venore. 1 Molloy, 359, &c. J See Aldrick v. Simmons, 1 Start. 214 ; Oakley v. Speedy, 4 Asp. M. C. 134; Blackie v. Stembridge, 6 C. B., N. S. 894. Boucher v. Xeidstone, 1 Taunt. 568 ; Me Manna v. Crickett, 1 East. 106. || Kent's Comm. vol. 38, 176. See The Carrie)- Dove, Br. & Lush. 113; Tlie Lochibo, 7 Moo., P. C. 427. IF Sect. 503, 57 & 58 Viet. c. 60. ** See Marsden, pp. 92, 93, and The Mentor, 1 C. Rob. 179 ; The Athol, 1 W. L.W. ' whose negligent act caused the damage ' that he incurs any liability. The owner ' would not be liable merely because he ' was owner, or without showing that those navigating the vessel were his ' servants " JJ (Marsden, pp. 61 63). "There are four possibilities," said Lord Stowell in The Woodrop Sims (2 Dods. Ad. 85), " under which an accident "of this sort may occur. In the first " place, it may happen without blame " being imputable to either party ; as " where the loss is occasioned by a " storm or any other vis major. In that ; case the misfortune must be borne by " the party on whom it happens to " light ; the other not being responsible " to him in any degree. Secondly, a " misfortune of this kind may arise ' where both parties are to blame ; "where there has been a want of due " diligence or skill on both sides. In such a case the rule of law is, that the " loss must be apportioned between " them, as having been occasioned by " the fault of both of them. Thirdly, it " may happen by the misconduct of the " suffering party only, and then the rule " is that the sufferer must bear his own " burden. Lastly, it may have been the " fault of the ship which run the other " down, and in this case the injured party " would be entitled to an entire com- " pensation from the other." Though the accuracy of this obiter dictum has never been questioned, and it has been cited with approval in the House of Lords,||l|and been frequently acted upon by the Courts since its deliverance in the year 1816, it is, says Mr. Marsden, open to two criticisms. " In the first " place, it is not in accordance with Rob. 374 ; Tlie Volcano, 2 W. Rob. 75, &c. ft Joyce v.Capel, 8 C. & P. 370 ; Hibbs v. Ross, L. R., 1 Q. B. 534 ; Frazer v. Cuthbertson, 6 Q. B. D. 93, 98, &c. As to owner's liability under charter, see pp. 65 et seq. JJ Per Lord Cairns, C., River Wear Commissioners v. Adamson, 2 App. Cas, 743, 751 ; and per Lord Blackburn, Simpson v. Thompson, 3 App. Cas. 279, 293 Per Lord Stowell (then Sir W. Scott), The Woodrup Sims, 2 Dods. Ad. 83, 85. In The Lord Melcille, cited 2 Shaw's App. Cas. 395, is a dictum to the like effect. |||| Hay v. Le.Neve, (1824) 2 Shaw's App. Ca. 395. 31 482 OF NAVIGATION, AND THEREIN OF CONSERVANCY. " bodies and persons authorised to appoint or license pilots or to " fix or alter rates of pilotage, or to exercise any jurisdiction in : numerous decisions of the High Court ' of Admiralty during the seventeenth 'and eighteenth centuries. During ' that period the rule of division of loss ' was frequently applied in cases where " the cause of collision was uncertain " and also where the collision was " purely accidental.* However, what- " ever doubts there may be as to the " scope of the rule when Sir W. Scott " thus stated it in 1816, there can be no " doubt that at the present day the rule " is applied only in cases of ' both to " ' blame." Secondly, recent cases show " that the loss is not divided in every ' case where there is ' want of due ; ' diligence or of skill on both sides,' ' but that a ship is liable only for such ' want of diligence or skill as has caused ' or contributed to the loss. Upon this ' point there has been, if not an altera- ' tion of the law, an increasing dis- ' position to disregard negligence which, ' though connected with the collision, is " not its proximate cause " f (Marsden, pp. 116, 117). Compultffry Pilotage.]. The owner or master of a ship who voluntarily employs a pilot is answer- able for a collision caused by his fault or negligence. and his ship is liable in Admiralty. Where the law requires a ship to be placed in charge of, and navigated by, a qualified or licensed pilot, it is a statutory offence || on the part of the owner or person in charge not to take one, and such pilot is called a " compulsory " pilot, and is held to be placed in charge of the ship by the law, and to supersede the master in the con- duct of the ship so long as she is in pilotage waters. For a collision caused entirely by his negligence, neither is the owner answerable at law nor the ship in Admiralty, and the remedy of the injured person is against the pilotalone.lF Pilotage is held to be compulsory in all British waters, and for all ships in and for which it is enforced by penalty, or where the pilotage charge can be re- covered against the ship or her owners, whether the pilot is em ployed or not ; ** and in some foreign waters payment of pilotage charges is compulsory, but the shipowner is nevertheless liable for the pilot's negligence. . . . His Majesty's ships are not subject to the law of com- pulsory pilotage (57 & 58 Viet. c. 60, ss. 603, 741, and 6 Geo. IV. c. 125, s. 86) (Marsden, pp. 213, 214).tt By the London Trinity House, * See authorities set out in note at end of Chap. VI., Marsden, pp. 183 et seq. t See Cayzer \. Can-on Co. (The Margaret*), 9 A. C. 873, 882 ; H.M.S. Sans Pareil, (1900) P. 267 ; The Edgwater, 65 Fed. Kep. 527 ; The Ocingdean Grange. (1902) P. 208, and other cases cited by the author at p. 17. J Sect. 60 of the Act as to com- pulsory pilotage has been amended by the Merchant Shipping (Exemption from Pilotage) Act, 1897. See Temper- ley's Merchant Shipping Acts, 2nd ed., pp. 347 351. The recent cases as to compulsory pilotage since the publica- tion of Mr. Marsden's book in 1904 are as under : The OU Bull, 74 L. J., P. 75 ; (1905) P. 52 ; 92 L. T. 807 ; 53 W. K. 599 ; 10 Asp. M. C. 84 ; 21 T. L. K. 133. Reed v. Goldsivorthy, 90 L. T. 126 ; 9 Asp. M. C. 529. Randall v. Renton, 5 F., Just. Cas. (Ct. of Justy). Hie Sussex, 73 L. J., P. 73 ; (1904) P. 236 ; 90 L. T. 549 ; 9 Asp. M. C. 598 ; 20 T. L. R. 381. Mann, Macneal $ Co. v. Ellerman Liner, 7 F. 213 (Ct. of Sess.). London and Glasgow Engineering Co. v. Anchor Line, 5 F. 1089 (Ct. of Sess.). The Tactician, 76 L. J., P. 80 ; (1907) P. 244 ; 97 L. T. 621 ; 10 Asp. M. C. 534 ; 23 T. L. R. 369, C. A. Clyde Shipping Co. v. Miller, (1907) S. C. 1145 (Ct. of Sess.). The Assaye, 74 L. J., P. 145 ; (1905) P. 289 ; 96 L. T. 102 ; 54 W. R. 203 ; 10 Asp. M. C. 183 ; 21 T. L. R. 677. Watson v. Gibson, (1908) S. C. 1092 (Ct. of Sess.). The Cardiff, (1909) P. 183. The Cadeby, (1909) P. 287. The Maria, 1 W. Rob. 95, 108 ; The Eden, 2 W. Rob. 442. || Usually double the amount of the pilot charge or in some cases amount not exceeding 100Z. (17 & 18 Viet, c. 104, ss. 353, 354). IF Start v. Clements, Peake, 107 ; The Octacia Stella, 6 Asp. M. C. 182. ** Carruthers v. SidebotJiam, 4 M. & S. 77 ; The Maria, 1 W. Rob. 95, 109 ; The Arbutus, 2 Mar. Law Cas., 0. S. 136 ; The Hibernian, L. R., 4 P. C. 511. ft See also The Bristol (My, (1891) IN THE SEA. 483 " respect of pilotage " ; but such authorities, which are entrusted with government of pilots, are themselves controlled by the certificates are granted to masters and mates enabling them to pilot any ship belonging to the same owner,* and for a collision caused by the negligence of holders of certificates the owner is liable f (p- 214). It is also now pro- vided by 57 & 58 Viet. c. fiO, s. 633, that " An owner of or master of a ship shall " not be answerable to any person what- " ever for any loss or damage occasioned "by the fault or incapacity of any " qualified pilot acting in charge of that " ship in any district where the employ- "ment of such pilot is compulsory by "law"t (Marsden, pp. 214, 215). The enactments as to compulsory pilotage are binding upon foreign as well as British ships " (Marsden, p. 216, and cf. p. 205). The Court of Admiralty and the common law Courts used formerly to be guided by different rules for damages when both ships were in fault. But it is now enacted, that " in any case or " proceeding for damages arising out of " a collision between two ships, if both " ships shall be found to be in fault, the " rules hitherto in force in the Court of " Admiralty, so far as they have been at ' ; variance with the rules in force in the " Courts of common law, shall prevail " (The Judicature Act, 1873, 36 & 37 Viet. c. 66, s. 25, sub-s. 9). This rule prevails in some, but not in all the British colonies and dependencies, and it applies to all collisions whatever the nationality of the ships and where- ever the collision occurs (Marsden, pp. 121, 122). " Most countries," says Mr. Boyd (Merchant Shipping Laws, pp. 258 260), " possessing any considerable mercantile marine, have now adopted the same 'rules of navigation, and when the case is one within the rules there will ' be no difficulty in determining by ' what law it is to be decided. But it 1 may happen that the case is one not contemplated in the rules, or that the P. 10; The Killarney, Lush. 202; The Earl of Auckland, Lush. 164, 387, and sect, 599 of 57 & 58 Viet. c. 60. * Order in Council, July 10th, 1857. t T/te Maria, 1 W. Rob. 95; The Halley, L. R., 2 P. C. 193; The Annapolis and The Johanna Stall, Lush. 295. J Re-enacting 17 & 18 Viet. c. 104, s. 388. This applies to the United Kingdom, see sect. 527. See per Brett, " foreign vessel is one not bound by ' : them. " The general rule respecting all " remedies seems well settled ' that ' ' whatever relates to the remedy to be ' ' enforced, must be determined by the ' ' lex fori, the law of the country to the ' ' tribunals of which the appeal is ' ' made ' (per Lord Brougham in Don v. ' Lippmann, 5 Cl. & F. 13 ; 47 R. R. 1 ; ' British Linen Co. v. Drummond, 10 ' B. & C. 903 ; 34 R. R. 595 ; De la Vega " v. Vianna, 1 B. & Ad. 284 ; 35 R. R. ' 298). Bat in regard to the rights " and merits involved in actions, the " law of the place where they originated " is to govern (Story, on the Conflict of "Laws, s.588). ' The civil liability,' "said Willes, J., in a recent case " (Phillips v. Eyre, L. R., 6 Q. B. 28), " ' arising out of a wrong derives its " ' birth from the law of the place, and " ' its character is determined by that " ' law.' But in order that a wrong " committed abroad should give a " remedy in England, it is essential "that the wrong should be of such a " character, that it would have given & cause of action if committed in " England (TJte Halley, L. R., 2 P. C. " 194 ; Smith v. Condry, 1 Howard "(Amer. Rep.) 28). Mellish, L. J., " recently said, ' The law respecting " ' personal injuries and respecting 11 ' wrongs to personal property appears " ' to me to be perfectly settled, that no " ' action can be maintained in the " ' Courts of this country on account of a " ' wrongful act, either to a person or to " ' personal property committed within " ' the jurisdiction of a foreign country, " ' unless the act is wrongful by the law " ' of the country where it is committed, " ' and also wrongful by the law of this "'country' (The M. Moxham,\ P. D. "(C. A.) Ill; Phillips v. Eyre, L. R., " 6 Q. B. 28). " Thus an English ship was compelled " to take a pilot on board off Flushing, M. R., The Hector, 8 P. D. 218, 224 ; General Steam Navigation Co. v. British and Colonial Steam Navigation Co., L. R., 4 Ex. 238 ; The Charlton, 8 Asp. M. C. 29. The Halley, L. R., 2 P. C. 193. See also Smith v. Condry, 1 How. 28 ; The Annapolis, Lush. 295 ; The Hibernian, L. R., 4 P. C. 511; Tlie Peerless, Lush. 30 ; Longridge v. Domville, 5 B. & Aid. 117. 312 484 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Board of Trade as the supreme authority in all matters relating to merchant ships and seamen. Pilotage is compulsory for certain classes of ships in certain areas of the territorial waters of the United Kingdom, either by the general law contained in the Merchant Shipping Act, 1894, or by local laws and charters of certain ports which, with their exceptions, are saved by sect. 625 of the general Act ; and this " compulsion " has been defined as "liability to pay pilotage dues as a penalty for " refusing to take a pilot on board, though the same dues must " be paid if a pilot is taken." 1 A " pilot " means " any person " not belonging to a ship who has the conduct thereof " (sect. 742), and has also been defined as " a person who is taken on " board at a particular place for the purpose of conducting a ship " through a river, road, or channel, or from or into a port " ; 2 and by sect. 586 a pilot is to be deemed "qualified" for the purposes of the Act, if duly licensed by any pilotage authority to conduct ships to which he does not belong. In most ports of England societies and corporations have long been established, either by charter or local Act of Parliament, for the appointment and control of pilots in particular localities. 1 Pilotage autho- ' and through the negligence of the ' pilot a collision occurred. By the ' Belgian law the owners, though com- ' pelled to employ a pilot, are liable for ' his acts, whereas in England, when 1 pilotage is compulsory, the pilot alone ' is responsible. In a cause of collision ' instituted against the British ship in ' this country, it was held that the 1 party claiming reparation in a British ' Court was not entitled to the benefit ' of the foreign law that made the ; owner responsible against the pro- : visions of English statute law, by : which no such liability as provided by ; the Belgian law existed. An English Court will not enforce a foreign ; municipal law, and give a remedy in ; the shape of damages in respect of ; an act which, according to its own 1 principles, imposes no liability on the : person from whom the damages are 'claimed (T/te Halley, L. R., 2 P. C. 194 ; Smith v. Condry, 1 Howard (Amer. Rep.) 28). And on the other hand, where a cause of damage was instituted in this country against an English ship for damaging a pier in Spain, and it was alleged that by the law of Spain the owner of the ship was not responsible for such an act of the master, it was held, that if the "owner was not responsible in Spain, 1 he could not be made so in England ' even though he would have been liable ' had the damage been committed in 'England (The M. Moxham, 1 P. D. 1 (C. A.) 107). " The same principles apply to torts " committed on the high seas. No "liability will attach in this country " unless the act gives a remedy by ' English law, and also by the laws of ' the sea in force at the place where it 'was committed (Williams v. Outcli '(The Chancellor}, 14 Moo., P. C. 202). ' When the case does not fall within ' the rules, or the foreigner is not bound ' by them, and the British ship is in the ' wrong according to British law, but in ' the right by the maritime law of the 'locality, she will then be free from ' liability, since, as the foreigner could ' not himself be bound by British law, 'he cannot avail himself of the fact ' that the British ship has violated that ' law (The Zolherein, Swa. 96 ; The ' Saxonia, Lush. 410)." 1 The Maria, 1 Rob. W. at 105, per Dr. Lushington ; see ante, p. 482. 2 Abbott, 14th ed. 299. The Work- men's Compensation Act, 1906 (7 Ed. VII. c. 58), s. 7, applies to Pilots. IN THE SEA. 485 rities in existence at the passing of the Act retain their powers and jurisdiction so far as they are not inconsistent therewith (sect. 574). When acting, a qualified pilot must be provided with his licence, which must be produced when required to his employer (sect. 588), or to the pilotage authority licensing him (sect. 589) ; 2 and an unqualified pilot fraudulently using a licence is liable to a fine of 50/. (sect. 590). An unqualified pilot may, however, in any district, take charge of a ship without subjecting himself or his employer to any penalty : (a) where no qualified pilot has offered or signalled to take charge of a ship ; (b) where a ship is in distress, or circum stances where the master must take the best available assistance ; or (c) for changing the moorings of any ship in port, or docking or undocking her, where this can be done without infringing port regulations or harbour-master's orders (sect. 596). By sect. 575 the Board of Trade is empowered by provisional order to constitute new pilotage authorities and to extend the limits of existing authorities, and in either case there shall be no compulsory pilotage, and no restriction on the power of duly qualified persons to obtain licences as pilots. The Board may also (by sect. 576) transfer pilotage jurisdiction over a port other than that where the pilotage authority for such port resides or has a place of business, from the pilotage authority to the harbour authority or other local body exercising local jurisdiction in maritime matters at that port, or to a new pilotage authority, or to the Trinity House, or it may transfer the whole or any part of the jurisdiction of a pilotage authority to a new authority. Pilotage authorities may by bye-law under the Act exempt any ships or classes of ships from compulsory pilotage, or annex terms and conditions to such exemptions, and revise and extend any such or already existing exemptions as they think fit (sect. 581). The Trinity House is the chief pilotage authority, and its The Trinity jurisdiction is defined by sect. 618 (1) to comprise : (1) the House - London district, consisting of the waters of the Thames and Medway as high as London and Kochester Bridges respectively, and also the sea and channels leading thereto or therefrom as far 1 See Maude & Pollock, 250 and p. 670, for a list of pilotage districts. Appendix, where a list of such pilotage 2 Cf. Henry v. Newcastle Trinity authorities is giyen ; and White's Mer- House Hoard, 8 El. & Bl. 723. chant Shipping Acts, 4th ed., app. 35, 486 OP NAVIGATION, AND THEREIN OF CONSERVANCY. as Orfordness to the north and Dungeness to the south ; (2) the English Channel district, consisting of the seas between Dungeness and the Isle of Wight ; and (3) the Trinity House outport districts, comprising any pilotage district for the appoint- ment of pilots, within which no particular provision is made by any Act of Parliament or charter. " The Trinity House shall " not," however, " licence a pilot to conduct ships both above " and below Gravesend " (sect. 618 (2) ). Subject to any altera- tions to be made by the Trinity House pilotage is compulsory within the London district and the Trinity House outport districts (sect. 622). Sect. 617 continues the powers conferred by previous Acts on the Trinity House of appointing sub-com- missioners for the examination of pilots in all districts in which it had made such appointments prior to the passing of the Act ; and sect. 682 contains similar provisions in favour of the Trinity Houses of Hull and Newcastle. Lighthouses. Part XL of the Act relates to the management and construction of lighthouses, which are defined by sect. 742 as including, in addition to the ordinary meaning of the word, " any floating and " other light exhibited for the guidance of ships, and also any " sirens and other description of fog-signals, and also any " addition to a lighthouse of any improved light, or any siren or " any description of fog-signal." The three general lighthouse authorities are the Trinity House, the Commissioners of Northern Lights, and the Commissioners of Irish Lights. The Trinity House is entrusted with the management and superintendence of all lighthouses, beacons, and buoys, subject to the rights of the local lighthouse authorities, in England and Wales, the Channel Islands, and the adjacent seas and islands ; but, except as to surrender and purchase of local lighthouses, beacons, and buoys, its powers as regards Guernsey and Jersey may be exercised only subject to the consent of his Majesty in Council, and dues may not be taken in the Channel Islands without the consent of the States of these islands (sect. 669). The Commis- sioners of Northern Lights have the same powers in Scotland and the adjacent seas and islands, and are a body corporate (sect. 668). In Ireland and the adjacent seas and islands the Commissioners of Irish Lights, incorporated by a local Act of 1867 (30 d 81 Viet. c. Ixxxi.), exercise similar powers (sects. 684, 742). Passengers. The rights and obligations of passengers are set forth in IN INLAND WATERS. 487 Part III. of the Act, which is substituted for the Passengers Acts of 1855, 1870, and 1889, which are repealed by sect. 745 and sched. 22. " Passenger " is defined by sect. 267 to include " any " person carried in a ship other than the master and crew, "and the owner, his family and servants"; and "passenger " steamer" means " every British steamship carrying passengers " to, from, or between any places in the United Kingdom, except " steam ferry boats working chains (commonly called steam " bridges) ; and every foreign steamship carrying passengers " between places in the United Kingdom." This section is amended by Part II. of the Merchant Shipping Act, 1906 (6 Ed. VII. c. 48), so as to include every foreign steamship carrying passengers to or from any place or between any places in the United Kingdom. 1 Lifeboats are dealt with under Part V. (Safety). Lifeboats. " Lifeboat service " is defined by sect. 742 to mean " the " saving or attempted saving of vessels, or of life or property on " board vessels, wrecked or aground, or sunk, or in danger of " being wrecked, or getting aground, or sinking " ; and " any " reference to failure to do any act or thing shall include a " reference to refusal to do that act or thing." The Board of Trade is empowered by sect. 427 to make rules as to life-saving appliances (cf. sects. 428 431). In Inland Waters. The Merchant Shipping Act, 1894 (57 d 58 Viet. c. 60), . 421 (1), Saying of provides that any rules made before or after the passing of this n Act under the authority of any local Act, concerning lights and harbours, &c. signals to be carried, or the steps for avoiding collision to be taken, by vessels navigating the waters of any harbour, river, or other inland navigation, shall, notwithstanding anything in this Act, have full effect, and that where any such rules are not and cannot be made, his Majesty in Council on the application of any person having authority over such waters, or, if there is no such person, any person interested in the navigation thereof, may make such rules, and those rules shall, as regards vessels navigating the said waters, be of the same force as if they were part of the collision regulations. This section is extended to and includes the power to make 1 See also as to the accommodation, 16 ; and as to landing of immigrants, see &c., of steerage passengers, ibid. ss. 15, The Aliens Act, 1905 (5 Ed. VII. c. 13). 488 OF NAVIGATION, AND THEREIN OF CONSERVANCY. rules concerning lights and signals and collision regulations in the sea channels leading to the river Mersey (60 d 61 Viet, c. 21, s. 2). 1 The rules regarding inland navigation must necessarily be of a more heterogeneous and complex nature than those controlling 1 Art. 30 of the Regulations for pre- venting collisions at sea provides that : Nothing in these Rules shall interfere with the operation of a special rule duly made by local authority, relative to the navigation of any harbour, river or inland waters. Local rules have been made for the following places : Arundel (Port of), Avon (River), Belfast, Berkeley Canal, Blyth, Boston (Lincolnshire), Bridgewater Canal, Bristol Docks, Caledonian Canal, Carron (River), Clyde (Firth of and River), Cork, Cowes, Dartmouth, Dublin, Falmouth, Galway, Glasgow, Gloucester Canal, Holyhead, Humber, Ipswich, Limerick, Londonderry, Manchester and Salford Canals, Manchester Ship Canal, Medway, Mersey and Irwell Naviga- tion, Newport (Mon.), Newry Naviga- tion, Ouse (Lower and Upper), Runcorn and Weston Canal, Ryde, Solent Naviga- tion, Southampton, Suir (Hiver), Tees, Thames, Trent, Tyne, Warkworth Har- bour, Waterford, Weaver Navigation, Youghal. Rules have also been made for the dockyard ports of Portsmouth,* Plymouth,! Pembroke,J Portland, Chatham.]) Sheerness,1l Woolwich,** Queenstown,ff and Deptford.JJ In the United States, local rules have been made for the inland waters, great lakes and western rivers. There are also rules for the Suez Canal and River Danube. Some of these local rules are not made under sect. 418 (4) of the Merchant Shipping Act, 1894, while others are. If they are not, a ship infringing them will not be held to blame unless the infringement did in fact contribute to the collision.|| || (Abbott's Law of Merchant Ships and Seamen (14th ed., 1901), pp. 951, 952). For the text of local rules as to the * Order in Council, February 26th, 1897. t Ibid., May, 1897. t Ibid., September 26th, 1891. Ibid., June 29th, 1878. || Ibid., June 29th, 1888. f Ibid., June 29th, 1888. Avon River, Clyde, Humber, Manchester Ship Canal, Mersey, Ouse, Sue/ Canal, and Tees, Trent and Tyne Rivers, see Marsden's Collisions at Sea, 5th ed. (1904), App. pp. 512538, which also contains a short statement of the effect of some of the American (U.S.) Inland Rules of the Road (pp. 591, 592). Since the passing of the Merchant Shipping Act, 1894, the following Acts of the subject have become law : Derelict Vessels (Report) Act, 1896 (59 & 60 Viet. c. 12) ; Mersey Channels Act, 1897 (60 & 61 Viet. c. 21) ; Merchant Shipping Act, 1897 (60 & 61 Viet. c. 59), which amends the Act of 1894 with respect to detention for undermanning ; Merchant Shipping (Exemption from Pilotage) Act, 1897 (60 & 61 Viet. c. 61), which abolishes the exemptions from compulsory pilotage under 6 Geo. IV. c. 125, s. 59, continued under sect. 603 of the Merchant Shipping Act, 1894, in the cases of vessels on voyages between ports in Sweden and Norway and London, but which does not abolish the exemptions from compulsory pilotage contained in sect. 625 of that Act {The Columbus, (1899) 8 Asp. M. C. 488) ; the Merchant Shipping (Liability of Ship- owners) Act, 1898 (61 & 62 Viet. c. 14) ; the Merchant Shipping (Mercantile Marine Fund) Act, 1898 (61 & 62 Viet, c. 44) ; the Anchors and Chain Cables Act, 1899 (62 & 63 Viet. c. 23) ; and the Merchant Shipping (Liability of Ship- owners and others) Act, 1900 (63 & 64 Viet. c. 32) ; The Aliens Act, 1905 (5 Ed. VII. c. 13), as to the shipping, &c., of alien immigrants ; the Merchant Shipping Act, 1906 (6 Ed. VII. c. 48) ; the Merchant Shipping Act, 1907 (7 Ed. VII. c. 52). For the text of these Acts, see Temperley's Merchant Ship- ping Acts, 2nd ed. ; and White's Mer- chant Shipping Acts, 4th ed. ** Ibid., February 29th, 1868. tf Ibid., February 29th. 1868. jj Ibid., February 29tb, 1868. For the text of the above rules, see the Rules of the Road at Sea, 3rd ed. IHI The Monta Rosa, (1893) P. 23 ; The Margaret, (1884) 9 App. Cas. 873. IN INLAND WATERS. 489 the navigation of the sea, owing to the fact that the former are established for the most part by a variety of private bodies. In addition to this, it is to be noted that the right of navigation on inland waters is also of a more complicated kind than that of navigation upon the sea, not only on account of the different classes of inland waters, but also from the restricted extent of the water-way available for navigation, and the consequent collision in many cases of the public right with the rights of private individuals. Lastly, it must be pointed out that the preserva- tion and regulation of the navigation of inland waters, both of which are now included under the term " conservancy" are governed almost entirely by statute law, and may be clearly dis- tinguished from the general common law right to navigate upon such waters. For these reasons it has been considered advisable to treat of the subject as follows : 1. The General Right of Navigation, its Nature, Extent, and the Injuries thereto. (a) In tidal waters. (b) In private waters. 2. The Conservancy of Navigation and the Powers and Duties of Conservators. The bed of all navigable rivers, where the tide flows and The general reflows, and of all estuaries or arms of the sea, is by law vested ^o n i n navl " in the Crown. But this ownership of the Crown is for the tidal waters, benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm. 1 There are two totally distinct and different things ; the one is the right of property, and the other the right of navigation. The right of navigation is simply a right of way. The public, who have the right to navigate on an inland water, have no right of property therein. 2 Although the flux and reflux of the tide is primd facie evidence Extends to that a river is navigable, it does not necessarily follow that ^ate'nfwhich because the tide flows and reflows in any particular place, that it are navigable is therefore a public navigation although of sufficient size. The *f 1 Gann v. Free Fishers of Whitstable, 839 ; Abraham T. Great Northern Sail 11 H. L. 192 ; 35 L. J., C. P. 29 ; 12 Co., 16 Q. B. 596 ; 20 L. J., Q. B. 322* L. T. 150. per Patteson, J. a Orr Ewing v. Culquhoun, 2 A. C. 490 OF NAVIGATION, AND THEREIN OF CONSERVANCY. strength of the evidence arising from the flux and reflux of the tide must depend on the situation and nature of the channel. If it is a broad and deep channel, calculated to serve for the purposes of commerce, it will be natural to conclude that it has been a public navigation ; but if it is a petty stream, navigable only at certain states of the tide, and then only for a short time and by very small boats, 1 it is difficult to suppose that it has ever been a public navigable river. 2 The actual user of a tidal river for the purposes of navigation is of course the strongest evidence of its navigability. 3 Where, therefore, a river ceases to be navigable, either from natural causes, such as the recess of the sea, or the accumulation of soil or mud in the channel, the river will cease to be navigable, at any rate till such obstruction be by some means counteracted. 4 Mayor of In the case of Mayor of Colchester v. Brooke, 5 Lord Denman, jsroofo*^ % ^' ^'' Delivering the judgment of the Court, fully states the law on this point : " The evidence showed this to be a tidal river, " and, in the part in question, so shallow in certain states of the "tide, that the vessel could not float there, but necessarily " grounded. The plaintiffs contended that a right to navigate, " pass and repass, was merely the right to float along ; and that " the facts showed that in this part of the river such a right " could not exist at all times of the tide. The learned judge " stated that a navigable river was so at all times ; that a subject "might go upwards and downwards, though he might not be " able to reach the port or the deep water in one tide, or without " grounding ; and that even if such grounding subjected him to " compensate for injury done, that did not affect the nature of " the right in respect to time of enjoyment. We are of opinion " that he was justified fully in so stating the law. No " authority directly in point was stated at the bar ; nor have " we been able to find any after considerable search ; but 1 llchester v. Rashleigh, 5 T. L. R. R. R. 623 ; and per Bay ley, J., in Vooght 739;61L.T.477;seeaMte,p. 24, n. 2. For v. Winch, 2 B. & Aid. 662; 21 R. R. definition of "navigable river," accord- 446. ing to French law. as existing in Canada, * Jf.v. Montague, 4 B. & C. 598; 28 see Sell v. Corporation of Quebec, 41 R. R. 420 ; Reg. v. Setts, 16 C. B. 1022. L. T., N. S. 451 (P. C.), and fordistinc- * 7 Q. B. 339 ; 15 L. J., Q. B. 59. See tion between " navigable " and " boat- also Liverpool and, N, Wales Steamship "able" in American law, see Angell on Co. v. Mersey Trading Co. (1909) 1 Ch. Watercourses, ch. 13. 209 ; 99 L. T. 863; (1908) 2 Ch. 460 ; a R. v. Montague, 4 B. & C. 598 ; 28 77 L. J. Ch. 658 ; 72 J. P. 385 ; 78 R. R. 420; Mayor of Lynn v. Turner, I L. J., Ch. 17; 25 T. L. R. 89, C. A.; Cowp. 36. Petrie v. Mostrevor (Owners) (1908) 2 3 Miles v. Rote, 5 Taunt. 705 ; 15 Ir. R. 556, C. A. IN INLAND WATERS. 491 " upon principle the matter seems clear. It cannot be dis- " puted, that the channel of a public navigable river is properly " described as a common highway, although the analogy between " it and a highway on land is not complete in all particulars : " and there is no one circumstance which more decisively " affixes on a river the character of being public and navigable " in this sense of a highway, than the flow and reflow of the tide " in it. Now, if in such rivers it was held, that the character "did not extend higher up than the water sufficed to float " vessels at all times, or was suspended during such periods of " the tide as left the channel too shallow for that purpose " rights of the public, invaluable and immemorial, in numerous " rivers, would be abridged, or rendered in many particulars " vexatiously uncertain, and in many cases be made nearly, if " not entirely, useless. The present case is an illustration of " this. Upon the evidence it appeared that vessels of a burthen " which usually traded to Colchester, could not, except at spring " tides, go up to the town in one tide. To say then that the " river ceased to be navigable, ceased to be a highway, at the " ebb or other states of the tide, when such vessels could not " float, is in effect to say that, except for a short period of every " month, they should not use the river at all for the purpose of " trading with Colchester. It is more reasonable to hold that ^ " the term ' navigable ' is a relative and comprehensive term, " containing within it all such rights upon the waterway as, " with relation to the circumstances of each river, are necessary " for the full and convenient passage of vessels and boats along " the channel. Nor will this be repugnant to any legal principle " applicable to the case. It does not interfere with the rights of " individuals on the banks (see Ball v. Herbert l ), but stands on " this broad ground : The right of soil in arms of the sea and " public navigable rivers, which the Crown primd facie has " independently of any ownership in the adjoining lands, must "in all cases be considered as subject to the public right of " passage, however acquired ; and any grantee of the Crown " must of course take subject to such right. Nor is this incon- " sistent with a permanent loss of such right, if, by accumulation " of silt or any other natural cause, the channel becomes choked " up (Rex v. Montague). 2 The law has made no provision for " the clearing of such a highway, and, in such case, the river 1 3 T. R. 253 ; 1 K. R. 695. 2 4 B . & C. 598 ; 28 R. R. 420. 492 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Change of course of a river does not destroy the right. The right is a paramount right to pass and anchor free of toll. " ceases to be navigable, at least until such causes are by some " means counteracted. In this large sense, and with this large " exception, the river is navigable, and is a highway at all times " and all states of the tide ; in any other sense the public right " may become all but valueless." Where a navigable river changes its channels, although the soil of the bed and the right of fishing may be vested in the owner of the adjoining land, so as to bar the right of the Crown to the bed, and of the public to the fishery ; it would appear that the right of navigation will follow to the new channel, 1 the test being whether the river remains tidal. 2 So, where a river was formerly navigable but became silted up, and by Act of Parliament power was given to commissioners to restore the navigation, and they were authorized to make, and made, a new cut, the navigation of the same to be open on payment of tolls, it was held that the cut was a public navigable river, the obstruction of which was an indictable nuisance, and that the public had the same rights over it as they had over the original stream. 3 The right of navigation in public waters is a paramount right in all subjects of the realm to pass and to ground and to anchor at pleasure, free from toll, 4 at all times and states of the tide, 5 and in all species of vessels, 6 independently of any usage or prescription to that effect. It is a right of free passage over the whole of the navigable channel ; 7 and it appears that a public river may be used by the public as a highway whenever it suits their convenience, whether such navigation be valuable or not. 8 The public right includes all such rights as with relation to the circumstances of each river, are necessary for the full and convenient passage of vessels along its channel. It is, therefore, no excess of this right, if a vessel, which cannot reach her destiny in a single tide, remain aground till the tide serves, and no toll can be demanded by the owner of the soil for such grounding. 9 1 Mayor of Carlisle v. Graham, L. R., 4 Ex. 866 ; ante, Chap. II. p. 85, and Chap. VI. p. 403. 2 Hale de Jure Maris, p. 1, c. 6. p. 34 ; I Roll. Abr. 390 ; Roscoe on Crim. Evi- dence, 6th ed. p. 535. 8 Reg. v. Betts, 16 Q. B. 1022. 4 Gann v. Free Fishers of Whitstable, II H. L. 192 ; 35 L. J., C. P. 29 ; 12 L. T. 150 ; Foreman, v. Free Fishers of W/iitstable, L. R., 4 H. L. 266 ; 21 L. T. 804. 6 Mayor of Colchester v. Brooke, 7 Q. B. 339 ; 15 L. J., Q. B. 39. 6 Reg. v. Randall, Car. & M. 496. i A.-O. v. Terry, L. R., 9 Ch. 423, per Hellish, L. J. ; Williams v. Wilcox, 8 A. & E. 314 ; 47 R. R. 595 ; see Orr Eioing v. Colquhoun, 2 App. Cas. 839. 8 A.-G. v. Lonsdale, L. R., 7 Eq. 377 ; 38 L. J., Ch. 335 ; 20 L. T. 64. 9 Mayor of Colchetter v. Brooke, 9 Q. B. 339 ; 15 L. J., Q. B. 59. IN INLAND WATERS. 493 An immemorial user of the foreshore in tidal and navigable waters, by the owners of fishing-boats and other craft, by fixing moorings in the soil for the purpose of attaching their boats to them, may be supported either as an ordinary incident of the navigation of such waters, or on a presumption of a legal origin by grant from the Crown of the foreshore to all persons navi- gating the waters to use it for fixing moorings. Such an imme- morial user in the river Thames may be supported on the presumption of regulations prescribed by the port authority of the port of London. 1 The right of navigation is a right in all subjects to pass, and to ground, and to anchor at pleasure free from toll, unless the toll is imposed in respect of some other advantage conferred upon them, or, at least, on the public. 2 Though no toll can be taken for grounding, it is said by Coltman, J., that where vessels ground, perhaps by custom or agreement, a fine may be payable to the owner of the soil for such grounding ; but this dictum is rather questioned in Gann v. Free Fishers of Whitstable, Lord Chelmsford saying : "It may be correct as applicable to a " navigable river, because the owner may have given a con- " sideration for the payment by rendering the river navigable." A claim to an anchorage due cannot, therefore, exist merely Consideration in respect of the use of the soil ; it must be founded on proof that ^upportl t0 the soil of the claimant was originally within the precincts of a claim to toll, port or harbour, or that some service or aid to the navigation was rendered by the owner of the soil who claimed the anchorage dues. 3 Evidence of immemorial usage to take such dues will not support such a claim merely as incident to the ownership of the soil ; but as anchorage dues are almost, if not universally, incident to a port, the uninterrupted payment of such dues is evidence of the former existence of a port, and that a toll, claimed as a port or anchorage toll, had a legal origin. 4 A liability to make compensation for actual injury done to property by grounding is not to be confounded with a liability to pay toll for casting anchor in the soil itself. 5 1 A.-G.v. Wright, (1897) 2 Q. B. 318, 11 H. L. 192 ; 35 L. J.,C. P. 29 ; 12L.T. per Rigby, L. J. See for definition of 150. mooring the judgment of Lord Esher, * Foreman v. Free Fisforg of Whit- M. R. stable, L. R., 4 H. L. 266 : 21 L. T. 804. 2 Gann v. Free Fishers of Whitatable, 5 Gann v. Free Fisfiers of IVTiitgtable, per Lord Wensleydale ; and see ante, 11 H. L. 192. See as to tolls in ports, Chap. I., pp. 69 et seq. ante, Chap. L, pp. 69 et seq., and post, 8 Gann \. Free Fishert of WhitataUe, Chap. IX. 494 OF NAVIGATION, AND THLREIN OF CONSERVANCY. Right of navigation paramount to property of the Crown and its grantees in the soil. A navigable river is a public high- way navig- able in a reasonable way and for a reasonable purpose. The right of navigation is paramount to the rights of property of the Crown and its grantees in the bed of the river, and such property cannot be used in any way so as to derogate from, or interfere with, the public right of navigation. 1 Any grant, therefore, of the Crown which interferes with the public right is void as to such parts as are open to such objection, if acted upon, so as to effect nuisance by working injury to the public right. 2 If, therefore, the Crown grant part of the bed or soil 3 of an estuary or navigable river, the grantee takes subject to the public right ; and he cannot, in respect of his ownership of the soil, make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right. 4 " It is perfectly clear," says Macdonald, C. B., 5 " that all the " soil under the salt water between high water mark and low " water mark is the property of the Crown. Such property has " certainly been (as it may be) communicated in a great many " instances to the subject, but that is always subservient to the " public right of the king's subjects generally. It is compared " by Lord Hale, with his usual simplicity, to the case of a high- " way. The private right of the Crown may be disposed of, but " the public right of the subject cannot, even if it be within " this grant." Thus it has been held, that the obstruction by artificial means of a navigable river, though of more than twenty-one years' duration, will not operate as a bar to the public right. 6 A navigable river is a public highway navigable by all his Majesty's subjects, in a reasonable way and for a reasonable purpose. 7 " The right of the public on navigable rivers is not " confined to the passage ; trade and commerce are the chief " objects, and the right of passage is chiefly subservient to those " ends." 8 1 Gunn v. Free Fit/ters of Whitstable, supra; Foreman v. Free Fishers of Whitstable, supra ; Mayor of Colchester v. Brooke, 7 Q. B. 339. a A.-O. v. Parmeter, 10 Price, 412 ; 24 R. R. 723, 745 ; Liverpool and N. Wales Steamship Co. v. Mersey Trading Co., (1909) 1 Ch. 209 ; 99 L. T. 863 ; (1908) 2 Ch. 4GO ; 77 L. J., Ch. 658 ; 72 J. P. 385 ; 78 L. J., Ch. 17 ; 24 T. L. R. 712 ; 25 T. L. R. 89, C. A. ; post, p. 497. 3 R. v. Montague, 4 B. & C. 598 ; 28 R. R. 420. 4 Gaiui v. Free FisJiers of Whitstable, 11 H. L. 192 ; see also A.-G. v. Par- meter, 10 Price, 412 H. L. ; 24 R. R. 723, 745. 5 A.-G. v. Parmeter, 10 Price, p. 412 ; 24 R. R. 723, 745. Vooght v. Winch, 2 B. & Aid. 662 ; 21 R. R. 446. 7 Original Hartlepool Cottiers v. Gibb, 6 Ch. D. 713, per Jessel, M. R. 8 Per Bayley, J., in R. v. Russell, 6 B. & C. 566 ; 30 R. R. 432. IN INLAND WATERS. 495 For traffic there are rights eundo et redeundo et commorando, so far as reasonable for loading, and for a wind. 1 " A navigable " river," says Wood, B., 2 " is a public highway, and all persons " have a right to come there in ships and to unload, moor, and " stay there as long as they please. Nevertheless, if they abuse " that right so as to work a private injury, they are liable to an " action. The privilege of the plaintiff must be subservient to " the right of the public." 3 A riparian owner has a right to moor a vessel of ordinary size alongside a wharf for the purpose of loading and unloading at reasonable times and for a reasonable time ; and the Court will restrain by injunction the owner of adjoining premises from interfering with the access of such vessel, though the vessel may overlap his premises ; though such a vessel could not be allowed to interfere with the proper right of access to the neighbour's premises, if used as a dock by vessels. 4 The banks of navigable rivers are, as has been before explained, No public not publici juris, but are private property ; and there is, there- [^ mooring fore, no common law right in the public to land themselves or or towin g on , . the banks. their goods, or to moor their vessels thereon, or to pass over the banks for the purpose of towing vessels or barges. Such rights, in all cases, depend on usage or prescription. 6 The right of towing does exist by custom on most navigable rivers ; and in the case of Wyatt v. Thompson, 6 a jury found, " That the " custom of mooring barges in the Thames at low water is for " one tide at the piles in front of the wharf, and if there are no " piles, the custom does not allow barges to moor at the wharf " unless through distress." Eiparian owners on the banks of a tidal navigable river have Private rights similar rights and natural easements to those which belong to a t riparian owner above the flow of the tide subject to the public ri s ht - right of navigation. 7 The right to navigate a tidal river is common to the subjects Right of of the realm, but it may be connected with a right to the exclusive access > 1 Per Holroyd, J., iu E. v. Pussell,Q R. R. 695 ; see ante, Chap. II., pp 104 B. & C. 566 ; 30 R. R. 432. et seq. 2 Anon., Durham Assizes, 1808; 1 6 1 Esp. 252 ; see, however, A.-G. v Camp. 517, note. Wright, (1897) 2 Q. B. 318, ante, p. 493! 3 See Stubbs v. Hilditch, 51 J. P. 758. 7 Lyon v. Fishmongers' Co., 1 A. C. * Original Hartlepool Colliers v. Gibb, 662 ; 45 L. J., Ch. 68 ; 35 L. T. 569 ; 5 Ch. D. 713 ; see Dalton v. Denton, 1 North Shore Rly. v. Pion, 14 A C 612 C. B., N. S. 672. See ante, Chap. II. p. 110. 5 Sail v. Herbert, 3 T. R. 262 ; 1 496 OF NAVIGATION, AND THEREIN OF CONSERVANCY. access to particular land on the bank of the river ; and the latter is a private right to the enjoyment of land, 1 the invasion of which may form ground for an action of damages or for an injunction for the right of a riparian owner to the use of the stream does not depend on the ownership of the soil of such stream, but of the soil bounding it. 2 "Unquestionably the owner of a wharf on the bank (of a " public navigable river) has, like every other subject of the " realm, the right of navigating the river as one of the public. " This, however, is not a right coming to him qua owner or " occupier of any lands on the bank ; nor is it a right which " per se he enjoys in a manner different from any other member " of the public. But when this right of navigation is connected " with an exclusive right of access from a particular wharf, it " assumes a very different character. It ceases to be a right " held in common with the rest of the public, and it becomes a " form of enjoyment of the land and of the river in connection " with the land, the disturbance of which may be vindicated in " damages, or restrained by an injunction, " I cannot entertain any doubt that the riparian owner on a " navigable river, in addition to the right connected with naviga- " tion to which he is entitled as one of the public, retains his " rights as an ordinary owner underlying and controlled, but not "extinguished, by the public right of navigation." 3 includes right This right of access includes the right of landing in the of landing ordinary manner, and of passing over the soil of the bed of and crossing . the shore for the river at low water for that purpose, even where the soil at purpose. j s nQ j. J Q ^ Q Crown, but in a private owner, as it is necessary for the full enjoyment of the right of navigation, 4 and as the right of navigation exists at all states of the tide. 5 Persons having a right to land at a quay may pass over a barge moored alongside it so as to be a private nuisance, if it is so fixed as not to be readily abateable and there is no other route available, but 1 See Liverpool Steamship Co. v. 2 Ch. 164 ; 93 L. T. 574 ; 53 W. R. 581 ; Mersey Trading Co., post, p. 497, where 21 T. L. R. 591, C. A. ; Coppinger v. it was held that the owners of a pier Shehan, (1906) 1 Ir. R. 519. could exclude the plaintiffs from their 8 Ibid., per Lord Cairns, C. ; as to right pier although it was illegal and a public of access, see ante, Chap. II. p. 110. nuisance. A.-G. v. ]Vemyss,3 A. C. 192 ; Mar- 2 Lyon v. Pith-mongers' Co., 1 A. C. shall \. Ullexwater Co., L. R., 7 Q. B. 662. As to the construction of a con- 172 ; 41 L. J., Q. B. 41 ; 25 L. T. 793 ; tract for exclusive right to the use of see ante, Chap. I. p. 52. a pier, see City of Dublin Steam Packet 5 Mayor of Colchester v, Brooke, 7 Co. v. R., 24 T. L. R. 657798 ; Mellor Q. B. 639. v. Walmtley, 74 L. J., Ch. 475 ; (1905) IN INLAND WATERS. 497 not to use the barge as a means of passage except in such states of the tide as would have enabled them to land directly on the quay. 1 Any interference with the right of access is an injury to private property, and as such actionable without proof of special damage. 2 The obstruction of the navigation of a public navigable river Obstruction is a public nuisance, and the subject of indictment 3 and informa- right^fa tion, 4 or of an action 5 on proof of special damage. Obstructions i I. i L j i i can also be abated by decree. 6 The Crown cannot interfere with the public right by grant ; 7 it can only be abridged by Act of Parliament, writ ad quod damnum, or natural causes. 8 Thus in the case of A.-G. v. Parmeter, 9 buildings, erections, and inclosures, bet ,\ een high and low water mark in the harbour of Portsmouth, interrupting the flux and reflux of the tide, and obstructing the public right of navigation, were abated by decree of the Court of Exchequer, although they were erected by sanction and authority of the corporation under a grant from the Crown, the Court being of opinion, that " where a part of the sea coast " or shore, being the property of the Crown, and giving jus "privatum to the king, is granted to a subject for uses so as to be " detrimental to the jus publicum therein, such grant is void as to " such parts as are open to such objection, if acted upon so as to " effect nuisance by working injury to the public right, or it is a " grant which does not divest the Crown or invest the grantee." In Liverpool and North Wales Steamship Co., Ltd., v. Mersey Trading Co., 10 a provisional order of the Board of Trade, confirmed by a special Act of Parliament, authorized a company to con- struct a pier, and provided that, when a certificate of the due 1 Eattern Counties Ely. v. Darling, 7 A.-G. v. Parmeter, 10 Price, 412 ; 5 C. B., N. S. 821 ; 28 L. J., C. P. 202. (H. L.) ; 24 R. R. 723, 745 ; A.-G. v. 2 Rose v. Grove*, 5 M. & G. 613 ; see Johnson, 2 Wils., Ch. C. 87 ; 18 R. R. Dalian v. Dent on, 1 C. B., N. S. 672 ; and 156. see ante, Chap. II. p. 111. 8 R. \. Montague, 6 D. & R. 616 ; 28 8 R. v. Grosrenor, 2 Stark. 511 ; 20 R. R. 420 ; 4 B. &: C. 89. R. R. 732. 9 10 Price, 378 ; 24 R. R. 723, 745 ; see * A.-G. v. Richards, 2 Anstr. 603 ; 3 also A.-G. v. Burridge, 10 Price, 350 ; R. R. 632. 24 R. R. 705; A.-G. v. Richards, 2 5 Rose v. Miles, 4 M. & S. 101 ; 16 Anstr. 603 ; 3 R. R. 632. R. R. 405; cf. remarks of Parke, J., in 10 (1909) 1 Ch. 209 ; 99 L. T. 863 ; Duke of Newcastle v. C lark, 2 Moore, 78 L. J., Ch. 17 ; 28 T. L. R. 89, C. A. ; Rep. 666 ; 20 R. R. 583. 77 L. J., Ch. 658 ; (1908) 2 Ch. 460 ; 6 A.- G. v. Parmeter, 10 Price. 412 ; 24 72 J. P. 385 ; 24 T. L. R. 712 R. R. 723, 745. L.W. 32 498 OF NAVIGATION, AND THEREIN OF CONSERVANCY. construction of the pier had been given by the Board of Trade, the company might levy certain rates on passengers using the pier and on vessels " mooring " within the limits defined by the order. In 1900, EL, who had acquired the pier from the assigns of the liquidator of the company, discovered that the pier had not been constructed in accordance with the provisional order, and that the certificate of the Board of Trade had not been given, and thereupon, with the view of perfecting his title, he obtained from the Crown, under the powers of the Crown Lands Act, 1829, 1 a grant of the foreshore and bed of the sea on which the pier stood. In 1907, the plaintiffs ran passenger steamers to the pier, and the M. company, to whom H. had leased the pier, refused to allow the plaintiffs' steamers to come alongside the pier except on payment of a certain lump sum for the season for passenger rates and also " mooring " rates. In an action by the plaintiffs for an injunction to restrain the M. company and H. from excluding them and their passengers from using the pier, and for repayment of rates paid under protest on the ground that the defendants were not the lawful owners of the pier and that the rates had been illegally demanded : It was held by the Court of Appeal, affirming Neville, J. : (1) That the pier, being an unauthorized structure, was an obstruction to navigation and a public nuisance, and consequently no statutory rights arose in favour of either the defendants or the public. (2) That the plaintiffs, as individual members of the public, could not elect whether they would treat the pier as a nuisance or adopt it as an authorized undertaking. (3) That, as the pier was the property of the defendants, they could exclude the plaintiffs from it although it was a nuisance. 2 (4) That the plaintiffs could not recover rates they had paid under protest because they had received the consideration for such payment. Held, also, that the vessels coming alongside and making fast to the pier merely to load and embark passengers were not " mooring " within the meaning of the provisional order. Quaere, whether the grant by the Crown to H. of the foreshore and bed of the river was valid. Building locks on the Thames to the obstruction of navigation 1 10 Geo. iv. c. 50. 2 Dimes v Petley, (1850; 15 Q. B. 276. IN INLAND WATERS. 499 was, in an early case, held to be a nuisance, Holt, C. J., saying : " To hinder the course of a navigable river is against Magna " Charta, and anything which aggravates the fact, though not " directly to the issue, may be given in evidence upon it, as here " the taking of money to let people pass." 1 Bringing a large ship of 800 tons into Billingsgate dock has been held to be a public nuisance to the dock, for which an indictment would lie. 2 To divert the stream of a public river so as to affect its force Diversion of is an injury to navigation. Thus M. was fined 200/. for divert- F ing a part of the Thames, by which he weakened the current to carry barges ; and such a thing cannot be done without an ad quod damnum? The owner of works, carried on for his profit by his agents, is liable to be indicted for a public nuisance, such as throwing stone, slate, &c., into the bed of a river, caused by acts of his workmen in carrying on the works, though done by them without his knowledge, and contrary to his general orders. 4 It is not, however, every erection on the bed of tidal waters Erections on which is per se illegal and a nuisance to the navigation, and so ^b^^f liable to be abated on indictment. Such an erection, if made not neces- by the Crown or its grantees so as not to interfere with any private ^"sJnce. or public rights, would appear to be a legal use of their property, though covered with water. 5 Any erection on the bed or fore- shore of tidal waters by a person not the owner is a purpresture, and is, probably, liable to be abated at suit of such private owner; 6 but whether such erection is a nuisance or not is a question of fact for the jury. Thus the building of a bridge partly in the bed of a navigable river is not necessarily a nuisance, and a verdict which negatived actual obstruction was held in effect an acquittal, Lord Campbell saying : " An indict- " ment would not lie merely for erecting piers in a navigable " river it must be laid 'ad commune nocumentum.'" 1 In the case of A.-G. v. Terry* an information was filed against A.-G v. Terry. 1 R. v. Clark, 12 Mod. 615. L. J., Q. B. 531 ; R. v. Randall, Car. & 2 Reg. v. Leach, 6 Mod. 145. M. 496 ; R. v. Ward, 4 A. & E. 364 ; 8 Hind v. Mansjitld, Noy, 103. 43 R. B. 364 ; per Lord Tenterden in R. * Reg. v. Stephens!, L. R., 1 Q. B. 702 ; v. Rusell, 6 B. & C. 566 ; 30 R. R. 432. for statutory prohibitions against throw- See, as to the right of the Crown and its ing ballast into navigable rivers, see grantees to build on the bed of navigable post, p. 556. rivers, ante, Chap. II. pp. 99 et seq. ; and 5 Orr Ewing v. Colquhoun, 2 A. as to rights of riparian owners to build C. 839; see also Dalton v. Denton, 1 ripee muniendee causA, Chap. III. pp. 177 C. B., N. S. 672. et seq. 6 Orr Ewing v. Colquhrnn, supra. 8 L. R., 9 Ch. 423 ; 30 L. T. 215. Reg. Setts 16 Q. B. 1022 ; 19 322 500 OF NAVIGATION, AND THEREIN OF CONSERVANCY. the defendant for obstructing the navigation of the tidal and navigable river Stour. The defendant, a wharf owner, drove piles into the bed of the river, extending his wharf so as to occupy three feet out of a breadth of about sixty available for navigation ; and it was held by the Court of Appeal, affirming a decree of the Master of the Bolls, that this was such a tangible and substantial interference with the navigation as ought to be restrained by the Court. The Master of the Kolls (Sir G. Jessel) was of opinion that, independent of any proof of actual obstruc- tion, an injunction ought to be granted, on the ground that no man has a right to build on the bed of a navigable river, and that it is not any answer to say that at the present moment the obstruction is not a nuisance, for it may become so a change may take place in the mode of navigating the river, so as to make that part of it navigable which was not before navigable in any useful sense. His Lordship therefore held that, although an indictment would not lie until an actual nuisance had been committed, a Court of Equity ought to interfere to restrain the continuance of the obstruction. The Lord Chancellor and Lords Justices, in the Court of Appeal, confine themselves to the question that there was an actual obstruction and nuisance to the navigation ; but Cairns, L. C., says : " I cannot say that there might not be an encroach- " ment of so trifling a nature that the Court would not inter- fere;" 1 and Mellish, L. J., says: "It is true there may be " spots in the river where space is not wanted, and where that " which would otherwise be a nuisance might not be such an " obstruction of the highway as to make it the duty of this Court " to interfere ; but it appears to us that the space is actually " wanted for the purposes of navigation, and in such a case " there is no difference between a highway on land and a high- " way on water. It is no answer to say that there is room for " the ships, and that if they are navigated with skill and care " there will be no obstruction. Those who use the river are "entitled to say that they have a right to the whole of the " space ; and, in my opinion, it is not any answer that the " obstruction only occurs at certain times of the tide, and in " some respects the alteration would be advantageous. The advan- " tage of one person cannot be set off against the disadvantage 1 See Reg. v. Rutsell, 3 E. & B. 942 ; 23 L. J., M. C. 175 ; R. v. Tindal, 6 A. & E 143 ; 45 R. R. 426. IN INLAND WATERS. 501 " of another. If this is an indictable nuisance there must be " a remedy in the Court of Chancery, and that remedy is by " injunction." In A.-G. v. Lonsdale, 1 Malins, V.-C., held that the erection of a jetty by the owner of the bed of a tidal river ought to be restrained by injunction, on the ground that though no actual damage to the navigation was proved, future damage might result; but Lord Blackburn in Orr Eiving v. Colquhoun? remarking on these cases, says: "In the case of A.-G. v. " Lonsdale, the obstruction was in a tidal river, but it occupied " one-third of the breadth of the river. In A.-G. v. Terry, 3 there " was an actual occupation, by the piles put in by the defendant, "of part of what was used for the navigation and wanted for "navigation. The Master of the Rolls submitted an opinion " that the Court of Equity might order the piles to be removed, " though doing no present damage to the navigation, if there " might be damage hereafter : I apprehend on the ground of the " piles being placed on the soil of the Crown, and therefore a " wrong to the Crown. How that may be in such a case it is " unnecessary to consider. I think it clear law in England that, " except at the instance of a person (including the Crown) whose " property is injured, or of the Crown in respect of some injury " to a public right, there is no power to prevent a man making " an erection on his own land, though covered with water, merely " on speculation that some change might occur that would render " that piece of land, though not now part of the water-way, at " some future period available as part of it I think that the " land being covered with water is, in such a case, a mere acci- " dent, and that the defenders are as much at liberty to build " on the bed of a river (if thereby they occasion no obstruction) " as they would be to build on an island which might at some " future period be swept away." It would seem, therefore, to be the law, that the erection of works on the bed of tidal waters is not indictable or actionable as a nuisance unless and until actual interference with the navigation is proved, and that no anticipated injury is sufficient to maintain an action ; but that an erection which, at the time of creation, was harmless, may, owing to the change of bed or other causes, become at some future time a nuisance ; and as 1 L. R., 7 Eq. 377. s L. R., 9 Ch. 423 ; 30 L. T. 215. 2 2 A. C. p. 61. 502 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Where causing actual obstruction, how justifi- able. soon as that is the case, it may be abated by indictment or decree. Where, however, there is any actual obstruction to the navigation, it would appear that the question whether such obstruction is a nuisance or not will depend on this, Whether upon the whole it produces public benefit or not; not giving to the term " public benefit " too extended a sense, but applying it to the public frequenting the place or port where the erection is any private benefit to the trade of a person who causes the obstruction being too remote to be held to the advantage of the public generally so as to justify the erection. 1 R. v. Russell. In the case of R. v. Russell, 2 which was the trial of an indict- ment for obstructing the navigation of the Tyne by erecting some coal staiths there, Bayley, J., left these questions to the jury : " Were the staiths erected in a reasonable place ? Was " there a reasonable space left for the public navigating in the " Tyne ? Were the staiths a public benefit ? Did the public "benefit countervail the prejudice done to individuals ?" The jury in consequence of this direction found the defendants not guilty, and the Court of Queen's Bench, on a motion for a new trial on the ground of misdirection by the learned judge, refused to disturb the verdict. R. v. Ward. In Rex v. Ward, Lord Denman, delivering the judgment of the Court, thought R. v. Russell not well decided ; and lays down the law that it is no defence to such an indictment (i.e., for obstructing a navigable river) that though the work be in some degree a hindrance to navigation, it is advantageous in a greater degree to other uses of the port 3 (or river). In Reg. v. Randall, at nisi prius, Wightman, J., held that the question for the jury was, whether the wharf occasioned any hindrance to the navi- gation of the river by vessels of any description, and not whether a benefit resulted to the general navigation i.e., that they were not to consider the defence that since the wharf was made boats of heavy burden could unlade there, which before anchored in the middle of the river, and so the channel was kept clear. 4 Keferring to Rex v. Grosvenor, 5 in Rex v. Ward, Lord Denman 1 A.-G. v. Terry, ante, p. 499 ; R. v. Ward, 4 A. & E. 384 ; 43 R. R. 364 ; R. v. Grotrenor, 2 Stark. 511 ; 20R.R.732. 2 6 B. & C. 566 ; 30 R. R. 432. 8 4 A. & E. 384 ; 43 R. R. 364. 4 Car. & M. 496. 5 2 Stark. 511; 20 R. R. 732; at nisi prim. (A corporation being con- servators of a river and owners of the soil cannot authorize a lessee to erect a wharf which produces inconvenience to the public in the use of the river for navigation.) See R. v. Hollis, 2 Stark. 53(5. IN INLAND WATERS. 503 further says ; " Lord Tenterden in Rex v. Grosvenor only sub- "mitted to the jury whether the public had benefited by the " alteration ; and this was plainly confined to such benefits " as the public might have derived from it in the exercise "of that very right, the invasion of which was treated as a "nuisance." 1 In A.-G. v. Terry? Jessel, M. R., disapproves in strong terms A.-G.i. of Rex v. Russell, and expresses his view of the law in an elaborate judgment. " It was said that that had been decided " in the well-known case of Rex v. Russell? In my opinion that " case is not law, and it is right to say so in the clearest terms ; " because it is not well that cases should continue to be cited " which have been virtually overruled, although the judges have "not said so in express terms. In that case there had been " some staiths erected in the river Tyne, and a very eminent "judge of those days, Mr. Justice Bayley, in charging the jury, " had pointed out that they were erected simply for the purpose "of carrying on trade. He said 4 that 'the staiths were not " 'merely a private benefit, for that by means of them the coals " ' were brought to market at a smaller expense, and in a better " ' condition, in both which respects the public were benefited ; ' " and he then left to their decision the following questions : " ' Were the staiths erected in a reasonable place ? Was there a " ' reasonable space left for the public navigating in the Tyne ? " ' Were the staiths a public benefit ? Did the public benefit " ' countervail the prejudice done to individuals ? ' The jury said " that in consequence of this direction they found the defendants " not guilty. " The case was brought before the full Court, consisting of the " same Judge, Mr. Justice Bayley, and two other very eminent " judges, Mr. Justice Holroyd and Lord Tenterden. Mr. Justice " Bayley adhered to his own opinion ; Lord Tenterden differed ; "Mr. Justice Holroyd, though he came to the conclusion the " verdict should not be disturbed, did not lay down the law " quite in the same terms as Mr. Justice Bayley, as regards the " public benefit. As I understand it, he only put the law to "this extent, that the public benefit might possibly countervail " the public injury ; for really they are both public, so that, " taking it on the whole, the public was benefited. 1 4 A. & E. 384 ; 43 R. R. 364. 8 6 B. & C. 566. 2 L, R., 9 Ch. 423 ; 30 L. T. 215. * 6 B. & C. 570. 504 OF NAVIGATION, AND THEREIN OF CONSERVANCY. " That case came under discussion in the case of Rex v. Ward, 1 " where Sir William Follett, whose interest it was to support " Rex v. Russell as far as he could, thus speaks of it : 2 ' The " ' doctrine otRex v. Russell need not come under discussion ; nor " ' is there any conflict of authorities. Erections may be made " ' in a harbour, below high water mark, and in places where " ' vessels might, perhaps, have sailed ; and the question whether " ' they are a nuisance, or not, will depend on this : whether, " ' upon the whole, they produce public benefit ; not giving to the " ' terms " public benefit " too extended a sense, but applying " ' them to the public frequenting the port.' "I take it that that statement in argument of Sir William " Follett was a correct statement of the law. Lord Denman, "in giving the opinion of the full Court of Queen's Bench, "says: 3 'The greatest weight is due to the authority of " ' Mr. Justice Bayley, who thus charged the jury, and after- " ' wards upheld his opinion in this Court ; and no person can "'hesitate to ascribe every quality of an excellent judge to " ' Mr. Justice Holroyd, who agreed with him in thinking that " ' the rule for a new trial for misdirection ought to be discharged. " ' But, when we examine the grounds of this opinion, as delivered " ' by the latter, they will not be found to support in any degree " ' the proposition just noticed in the summing up ' that is, in " the summing up of Mr. Justice Bayley ' on the contrary, he " ' plainly considers the topic to have been introduced as an " ' answer to some observations invidiously made to the defen- " ' dant's prejudice by the counsel who conducted the prosecution, " ' and thinks that it must be qualified throughout the summing " ' up, and even to its close, by its connection with that argument. " ' Mr. Justice Bayley himself, who delivered his judgment after " ' Mr. Justice Holroyd, takes a much, wider range, maintaining " ' the right to estimate the balance of public benefit and public " ' inconvenience, and to take into the account of the former the " ' advantages that may be derived from the change by any part " ' of the public. He takes for an example the purchasers of coals " ' sent from the indicted staith to a distant market. Lord " ' Tenterden thought it wrong to submit such extensive views " ' to the jury, and that the question ought simply to have been, '""Whether the navigation and passage of vessels over this 1 4 A. & E. 384. 8 4 A. & E. 402. 4 A. & E. 395. IN INLAND WATERS. 505 "'"public navigable river was injured by those erections.'" "Now that is the final judgment; but there had been a previous " judgment, a short judgment, as to the whole of the case, and " what Lord Deninan said was this : l ' My understanding at the " ' trial certainly was, that the question was much the same as " ' that in Rex v. Russell, 2 a case the authority of which has been " ' much doubted, and is, perhaps, likely to be more so as it is " ' further examined,' so that it must be taken to have been the " opinion of the full Court of Queen's Bench, in Lord Denman's " time, that the summing up of Mr. Justice Bayley in Rex v. " Russell could not be supported ; he does not say so in distinct " and clear terms, but the effect of the judgment of the full Court " was, that they agreed with Lord Tenterden, and disagreed with "Mr. Justice Bayley. What really were the points on which " they disagreed ? I think they were two, and I think on those " two points the charge of Mr. Justice Bayley was erroneous. In " the first place, I think the benefit, whatever it is, must be a " public benefit to the same public, that is, the same public who " use the navigation, or, as it was put by Sir William Follett, " ' the public frequenting the port.' In the next place, I think " that the benefit to the public must be a direct benefit, whereas " the benefit which he was considering was an indirect, and, as it " appears to me, too remote a benefit. It was that coals came " to the London market in rather a better condition, and were, " possibly, sold at a lower price. That does not appear to me to " be a public benefit in the sense of the term in which it ought " to be used when considering the question of nuisance. " Then, it may be asked, what is a public benefit in my view ? " I say it is a benefit of a similar nature, showing that on the " balance of convenience and inconvenience the public at that " place not only lose nothing, but gain something by the erection. " There are two cases in the books which will illustrate my "meaning, and, I think, fairly show what sort of public benefit "it is. The first is this. In the case of a tidal harbour of " irregular shape, it may be desirable to straighten the sides, the " result of which would be, of course, in the parts where you take " away the water-way, to diminish the area usable for naviga- " tion ; in those parts where you add to the water-way you would " increase the area. If, in the course of this straightening, the " whole of the harbour is made larger and more commodious, i 4 A. & E. 400. 2 6 B. & C. 566. 506 OF NAVIGATION, AND THEREIN OF CONSERVANCY. " then, I think, the public benefit gained at the particular point " where the navigable water is narrow overbalances the public " injury, and, in that sense, the improvement of the harbour " would not be a nuisance ; and that is what I understand Lord " Hale intends to say in the passage which has been referred to. 1 " Another case is this, which also appears in reported cases : " Suppose you have a navigable river, and it is necessary to cross " it by a bridge, and the river is too wide to allow of a bridge of " a single span, you must then put one or more piers into the " middle of the river, and, of course, according to the extent you " introduce bridge piers or bridge arches into a navigable river, " you to some extent dimmish the water-way, and to some extent, " perhaps to a more or less material extent, obstruct the naviga- " tion. 2 But it is for the public benefit at that spot that a public " road should be carried over the river by the bridge, and that " benefit may so far exceed the trifling injury, if injury it be, to "the navigation, that, on the whole, a Court of justice may " fairly come to the conclusion that a public benefit of a much " greater amount has been conferred on the public than the " trifling injury occasioned by the insertion of the piers into the " bed of the river. In that case, also, it would be a public " benefit that would counterbalance the public injury. I give " those as illustrations, but I think it must be confined, as put " by Sir William Follett in his argument, to cases of public " benefit, and not used in too extended a sense. " In this case really I have no evidence whatever of benefit to " the public. The defendant is doing this for the purposes of " his own trade : it is too remote a benefit to the public to say " that the encouragement of the trade of a single individual is " therefore a benefit to the public." 3 Weire ob- Weirs or other fixed engines for taking fish, which obstruct Mvi^atlon ^ e whole or part of the navigation of a public navigable river, illegal. are illegal, and a nuisance, unless granted by the Crown before the reign of Edward I. It does not appear that the Crown ever had the right to obstruct the navigation by so erecting weirs ; but such weirs as had been erected under grants from the Crown before the reign of Edward I. were subsequently legalized by stat. 25 Edw. III. c. 4. If a weir which has been so granted 1 Halede Portibus Maria, Harg. Tract. 2 See Reg. v. Setts, 16 C. B. 1022. 85 ; The Swtton Pool cae, cited 6 B. & 8 For statement of the above case, see C. p. 572 ; The Portsmouth Harbour ante, p. 499. cote, cited ibid. IN INLAND WATERS. 507 and legalized, at the time of the grant obstructed the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only part of the navigable passage remaining ; but where the Crown had no right to obstruct the whole passage of the river, it had no right to erect a weir obstructing a part, except subject to the rights of the public ; and, therefore, in such a case, the weir would become illegal, upon the rest of the river being so choked, that there could be no passage elsewhere. The above propositions were laid down by the Court of Queen's Williams v Bench in the case of Williams v. Wilcox. 1 "If," says Lord Wllcox - Denman, C. J., " the subject had, by common law, a right of " passage in the channel of the river, paramount to the power " of the Crown, we cannot conceive such right to have been " originally other than a right locally unlimited to pass in all " and every part of the channel. The absence of any right to go " extra viam, in the case of a channel being choked, and the want " of definite obligation to repair, only render it more important " that the right of passage should extend to all parts of the " channel. If, subject to this right, the Crown had the pre- " rogative of raising weirs in such parts as were not required by " the subject for the purposes of navigation, it follows, from the " very nature of a paramount right on the one hand, and a " subordinate right on the other, that the latter must cease " whenever it cannot be exercised but to the prejudice of the " former. On the other hand, there is nothing unreasonable in " supposing the right to erect the weir, subject to the necessities " of the public when they should arise. We cannot see any " satisfactory evidence that the power of the Crown in this " respect (i.e., of obstructing the navigation) was greater at the " common law before the passing of Magna Charta than it has " been since. We are therefore of opinion that the legality of " the weir cannot be sustained on the supposition of any power " existing by law in the Crown in the time of Edward I., which " is now taken away. But this does not exhaust the question, " because what was not legal at first, may have been subsequently " legalized. If, upon examination of the stats. 23 Edw. III. c. 4, " &c., relied on by the plaintiff, such a grant, whether valid or 1 8 A. & E. 314 ; 7 L. J., Q. B. 229 ; Lonsdale, L. R., 5 C. P. 657, ante, 47 R. R. 595. For the law as to weirs Chap. VI. p. 417 ; and as to weirs in non-navigable rivers, see Polle v. obstructing fishery in tidal waters, Wfiyte, L. R., 3 Q. B. 286 ; Leconjield v. p. 406. 508 OF NAVIGATION, AND THEREIN OF CONSERVANCY. A private individual cannot abate a public nuisance. Obstruction of navigation actionable on proof of special damage. Obstruction of right of access action- able without giving proof. Responsi- bility for caused by obstructions. " not at common law, appears to be saved by their operation, the " object of the defendants falls to the ground ; and we think that " to be the true construction of the statutes." l Though it would appear that a public nuisance may be abated in a peaceable manner, a private individual cannot abate a public nuisance, unless it does him some special injury beyond that which is suffered by the rest of the public. 2 Thus, in Mayor of Colchester v. Brooke, 3 it has been held, that where property, such as oysters, are placed in the bed of a navigable river so as to be a nuisance, a person navigating is not justified in damaging such property, by running his vessel against it, if he has room to pass without so doing. So, in Dimes v. Petley* the defendant, under similar circumstances, was held not justified in running his ship against a wharf projecting into a public river ; the Court being of opinion that a person under such circumstances can only interfere with a public nuisance so far as is necessary to exercise his right of passage, and cannot justify doing any damage to the property of the person who has improperly placed the nuisance in the highway, if, avoiding it, he might have passed on with reasonable convenience. The obstruction of a public navigation is, moreover, actionable on proof of special damage. Thus, where the plaintiff was navi- gating his barge on a public navigable creek, and defendant wrongfully moored his barge across it, and kept the same so moored, and prevented the plaintiff from navigating his barges, whereby the plaintiff had to convey his goods a great distance by land, this was held to be such special damage for which an action would lie. 5 Any interference with the right of access to a wharf or landing-place, being an injury to property quite distinct from the injury to the public right, is actionable, without any proof of special damage. 6 Whether an obstruction to a river amounts to an interference with the right of access is a question of fact to be determined in each particular case. 7 Any person who erects or keeps in a navigable river an obstruction to the navigation is responsible for any injury caused thereby. Thus, in Broivnlow v. Metropolitan Board of Works? 1 Per Lord Denman, C. J., in Williams v. Wilcor, 8 A. & E. 314 ; 47 R. R. 595. 2 See post. Chap. X. 8 7 Q. B. 339. * 16 Q. B. 283. ' Rose v. Miles, 4 M. & S. 101 ; 16 R. R. 405 ; see Chichester v. Lethbridye, Willes, 71 ; Williams' case, 5 Coke, 145. 6 Lyon v. Fishmongers' 1 Co., 1 A. C. 662 ; Rose v. Groves, 5 M. & G. 613 ; see ante, p. 495, and Chap. II. p. 111. 7 Hell v. Corporation of Quebec, 41 L. T., N. S. 451 (P. C.). 8 16 C. B., N. S. 546 ; see also Queen IN INLAND WATERS. 509 the defendants were held liable at the suit of the owner of a vessel which sustained damage by grounding on a pile negligently placed on the foreshore by a contractor employed by them. So, the owners of structures on the shores of public rivers which are not nuisances if kept in proper repair, may be liable for damage occasioned by negligence. Thus, in White v. Phillips, 1 the defendants, wharf owners on the river Thames, kept a campshed, a structure of piles and planks, placed there by their predecessors to support an excavation in front of the wharf. The campshed was originally properly constructed, but was suffered to be out of repair. The Court held that the defendants were liable for damage caused to a barge which was brought to the wharf for the purpose of loading, and was there so moored by those in charge of her, that, on the recess of the tide, she struck on a submerged pile of the campshed, and was injured ; on the ground that a duty was cast on the defendants to keep the campshed in repair, or to give notice of the danger. The mere fact, however, that the cause of injury is the property of a man, does not make him responsible for damage caused by it. 2 Thus, where a declaration stated that the defendants were possessed of a moor- ing anchor, kept and fixed by them in a known part of a navig- able river, covered by the ordinary tides ; that the anchor became removed, and remained in another part of the river, covered by the ordinary tides, not indicated, whereof the defendants had notice ; and although they had means and power of refixing and* securing the anchor, and indicating it, they neglected to do so, whereby the plaintiff's vessel, while sailing in a part of the river ordinarily used by ships, ran foul of and struck the anchor, and was thereby damaged, it was held that the declaration was bad, as not showing that defendants were privy to the removal of the anchor, or that it was their duty to refix it, and to indicate it. 3 Maule, J. : " This declaration, in effect, states that an anchor, " the property of defendants, somehow was placed in a part of a " navigable river ; but hmv, is not stated. The circumstances of " the anchor being defendants' property, will not, of itself, render " them liable. To have this effect, it must amount to a public of the Rirer Steam Mp Co. \. Con- 2 See River Wear Commissioners v. senators of Thames and Easton Cfibb Sf Adamson, 2 A. C. 771 ; 47 L. J., Q. B. Sang, (1907) 96 L. T. 901 ; 23 T. L. R. 193 ; 37 L. T. 543, post, p. 513. 478; 12 Comm. Cas. 278 ; 10 Asp., M. C. 3 Handcock v. Tort and Newcastle 542. Railway, 10 C. B. 348. 1 15 C. B., N. S. 245. 510 OF NAVIGATION, AND THEREIN OF CONSERVANCY. " nuisance or a private injury by them. This declaration carefully " steers clear of stating that the defendants did the mischief. It " shows about as good a cause of action as if it stated that some- " body beat the plaintiff with the defendants' stick. The case " falls within The King v. Watts, 1 and Brown v. Mallett."* In Curling v. Wood* the defendant, a wharfinger, was held liable for negligently mooring the plaintiff's vessel, which was alongside his wharf, " for reward to him the defendant," whereby it was damaged on the recess of the tide, by striking against some woodwork in front of the wharf. It was argued that there was no duty disclosed, whereby the action could be maintained ; but the Court held, that whatever the duties of wharfingers might be generally, here the defendant moored the vessel for profit to him, and was liable for negligently placing the vessel where it became damaged, he knowing the state of the woodwork. Obstructions Where the obstruction of the public right of navigation is authorized by statute, no action will lie for damage caused by the due execution of the works authorized by the statute, but if the persons so authorized exceed their powers or are guilty of negli- gence in carrying out their works, they will be responsible for damage so occasioned. 4 In Kearns v. The Cordwainers' Co., 5 the conservators of the Thames were authorized by their Act (sect. 53 of 20 & 21 Viet, c. cxtvii.) to grant licences to owners and occupiers of land front- *ing the Thames, to make piers and jetties, &c., on the bed of the river ; and it was provided by sect. 179, that none of the powers of the Act were to abridge any right to which any occupiers of any lands were entitled. It was held, that no action would lie by the owner of land on the banks, against another owner, for erecting a jetty by licence from the conservators, which merely interfered with the plaintiff's right as one of the public to navi- gate the river, the effect of the statute being to license buildings which interfered with the navigation of the river. But in Lyon v. Fishmongers' Co., 6 it was held, that under the same section no interference with the private right of access to a wharf was authorized, such a right being within the exception in sect. 179. 1 2 Esp., N. P. C. 675 ; 5 R. R. 766. 5 6 C. B., N. S. 388 ; 28 L. J., C. P. 2 5 C. B. 599. 285 ; see A.-G. v. Conservators of the 8 16 M. & W. 628 (Ex. Ch.). Thames, 1 Hem. & M. 1. 4 As to this, see Cracknell \. 'Ihetford, 6 1 A. C. 662 ; see ante, Chap. II. L. K., 4 C. P. 529 ; 38 L. J., C. P. 353, pp. 110 et seq. and ante, Chap. V. pp. 305 et *eq. IN INLAND WATERS. 511 In Abraham v. Great Northern Railway, 1 to an action brought for obstructing the navigation of a river, it was pleaded that the works complained of were authorized by the Railway Clauses Consolidation Act, and the Court held that the Act applied as well to navigable as to non-navigable rivers, and that the works were authorized and that the plea was good, although it did not aver that " as little damage was done as possible." In Jolliffe v. Wallasey Local Board? the defendants were authorized by Act of Parliament to make a pier, &c. They did so according to plans deposited with the Admiralty. They also made a floating landing-stage attached by chains to the land, and also by anchors fixed by permission in the bed of the Mersey beyond the limits on their plans. The plaintiff's steam tug struck on one of the anchors and was injured. On a special case stated by an arbitrator it was found that the defendants in doing what they did, acted under a band fide belief that they were acting within their powers that they were not guilty of negligence in the mode of laying down and mooring the anchors, but that they were guilty of negligence in not properly buoying the anchors so as to indicate their position ; and the Court held upon this find- ing that they were guilty of negligence, and responsible for the damage. In Broivnlow v. Metropolitan Board? it was held, that the Metropolitan Board of Works have no power under the Metropolis Management Act (18 & 19 Viet. c. 120, s. 135), to erect any works on the bed of the Thames without first obtaining the consent of the Admiralty, and of the conservators of the river, and that they were liable for damage done to a vessel from grounding on a pile negligently placed on the foreshore by a contractor in their employment. It is the duty of a person using a public navigable river, with Duties and a vessel of which he is possessed, and has the control and p^J^ 68 management, to use reasonable skill and care to prevent mischief navigating, to others ; 4 and in the case of collision he must sustain, without 1 16 Q. B. 586 ; 20 L. J., Q. B. 322. had been in attendance he might have 2 L. R., 9 C. P. 62. prevented the damage is no evidence of 3 1 6 C. B., N. S. 546. negligence : The Western Belle, (1906) 4 The question whether it is negligent L. T. 346. See also The St. Aubin, to leave a barge unattended is a question (1907) P. 60 ; 76 L. J., P. 25 ; 95 L. T. of fact, but it is not negligent to leave 586 ; 10 Asp., M. C. 298. As to negli- a barge unattended in a river or dock if gence in connection with towage, see there is no reasonable ground to antici- The Kate, (1907) P. 296 ; 76 L. J., P. pate danger ; and the fact that if a man 134 ; 97 L. T. 502, C. A. 51'2 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Arise out of control of vessel. Vessels sunk by accident. compensation, the damage occasioned to his own vessel, and is liable to pay compensation for that sustained by another navi- gated with skill and care ; and this liability is the same whether his vessel be in motion or stationary, floating or aground, under water or above it. 1 This duty arises out of the control of the vessel, and may be transferred with the possession and control of the vessel to another person. Where the vessel ceases to be under the control of the owner, this obligation ceases. 2 Thus, it has been held, that where a vessel is sunk in a navigable river by accident or misfortune, an indictment will not lie against the owner for not raising it. 3 It was said by Lord Ellenborough at Nisi Prius, 4 that the owner of a vessel sunk in a navigable river is bound to place a buoy over the wreck, and that it is not sufficient to place a watchman near to point out the danger ; but in the subsequent cases of Brown v. Mallet and White v. Crisp, Lord Ellenborough is said to go too far, and to assume in all cases that the owner of a vessel is bound to mark the wreck with a buoy, whereas the law is, that if a vessel be sunk by accident and without any default of the owner or his servant, no duty is ordinarily cast on him to remove it, or use any precaution by placing a buoy or otherwise to prevent other vessels from striking against it, except for so long as he remains in possession and control of it the liability ceases when the control ceases. 1 Brown v. Mallet, 5 C. B. 599 ; see also Stulbs v. Hilditch, 51 J. P. 758 ; White v. Phillips, 15 C. B., N. S. 245 ; 31 L. J., C. P. 33 ; 9 L. T. 388 ; Dime* v. Petley, 15 Q. B. 276. As to the duty of a person navigating towards the pro- perty of a trespasser, see Petrie v. Ros- trevor (mvners), (1898) 2 I. R. 556, C. A. For Rules of the Sea as to lights, signals, sailing, steering and collisions, see ante, pp. 467 et seq. ; see also Anglo- Algerian Steamship Co. v. Houlder Line, ante, p. 377, n. 5. 2 White v. Crisp, 10 Ex. 312. The owner of a vessel sunk in the fair way of a navigable river so as to be a danger to other vessels, who retains the posses- sion, management, and control of the wreck, is under an obligation to take reasonable care to warn other vessels of its position, and is liable for damage to another vessel occasioned by neglect to give proper warning, though such neglect was that of an independent contractor employed by him. An owner does not abandon or pro- perly transfer the possession, manage- ment, and control of a wreck by em- ploying an independent contractor to raise it, although the person so employed be placed in the actual physical custody of the wreck : The Snark, 69 L. J., P. 41 ; (1900) P. 108; 82 L. T. 42; 48 W. R. 279 ; 9 Asp., M. C. 50, C. A. As to the liability of barge owners and lightermen under contract which exempts them from liability for " negligence," see Rosin and Turpentine Co. v. Jacob, 102 L. T. 81 ; 14 Com. Cas. 247 ; Price $ Co. v. Union Lighterage Co., (1903) 1 K. B. 750 ; 88 L. T. 428 ; 68 L. J., P. 22 ; (1899) P. 74. 8 R. v. Watts, 2 Esp. 675 ; 5 R. R. 766 ; see also The Douglas, 7 P. D. 151 ; 51 L. J., Ad. 89 ; 47 L. T. 502 ; The Utopia, (1893) A. C. 492 ; 62 L. J., P. C. 118; 76 L. T. 47; Parndby v. Lancaster Canal Co., 11 A. & E. 223. * Harmond v. Pearson, 1 Camp. 515. IN INLAND WATERS. 513 The law on this question of liability is thus stated by Lord Blackburn in the House of Lords in the case of the River Wear River Wear Commissioners v. Adamson. 1 " Property adjoining to a spot on which the public have a " right to carry on traffic, is liable to be injured by that traffic. " In this respect there is no difference between a shop, the rail- "ings or windows of which may be broken by a carriage on the " road, and a pier adjoining to a harbour or a navigable river or " the sea, which is liable to be injured by a ship. In either case " the owner of the injured property must bear his own loss, " unless he can establish that some other person is in fault and " liable to make it good ; and he does not establish this against " a person merely by showing that he is the owner of the carriage " or ship which did the mischief, for the owner incurs no liability " merely because he is owner. But he does establish such " liability against any person who either wilfully did the damage " or neglected that duty which the law casts on those in charge " of a carriage on land and a ship or float of timber on water, to " take reasonable care and to use reasonable skill to prevent it " from doing injury, and that this wilfulness or neglect caused " the damage. And if he can prove that the person who has " been guilty of either stood in the relation of servant to another " and that the fault occurred in the course of the employment, "he establishes a liability against the master also, 2 . . . but " there is also concurrent liability in the servant, who is not dis- " charged from liability because his master also is liable. And " in a very large number of cases the owner of the carriage or " ship or float of timber is, or at least is supposed to be, the " master of those who were negligent, and consequently the " action is most frequently brought against the owner and is " very often successful. But the plaintiff succeeds, not because " the defendant is owner of the carriage, or ship or float, but " because those who were guilty of the negligence were his " servants." In the above case 3 their Lordships held, that where a ship was driven against a pier through the violence of the winds and waves after having been abandoned by the master and crew, the owner was not liable either at common law or under the Pier and 1 2 A. C. 743 at p. 767 ; 47 L. J., Q. B. vessel, see The Snark, ante, p. 512, n, 2. 193 ; 37 L. T. 543. 2 A. C. 743 ; 47 L. J., Q. B. 193 ; 2 As to liability for negligence of a 37 L. T. 543. contractor employed to raise a sunken L.w. 33 514 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Harbours Act, 1847 (10 Viet. c. 27) (overruling Dennis v. Tovell, 1 ) for the damage thereby occasioned. Their Lordships were all agreed that at common law the owner would not be liable unless the ship was under his control, or that of his servants, but much hesitation was felt, as to the construc- tion of the section of the statute imposing a further liability on the owners of vessels. Lord Cairns, L. C., was of opinion that the statute was passed to make the master liable, whoever was navigating the ship, without showing that they were his servants, and that it proceeded on the assumption that damage had been done for which compensation could be recovered at common law against some person i.e., damage occasioned by negligent or wilful conduct, and not by the act of God. Lord Hatherley agreed with the opinion of the Lord Chancellor with extreme doubt and hesitation. Lord O'Hagan held that the section pointed to something done by the act of man, or to the act of the person in charge, and that the ship was derelict. Lord Blackburn held, with hesitation, that the hardship was great enough to justify putting a considerable strain on the words of the Act to avoid it, that the legislature could not have meant to shift the burthen of a misfortune befalling the owner of the pier, from the owner of the pier who at common law would have to bear it, to the owner of the ship wholly free from blame, and involved, without fault of his, in a common misfortune. It may have been said, but can hardly have been intended to be said. Lords Cairns, Hatherley, and Blackburn dissented from the reasoning of the Court of Appeal 2 i.e., that the accident was occasioned by vis major and the act of God, and therefore the defendant was not responsible Lord Cairns saying : " If a man " contracts that he will be liable for the damage ; or if an "Act of Parliament declares he shall be liable, I know no " reason why he should not be liable, whether the state of " circumstances is brought about by the act of man, or by the "act of God." 3 1 L. R., 8 Q. B. 10. 5 C. P. 19 ; 21 L. T. 362 ; Parnaby v. 2 1 Q. B. D. 546. Lancaster Canal Co., 11 A. & E. 223 ; 3 s 2 A. C. at p. 750. As to raising P. & D. 162 ; 9 L. J., Ex. 338, Ex. Ch. ; and destroying wrecks, and liability of The Douglas, 51 L. J., Adm. 89 ; 7 cargo for expenses incurred in removal, P. D. 151 ; 47 L. T. 502 ; 5 Asp., M. C. &c., see Vivian v. Mersey Dock and Har- 18, C. A. ; The Utopia (Owners) v. The bour Board, 39 L. J., C. P. 3 ; L. R., Primula (Owners), 62 L. J., P. C. 118 ; IN INLAND WATERS. 515 The public right of navigation may exist in non-tidal as well Right of as in tidal waters ; and where it does so exist, the principles of law which have been stated with regard to tidal waters will waters equally apply. 1 But in the case of non-tidal rivers, the right of passage does Not a public f rincliisc but not exist as a public franchise paramount to all rights of pro- acquired by perty in the bed, but can only be acquired by prescription, g raQ tp r founded on a presumed grant from the owners of the soil over which the water passes. It would not, therefore, appear to extend primd facie to a right of passage over the whole of the navigable channel, as in the case of tidal rivers, but to be strictly limited to the extent of the right granted or user proved. Thus in Bower v. Hill? it was held that a right of way Bower \.Hill. claimed by the plaintiff by reason of his possession of a close, from the said close unto and along a stream or watercourse unto a navigable river, for himself and his servants to pass and repass in boats, &c., is not supported by evidence of an user of the way by the occupier of an inn and yard, held as one entire subject, from which yard the plaintiff's close had been lately severed ; and it was questioned whether such a claim, even by the occupier of the entire premises, would be sustained by proof that goods were brought to the inn along the watercourse in boats not belonging to the occupier, or navigated by his servants properly so called. Lord Blackburn, in Orr Etving v. Colquhoun, 3 says : " The river Leven is an inland stream, and the tide does not " flow up to the spot where the piers are erected, and, as is " pointed out by the Lord President, the rights of the Crown as " regards the soil of the alveus, and of the public to navigate, are " not the same in such a river as they are in the sea or in a tidal " estuary. In the present case, however, there is ample evidence (1893), A. C. 492 ; 70 L. T. 47 ; 7 Asp., Wilton v. Carter, 7 L. T. 673 ; 11 W. R. M. C. 408, P. C. ; Metcalfe v. Hethering- 337 ; Howard Smith <$ Son v. Wilson, ton, 5 H. &N. 719 ; 11 Ex. 257 ; EgUnton 65 L. J., P. C. 66 ; (1896) A. C. 579 ; 75 (Earl) v. Gorman, 46 L. J., Ex. 557 ; 36 L. T. 81 ; 8 Asp., M. C. 197, A. C. ; The L. T. 888 ; 3 Asp., M. C. 471, C. A. ; The Wallsend, (1907) P. 302 ; 76 L. J., P. Crystal, Arrow Steamship Co. v. Tyne 131 ; 96 L. T. 851 ; 10 Asp., M. C. 476 ; Commissioners. 63 L. J., Adm. 146 ; 23 T. L. R. 556 ; The Sea Spray, (1907) (1894) A. C. 508 ; 6 R. 258 ; 71 L. T. P. 133 ; 76 L. J., P. 48 ; 96 L. T. 782 ; 346 ; 7 Asp., M. C. 513, H. L. (E.) ; The 10 Asp., M. C. 452 ; and post, p. 545. Harrington, 57 L. J., Adm. 45 ; 13 P. D. North Shore Rly. v. Pion, 14 A. 48 ; 59 L. T. 72 ; 6 Asp., M. C. 282 ; Tlie. C. 612. Emerald, TJie Greta Holme, 65 L. J., 2 2 Scott, 535 ; 40 R. R. 630 ; see Adm. 69 ; (1896) P. 192 ; 74 L. T. 645 ; 8 Bollards. Dyson, 1 Taunt. 279 ; 9 R. R. Asp., M. C. 134, C. A. ; Barraclough v. 770. Brown. 66 L. J., Q. B. 672 ; 76 L. T. 2 A C 847. 797 ; 8 Asp., M. C. 290, H. L. (E.) ; 332 516 OF NAVIGATION, AND THEREIN OF CONSERVANCY. " that there had been, at least as long as living memory extended, " a user by the public of the navigation in the river during the " period of the year when the water was high enough, that is, " according to Mr. Smollett, who was called for the defence, on " an average for two-thirds of the year ; and the very able counsel " who argued for the appellants felt it so impossible to deny that " there was evidence of user in this water-way by vessels, such " that similar evidence, if the question had been as to user of a " land way by carriages, would have established the public right, " that he abandoned this point, and I do not think any of the " noble and learned lords who heard the argument entertain any " doubt that the interlocutor, so far as it finds that the Leven is "a navigable river free to the public, and that the defenders " have no right to execute works which obstruct the navigation, " is right. . . . Now 1 the public who have acquired by user a " right of way on land, or a right of navigation on an inland " water, have no right of property. They have a right to pass " as fully, and as freely, and as safely as they have been wont " to do ; but unless there is a present interference with that " right, or it can be shown that what is now done will necessarily " produce effects which will interfere with that right, there is no " injuria ; and I think that if there be no injuria, the foundation " of the right to have the thing removed fails." Bourke v. In Bourke v. Davis 2 it was laid down by Kay, J., that a claim Davis. j. a hign wa v for boats over a non-tidal stream must be treated as if it were a claim to establish a right of highway on dry land, and that a right of recreation by custom upon the land of another cannot exist as a right in the public generally, but must be confined to the inhabitants of a particular district. In this case the river M. was a non-tidal tributary of the Thames. The flow of the M. on its course to the Thames was obstructed by a mill-dam, and in order to bring boats from the Thames on to the part of the M. above the dam, it was necessary to take them out of the water and carry them over private land. The M. above the dam flowed under bridges, first at C. and then at E. ; and the part of the river between the bridge at C. and the dam was not a way from one public place to another, had never been used as a water-way except for purposes of pleasure and recreation, and its depth and capacity for boating traffic depended on the existence of the dam. The plaintiff, who was owner of i 2 A. C. 854. 2 44 Ch. D. 110 ; 62 L. T. 39. IN INLAND WATERS. 517 an estate lying on both sides of this part of the M., obstructed the water-way of the river, where it flowed through his land, with posts and chains. The defendant, who was a riparian proprietor, but who had for eight years previously kept boats on a piece of land not belonging to him and let them out for hire, pulled down the obstruction, and justified his act on the ground that this part of the M. was a highway. The plaintiff brought this action for an injunction to prevent his obstruction from being interfered with, and the defendant counterclaimed for an injunction to restrain any hindrance to the passage of his boats. From the evidence it appeared that there had been no main- tenance of the water-way by any person, with the exception of dredging by the owner of the mill ; that as far back as living memory went there had been boating on this part of the river by the riparian proprietors and their friends ; that subsequently by degrees, and at first quite secretly, a few persons living on the bank began to take remuneration for lending their boats, not making any charge, but receiving what the borrower chose to give; that thenceforth the growing practice of boating for pleasure, including fishing, had not been effectively interfered with until the plaintiff put his obstruction across the stream, though notices had been put up near the river warning persons against trespassing in boats for fishing or otherwise ; but there was no evidence which could establish any public right of fishing. Kay, J., says, in delivering judgment, 1 " The defendant justifies " his acts as one of the public. His case is that the river from " Cobham Bridge through Esher Bridge to the paper mills is a " highway. He makes no claim for a right of recreation by " custom. Such a claim is known to our law, but is carefully " restricted. It cannot exist as a right in the public generally, " but must be confined to the inhabitants of a particular district : "Fitch v. Bawling,- 2 Earl of Coventry v. Willes. 3 For all the " purposes of this case the right claimed is similar to a right " of highway on land not covered by water. In Orr Ewing v. " Colquhoun* Lord Hatherley, L. C., speaking of the river " Leven, a non-tidal river in Scotland, says, 5 ' There are two " ' totally distinct and different things ; the one is the right " ' of property, and the other is the right of navigation. The 1 44 Ch. D. at p. 120. * 2 A. C. 839. 2 2 H. Bl. 393 ; 3 R. R. 425. 5 2 A. C. 846. 8 9 L. J., N. S. 384. 518 OF NAVIGATION, AND THEREIN OP CONSERVANCY. " ' right of navigation is simply a right of way.' Lord Black- " burn, in the same case, says, 1 ' There was evidence of user " ' in this water-way by vessels, such that similar evidence, '"if the question had been as to the user of a land-way " ' by carriages, would have established the public right.' I "must treat the claim of the defendant, therefore, as if it " were a claim to establish a right of highway on dry land. " Now, in the case of such a claim, a very material consideration " is, by whom has the roadway been metalled, repaired, and " maintained in order. In a dispute as to the alleged right, " the answer to this question may be decisive. Here there has " been no maintenance of the water-way by anyone, except that " the mill owner I suppose, to ensure the flow of water to his " mill seems to have employed men to dredge out the silt or " ballast, as it is called. The width and direction are defined " by the banks of the river. I asked during the argument if " there was any authority for saying that a lake in private " grounds, touched at one point only by a public road, could " be subjected to a right which would make it a highway, by " persons launching boats from the road and boating on it " for pleasure. No such authority has been produced. But " reference was made to Marshall v. Ullesivater Steam Naviga- " tion Co? That case, however, was one in which the right of " navigation in the Ulleswater lake was admitted, although the " soil of the bed of the lake was said to be vested in the plaintiff. " How the right was acquired does not appear, nor does the " actual decision touch any of the questions that have to be " decided in this case. The nearest analogy in the case of a " way claimed on dry land would be to suppose a tract " determined by an avenue of trees some miles long in the park " or other land of a private owner, to which there was no public " access save from a road crossing it at right angles, and to " suppose that persons driving along that road had been " accustomed, when they pleased, to turn into one or other part " of this avenue and drive up and down it for pleasure. Would " that user, however long continued, make that avenue a high- " way, or would the legal inference be that such use being merely " for amusement had always been permissive, which, of course, " could not grow into a right ? When it is sought to establish a " right by evidence of user it is not enough to say that such a 1 2 A. C. 848. 2 L. E., 7 Q. B. 766. IN INLAND WATERS. 519 " right might be the subject of an actual grant. Lord St. " Leonards, L. C., said in Dyce v. Hay, 1 that it ' does not follow " ' that, because a right may be granted that is, because it is " ' grantable by law therefore it may be prescribed for.' Another " important fact is that the way claimed is not a way from one " public place to another. In Campbell v. Lang, 2 Lord Gran worth, " L. C., said 3 that, speaking generally, * a public right of way " ' means a right to the public of passing from one public place to " ' another public place. It was suggested that by the law of " ' Scotland there might be a public right of way from a given " ' public place, but neither terminating in a public place nor " ' leading to a public place. I doubt whether that can be the " ' law of Scotland any more than it is the law of England.' The " only portion of the way in dispute in that case was across the " park of the appellant to the confluence of the Kivers Clyde and " Cart. But the Lord Chancellor said, ' The abstract question " ' whether the confluence of two rivers can be a terminus a quo, " ' or a tenninus ad quern of a public right of way, does not, in the " ' present case, arise. The question here is as to a public right " ' of way, up to and which may extend beyond, the confluence ; " ' a right to go further on, so as ultimately to reach a good " ' terminus ad quern.' I have referred to the report of the case " (18 Court Sess. Cas., 2nd series, 1180) where it is stated that " the claim was to a footpath to the confluence of the Clyde and " Cart, ' and communicating with a path along the east bank of " ' the Cart leading to Inchinnan Bridge. 1 " As to the question of culs-de-sac, Kay, J., says, 4 " But it is " argued that a cul-de-sac may be a highway. That is so in a " street in a town into which houses open and which is repaired, " sewered, and lighted by the public authority at the expense " of the public. Lord Cranworth instances Connaught Place, " which opens into the Edgware Road ; Young v. Cuthbertson ; 6 " and see Rugby Charity v. Merry weather? But I am not aware " that this law has ever been applied to a long tract of land in " the country on which public money has never been expended. " This is one obvious objection to the defendant's claim." The obstruction of the navigation of non-tidal waters is illegal obstruction and a nuisance. " Above the point reached by the flow of the of) ll . le s al and * > a. Tim!iTir i f> a nuisance. 1 1 Macq. 305, 312. * 44 Ch. D. at p. 122. 2 1 Macq. 451. s 1 Macq. 456. 3 1 Macq. 453. 11 East, 375, n. ; 10 R. R. 528. 520 OP NAVIGATION, AND THEREIN OF CONSERVANCY. Lakes. Origin of conservancy. Formerly in the Crown. "tides," says Lord Denman in Williams v. Wilcox, 1 "there was " at least a jurisdiction in the Crown, according to Sir Mathew "Hale, 2 to reform and punish nuisances in all rivers,' whether " fresh or salt, that are a common passage, not only for ships and " greater vessels, but also for smaller, as barges and boats." 3 With regard to large inland navigable lakes, it would seem to be doubtful whether such lakes are navigable by the public at common law. 4 However, there is no doubt that rights of navigation may be acquired and have practically been acquired in all such lakes even where the soil of them is private property. 5 The Conservancy of Navigation. Lord Hale says, 6 that the office of conservancy is of two kinds : 1st, That relating to nuisances in rivers, founded on statute 1 Hen. IV. c. 12, whereby it is enacted that there shall be commissions granted to survey and keep the waters of great rivers, and to correct and amend the defaults ; and 2nd, The conservancy relating to fishing, mentioned in the statute 1 Eliz. c. 17, and founded on the Statute of Westminster 2, c. 47, for the protection of salmon. 7 The duty of the conservancy of navigation appears to have been entrusted to the Crown as representative of the State. Thus we find that from the earliest times the King, in virtue of his office of Lord High Admiral, was conservator of all ports, havens, rivers, creeks, and arms of the sea, and protector of the navigation thereof ; 8 and, according to Sir M. Hale, there was a jurisdiction in the Crown to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges 1 8 A. & E. 333 ; 47 R. R. 595 ; see ante, pp. 507 et seq. 2 De Jure Maris, part 1, c. 2, p. 8. 8 As to " navigation " rights in canals, see ante, Chap. V. 4 As to this, see Brutowe v. Cormican, Ir. R., 10 C. L. 432, per Whiteside, C. J. ; 3 A. C. 641 ; Hlomjield v. Johnson, Ir. R., 8 C. L. C. 8. 8 Marshall v. Ulleswater Co., 3 B. & S. 732 ; L. R., 7 Q. B. 582 ; 41 L. J., Q. B. 41 ; 25 L. T. 793 ; MicMethwaitev. Vin- cent, 67 L. T. 225, and ante, pp. 123 et seq., 422 et seq. 6 Hale, de Jure Maris, Harg. Tracts, p. 23. 7 Ibid. By 17 Ric. II. c. 9, also, it is enacted that "justices of the peace be "conservators of the statutes touching " salmons," the statutes there named being 13 Edw. I. c. 47, and 13 Ric. II. c. 19. 8 Hale, de Jure Maris, Harg. Tracts p. 23. It was the custom and duty of the kings of England to defend the realm against the sea, as well as against enemies ; Woolrych, 12 ; Callis, 80 ; Hudson v. Tabor, 2 C. P. D. 290 (C. A.) ; 46 L. J., Q. B. 63 ; 36 L. T. 492 ; see ante, Chap. I. pp. 96 et seq. THE CONSERVANCY OF NAVIGATION. 521 and boats. 1 The wording of the early statutes as to weirs such as the 22nd chapter of Magna Charta, " that all weirs from " henceforth shall be utterly put down by Thames and Medway, " and through all England, but only by the sea coasts " is evidence of the nature of this prerogative, 2 which was, however, delegated to various subordinate authorities, of which the commissioners of sewers were the most important. The origin of commissions of sewers, and the principal points Commissions relating to them, so far as they deal with matters connected with the law relating to water, have been treated of in a former chapter. 3 It will be necessary, however, again briefly to refer to the subject. The term " sewer " is uncertain as regards its derivation, some Meaning of maintaining that it is compounded of seoir, to sit, and eau, water ; 4 others that it means merely to sue or issue, whence suera, 5 while some again derive it from sea and icere. 6 Mr. Serjeant Callis 7 holds it to be diminutive of river, it being a freshwater trench compassed in on both sides with a bank, while in modern Acts it is treated as a general term comprising sewers and drains of every description, except drains connecting houses with cesspools, 8 and includes also a marsh wall or embankment. 9 Its application seems to be equally wide. Lord Coke states that " There are " three manner of statutes which concerns sewers. The first " consists in maintaining and repairing walls, sewers, &c. The " second, in destroying and removing nuisances. The third, " which concerns both these points, as well in destroying as in " maintaining." 10 Lord Holt again says, that commissions of sewers to defend the sea were very ancient, and, even in some cases by special prescription ; but that sewers for melioration of land were by Act of Parliament. 11 1 Hale, de Jure Maris, Harg. Tracts, 3rd ed. p. 1. p. 23 ; Lord Denman in Williams v. 7 Ibid. Wilcox, 8 A. & E. 333; 47 R. R. 595. 8 11 & 12 Viet. c. 63, s. 2 ; 18 & 19 Viet. Lord Hale says, " The King has an in- c. 120, s. 250 ; 38 & 39 Viet. c. 55, s. 4 ; " teregt of jurisdiction in rivers ; " De 54 & 55 Viet. c. 75, see cases ante, pp. 212 Jure Maris, 8 ; Woolrych, 3. et seq. 2 Cf. chapters xv. and xvi. of Magna 9 Poplar Board v. Knight, 28 L. J., Charta, which relate to the repairing of M. C. 37 ; cf. Reg. v. Local Board of banks and bridges, and 12 Edw. I. c. 7 ; Godntanchester, L. R., 1 Q. B. 328 ; 35 1 Hen. IV. c. 12 ; 25 Edw. III. stat. 4, c. 4, L. J., Q. B. 125 ; 14 L. T. 104. &c. ; see as to weirs, ante, pp. 506 et seq. 10 10 Rep. 143 ; Woolrych, 5. 3 Ante, Chap. I. pp. 45 et seq. u The Vill of Shandrigany v. The 4 Termes de la Ley ; Woolrych, Law Vill of Sholedam, 12 Mod'. 331 ; Holt's of Sewers, 3rd ed. p. 1. Cases, 643 ; Woolrych, 3 ; cf. Hudson v. 3 4 Inst. 275 ; Woolrych, Law of Tabor, 2 C. P. D. 290 (C. A.) ; 46 L. J., Sewers, 3rd ed. p. 1. Q. B. 63 ; 36 L. T. 492. 6 Callis, 80 ; Woolrych, Law of Sewers, 522 OP NAVIGATION, AND THEREIN OF CONSERVANCY. Duties and powers of commis- sioners. Now vested in sanitary authorities. or inclosures commis- sioners, It was pointed out in the chapter already alluded to, 1 that the powers of commissioners of sewers are derived from the statutes 6 Hen. VI. c. 5, and, more particularly, from the Act of 23 Hen. VIII. c. 5, which was known as the Bill of Sewers. It will also be remembered that the principal subjects under the jurisdiction of commissions issued under the latter enactment, which was modified and amended by subsequent Acts, 2 were 1, Sea walls and such like defences ; 2, Bridges, trenches, mills, and other things incident to river conservancy, which might in some cases prove obstructions ; 3, Navigable rivers ; 4, Watercourses, streams and pools; and 5, Sewers and gutters. With regard to these, their duty was to maintain such as were useful, and to remove nuisances, while the commissions were temporary in their nature and all amenable to the Crown. Modern requirements, however, have led to great changes in the nature of these commissions, the inconvenience of the temporary duration of which was soon felt. Not only are commissions of sewers, when once issued, to be now deemed to continue until such time as they may be super- seded by the Crown, and their ordinances made indefeasible, until set aside by subsequent Courts of Sewers ; 3 but many of their functions_have been transferred by legislation to various bodies of modern growth. Thus, their jurisdiction with regard to sewers (using the word in its ordinary sense), drains and nuisances, has been transferred by a series of enactments 4 to the London County Council and various sanitary authorities as regards the metropolis; while, with respect to the rest of the kingdom, it has been delegated to the Local Government Board, and other authorities of a like nature. With respect to watercourses, streams and pools, the authority of commissions of sewers has also been vested, so far as the 1 See ante, Chap. I. pp. 46 et seq. 2 Inter alia of such amending Acts may be noted 13 Eliz. c. 9 ; 3 & 4 Will. IV. c. 22 ; 24 & 25 Viet. c. 133, 8.14. 3 Sect, 14 of 24 & 25 Viet. c. 133. 4 The principal Acts relating to xanitary matters in the metropolis, are 25 & 26 Viet. c. 102 ; 54 & 55 Viet. c. 76 (Public Health (London) Act, 1891) ; 38 & 39 Viet. c. 5ft (Public Health Act, 1875), ss. 108, 115, 130, 134, 135, 140 ; 60 & 61 Viet. c. cxxxiii. ; and 62 & 63 Viet. c. 31. The principal Acts relating to sanitary matters in England, exclusive of the metropolis, are 34 & 35 Viet. c. 70 (The Local Government Board Act, 1871) ; 38 & 39 Viet. c. 55 (Public Health Act, 1875) ; 38 & 39 Viet. c. 31, and 39 & 40 Viet. c. 31 (The Public Works Loans Acts, 1875 and 1876) ; 53 & 54 Viet. c. 59 (Public Health Amendment Act, 1890) ; 7 Ed. VII. c. 53 (Public Health Amendment Act, 1907) ; and 56 & 57 Viet. c. 73 (Local Government Act, 1894). THE CONSERVANCY OP NAVIGATION. 528 drainage and the improvement of land are connected therewith, in the inclosure commissioners, 1 who, in addition to their func- tions under other statutes, are appointed commissioners 3 for carrying into execution The Improvement of Land Act, 1864 (27 & 28 Viet. c. 114), in which the term improvement of land, for which the commissioners are authorized to advance money, is defined 3 to comprise, inter alia, the following works : 1. The drainage of land, straightening, widening, deepening, or otherwise improving drains, streams, and watercourses of any land : 2. The irrigation and warping of land : 3. The embanking and weiring of land from the sea and tidal waters, or from lakes, rivers, or streams, in a permanent manner : ***#*# 10. The construction of engine houses, water-wheels, saw and water mills, &c., conduits, watercourses, bridges, weirs, sluices, flood-gates, &c., which will increase the value of lands for agricultural purposes : 11. The construction or improvement of jetties or landing-places on the sea coast, or on the banks of navigable rivers or lakes, for the transport of cattle, sheep and other agricultural stock and produce, of lime, manure and other articles and things for agri- cultural purposes ; provided that the commissioners shall be satisfied that such works will add to the permanent value of the lands to be charged to an extent equal to the expense thereof : and 12. The erection of all such works as in the judgment of the commissioners may be necessary for carrying into effect any matter hereinbefore mentioned, or for deriving the full benefit thereof. Lastly, the powers of commissioners of sewers over navigable O r in conser- rivers have now devolved almost entirely on various conservancy vancy boards, boards created by statute for each particular river. 4 1 The principal statutes on this point Act, 1849) ; 19 & 20 Viet. c. 9, as well as are 10 & 11 Viet. c. 38 (Drainage Act, 1 & 2 Will. IV. c. 33 ; and 5 & 6 Viet. 1847), which incorporates the powers of c. 89, which relate to land improvement 8 & 9 Viet. c. 118 (An Act to facilitate in Ireland. As to liability for neglect the Improvement and Inclusure of to (cleanse and scour a channel under Commons) ; 24 & 25 Viet. c. 133 (Land sects. 14 & 15 of the Drainage Act, 1847, Drainage Act, 1861); 27 & 28 Viet. see Finch v. Bannister, ante, p. 155, n. 8. c. 114 (Improvement of Land Act, 2 By sect. 2. 1864), which refers to and recites 12 & 8 By sect. 9. 13 Viet. c. 100 (Private Money Drainage < See 21 Jac. I. c. 32; 24 Geo. III. 524 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Since, therefore, commissioners of sewers may be created by Act of Parliament, independently of any general commission, 1 it may be apparently laid down, that whenever the legislature authorizes a body of persons, and constitutes them a body corporate, in order to deal with matters properly under the control of commissioners of sewers, such body is constituted thereby a commission, unless there is a stipulation to the contrary in their particular Act. Conservancy Thus the Bristol Dock Company were not only authorized to ail the powers make sewers, but had also considerable powers entrusted to them commis- t ena ble them to carry out the duties imposed on them ; 2 and sewers. it appears to be customary to insert clauses in modern Acts of Parliament to preserve entire the rights of various commissions of sewers. So sect. 61 of 3 d 4 Will. IV. c. 22, provides that the Act shall not interfere with any navigable river, canal, port, or harbour under the management or power of any commissioners, trustees, or proprietors by virtue of any local or private Act of Parliament; sect. 72 of 21 & 22 Viet. c. 98, empowers any corporation, &c., authorized under an Act of Parliament to navigate on any river, canal, or harbour, &c., and to alter sewers, providing others at their own expense ; and sect. 68 of the same Act (The Local Government Act, 1858) enacts that the local board shall not interfere with any rivers, canals, harbours, docks &c., so as injuriously to affect the navigation thereon or the use thereof, or interfere with any towing-path so as to interrupt the traffic thereof, in cases where any corporation, company, c. 8, and more fully post, pp. 540 et seq., " harbour." The directors altered and p. 537, note 3. several sewers so as to discharge them 1 Woolrych, 49. considerably under the surface of the 2 R. v. Bristol Dock Co., 6 B. & C. water in the floating harbour ; but the 181 ; 30 R. R. 280. The company were sewage there discharged was so offensive empowered by their Act to make a as to be a nuisance to the neighbour- floating harbour at Bristol, and it was hood. Held that under the latter part also enacted ' that it should and might of the clause above set forth, the " be lawful for the directors of the directors were authorized and required " Bristol Dock Company, and they were to make a new sewer if necessary to " therefore authorized and required to remove the nuisance. It was also held " make a common sewer in a certain that a writ of mandamus commanding " direction therein specified and also to the directors " to make such alterations " alter and reconstruct all or any of the " and amendments in the sewers as were " sewers of the said city at the mouth " necessary in consequence of the float- " thereof, so and in such manner that " ing of the said harbour," was in the " the sewers might be discharged con- proper form ; and that it was neither " siderably under the surface of the requisite nor proper to call upon the " water in the floating harbour, and also company to make any specific altera- " to make such other alterations and tion, the mode of remedying the evil " amendments in the sewers of the said being left to their discretion by the Act " city as might or should be necessary in of Parliament. i; consequence of the floating of the said THE CONSERVANCY OF NAVIGATION. 525 commissioners, conservators, &c., or individuals, are by virtue of any Act of Parliament entitled to navigate on or use such river, canal, dock, or harbour, &c., or to take tolls for its use. 1 As early as the reign of Kichard II. the conservancy of the Thames was entrusted to the mayor and corporation of London by the statute 17 Ric. II. c. 9, 2 and by 9 Hen. VI. c. 9, the Chancellor of England was empowered to grant his commission to certain persons to scour and amend the river Ley, in the counties of Essex, Hertford and Middlesex. 3 The obstruction of water channels made from time to time, for public or private convenience, was a grievous offence punish- able by action or indictment, according to the nature of the wrong 4 ; and, among the reasons assigned by sect. 1 of 23 Hen. VIII. c. 5, for the appointment of the commissioners of sewers, are " the overflowings ... of land waters and springs " upon meadows, pastures and other places," and " the obstruc- " tions created by mills, mill-dams, weirs, &c. . . . upon rivers "and watercourses." 5 The commissioners of sewers had, there- fore, powers of removing obstructions in navigable rivers ; though it appears according to Woolrych that they have no power to improve the navigation of a river, or to make a river navigable which was not so before, and that their power has never been extended beyond the removal of existing obstructions, or, at the most, the erection of new defences, which might in some degree be beneficial to the traffic. 6 the king may have and enjoy their free passage in the said river, &c., without disturbance of any, &c.; parties aggrieved to have action, according to the course of the common law (sect. 4). Further provision on the same subject is made by 19 Hen. VII. c. 18 ; and 23 Hen.VIII.c. 12. 4 Woolrych on Sewers, 1, 2 ; Callis, 80 ; cf. Hudson v. Tabor, 2 C. P. D. 290 (C. A.) ; 46 L. J., Q. B. 463 ; 36 L. T. 492. 5 See ante, Chap. I. pp. 43 et seq. 6 Woolrych on Sewers, p. 125. Rivers are placed under the jurisdiction of the commissioners by sects. 2 and 3, and according to the definition of a river given by Serjeant Callis (p. 77) in his work on Sewers, all rivers would seem to be meant. Modern decisions however appear to have limited the term to such as " are necessary to or useful in naviga- tion": Jean v. Holland, 2 Sir W. Blackstone, 717 ; and per Buller, J., in Dore v. Gray, 2 T. E. 365 ; 1 R. R, 494 See ante, Chap. I. p. 43. 1 See Woolrych, Law of Sewers, 3rd ed. (1864), pp. 4953. See too, sect. 62 of 3 & 4 Will. IV. c. 22 ; sects. 15, 16. 17, and 18 of 4 & 5 Viet. c. 45 ; sect. 18 of 10 & 11 Viet. c. 38 ; sect. 43 of 11 & 12 Viet. c. 63 ; and sects. 54, 55, 57, and 60 of 24 & 25 Viet. c. 133. 2 Hale, de Jure Maris, Harg. Tracts, p. 23. 3 This Act recites 23 Edw. III. stat, 4 ; 1 Hen. V. c. 2. and 3 Hen. VI. c. 5, the latter statute being enacted for the im- provement of the navigation of the sea. By an Act of the same reign, 9 Hen. VI. c. o. " all men shall have free passage in " Severn with goods, chattels, &c." a slightly different species of conservancy. It recites that the river of Severn is common to all the king's liege people, &c. ; that divers Welshmen and other persons " arrayed in manner of war," have destroyed boats, &c., and thereby injured navigation ; and that, therefore, it is ordained (sect. 3) by authority of Parliament that the said liege people of Conservancy of the Thames. Powers of commis- sioners of sewers and conservancy boards to remove obstructions. 526 OF NAVIGATION, AND THEREIN OF CONSERVANCY. In progress of time, we find that the conservancy of nearly all the rivers, ports and harbours in England, was gradually placed in the hands of corporate bodies so constituted by Act of Parlia- ment, and exercising the functions of permanent commissions of sewers ; though it would appear that the authority of the com- missioners of sewers over such bodies may still be retained, if provision to that effect is expressly made in the Act incor- porating them. 1 The conservators of the various rivers of this country, therefore, perform in a fuller manner a portion of the duties originally devolving on the commissioners of sewers. A general definition of the scope of their powers may be to some extent drawn from the remarks of Cairns, L. C., with regard to the functions of the Conservators of the Thames in Cory v. Bristowe : 2 " The Conservators of the Thames, under the Act of " 1857, 3 are made the guardians, as it were, of the navigation of " the Thames, and the protectors of the bed and soil of the " Thames, for the purposes of navigation. They have certain " powers for making bye-laws to protect the navigation they " have powers to make piers and landing-places for the accommo- " dation of the public they have powers to authorise riparian " owners to make landing-places, wharves and jetties, and to put " down mooring-chains, and moorings for the better and more "convenient enjoyment and access to their lands." 4 The statutes relating to inland water navigation are of three kinds : 1st, such as restore or improve the navigation of rivers Statutes relating to Inland waters formerly navigable ; 2nd, such, as make rivers navigable which are of three kinds. originally were not so; and, 3rd, such as provide for the con- struction of an inland navigation or canal. Under the first two classes of Acts the care and conservancy of a river is vested in commissioners, the mayor and burgesses of a town, or some other body corporate. Powers are given them to dredge, cleanse, and scour the bed of the stream, and generally to keep it 1 See Woolrych on Sewers, p. 49, and ante, Chap. I. p. 45. a L. R, 2 A. C. 262 ; 46 L. J., M. C. 273 ; 36 L. T. 595. 8 20 & 21 Viet. c. 147. < By a public Act passed in the reign of Henry VIII. the corporation of the city of Exeter are empowered to remove obstructions to the navigation of the river Exe, paying compensation to the owners of the soil where the obstructions were situated : Held, first, that this Act did not confer the conservancy of the river on the corporation ; secondly, that it did not entitle the corporation to file a bill in equity to restrain the erection of a pier in the river ; and, thirdly, that it did not confer any right or privilege on the corporation within the meaning of sect. 14 of the General Piers and Har- bours Act, 1861, so as to prevent the erection of a pier in the river without their consent being obtained : Exeter Corporation v. Devon {EarT), L. R., 10 Eq. 232 ; 23 L. T. 382. THE CONSERVANCY OF NAVIGATION. 527 navigable ; to make and enforce bye-laws regulating the naviga- tion ; to remove obstructions, and, where necessary, to enter on to lands, making compensation for interests injured by their acts. 1 By the Thames Conservancy Acts, the soil of the bed of that Soil of rivers river up to high water mark, which had long been the subject of vestfcHn con- dispute between the Crown and the corporation of the city of !"**?" by London, is vested in the latter body, who in their turn convey all their interest and title therein to the conservators appointed by the Act. 2 But it has been held that where a river or navigation has been by Act of Parliament vested in a board of conservators for the purposes of navigation, if the words of the Act are applic- able to the acquisition by the conservators of the right or easement of passage only, and where the acquisition of the soil of the river and its banks is not necessary for the purposes of the Act, the ownership of the soil must be taken not to pass the Courts not being inclined to infer that a statute of this kind gives more than such a use of the soil as is necessary for the purposes of navigation. 3 Where the words of the Act amount to a statutable conveyance of the soil upon which the navigation is constructed, the land used for the works has been held to vest in the navigation company without any conveyance. 4 Where an Act for making the river Tone navigable named 1 16 & 17 Car. II. c. 12 (Avon (Hamp- Railway, 5 Jur., N. S. 409 ; Hollis v. shire) Navigation) ; 24 Geo. II. c. 39 Goldfinch, 1 B. k C. 206 ; 25 R. R. 357 ; (Avon (Warwickshire) Navigation) ; 24 see also R. v. Aire and Colder, 9 B. & C. Geo. II. c. 19 (Nar Navigation) ; 21 . 820 ; 33 R. R. 344 ; R. v. Mersey and Jac. I. c. 3 ; 24 Geo. II. c. 28 ; 15 Geo. III. Irwell, 9 B. & C. 95 ; 33 R. R. 591 ; R. v. c. 4 (Upper Thames Navigation) ; 23 Tliomas, 9 B. & C. 114; 32 R. R. 601 ; Geo. III. c. 48 (Trent Navigation) ; 2&3 Clielsea Water Co. v. Bowley, 17 Q. B. Viet. c. 61 (Shannon Navigation) ; 31 & 358 ; Doe d. The Queen v. Archbishop of 32 Viet. c. cliv. (Lee Navigation). The York, 14 Q. B. 81 ; Doe d. Patrick \. only difference between rivers of which Beaufort, 6 Ex. 498 ; Somerset Canal v. the navigation is restored, and those Harcourt, 2 De G. & J. 596 ; Robinson which are made navigable for the first v. Warwick, 2 Bing., N. C. 488 ; ^far- time, is, that in the latter the rights of the brovgh v. Shardlow, 7 M. & W. 37 ; conservators, as against the public, are Dimes v. Grand Junction Canal, 3 greater, owing to the fact that none of H. L. 794 ; Simpson v. Staffordshire the rights subsisting in a navigable Water Co., 4 De G. & J. 679 ; Doncaster river can attach thereto : Hargreares v. Union v. Manchester, S. and L. Rly., Diddams, L. R., 10 Q. B. 582 ; 44 L. J., 71 L. T. 585, H. L. (E.) ; 6 R. 280. As M. C. 78; 32 L. T. 600; Musset v. to right of commissioners to deposit mud Burch, 35 L. T., N. S. 486 ; Reg. v. Betts, and earth on adjoining land, see Moulton 16 Q. B. 1022. v. Middle Level Commissioners, (1907) 2 20 & 21 Viet. c. cxlvii. ; 57 & 58 97 L. T. 391 ; 71 J. P. 402 ; 5 L. G. R. Viet. c. 187, post, pp. 540 et teq. ; see 961. also Cory v. Bristowe, 2 A. C. 262; 4 Bruce v. Willis, 11 A. & E.463 ; see 46 L. J., M. C. 273 ; 36 L. T. 595 ; and also R. v. Mersey and Irwell, 9 B. & C. cases ante, Chap. II. pp. 106 et seq. 95 ; 32 R. R. 591 ; R. v. Ihomas, 2 a Rii-er Lee Co/ixerrancy v. Button, B. & C. 114 ; 32 R R. 601. 12 Ch. D. 383 ; Badger v. Yorkshire 528 OF NAVIGATION, AND THEREIN OF CONSERVANCY. thirty persons and their successors as conservators, and provided that lands taken^were to vest in them and their successors, and that land might be conveyed to them and their successors, &c. : Held, that as it was the manifest intention that the conservators should take land by succession, and not by inheritance, although they were not created a corporation by express words, they were so by implication, and might sue in their corporate name for injury done to their real property. 1 In Attorney -General v. Great Northern Rail. Co? the defen- dants, owning land adjoining a navigation vested in the South Yorkshire Navigation Company by various Acts of Parlia- ment, erected in 1879 a pumping station and abstracted large quantities of water from a river forming part of the navigation to supply their railway station, locomotives, &c. In 1906 the Attorney-General, at the relation of the company, brought an action against defendants, alleging that the abstraction and use of the said water by the defendants for the purposes aforesaid, was in breach of the public rights existing in connection with the said navigation, and constituted a trespass to the property and rights of the company in the said navigation, and they claimed a declaration that the defendants were not entitled to abstract or take the water so taken by them as aforesaid, and an injunc- tion accordingly. The defendants set up that for twenty years and upwards before action brought, they had, without any interruption on the part of the navigation company or any of their predecessors in title, drawn from the Cheswold and enjoyed as of right the use of water, the same being water not required for the purposes of the said navigation ; but they stated that they did not assert any right so to abstract or use the water other- wise than subject to the statutory rights and duties of the company ; they admitted that they had taken water for purposes beyond what, as riparian owners, they were entitled to do ; and they proved that from 1879 they had continuously taken water without reference to the requirements of the said navigation. Neville, J., held 3 that it would have been ultra vires of the navigation company to grant to anyone the right to abstract water from the said navigation, and that, as the user proved by the defendants was a prescription unlimited by the requirements 1 Conservators of the Tone v. Ash, 10 73 J. P. 41, C. A. B. & C. 349. 90 L, T, 695 ; 73 J. P. 442, 3 (1909) 1 Ch. 775 ; 78 L. J., Ch. 577 ; THE CONSERVANCY OF NAVIGATION. 529 of the navigation, the defendants could not limit their claim to a right to use only surplus water, i.e., water not required for the said navigation, and that the plaintiffs were entitled to an injunction to restrain the defendants from taking the water so taken by them as aforesaid, or any water other than in exercise of their rights, if any, as riparian owners. The Court of Appeal 1 held that the plaintiffs had not under their statutes any proprietary right in the water, and therefore the claim failed. The point decided by Neville, J., doubted but not decided. Per Cozens-Hardy, M. B. (p. 781) : " If and when the question " arises whether the defence of prescription in a case like this " can be available a case, I mean, in which there is a person " who owns the water, or has the rights of a riparian proprietor " lower down I think that it will be a very grave matter for "consideration whether the view taken by Neville, J., is right " or wrong." Per Farwell, J. : "I think it is plain that they (the plaintiffs) " have no property in this water. On their navigable river there " is a right in the plaintiffs to take certain tolls under the statute, " but to say that they can sell the water as proprietors seems " to me to be quite out of the question. They have not any " property in the water, and there can be no question of lost " grant or prescription. . . . The learned judge .... has " determined this case upon a question of law which, in my " opinion, does not arise, and as to which I will reserve my own " view until an occasion when it does arise." Amongst cases cited were Rochdale Canal v. King ; 2 Roch- dale Canal v. Radcliffe ; 3 Staffordshire and Worcestershire Canal Co. v. Birmingham Canal Navigation ; 4 and Medivay Navigation Co. v. Earl Romney. 5 (Vide Waters for others.) There appears to be no liability at common law on the owner Conservators of the bed of a navigable river to keep the channel clear of dannTe le f r natural obstructions, such as the silting up of the channel, or caused to ad- the growth of weeds. 6 It has, moreover, been held that where inThe^bsence the navigation of a river is vested in a body of conservators for of negligence. 1 (1909) 1 Ch. 775 ; 78 L. J., Ch. 5 9 C. B., N. S. 575. 577 ; 73 J. P. 41, C. A. 6 Hodgson v. Mayor of York, 28 L. T., 2 14 Q. B. 122. N. i3. 836 ; Bridge's case, 13 Eep. 33 ; 8 18 Q. B. 287. see also Forbes v. Lee Conservancy, 4 4 L. B., 1 H. L. 254. Ex. D. 116. L.W. 34 530 OF NAVIGATION, AND THEREIN OF CONSERVANCY. the purposes of navigation only, no action will lie against them for damage done by overflow of the river caused by natural obstructions in it, although tolls are taken for the use of the navigation. The only duties cast on them are to protect the navigation, and they are not charged with any liability in respect of matters not essential to the improvement of the navigation. 1 Thus, in The Parrett Navigation Co. v. Robins, 2 a navigation company was held not liable to the Court of Sewers for not cutting weeds in the river, which were beneficial to the naviga- tion, though injurious to the adjoining landowners although they took tolls for the navigation. So in Hodgson v. Mayor of York? where the plaintiffs were authorized to abandon a river navigation, and did so, making alterations authorized by the Act, the effect of which was that if the channel remained in the state they left it in, due provision was made for the escape of the water but they- took no measures to pre- vent the channel from silting up it was held that they were not responsible for damage caused by the silting up of the channel or growth of weeds causing damage to adjoining proprietors. \ In Cracknell v. Mayor and Corporation of Thetfordf the defendants were empowered by a private Act of Parliament to render navigable the river Brandon, and to take tolls for the purpose of repaying the necessary expense ; and in the exercise of their power under the Act they erected staunches in the river, the result of which, combined with the natural growth of the weeds in the river, and the accumulation of silt against the staunches, was that the river overflowed its banks and damaged the plaintiff's land. It was held that there was no obligation on the defendants to cut the weeds or dredge the silt unless it was necessary to do so for the benefit of the navigation ; and that the plaintiff's remedy, if any, was not by action against them for not doing so, but by applying for compensation under the Act. In support of the plaintiff the cases of Whitehouse v. Fdlowes? 1 As to liability of trustees of a navi- 3 28 L. T., N. S. 836. gation for damage caused by a ship to a * L. R., 4 C. P. 629. See remarks on ferry which was not part of their under- this case by Lord Hatherley in Qeddis taking, see Clyde Navigation Trustees v. Bann Reservoir, 3 A. C. 430, ante, v. Lord Jilantyre, (1893) A. C. 703, Chap. V. p. 307. H. L. (Sc.). 5 10 C. B., N. S. 765 : 30 L. J., C. P. 2 10 M. & W. 593. 305. THE CONSERVANCY OF NAVIGATION. 531 Mersey Dock Trustees v. Gibbs, 1 and Baynall v. London and North Western Railway? were cited as well as Fletcher v. Rylands 8 and Groucott v. Williams* The Court, however, held, that none of these cases applied ; Brett, J., saying : " I think this case is " clearly within the authority of Parrett Navigation v. Robins, 5 " and distinguishable from those in which it has been held that, " if a man elects to do an act on his own land, he must take care " that he does it so as not to cause damage to his neighbours. " Here the defendants are not owners of the land, and they have " only done acts which they were authorized to do. I think, " therefore, the plaintiff's only remedy, if any, is for com- " pensation under the Act." " In order to enable the plaintiff " to maintain this action," said Bovill, C. J., " there must be " shown some duty or obligation on the defendants which they " have omitted or neglected, or in the performance of which they " misconducted themselves or acted negligently ; and that by " reason of their negligence damage has accrued to the plaintiff. " It seems to me that no such conduct on the part of the " defendants has been made out." 6 But where river commissioners are by their Acts under an obligation to maintain and repair sea walls, they will be liable for damage caused by an overflow not only to lands reclaimed by them, but to lands adjoining such lands. 7 It would seem, also, that at common law, independent of Conservators statute, neither the owners of a navigation or board of con- ^j^,^^ servators are bound to keep the navigation open or in a proper to keep the state of repair. The question has been carefully considered in a hTpnoper 11 repair, but so long as they 1 L. R., 1 H. L. 93. altered, still the proximate cause of the 2 7 H. & N. 423 ; 31 L. J., Ex. 480. damage, viz., the penning back, being a 3 L. R., 1 Ex. 265. thing done on account of the navigation 4 4 B. & S. 149 ; 32 L. J., Q. B. 237. the trustees were as much liable as if 5 10 M. & W. 593. it had been a breach of duty, and it was 6 Under the River Weaver Navigation no excuse that it was done skilfully, and Acts, persons who sustain damage by that unless it had been done, other lands reason of the navigation are entitled to would have been damaged. In Vyner compensation. In Reg. v. Delamere (13 v. N. E. Rail. Co., (1904) 20 T. L. R. W. R. 757), the defendants had under 192, C. A., it was held that defendants their control a lock, weir and clows, under certain Acts of Parliament for through which, when raised, the water maintaining the navigation of the river could be let off. During a flood they Ure, were not liable to maintain certain kept down the clows, and by so penning " flood banks " behind the natural banks back the water caused the premises of of the river, as their banks were not plaintiff to be damaged, and the plaintiff constructed to keep the water within was held entitled to compensation ; for the alveus of the river. although it was not shown that his ' Bramlett v. Tees Conservancy, 49 premises would not have been flooded in J. P. 214. the same way if the river had never been 342 532 OF NAVIGATION, AND THEREIN OF CONSERVANCY. keep it open late case, Simpson v. Attorney -General, 1 which has been noticed at theVare 6 t0llS ' P- 121 > n - 1 > ante > of this book - In this case the majority of the bound to use House of Lords (Lord Macnaghten, James, and Eobertson Lords reasona D av ey and Lindley dissenting), held, reversing the judgment of the Court of Appeal that an Act of Parliament authorizing and empowering a person to improve the passage of boats, and for that purpose to cleanse, scour and deepen a river where and as often as occasion should require, although intended to serve a public purpose, must be construed to be permissive and not obligatory, and that there is no presumption in favour of the legal obligation of an immemorial burden. Consequently a person who under patent or statute has succeeded to the owner- ship of locks or other mechanical appliances for facilitating navigation, with the right to charge for their use a reasonable toll is not bound to work or keep them in repair to his own detriment if the tolls are not sufficient to defray the cost of maintenance and repair and is justified in closing them altogether. A.-G. v. Lord Macnaghten, when considering the grounds on which the Court of Appeal held the appellant bound to repair and maintain the locks whether he took tolls or not, said, " The learned judges "of the Court of Appeal . . . say in effect, 'the rights conferred " ' by Spencer's second patent as we construe it are very like a ' ' ' right of ferry. A right of ferry imposes on the grantee an obliga- " ' tion of maintaining the ferry. It follows, therefore, that the " ' owners of these locks are bound to keep them always ready " ' for the public service.' Now, with the utmost deference to the " Court of Appeal, I cannot see the slightest analogy between the " right which Spencer's second patent purported to confer on the " patentee and the right to an ancient ferry. ... All ancient " ferries have their origin in a royal grant or in prescription, " which presumes a royal grant. A right of ferry is a derogation " of common right, for by common right any person entitled to " cross a river in a "boat is entitled to carry passengers too. " Within the limits of an ancient ferry no one is permitted to " convey passengers across but the owner of the ferry. No one " may disturb the ferry. The ferry carries with it an exclusive "right or monopoly. In consideration of that monopoly -the " owner of the ferry is bound to have his ferry always ready. 74 L. J., Ch. 1 ; (1904) A. C. 476 ; 190 ; 20 T. L. B. 761, H. L. (E.). 91 L. T. 610 ; 69 J. P. 85 ; 3 L. G. B. THE CONSERVANCY OF NAVIGATION. 533 " But there is nothing of that kind here. No one is bound to " pay for the locks except the person who uses them. Anybody " may make other locks or other contrivances for getting past " the mill weirs. And after all ... if the traders will not come " to the terms at which the owner of the locks can offer the " accommodation he has provided, they are no worse off than they " were before. If they take their goods by road or draw them " over the mill weirs or pass them through the mill sluices, as " seems to have been done occasionally in former times, they are " not asked to pay anything for facilities and conveniences which " they do not care to use. Why then should the owner of the " locks, if it does not pay him to keep them up, be ' grievously " ' amerced ' like the owner of a ferry who puts the public to " inconvenience by failing to perform the duty which he has " undertaken, and which no one else may perform ? " So long, however, as the owners of a navigation or board of conservators choose to keep it open and take tolls for its use, even where such tolls are not for their own profit, but solely for the maintenance of the navigation, they are under an obligation to take reasonable care that persons using it are exposed to no undue danger. 1 Thus, in Parnaby v. Lancaster Canal, 2 the Court Parndby v. of Exchequer Chamber held, affirming the Court of Queen's 1 ^j* ter Bench, that a canal company were liable at common law for damage caused by a sunken boat which they had failed to weigh up or mark by light or signal independent of any statutory clause enabling them so to weigh up sunken boats on the principle that the owners of a canal taking toll for the navigation are bound to take reasonable care in making the navigation secure. In Mersey Docks v. Gibb, 3 the House of Lords held that this Mersey Docks principle applied to a private person or company taking tolls T> Glbb ' for the use of statutory works, even where such tolls were not applicable to the use of the individual or company, but were to be devoted to the maintenance of the works ; and that the Mersey Dock Company were responsible for damage caused to a 1 Parndby v. iMncaster Canal, 11 542 ; see also Brownlow v. Metropolitan A. & E. 223 ; see ante, Chap. V. p. 340 ; Board of Works, 13 C. B., N. S. 768 ; 33 Mersey Docks v. Gibbs, L. R., 1 H. L. L. J., C. P. 33 ; The Beam, (1906) P. 48 ; 93 ; Winch v. Coruenatort of TJiames, The Moorcock, (1889) 14 P. D. 84 ; see L. R., 9 C. P. 378 ; L. R., 7 C. P. 458 ; also ante, p. 312. Queen of the River Steamship Co. v. 2 1 1 A. & E. 223. Consenatyrs of Rirer Thames and Eatton, 8 L. R., 1 H. L. 93 ; 35 L. J., Ex. 225 ; Gibb & Sons, 96 L. T. 901 ; 23 T. L. R. 14 L. T. 677. 478 ; 12 Comm. Cas. 278 ; 10 Asp., M. C. 534 OF NAVIGATION, AND THEREIN OF CONSERVANCY. ship which, on entering the docks, struck on a mud bank which the defendants neglected to remove. Their Lordships held further, that if knowledge of the existence of a cause of mischief make persons responsible for an injury, they will be equally responsible where, by their culpable negligence, its existence is not known to them. 1 Winch v. The i n the case of Winch v. The Conservators of the Thames, 2 an Conserratort . ,.< of the Thames, action was brought by the plaintiff for damages for the loss of some horses which were drowned while towing a barge on the river Thames above high water mark, in consequence of a part of the towing-path being out of repair. The defendants, the Conservators of the Thames, were a corporate body in whom were vested by The Thames Navigation Act, 1866 (29 d 30 Viet, c. 89), certain powers for the preservation and improvement of the stream. It appeared from earlier statutes that there were originally towing-paths on the river banks, the owners of which took tolls for the right of passing along them, and that the defendants had acquired powers of supervising and controlling the towing-paths and regulating the tolls. They subsequently acquired powers to purchase and take lands compulsorily, and to execute works for the purposes of the navigation, and to take tolls for the use of the towing-paths purchased or hired by them, and to apply their funds to the repair of the works vested in or acquired or constructed by them under their various Acts. The defendants had, in pursuance of the above powers, made a parol arrangement with the owner of the soil of the towing-path, at the place in question, for the use of such towing-path at a yearly rent. Some parts of the towing-path along the river had been specially constructed by and belonged to the defendants, and the use of the whole of the remainder had been acquired by them. They took an aggregate toll for the use of the whole of the navigation and towing-path at Teddington Lock. The Court of Exchequer Chamber held, affirming the decis.ion of the Court of Common Pleas, that the defendants were liable. The judgment of the Court, read by Bramwell, B., is as follows : 3 " The defendants' rule in this case was to enter a " verdict for them on the ground ' that there was no evidence 1 For further cases as to liability of 8 L. R., 9 C. P. p. 387 ; see also dock and harbour authorities, see ante, the judgment of the Court below, L. R., pp. 374 et seq. 7 C. P. p. 462, where the statutes and 8 L. R., 9 C. P. 378 ; L. R., 7 C. P. cases are discussed at length. 456 ; 43 L. J., C. P. 167 ; 31 L. T. 128. THE CONSERVANCY OF NAVIGATION. 535 " ' that they were bound to repair the spot where the accident " ' happened.' If this were the question in the case, it might " be difficult to answer it adversely to the defendants and say " that they were bound to repair the spot in question. For " undoubtedly when the towing-paths were in the hands of, and " the tolls were taken by private owners, there was no such " obligation, and none is imposed by the statutes in express " terms on the defendants ; and it may be, that if the defendants, " as a matter of judicious use of their funds, might think it " inexpedient to be at what might be the enormous and unprofit- " able expense of repairing long extents of towing-paths where "there was scarcely any traffic, there is no power compelling " them, or they would not be compelled to such enormous outlay. " We do not go further into this question, as we think it is not " the question ; but we refer to the judgment in Mersey Docks v. " Gibb. 1 But we think it is enough to support this verdict, if the "defendants were, so long as they kept the towing-path open " and took tolls for its use, under an obligation to those whom " they invited to use it, to take reasonable care to see that the " towing-path was in such a state as not to expose those using it " to undue danger. If the dangerous state of the path at the " spot had been latent, so that the defendants, though using " reasonable care, remained ignorant of it, or if, having found it " out, they had warned the plaintiffs of it, they would not have " neglected this duty ; but, as it is, if such were the duty of the " defendants, the finding of the jury (which we must here take " to be correct) is, that they have neglected it. We agree with " the Court below in thinking that since the case of Mersey " Docks v. Gibb, 1 we must hold the funds of this corporation " (although established for public purposes) liable to make good " the damages sustained by a private person from any breach of " duty on their part, 2 and that there is nothing in these statutes " to exempt this corporation from the duties which the common " law would cast upon a private person or trading corporation " who maintained a similar towing-path along a public naviga- " tion, and levied tolls for its use. And we think that Parndby " v. Lancaster Canal Co. and Mersey Docks v. Gibb establish that 1 L. K., 1 H. L. 93 ; 35 L. J.. Ex. 225 ; C. B., N. S. 790 ; Ruck v. Williams, 3 14 L. T. 677. H. & N. 308 ; Whitehouse v. Fellows, 10 2 As to this, see also Itchin v. South- C. B., N. S. 765 ; Broumlow v. Metro- ampton, 8 E. & B. 301 ; Ward v. Lee, 7 polltan Board, 16 C. B., N. S. 546 ; 13 E. & B. 426 ; Clothier v. Webster, 12 C. B., N. S. 768. 536 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Forbes v. Lee Conservancy. Canals. " such a duty is by common law cast upon those who invite " persons to use a towing-path like this, and receive pay for the " use of it. It was argued that these cases were not applicable, " because the part of the towing-path where the accident happened " was on the natural soil, only worn into a track made by the " horses' feet leading from a bridge over one ditch to a bridge " over another ; and it was argued that the common law only " imposed this duty on those who maintained artificial works, " such as canals, or docks, or bridges. We wish to guard against " being supposed to decide that in every case where a licence is " given for money to go over land in its natural state, this " obligation results. Much may depend on the circumstances of " each case. But we think that in this case, where persons pay " one toll for the use of one entire towing-path, parts of which " are artificial and parts not, there can be no distinction made "as to the duty of those who maintain the parts to take reason- " able care of the artificial and the natural parts, or at least to " warn those who are there of defects in them. The defendants " can in future, if they think fit, announce to those who pay the " tolls that they must take the paths as they find them. If " this is done, there could be no liability for a defective state "of repair, even though wilful. Whether if they gave such " notice, and left the banks unrepaired, they could be compelled " to repair them, is a question that could then be directly raised " and decided." In a subsequent case, 1 it has been held by Pollock, B., that where the defendants, an unpaid body of trustees for the river Lee, were expressly forbidden to take any tolls for such part of their navigation as lay between Bow Creek and Old Ford Lock this part being an ancient navigable river no duty was imposed upon them to remove obstructions in that part of the navigation ; and that, consequently, the plaintiff, owner of a barge which was injured by striking on some submerged piles there, could not recover damages, although the jury found that the piles were dangerous, and that the defendants ought to have been aware of the danger, and had neglected their duty. The third class of statutes, those relating to canals, are nearly identical as far as the preservation of navigation, and compen- sation to persons injured by their works, are concerned, but the undertakers are bound, in most cases, to construct the canal in 1 Forben v. Lee Conservancy, 4 Ex. D, 116. THE CONSERVANCY OF NAVIGATION. 537 accordance with plans approved by and deposited with the Admiralty, the Board of Trade, or some other competent authority, and the public being only entitled to navigate its waters on payment of tolls, the regulations on the latter head are more stringent and detailed. 1 The duties of the owners of canals, which are in general artificial erections, or excavations on the land of others, will be necessarily larger than those of river conservators as to liability for the escape of water. This subject, however, has been fully treated of in another chapter. 2 It is hardly necessary to say, that it would be impossible to state at length the provisions of the numerous Eiver Conser- vancy Acts 3 now in force, and on which the rights and duties of 1 See 43 Geo. III. c. 102 (Caledonian Canal) ; 33 Geo. III. c. 80 (Grand Junc- tion Canal) ; 32 Geo. III. c. 102 (Canal from Pont Newydd to the Usk). 2 Ante, Chap. V. 3 A consideration of the following extracts from a few of the Acts relating to conservancy will serve to indicate the general nature of their provisions. I. Riters (made navigable). 16 4' 17 Car. II. <:. 12. An Act for making the river of " Avon navigable from Christcburch in " the city of New Sarum." Commissioners to be appointed for making the river navigable. Satisfac- tion to parties endamaged in any of their lands. Commissioners empowered to compound with persons so damnified. The powers of the said commissioners defined. How commissioners dying or renouncing may be supplied. The powers to make orders and constitutions, and to impose penalties on the breakers. Persons grieved may apply to the justices of assize. The undertakers to have the taxes upon carts, carriages, &c. Penalties, and how to recover the same. Drawing and haling of barges. &c.. upon the banks provided for. No wharf to be within New Sarum. The river, havens, &c., to be under the survey of the undertakers and commissioners. Persons sued for action upon this Act may plead the general issue. Among the private Acts of the same year are : " An Act to enable Henry ' Lord Loughborough to make the river " and sewer navigable from or near " Srigtowe Causey, in the county of " Surrey, to the river Thames ; " " An " Act for making the river of Medway ' navigable in the counties of Kent and ' Sussex ; " "An Act for making divers ' rivers navigable or otherwise passable ' for boats, barges, and other vessels." 31 Geo. III. c. 66, is "An Act to enable the Earl of Egremont to make ' and maintain the river Rother navig- ' able from the town of Midhurst, in a certain meadow called the Bailed ' Pieces or Stopham meadow in the parish of Stopham, and a navigable cut from the said river to the river ' Usk, at or near Stopham bridge, in the county of Essex, and for other purposes." II. Hirers (navigation improved). 23 Geo. III. c. 48. An Act for improving the navigation of the river Trent from a place called Wilden Hay, in the counties of Derby and Leicester or one of them, to Gains- borough, in the county of Lincoln ; and for empowering persons navigating vessels thereon to hale the same with horses. Recites 10 & 11 Will. III. c. 20 (An Act for making and keeping the river Trent, in the counties of Leicester, Derby and Stafford, navigable), that the navigation would be expedited if power were given to "hale with horses boats, " barges, keels, and other vessels navi- " gated upon the said river," which now are haled on by men ; and that several persons, hereinafter particularly named, are desirous of making and maintaining the navigation at their own costs. It therefore appoints and incorporates the undertakers, and describes the manner in which the navigation shall be made. No weirs or dams to be made across or 538 OF NAVIGATION, AND THEREIN OF CONSERVANCY. in the river, so as to prejudice fisheries, or obstruct the passages of salmon or other fish. Communications between the river Trent and other navigations to be preserved. Lands may be entered to take surveys. Commissioners may lower fords to 24 inches if necessary, and ferry boats are to be provided at the fords. Haling-paths to be made pursuant to the plans. Bodies politic empowered to sell lands. Conveyances to be enrolled, and true copies to be allowed to be evidence. Provisions are made for the raising of money, allotment of shares, and levying of tolls, from which materials for roads and manure for land are to be free, as are pleasure boats. Tolls may be lessened, and may be free from, taxes. River not to be under commissioners of sewers. Persons haling, &c., committing any trespass to be sub- ject to penalties. 24-8 Viet. c. 61. " An Act for the improvement of the "navigation of the river Shannon" (1839). Sect. 1 recites 5 & 6 Will. IV. c. 67, whereby it was enacted, that commis- sioners should be appointed by her Majesty's Treasury for the purpose of ascertaining the works necessary for the improvement of the said navigation, and for making an estimate of the expense thereof ; and enacts, the works described in the plans and reports of the com- missioners shall be carried into effect. Commissioners may make contracts for works (sect. 16) ; and are to lay their accounts before Parliament (sect. 18). Where they have doubts as to the legality of mills, &c., they may apply to Court of Chancery or Exchequer to direct proceedings to ascertain legality (sect. 21), and may abate nuisances, such as mills, mill-dams, weirs, &c. By sect. 37 the care and conservancy of the river, and of such rivers as flow into it, is vested in the commissioners. No weirs or other obstructions shall be placed in the navigation without their consent (sect. 38) ; and they shall cause the limits of the river to be defined (sect. 39) ; and surveys and maps of the mills and all weirs and dams thereon, to be made (sect. 40). They may erect beacons and lighthouses (sect. 41). By sect. 42 it is enacted, " That the com- 'missioners for the execution of this ' Act shall have full power to widen or 1 deepen, cleanse, clear, or scour, open or ' straighten, and to remove all obstruc- ' tions in the opinion of the said com- ' missioners injurious to the navigation " thereof respectively, from the said 1 river Shannon, or any of the canals or ' rivers aforesaid, by any ways or means ' which to them shall seem expedient ; ' and to make or erect in or on the said 'river, or in or on any of the rivers ' aforesaid, or upon the lands adjoining ' or contiguous to the same, or any of ' them, such and so many weirs, dams 'or engines, landing-places, or other ' matters or things for the purpose of " improving the navigation of the said " river, or any of the rivers aforesaid, " &c." They may sell or demise lands, mill sites, &c. (sect. 44) ; take tolls, &c. (sects. 45, 47) ; and fix rates of wharfage and quays (sect. 48). They may make bye-laws (sect. 56), copies of which are to be evidence. [37 4' 38 Viet. c. 60 (1874), in some respects amends this Act, and is incor- porated with it. By sect. 1 , the Acts of 1835, 1839, 1846 and 1874, may be cited as the Shannon Acts, 1835 to 1874.] 13 4- 14 Viet. c. Ixiii. "The Tyne Improvement Act, 1850." Sect. 34. "The commissioners from " time to time, if and when they deem it "necessary or expedient, may build, " purchase, hire and employ such vessels " to be worked by steam or otherwise, at ' their discretion, for dredging, scouring, ' cleansing and deepening the bed of the ' river as far as they lawfully can or ' may, and such other vessels and ma- ' chinery to be used for any other of the " purposes of this Act as they think fit, " and may use such vessels accordingly." Sect. 35. They are to cause maps of the port, showing shoals, banks, levels of high and low water, quays, wharves, to be made and deposited in their office, and open to inspection. 31 % 32 Viet. c. clir. " Lee Conservancy Act, 1 868." Recites that a large proportion of the water supplied to the metropolis is drawn from the Lee, and the Lee is extensively used for purposes of naviga- tion, and for these and other reasons the preservation of the purity of the water of the Lee and its tributaries, and the improvement of the stream, bed, and banks thereof, and the maintenance and improvement of the cuts, locks, and other navigation works on the Lee, are objects of great public and local import- ance ; that there is not any existing authority with sufficient powers for effeotingsuch preservation, maintenance, THE CONSERVANCY OF NAVIGATION. 539 and improvement in all respects, and it is expedient that a new body of con- servators, with adequate powers, be con- stituted for that purpose, and that under the Lee Navigation Improvement Act. 1850 (13 & 14 Viet. c. cix., an Act to alter and amend the Acts relating to the navigation of the river Lee in the counties of Hertford, Essex, and Middle- sex ; and to enable the trustees, further to improve the navigation, and to dispose of the surplus water, and for other purposes), and the Acts therein recited, the management of the Lee, from the town of Hertford downwards (being so much thereof as is navigable), is intrusted to the body styled the Trustees of the Kiver Lee ; that it is expedient that the duties and powers of the trustees be transferred to the new body of con- servators to be constituted, the trustees being formed into a constituency, and being represented in the new body by members thereof elected by them as in this Act provided ; and that the new body should comprise representatives of the .New River Company and the East London Waterworks Company (both which companies draw water for the metropolis from the Lee), and represen- tatives of traders interested in the Lee, and of local and public authorities. Sect. 3 describes the Lee and its tributaries ; and sect. 4 sets limits to the conservancy of the Lee and the Thames ; while sect. 5 incorporates the Lee Con- servancy Board. Provisions are made for the preservation of the flow and purity of the river Lee (sect. 89), and for the prohibition of putting new sewage into it or its tributaries (sect. 91), and also for the discontinuance of existing sewerage works (sect. 92). III. Canals. 33 Geo. III. c. 80 (Grand Junction Canal). " An Act for making and maintaining ' a navigable canal, from the Oxford ' Canal navigation at Braunston, in the 'county of Northampton, to join the ' river Thames at or near Brentford, in ' the county of Middlesex ; and also ' certain collateral cuts from the said ' intended canal." Recites the practicability and ex- pediency of making the canal, and names the proprietors and empowers them to carry out the work, which is to be styled The Grand Junction Canal. The grounds to be taken for canal and collateral cuts, and for the towing-paths thereto, and the ditches and fences to separate such towing-paths from the adjoining lands not to exceed twenty yards in breadth, except in such places where any docks, basins, reservoirs, or pens of water shall be made, &c., &c. Line of canal to be guided by plans and books of reference, and no deviation of more than 100 yards from such plans and books of reference, &c., to be made without the consent of the landowners. Bodies politic empowered to sell and convey lands. Contracts and sales to be made at the expense of the com- pany. Persons qualified, as required by the Act, appointed commissioners for settling and adjusting all questions and differences which may arise between the company of proprietors and the several persons interested in lands, tenements, mills, mines, waters, or premises which may be taken, used, affected, or pre- judiced by the execution of the powers hereby granted. Powers of commis- sioners defined. They are to settle pro- portion of money to be paid to persons interested. Millers not unnecessarily to draw down the water of their mill streams, to the prejudice of their navi- gation. If the company deepen any stream, they shall make good the damage to occupiers of mills thereon. Company to divert the water from mill streams for rebuilding and repairing any mill. Provisions for the apportionment of shares and the levying of rates of tonnage, power being given to alter rates, and exemptions from payment thereof being made in certain cases. Company may lease rates. Places to be made for boats to turn or to lie in, or for other boats to pass ; and penalties are laid on persons overloading and obstructing the navigation, opening the locks, destroying the works, or doing other damage to the navigation. Vessels obstructing the navigation are to be removed, and vessels sunk to be weighed up. The Act is amended and extended by 34 Geo. III. c. 24, sect. 19 of which provides that the company shall be rated to all parochial and parliamentary taxes in respect of lands already pur- chased or taken, or to be purchased or taken, as well as for warehouses and other buildings, in the same proportion as other lands and buildings lying near the same are or shall be rated, and as the same lands, &c., would be rateable, if the property of individuals. 43 Geo. III. c. 102 (Caledonian Canal). An Act for granting to his Majesty the sum of 20,OOOJ., towards defraying 540 OF NAVIGATION, AND THEREIN OF CONSERVANCY. The River Thames. Thames Conservancy Act, 1894. each particular board depend, 1 and a fuller idea of their nature may perhaps be gained by a consideration of the Acts relating to the Thames, which may be presumed to offer the best example of a complete system of conservancy. The navigation and general regulation of the river Thames is provided for by the following Acts of Parliament. The Thames Conservancy Act, 1894 (57 & 58 Viet. c. 187) ; the Watermen's and Lightermen's Amendment Act, 1859 (22 & 23 Viet. c. cxxxiii.); the Metropolis Management Act, 1855 (18 & 19 Viet. c. 120) ; the Metropolis Management (Thames Prevention of Floods) Act, 1879 (42 c 43 Viet. c. xcviii.) ; the Metropolitan Board of Works (Various Powers) Act, 1882 (45 d 46 Viet. c. Ivi.) ; the Thames Watermen and Lightermen's Act, 1893 (56 A 57 Viet. e. Ixxxi.) ; the Metropolis Water Act, 1902 (2 Ed. VII. c. 41) ; the Thames Eiver Steamboats Act, 1904 (4 Ed. VII. c. cciii.) ; the Thames Conservancy Act, 1905 (5 Ed. VII. c. cxlviii.) ; and the Port of London Act, 1908 (8 Ed. VII. c. 68). The Thames Conservancy Act, 1894 (57 & 58 Viet. c. 187), 2 is a consolidating and amending Act for the preservation and improvement of the river for the purposes of navigation for profit and pleasure, and as a source of water supply. 8 It the expense of making an inland navi- gation from the Eastern to the Western sea by Inverness and Fort William, and for taking the necessary steps to execute the same. Commissioners are appointed (sects. 2, 3), who may construct harbours, docks, basins, &c ., tide locks, piers, jetties, &c. (sect. 6) ; may fix the line of navigation, and contract for the pur- chase of lands necessary (sects. 6, 7). Bodies politic empowered to contract for the sale and conveyance of lands (sect. 8). Commissioners may set out and make contracts for, and purchase lands, &c., necessary for harbours, &c. (sects. 10, 12), and may levy rates and duties (sect. 23), and may lease the same. [Additional powers were given to the commissioners by 44 Geo. 111. c. 62, and other Acts. By 39 Geo. III. c. xxcii., the Crinan Canal was authorized to be constructed ; and by 11 fy 12 Viet. c. 64, the commissioners of the Caledonian Canal are newly incorporated (sects. 1, 2), and both the Caledonian and Crinan Canals united and vested in them (sects. 4, 5).] 1 As to the number of boards, see the Duke of Richmond's speech in the House of Lords, at the first reading of the Rivers Conservancy Bill, 7th March, 1879. 2 The Act is not an ordinary local Act, as the preservation of the naviga- tion of the Thames is of national importance : per Bray, J., Stewart (Surveyor of Taxes) v. Conservators of the Thames, (1908) 24 T. L. R. 333. 8 Preamble : The Local Government Board is empowered to hold local inquiries under the Local Govern- ment Act, 1894, where complaints are made to them by the Port Authority, the Metropolitan Water Board, the London County Council, or any local authority or water company interested, that the conservators have neglected the duties imposed upon them with respect to the preservation and main- tenance of the flow and purity of the Thames and its tributaries ; or where complaints are made by the council of any county, borough, district, or parish adjoining the Thames, that the conservators have failed to exercise any powers conferred on them for the purpose of preserving the rights and interests of the public in respect to the Thames and its tow-paths. Port of London Act, 1908 (sect. 8 (7)). THE CONSERVANCY OF NAVIGATION. 541 repeals practically the whole of the former Acts dealing with the river except the Watermen's and Lightermen's Amendment Act, 1859 (22 & 23 Viet. c. 133). 1 Part L, sects. 14, consists of definitions. It defines " the Thames " to mean the rivers Thames and Isis from Cricklade, Wiltshire, to an imaginary line drawn from the entrance to Yantlett Creek, Kent, to the City Stone, opposite Canvey Island, Essex, and the river Kennett between the common landing-place at Beading, Berks, and the Thames and the river Lee and Bow Creek below the south boundary stones in the Lee Conservancy Act, 1868, mentioned. The word " shore " means the shores of the Thames so far as the tide flows and reflows between high and low water marks at ordinary tides. 2 The Port of London Act, 1908 (8 Ed. VII. c. 68), sect. 7, Port of transfers to the Port authority established by the Act as from ^ 8 don Acfc ' 31st March, 1909, all the rights, powers, and duties of the Con- servators below the " landward limit " of the Port which is defined in sched. 5 as being " an imaginary straight line drawn " from high water mark on the bank of the river Thames at the " boundary line between the parishes of Teddington and " Twickenham in the county of Middlesex, to high water mark " on the Surrey bank of the river immediately opposite the first- " mentioned point." The " seaward limit " of the Port is defined as " an imaginary line drawn from the pilot mark at the entrance " of Havengore Creek, in the county of Essex, to the Lands End " at Warden Point, in the Isle of Sheppey in the county of " Kent," and the Port (which extends down both sides of the river) includes " all islands, rivers, streams, creeks, waters, " watercourses, channels, harbours, docks, and places within the " before-mentioned limits contained," but does not include any part of the Medway beyond the seaward limit of the jurisdiction of the Conservators of that river, " or any part of the river Swale, " or the river Lee, or Bow Creek within the jurisdiction of the " Lee Conservancy Board, or any part of the Grand Junction " Canal." As defined by sub-sect. (1) and sub-sect. (2), (a) (b) (c) of sect. 7, and by sect. 3 of the Thames Conservancy Act, 1894 (57 & 58 Viet. c. clxxxvii.'), the area under the jurisdiction of the conservators of the Thames, as reconstituted, would therefore now appear to comprise the rivers Thames and Isis from Crick- lade in Wiltshire to the tideway. 1 Schedule I. 2 g ee Thames Conservators v. Smeed, post, p. 542, n. 2. 542 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Thames Conservancy Act, 1894. Part II. of the Act of 1894, sects. 5 57, amended by sect. 8 and sched. 3 of the Port of London Act, deals with the qualifica- tions and appointment, payment and meetings of the twenty- eight conservators. 1 Part III., sects. 58 238, deals with the property, powers and duties of the conservators. Sect. 58, amended by sect. 7 (3) of the Port of London Act, preserves to the conservators all the estate, right, title and interest in the bed, 2 soil and shores which 1 As to voting by proxy for election of a conservator by shipowners under sects. 22, 23, and 25, see Reg. v. Samuel, (1895) 1 Q. B. 815. 2 In The Thames Conservators v.Smeed, (1897) 2 Q. B. 334, overruling Pearce v. Bunting, (1896) 2 Q. B. 360 it has been held by the Court of Appeal that the word " bed " in the tidal portion of the river under sect. 58 means the soil between the ordinary high water mark on one side and the ordinary high water mark on the other side in fact, includes what is ordinarily termed the foreshore ; and that, therefore, no person other than the conservators and their agents can dredge or raise gravel, &c., there except with licence of the conservators. A. L. Smith, L. J., says, in delivering judg- ment : " The view I take of the Act of " 1894 is this : The conservators are a " statutory body brought into existence " for the purpose of preserving, improv- ing, and maintaining the navigation 'of the river Thames, from Cricklade to Yantlett Creek (and they have some jurisdiction below that creek), but the ' powers granted to them by the Act of ' 1894 are all subservient thereto, and 1 except for these purposes no powers ' are granted to them at all. I omit ; the powers given to them for keeping the waters of the Thames pure, for these have no bearing on the case." ' What," he continues, " is the prima ' facie meaning of the words ' the bed "of the Thames'? In my judgment ' they denote that portion of the river ' which in the ordinary and regular 'course of nature is covered by the ' waters of the river. It need not be ' constantly covered if in the ordinary course of things it is habitually covered. ' I will cite a passage from the judgment 'in an American case, namely, that ' of the State of Alabama v. State of ' Georgia ((1859) 64 D. S. 515), which I ' cited in my judgment in Hudson v. ' Athby ((1896) 2 Ch. 1, at p. 25), for it ' exactly conveys what I understand by ' the meaning of the phrase ' bed of a " ' river.' It is this : ' The bed of the " ' river is that portion of the soil which " ' is alternately covered and left bare, as " ' there may be an increase or diminu- " ' tion in the supply of water, and which " ' is adequate to contain it at its average " ' and mean stage during the entire year, " ' without reference to the extraordinary " ' freshets of the winter or spring, or the " ' extreme droughts of the summer or " ' autumn.' This, when applied to a " tidal river, means without reference to " extraordinary tides at any time of the 'year. This, in my judgment, is the " primd facie meaning of the words " ' bed of the Thames,' and the question "is, in the Act of 1894, is there a con- text which causes the words not to bear ' their prima facie and ordinary mean- ' ing ? In the unreported case in 1891 of ' Goolden v. Conservators of the Tltames, ' a construction was placed by the House ' of Lords upon the words ' bed of the ' ' Thames ' in sect. 6 of the Thames ' Conservancy Act of 1867, which Act, ' although repealed by the Act of 1894, ' has, as regards sects. 6 and 7 thereof, ' in substance been re-enacted in the 'Act of 1894 by sects. 83 and 87, with ' the addition of the saving clause in 'sect. 87 in favour of the owners of ' lands above Staines. This case throws ' a considerable light upon some of the ' points raised in the present action, ' though I notice that neither my 'brother Cave nor my brother Wills, ' in their judgments in the case of " Pearce v. Bunting ((1896) 2 Q. B. 361), " alluded to it. It is to review their " decision in this last case that the pre- " sent action is brought " (pp. 336 339). After quoting sect. 6 of the Act of 1867, empowering the conservators to dredge, dig, &c., and remove sh oal s, &c., in the bed of the Thames between Staines and Crick- lade, and sect. 7, which prohibits persons other than the conservators from dredg- ing, &c., without their licence, upon which the House of Lords gave judgment, he points out that, though .when passetl they applied only to the Upper Thames, THE CONSERVANCY OF NAVIGATION. 543 they were extended by sect. 29 of the Thames Navigation Act, 1870, to the river below the City Stone at Staines to Yantlett Creek, and, therefore, applied to it when Goolden's case was decided by the House of Lords in 1891. He continues : " Whatever ' the bed of the " ' Thames ' meant in sect. 6 of the Act "of 1867, it meant the same in sect. 7 " of that Act, which last section is almost "identical with sect. 87 of the Act of " 1894, excepting the proviso saving the ' rights of owners above Staines, which ' is expressly inserted in sect. 87 of the ' Act of 1894. The House of Lords, in ' Goolden's case, held that the words ' ' bed of the Thames ' in sect. 6 of the ' Act of 1 867 meant the soil underneath ' the waters of the river situated between ' bank and bank, and the dredging ' powers of the conservators conferred ' by this section extended not only to ' that part of the Thames above Staines ' which was navigable, but also to that ' part of the Thames which was not " navigable, and which was the private " property of a riparian owner. That " this section was held to take away and " interfere with private rights is beyond " dispute, and that although no compen- " sation was given to the owner of the " soil for this deprivation of his rights. "The House of Lords also held that the " dredging powers of the conservators " were limited to improving the bed of " the river, that is. to the exercise of the " powers conferred upon them by the " Acts, and that, if dredging were carried " on by the conservators for purposes " other than that of exercising the " powers conferred upon them by the "Act, such dredging would not be per- " missible. I think that what the House "of Lords then held has pointed appli- " cation to the true construction of sect. " 87 of the Act of 1894" (pp. 3H9, 340). " I can find nothing in the Act which " can be relied on as cutting down the " ordinary andprimd facie meaning of " the words ' the bed of the Thames ' " in sect. 87. My judgment upon this " peculiarly ill-drawn Act is, that the " conservators by themselves, their "agents and servants, have power to " dredge and raise gravel, sand, and " other substances from all parts of the "river Thames within their jurisdiction " between ordinary high water mark on " one side of the river and ordinary high " water mark upon the other, if they do " so for the purpose of preserving, iiu- " proving, and maintaining the naviga- " tion of the Thames, or for the other " navigation purposes mentioned in the " Act ; and that they are also empowered " to grant licences to other persons to " dredge and raise gravel, sand and other 1 substances for like purposes, but for no ' other ; and that by sect. 87 there is an ' absolute prohibition imposed against ' any one dredging or raising gravel, 'sand, ballast, or other substances in ' the Thames between ordinary high ' water mark on the one side and ordi- ' nary high water mark on the other, " without the license of the conservators, " even although the soil between those " limits is private property ; and that for " so doing without the license of the " conservators the penalty mentioned in " the section attaches. My judgment " only applies to the Lower Thames " (pp. 342, 343). " In the case of Pearce v. Bunting " ((1896) 2 Q. B. 360), above mentioned, ' my brother Cave relied greatly, and my ' brother Wills also to some extent, upon ' the fact that, as no compensation was ' given by the statute, it was improbable ' that private rights would be interfered ' with by the legislature, and this ordi- " narily is so ; but the case of Goolden "v. Thames Conservators (unreported), " in the House of Lords, indicates that " these dredging powers are given to the " conservators for navigation purposes, " without compensation being also given " to private owners for having their " rights thus interfered with. I may point " out that by sect. 72 of the Act of 1894 " public rights of navigation are given " over private waters, and the sole saving " clause therein in favour of landowners " is that they may prevent the anchor- " ing, mooring, loitering, or delay of any vessel thereon, and no compensation for this deprivation of their rights taken away by the section is given to the landowners. The question, as it seems to me, is not what soil has been vested in the conservators, which my brother Cave held to be the question, but what powers of dredging, and 'raising gravel, and other substances, ' and of granting licences to others to ' do so, have been granted by the statute ' to the conservators whereby to preserve, ' improve, and maintain the navigation 'of the Thames. If a private owner ' were to be allowed to dredge and raise gravel from the bed of the Thames in ' the tideway at his own will and plea- sure, it is manifest that this might so ' interfere with the flow of the river as ' in some cases to seriously impede its ' navigation ; and, in my opinion, to ' prevent and guard against this, it is " that this plenary and exclusive power 544 OF NAVIGATION, AND THEREIN OF CONSERVANCY. were vested in them immediately before the passing of the Act. 1 By sect. 62 64 powers are given to improve and complete the navigation of the Thames for profit or pleasure, and to maintain and alter tow-paths, bridges, ferries, locks, weirs, &c., and to enter on lands in or near the river for the purpose, but no new ferry is to be established above Teddington Lock, within a mile of any legal ferry or bridge. Sect. 65 gives power to lease heads of water for water power. By sect. 67, subject to bye-laws the public may use, with vehicles, roads except towing-paths, and with vessels, locks and towing-paths for towing. By sect. 69, water bailiffs, to be appointed for execution of fishery bye-laws, may search fishing-boats. 2 Sect. 71 imposes penalties for injuring property of the conservators. Sects. 72 82 regulate navigation which is free to the public, including all such back- waters, creeks, side-channels, bays and inlets, connected there- with as form part of the river, subject to a power to the conservators to exclude the public for a limited period from any specified part of the river. The right of navigation is to include a right to anchor, moor or remain stationary for a reasonable time, subject to the legal rights of riparian owners to prevent " of dredging, and raising gravel and " other substances, is given to the con- " servators over that part of the bed " of the Thames where Hadleigh Ray " is situated " (pp. 343, 344). 1 By the Thames Conservancy Act, 20 4' 21 Viet. c. cxlvii. (amended by 27 4- 28 Viet. c. 113), the right of the soil of the bed of the river up to high water mark, which had been the subject of dispute between the Crown and the corporation of the city of London, is vested in the latter body. In the case of Li/on v. Fishmongers' Co., 1 App. Cas'. 662, Lord Chan- cellor Cairns says : " The conservators of " the Thames, as your Lordships well " know, have, under the Act of 1857, ' carried over to them all the rights in ' the bed and soil of the river Thames ' which belonged to the Crown, or which ' were claimed by the corporation of ' London. They are made the guar- ' dians, as it were, of the navigation of ' the Thames, and the protectors of the 'bed and soil of the Thames for the 'purposes of navigation. They have ' certain powers very large powers for ' making bye-laws to protect the navi- ' gation ; they have power to make piers ' and landing-places for the accommo- ' dation of the public ; and they have ' powers to authorize riparian owners " to make landing-places, and wharves "and jetties, and to put down mooring- " chains and moorings, for the better "and more convenient enjoyment of " and access to their lands." They are owners of the soil and foreshore of the river for certain specified purposes only and are not owners for the purposes of sect. 4 of the Public Health (London) Act, 1891 (54 & 55 Viet. c. 76), and so liable to abate a nuisance not caused by their fault : London Port Sanitary Authority v. Thames Conservators, (1894) 1 Q. B. 647. This statement of the law of course only applies to the river Thames, so far as the tide reaches, i.e., to Teddington Lock ; above this point the soil and bed of the river belongs prinia facie to the riparian owners ad medium Jilum aqute, as in other rivers. The conservators have, however, by Act of Parliament, purchased and otherwise acquired large rights as to locks, towing-paths, &c. As to what is interference with traffic on a towing path, see Thames Conservators v. Walton Urban Council, 96 L. T. 555 ; 71 J. P. 202 ; 5 L. G. R. 274. 2 As to appointment of water bailiffs under the former Acts, see Turnday v. Shaw, 3 El. & El. 588 ; 30 L. J., M. C. 113; 3L. T. 147. THE CONSERVANCY OF NAVIGATION. 545 such anchoring, 1 &c. By sects. 75, 76 powers are given to regulate the height of the water of the river. Sects. 77 82 give powers to remove sunken vessels and obstructions, and to sell vessels and goods to reimburse for expenses 2 and to compel owners and occupiers to repair wharves, piers, and artificial Ijanks ; sects. 83 89, amended by sects. 3 & 4 of the Thames Conservancy Act, 1905, and sect. 7 (2) (d) of the Port of London Act, give powers of dredging, 3 deepening and altering the bed and channel. Sects. 90 108 deal with pollution. By sect, 91 it is the duty of the con- servators to preserve and maintain the flow and purity of the river and its tributaries. By sects. 92 and 93 penalties may be imposed for throwing ballast, &c., or draining sewage or offen- sive matter into the river. 4 By sect. 10 L boats above Teddington 1 As to this, see remarks of A. L. Smith, L. J., in Tltanifs Conservators v. Snieed, ante, p. 542, n. 2. 2 The fact that a vessel has been abandoned before the expenses of raising her were incurred is no defence to a claim by the conservators for the ex- penses of raising her under sect. 77 : The Wallstnd, (1907) P. 302 ; 76 L. J., P. 131 ; 96 L. T. 851 ; 10 Asp., M. C. 476 ; 23 T. L. R. 556. The statutory lien for expenses for raising a sunken vessel, given under sect. 77 to the con- servators, takes priority of the claim of the plaintiff in an action in which the vessel has been arrested to enforce a maritime lien for collision damages : The Sea Sprat/, (1907) P. 133 ; 76 L. J., P. 48 ; 96 L. T. 782 ; 10 Asp., M . C. 452. 3 The dredging powers of the con- servators are limited to improving the bed of the river, that is, to the exercise of the powers conferred on them by the Acts, and if dredging were carried on by the conservators for purposes other than that of exercising the powers conferred upon them by the Acts, such dredging would not be permissible : Goolden v. Conservator* of the Tham-es (1891, un- reported), cited and followed in Thames Conservators v. Smeed, (1897) 2 Q. B. 334. In Ulantyre (Lord) v. Clyde Navigation Trustees, 6 A. C. 273, H. L. (Sc.), it was held that the Clyde Navigation Trustees, being empowered by sects. 76 and 84 of 20 & 21 Viet, c. 194, to dredge the bed of the river Clyde to a depth of seventeen feet, cannot be interdicted from dredging ground which has been declared the property of the riparian owner, subject to any right which the public may have over it, and L.W. subject also to any rights conferred on the trustees by their Acts of Parliament ; but so held without prejudice to the question of their liability to subsequent compensation for damage. In East London Hail. Co. v. Consercators of the Thames, (1904) 20 T. L. R. 378. an in- junction was granted to restrain defen- dants from deepening, or dredging, or working in the bed of the Thames so as to injure or endanger the Thames Tunnel under the Thames Conser- vancy Acts, 1857 (20 & 21 Viet. c. cxlvii., ss. 50, 52, 98), and 1894 (57 & 58 Viet, c. clxxxvii., ss. 83, 88) and the Thames Tunnel Act, 1824 (5 Geo. IV. c. clvi.) following the principle laid down in Metropolitan Asylum* District v. Hill, 6 A. C. 193. In the case of Palmer v. Conservators of the Thames and Edwards, (1902) 1 Ch. 163 ; 18 T. L. R. 88, it has been held by Kekewich, J., that a licensee under the conservators is not entitled under sects. 83 and 84 to dredge and sell the proceeds of the dredging for profit in a part of the river where the soil of the bed and the right of fishery were the property of a private owner. As to the obligation of the Manchester Ship Canal Co. to dredge, see Crossfield $ Sons v. Manchester Ship Canal Co., (1905) 22 T. L. R. 192, C. A. 4 As to the meaning of " wilfully " suffering " in sect. 92, sub-sect. 4, see High Wi/combe Corporation v. Tliames Conservators, (1898) 78 L. T. 463, ante, p. 211, n. 2. As to the drainage of the metropolis, see 18 & 19 Viet. c. 120 ; 21 & 22 Viet. c. 104, and see also the Rivers Pollution Act (39 & 40 Viet. c. 75), ante, Chap. III. pp. 212 et seq. 35 546 OF NAVIGATION, AND THEREIN OF CONSERVANCY. Lock may be searched for the purpose of ascertaining if sewage or offensive matter can pass from them into the river. By sects. 109 118 licences 1 may be granted to owners or occupiers of land adjoining the river for docks, piers, embankments, cranes, &c., 2 below Teddington Lock. By sect. 117 embank- ments made under licence are to vest in the owner of adjoining land. Sects. 119 125 regulate the erection and maintenance of piers, sects. 126 134 the appointment and powers of harbour- masters, sects. 135 137 beacons and lights. 3 Sects. 138 154, amended by sect. 7 (9) and as to regattas by sect. 10 of the Port of London Act, regulate pleasure-boats, which by sect. 154 are to be navigated with care and caution and so as not to endanger life or cause injury. Sects. 155 176, amended by sect. 7 of the Thames Conservancy Act, 1895, and sect. 7 (2) (d) of the Port of London Act, regulate duties of tonnage in the Port of London, lock and tonnage tolls westward of London Bridge, and pier tolls. 4 The conservators by resolution decided that the plaintiffs used the pier for a longer period daily than would be covered by a mere " call " at the pier by their vessel, for which the 6d. loll was payable, and they alleged their right to impose a terminal charge for this use of the pier by the plaintiffs of 21. a week. For a time this increased charge was paid. Held, that, although the conservators might have a right to ask for special payment from a vessel using the pier other than for the purpose merely of embarking passengers or goods, that would be based on contract ; that there was nothing in the Act which gave the defendants the right to levy more than the 6d. toll on a vessel merely because she was more than a few minutes alongside a pier embarking or discharging her passengers or goods ; and that the extra charge already paid, being unauthorized, was paid without consideration and could be recovered back : Queen of the River Steamship Co. v. lliumes Conservators, (1899) 47W.R. 685. A passenger steamer plying on the Thames was injured by a pile projecting from the bed of the river. The owners of the steamer paid lock and pier tolls, but not navigation tolls. In an action to recover damages against the con- servators, Kennedy, J., held that, though the steamer did not carry cargo, inas- much as she was not a " pleasure boat " within the meaning of the Act, the con- servators were entitled to charge navi- gation tolls in respect of her, and there was therefore a duty on the conservators As to the Thames Embankments, see 25 & 26 Viet, c. 93 ; 26 & 27 Viet. cc. 45 and 75 ; 30 & 31 Viet. c. 40 ; 32 & 33 Viet. c. 102 ; 33 & 34 Viet. c. 24 ; and 36 & 37 Viet. c. 40. 1 As to rights of licensees of piers under the Thames Embankment Act, 1862 (25 & 26 Viet. c. 93), and the Thames Conservancy Act, 1857 (20&21 Viet. c. 147). and Thames Embankment Act, 1868 (31 & 32 Viet. c. 40), see litanies Conservators v. S. E. Rly., 24 L. T. 246 ; Temple Pier Co. v. Metro- politan Hoard of Works, 34 L. J., Ch. 262 ; 12 L. T. 369. 2 As to erections interfering with the right of " access " to riparian lands under 20 & 21 Viet. c. 147 (repealed), see Lyon v. Fishmongers' Co., L. R., 1 App. Cas. 662 ; Keams v. Cordiuainers 1 Co., 28 L. J., N. S. 285. 8 See The St. AiiUn, (1907) P. 60 ; 76 L. J., P. 25 ; 95 L. T. 586 ; 10 Asp., M. C. 298. 4 By sect. 165 the conservators are authorized to levy a toll of sixpence "for each and every time of call" on any vessels using any of their piers or landing-stages to embark or discharge her passengers and goods. The plaintiffs owned a pleasure steamer which ran day trips between the Old Swan Pier, London Bridge, and Hampton Court. The steamer was brought alongside the Old Swan Pier about three-quarters of an hour before the advertised starting time and remained there until she started, her officers meanwhile doing all they could to get persons to take tickets for the trip. THE CONSERVANCY OF NAVIGATION. 547 Sects. 177 181 give powers to the conservators for the purchase and sale of lands and easements. By sect. 182 no -works on the bed or shore below Teddington Lock are to be erected without the approval of the Board of Trade. 1 By sect. 185 no firearms may be used on the river or banks above a line from Barking Creek to Margaret Ness. Sects. 190 195, amended by sect. 7 (j), (k), and sect. 7 (h) of the Port of London Act, give power to make bye-laws for regulating elections, navigation, 2 drawing down of water, collection of duties and tolls, preventing pollution, regula- ting bathing and prevention of nuisances, &c., protection of fisheries 3 and imposing of penalties. Sects. 196 211 contain legal and police regulations, and sects. 212 238 contain saving clauses as to the rights of the Crown, his Majesty's ships, the Trinity House and other public bodies, persons and owners and occupiers of private fisheries, and a general clause, 238 : " Except " as in this Act provided nothing in this Act shall take away, " alter or abridge any right, claim, privilege, franchise, exemption, " or immunity to which any owner or occupier of any lands on " the banks of the Thames, including the banks thereof, or of " any eyots or islands in the Thames, or any person is now by " law entitled, nor take away or abridge any legal right of ferry, " but the same shall remain and continue in full force and effect " as if this Act had not been passed." Part IV., sects. 239291 and sects. 1325 of the Port of London Act deal with financial matters. 4 Part V., sects. 291 298, empowers the metropolitan water Companies 5 to require the con- to take reasonable caTe not to expose the The powers of the Metropolitan Board steamer to obstructions to the naviga- of Works under the Metropolitan Man- tion : Queen of the Hirer Steamship Co., agement Act and certain special Acts Ltd. v. Conservators of the Hirer Thames were transferred to the London County and Easton Gibb $ Son, 23 T. L. R. 478 ; Council by the Local Government Act, 96 L. T. 901 ; 12 Com. Cas. 278 ; 10 1888 (51 & 52 Viet. c. 41). Asp., M. C. 542. 2 For these bye - laws, see post, 1 Under a similar section (100) of the Appendix I. Thames Conservancy Act. 20 & 21 Viet. 8 For these bye - laws, see post, c. 147, repealed by sects. 27 and 28 of 21 Appendix II. & 22 Viet. c. 104 (the Metropolis Main 4 Under sect. 289 the conservators of Drainage Act), it has been held that the the Thames, not making a profit, are Metropolitan Board of Works had no exempt from Income Tax : Steicart' power under sect. 135 of the Metropolis (Surveyor of Taxes') \. Conservators of Management Act, 1855 (18 & 19 Viet, the Thames, (1908) 24 T. L. R. 333. As c. 120) to erect any works on the bed or to liability of Corporation of London for soil of the Thames without the approval money borrowed by them as conservators of the Admiralty, and that therefore after 20 & 21 Viet. c. 147 (repealed), see they were liable for damage done to a Srorcn v. Mayor of London, 1 Jur., N. S. vessel which grounded on a pile negli- 729 ; affirmed, 13 C. B., N. S. 828. gently placed on the foreshore by their 5 Now the Metropolitan Water Board, constructor : Brownlow v. Metropolitan see ante. p. 369, and post, p. 549. Board of Worlts, 16 C. B., N. S. 546. 352 548 OF NAVIGATION, AND THEREIN OF CONSERVANCY. servators to alter or not to do works which in their opinion will injuriously affect the flow or purity of the water above their intakes, and deals with the amount of water to be taken by them under their Acts of Parliament. Part VI., sects. 299 313, contains amendments to the Watermen and Lightermen's Act, 1859, noticed hereafter. Prevention of By the Metropolis Management (Thames River Prevention of Floods) Act, 1879 (42 <& 43 Viet. c. cxcviii.), as amended by sect. 40 of the Local Government Act, 1888 (51 <& 52 Viet. c. 41), which repeals sects. 69 and 70 of the Metropolis Management Act, 1855 (18 & 19 Viet. c. 120), the execution of flood works l within the limits of the metropolis 2 is entrusted to the com- missioners of sewers for the city of London, the vestries and district boards enumerated in schedules A and B of the Act of 1855, now presumably the Borough Councils and owners of premises upon which they are to be executed, in accordance with such plans as the London County Council, to whom their supervision is entrusted, may approve (sects. 5 and 6). In cases where works of a fixed or permanent character would, in their opinion, materially interfere with the transaction of the business carried on upon the river side of any premises, the County Council is empowered by sect. 9, as amended by sect. 46 of the Metropolitan Board of Works (Various Powers) Act, 1882 (45 & 46 Viet. c. lvi.\ to authorize the erection of temporary or movable flood works, and to authorize or prohibit by regulations their temporary removal, during such times and in such manner as to them may seem necessary or proper (sect. 9). Special provision is made for the execution of flood works by the London Dock Companies, now the London Port Authority, under the Port of London Act, and for the settlement of any disputes which may arise between them and the Council. Bodies and persons liable to execute flood works are also liable for the repair of banks, and alteration of such banks without the consent of the Board is punishable by a penalty. 3 Water supply. The Metropolis Water Act, 1902 (2 Ed. VII., c. 41), has now 1 For definitions of "flood works," 8 As to what is an " alteration " under " bank," " dam," and " Thames," see sect. 23, see London County Council v. sects. 2 and 3. London, Brighton and South Coast Rly, , 2 For definition of " the Metropolis," (1906) 2 K. B. 72 ; 75 L. J., K. B. 613 ; see sect. 250 of the Metropolis Manage- 94 L. T. 773 ; 70 J. P. 298 ; 4 L. G. R. ment Act, 1855 ; sect. Ill of the Metro- 721. polis Management Act, 1862. THE CONSERVANCY OF NAVIGATION. 549 transferred to the Metropolitan Water Board established by that Act all the rights and powers, and imposed on it all the duties and liabilities of the Metropolitan Water Companies, whose undertakings were purchased by the Board (sects. 2 10), one member of which is appointed by the conservators of the Thames, and one member by the conservators of the Lee (sect. 1 (3)). This right of the conservators of the Thames to appoint a member is expressly preserved to them by sect. 8 (6) of the Port of London Act, 1908 (8 Ed. VII. c. 68). The Thames Kiver Steamboat Act, 1904 (4 Ed. VII. c. cciii.), steamboats, provided for the acquisition by the London County Council of piers and landing places on the Thames within the administra- tive county of London from the conservators, the Greenwich Pier Company, and other owners of piers, the Council being empowered to maintain the piers and to construct new ones, charging tolls to vessels for their use (sects. 4, 5, 7). The Council is also authorized to organize a service of passenger boats and to carry luggage. By sect. 5 of the Port of London Act, 1908 (8 Ed. VII., c. 68), the Port Authority may now enter into and carry into effect agreements with the County Council for the acquisition or transfer to the Port Authority of piers and landing places held by the Council. The rules governing the large class of persons entitled to Watermen's manage the navigation of barges and boats on the Thames are cts * framed by the " Company of Watermen and Lightermen," incorporated by sect. 4 of 7 & 8 Geo. IV. c. Ixxv., which recites the various Acts relating to watermen, bargemen, wherrymen, and lightermen, &c., and enacts that they shall henceforth be one body corporate by the name and style of the " Masters, "Wardens, and Commonalty of Watermen and Lightermen of " the Eiver Thames." The above statute was repealed by sect. 6 of The Wateiinen's and Lightermen's Amendment Act, 1859 (22 & 23 Viet c. cxxxiii.), but by sect. 7 * it is provided that such repeal shall not affect 1. The existence of the company or its property whether real or personal, or any of its rights and obligations as a body corporate, except as altered by this Act. 1 In Doick v. Phelpg (9 W. R. 70) it Geo. IV. c. 75. See also little v. was held that this section does not pre- Seadon, 24 L. J., M. C. 104 ; and S. C. serve the exemption in favour of western nom. Reg. v. Tibbie, 4 E. & B. 888. barges contained in sect. 101 of 7 &8 OF NAVIGATION, AND THEREIN OP CONSERVANCY. 2. Any penalty, forfeiture, or other punishment incurred or to be incurred in respect of any offence committed before this Act comes into operation. 3. Any appointment or licence duly made or granted under enactment hereby repealed. The Act of 1859 is amended in some particulars by Part VI. (sects. 299 313) of the Thames Conservancy Act, 1894, and by the Thames Watermen's and Lightermen's Act, 1893 (56 & 57 Vict.c. Ixxxi.) and the Port of London Act, 1908 (8 Ed. VII. c. 68). By sect. 3 of the Act of 1859, and sect. 299 of the Act of 1894, the term " lighterman " shall mean any person working or navi- gating for hire a lighter, barge, boat, or like craft within the limits of this Act, and the term " the Company " shall mean the master, wardens, and commonalty of watermen and lightermen of the river Thames. The Act is stated by sect. 10 and sect. 3 of the Act of 1893 to extend to all parts of the river Thames from and opposite to and including Teddington Lock in the counties of Middlesex and Surrey, to and opposite to and includ- ing Lower Hope Point near Gravesend, in the county of Kent, and all docks, canals, creeks, and harbours of or out of the said river as far as the tide flows therein. By sect 3, " waterman " is denned to mean any person navi- gating, rowing, or working for hire a " passenger boat," unless there is something in the context inconsistent with such meaning ; and, by sect. 2, "passenger boat" is denned as " used throughout " this Act " to be any sailing-boat, river steam-boat, row-boat, wherry, or other like craft used for carrying passengers within the limits of this Act, unless there is something in the context inconsistent with such meaning. Sects. 9 28 regulate the constitution and election of the company. Sects. 29 41 as amended by sect. 12 (2) and sect. 50, ached. 6 of the Port of London Act regulate the plying of water- men on Sundays. Sects. 43, 44 and 45 are repealed by the Thames Watermen's and Lightermen's Act, 1893, which now regulates the registration of lighters, barges, and craft for carrying goods. By sects. 46 53, amended by sects. 301 308 of the Act of 1894 and by the Act of 1893, freemen of the company may employ apprentices and assistants on certain conditions. By sect. 54, amended by sect. 311 of the Act of 1894, any THE CONSERVANCY OF NAVIGATION. person l not being a freeman licensed according to the Act, or a duly qualified apprentice to a freeman, who shall navigate any wherry, passenger boat, lighter, vessel, or other craft 2 upon the river within the limits 3 of the Act for hire or gain is made liable to a fine of 40s. 4 Sects. 56 and 57, amended by sects. 303 305 of the Act of 1894, and by s. 11 (2) (b) of the Port of London Act, 1908, 5 regulate the qualifications of watermen's and lightermen's licences. By sect. 66, amended by sect. 311 of the Act of 1894, no barge, lighter, or boat for goods or merchandise may be navigated within the limits of the Act, unless there be in charge of such craft a lighterman duly licensed, or an apprentice duly qualified, under penalty of 5Z. 6 1 This section, and sects. 68 and 70, have been held not to apply to the case of a person conveying for his own pur- poses his servants and workpeople, and not making any charge therefor ; the whole sections being overridden by the words " for hire or gain " : Todhunter v. Buckley, 7 L. T., N. S. 273. 2 Sect. 57 of 7 & 8 Geo. IV. c. 75, empowered the making of bye-laws for regulating " the boats, vessels, and other ' craft to be rowed or worked within il the limits of the Act " : Held, this section applied to a steamboat of 187 tons, navigating at a speed forbidden by the bye-laws : T'mlell v. Combe, 7 A. & E. 788 ; see Blandford v. Morrison, 15 Q. B. 724. Sect. 37 of 7 & 8 Geo. IV. c. 75 (Watermen's Act), imposes a penalty on any person who, not being a free- man of the Watermen's Company, or an apprentice to a freeman, or to the widow of a freeman, shall act as a waterman or lighterman, or ply, or work, or navigate, or cause to be worked or navigated, any wherry, lighter, or other craft upon the Thames from or to any place or ship within the limits of the Act for hire or gain : Held, that a steam-tug of 87 tons, employed in moving another vessel, was not " a wherry, lighter, or other craft " under this section, and that a person navigating her, not being a freeman, did not incur a penalty : Reed v. Ingham, 3 E. & B. 889. 3 Under a similar section of 7 & 8 Geo. IV. c. 75, it has been held that the navigation of a barge falls within the Act, although the voyage commence without the limits ; and that an un- authorized person is liable to the penalty, although he is paid, not for the par- ticular job, but by the week : Reg. v. Dibble, 1 E. & B. 888. 4 The Isle of Dogs Ferry Society were owners of an ancient ferry, called Potter's Ferry, which was de- scribed in their title deeds as between the Isle of Dogs and Greenwich. Down to 1850 the use of the ferry appeared to have been exercised between an ancient landing-place in the Isle of Dogs and Garden Stairs opposite, and occasionally one or two other landing- places at Greenwich. Since 1850, a dock and wharf and public roads were con- structed by C., in the Isle of Dogs, about 800 yards lower down the river than the ancient landing-place. The society leased their right of ferry to D., who employed M., a freeman, to carry pas- sengers for hire from C.'s dock and wharf to a point opposite at Greenwich, and not having a licence, as required by 7 & 8 Geo. IV. c. Ixxv. s. 38, he was convicted in a penalty under its pro- visions : Held, first, that sect. 79 was not limited by sect. 101, and extended to except boats plying in the exercise of a right of ferry from the operation of the Act ; but secondly, that the right did not extend to the landing-place at C.'s dock and wharf, and therefore that sect. 99 did not apply, and M. was properly con- victed : Beg. v. Mathews, 5 El. & Bl. 546 ; 25 L. J., M. C. 7. 5 As to granting of certificates under sect. 56 of the Thames Tunnel (Rother- hithe) Act, 1900 (63 & 64 Viet. c. ccxix.), see R. v. White, (1909) 73 J. P. 426, C. A. 6 Six barges, fastened together in pairs, were towed by a steam-tug on the river. Four lightermen were in charge, but no one was on board either 552 OF NAVIGATION, AND THEREIN OF CONSERVANCY. By sect. 67, amended by sect. 305 of the Act of 1894, any unlicensed person who rows, steers, or navigates for hire, within the limits of the Act, any passenger boat, is liable to a penalty of 5/. for each offence. By sects. 68 70, no passenger boat may carry more passengers than it is licensed to carry under penalty of 40s. for each extra passenger. Sects. 71 79 regulate the prices which may be charged for passenger boats. By sect. 75, the company are to keep a register of licensed watermen and lightermen. Sect. 77 is repealed by the Act of 1893. By sect. 80, bye-laws may be made for the purposes of the Act, provided they be not inconsistent with any of the laws of the kingdom, or with the bye-laws of the conservators of the river Thames. 1 No bye-laws to be valid until approved by the conservators of the Thames. of the last two barges : Held, that the two barges were navigated in contra- vention of the Act : Elmore v. Hunter, 3 C. P. D. 116. Where a barge owner employed a freeman and an apprentice of a freeman to navigate a barge from the Pool to Lambeth and back, and owing to their misconduct the barge injured another barge : Held, that the owner was liable, and that he was not protected by the Watermen's Act re- straining him in the selection of his servants : Martin v. Temperley, 4 Q. B. 298 ; 12 L. J., Q. B. 129. Towing into dock is not " navigating " within the meaning of the Act which forbids the towing of more than six barges at the same time : Rollesv. Newell, (1890) 25 Q. B. D. 535 ; Gardner, Locket $ Co. v. Doe, (1906) 2 K. B. 171 ; 75 L. J., K. B. 814 ; 95 L. T. 492 (Bye-law 59 under the Act of 1859). Bye-law 60, providing that every steamboat navi- gated in the towing of barges "shall " have one licensed waterman on board "... for the purpose of assisting in the " management and navigation thereof " is ultra vires and void inasmuch as it subserves no provision or purpose of the Act : Kennaird v. Cory Sf Son, (1898) 2 Q. B. 578 ; 67 L. J., Q. B. 809 ; 78 L. T. 816 ; 47 W. R. 30. 1 Under a similar section of 7 & 8 Geo. IV. c. 75, a bye-law was made imposing a penalty on any freeman who should set to work, to row or navigate, any non-freeman. A freeman who had employed a non-freeman to assist in navigating his barge was convicted under the bye-law : Held, the bye-law was good, as it only applied to employ- ment of persons for ordinary rowing, TJI 14. act f nature. 1 Stephen s Blackstone, vol. m. loth p. o32. ed. p. 218 ; Letton v. Gooden, L. R. 2 See ante, p. 570 ; Stephen's Black- 2 Eq. 123 ; 35 L. J., Ch. 427 ; 14 L. T. stone, vol. i. pp. 683, 684 ; Willes, 512, 296 ; Huzzeij v. Field, 2 C. M. & R. n. ; Payne v. Partridge, 1 Show, 231 ; 432 ; 41 R. R. 755 ; Hopkins v. G. X. 2 Roll. Abr. 140. Hail. Co., 2 Q. B. D. 225 ; 46 L. J., * 12 C. B. 742. Q. B. 265 ; 36 L. T. 898, G. A. ; and per < The Lancashire, 2 Asp. 202. Lord Macnaghten in Simpsons. A.- G., b Rich v. Kneeland, Cro. Jac. 330; (1904) 74 L. J., Ch. A. C. 476, ante, Hob. 17. OF FERRIES AND BRIDGES. Neglect of duty will not justify disturbance. Ferry toll*. formed the sole, direct, and irresistible cause of the loss, he is discharged. 1 In Walker v. Jackson, it was held, that a contract to carry and land a carriage and jewellery could not be implied from the mere character of the defendants as owners of the ferry, but that it was a question for the jury whether there was in fact such a contract. 2 The plaintiff went on board defendants' steam ferry-boat with his horse and carriage, paying defendants' charge for a light four-wheeled phaeton. Jewellery and watches of great value were in a box under the seat, which defendants did not know. The carriage was taken safely across the river, but on landing fell into the river and the jewellery was injured. It was held, that the plaintiff's right of action was not affected by his not having communicated the fact that the jeweller} 7 was in the carriage : that if a contract to land was established, it was a question for the jury whether the landing was complete under the circumstances ; and also that to rebut usage to take and land carriages, a notice not visible to those who came in carriages, that defendants did not undertake to land carriages and would be responsible for no injury, was not admissible. To an action on the case for disturbance of the plaintiff's ferry by the defendant plying a boat from and to the same places, from and to which the plaintiff's ferry plies, it is no answer to prove that plaintiff had neglected his ferry to the incon- venience of the public before the establishment of that of the defendant, or to show that Id. had been of late demanded and taken by the plaintiff, whereas formerly only Id. was taken. 3 Anguish v. Ebden* was an action for toll brought by the owner of an ancient ferry, at the trial of which it transpired that the plaintiff had leased the tolls of the ferry for a term of years, but that the lease was not under seal. The counsel for the defendant submitted that the plaintiff should be nonsuited ; but the learned judge was of opinion that tolls lying in grant and not in tenure, no interest in law passed by the agreement for letting the tolls because it was not under seal, and that the 1 Nugent v. Smith, 1 C. P. D. 423 ; see the judgments in this case, in which the law ;IH to the liability of carriers was fully reviewed. 8 10 M. &\V. 161. 8 Peter v. feudal, 6 B. & C. 703 ; 30 K. R. 504 ; see Gunning on Tolls, p. 110. See also Anguixh v. Ebden, Bury Sum- mer Assizes, 1830, cor. Parke, J. 4 Bury Summer Assizes, 1830, cor. Parke, J. Cf. Dvlte of Somerset v. Fog- well, r> B. & C. 875 ; 29 R. R. 449 ; E. V. Aorth Duffield, 3 M. & S. 247 ; see Gunning, p. 111. As to tolls generally, see pot, Chap. IX. BRIDGES. 583 action was therefore maintainable. If the plaintiff had sued for an injury done to his interest as a reversioner in the ferry, he would have been defeated for want of proof of an existing valid lease. The plaintiff recovered. Lord Coke 1 defines "passage" as a ferry for the passage of men and cattle over water, for which the owner has a toll ; but it has been said in an old case 2 that a ferry is in respect of the landing-place and not of the water. The water may belong to one and the ferry to another, as it is of ferries on the Thames, where in some places the Archbishop of Canterbury has the ferry, and the Lord Mayor of London the interest in the water. 3 The individuals or all the inhabitants of a particular town may, by custom, 4 have a right of passage over a ferry without paying toll ; for such a custom may reasonably have had its origin in an agreement that the inhabitants of the town should be at the charge of procuring the grant, and that, in considera- tion of that, another should provide a boat and take toll at the ferry of all but the inhabitants, and that they should pass toll free. Such an agreement would be good at this day, and the interest of the owner of the ferry would be encumbered with the discharge of the inhabitants of the town from toll for passing over the ferry in his boat. 5 Bridges. Wharton 6 defines a bridge to be " a building of brick, stone, Definition. " wood, or iron across a river, ditch, valley, or other place for " the convenience, ease, and benefit of travellers." In early times the expense of repairing bridges was part of the Repair at trinoda necessitas, to which, in accordance with feudal laws, every 1,? t ^ g man's estate was subject, viz. expeditio contra hostem, arcium part of the constructio, et pontium reparatio. 1 According to Blackstone 8 the nec cssitas. reparation of bridges included that of roads ; and hence every parish is bound to keep the high roads passing through it, and, consequently, the bridges, in good and sufficient repair. But 1 In Jehu JebVs case, 8 Eep. 46 ; see p. 107. Gunning, p. 106. 6 Wharton's Law Lexicon, 4th ed. 2 Inhabitants of Ipswich A T . Browne, p. 144. Saville, 11 ; see Gunning on Tolls, p. 106. ' Stephen's Blackstone, vol. iii. 6th ed. 3 Gunning, p. 106. p. 242 ; Bl. Com. 16th ed. vol. i. p. 357. 4 Cf. as to this custom Goodman v. 8 Bl. Com. vol. i. p. 357. As in the Mayor of Saltash, 7 A. C. 633 ; ante, Roman Law : " ad instructiones repara- p. 381. " tionesque itinerum et pontium nullum 6 Payne v. Partridge, Carth. 191 ; 1 "genus hominum, nulliusque dignitatis Show. 243, 255 ; 3 Mod. 289 ; 1 Salk. " ac venerationis meritis cessare opor- 12 ; Comb. 180 ; Holt, 6 ; see Gunning, " tet ; " c. 11, 74, 4. r,s i OF FERRIES AND BRIDGES. Statutory provisions. Magna Charta. 22 Hen. VIII. C. 3. Sect. 2. while the care of roads still devolves on parishes, that of bridges has passed for the most part to the counties at large in which they are situate. 1 By Magna Charta, 2 it was provided " that no town or freeman " shall be distrained to make bridges nor banks but such as of " old time and of right have accustomed to make them in the " time of King Henry our grandfather " ; and the liability of individuals or particular places to repair ratione tenura* was thus fixed, and the feudal burthen somewhat alleviated. The liability of the county at common law to repair was fully affirmed 4 by the passing of 22 Hen. VIII. c. 5, 5 whereby "justices of "peace " were "empowered to inquire of repairs of bridges and " award process against offenders as the king's justices of his " bench used commonly to do, or as it shall seem by their discre- " tion to be necessary and convenient for the speedy amendment " of such bridges " (sect. 1). By sect. 2, in order to ascertain what persons shall be liable to the repair of bridges, it is enacted 1st, that if the said bridges are without a city or town corporate, they shall be made by the inhabitants " of the shire or " riding within which the said bridge decayed shall happen to " be" ; 2nd, " If within the city or town corporate, then by the " inhabitants of every such city or town corporate"; 6 and 3rd, " If part of any such bridges decayed happen to be one in one " shire, riding, city or town corporate, and the other part thereof " in another shire, riding, city, or town corporate, or if part be " within the limits of any city or town corporate, and part " without or part within one riding and part within another, " that then, in every such case, the inhabitants of the shires, " ridings, or towns corporate shall be charged and chargeable to " amend, make, and repair such part and portion of such bridges " so decayed as shall be and be within the limits of the shire, " riding, city, or town corporate wherein they be inhabited at the " time of the same decays." 1 Stephen's Blackstone, Oth e ' s> ' "portion of the highways in every part of this realm as well " within franchise as without, as lie next adjoining to any ends " of any bridges within this realm distant from any of the said " ends by the space of 300 feet." 1 Of the numerous important statutes relating to bridges, 2 the 5 & 6 Will. iv. C. >' '. S. 21 . 1 Cf. R. v. TF. Riding, Yorkshire, 2 East, 342 ; 6 11. R. 439 ; R. v. Inliabi- terty of all tools, implements, in a substantial and commodious timber, bricks, stones, gravel, and other manner, under the direction or to the materials purchased, gotten, or had, or satisfaction of the county surveyor, or to be purchased, gotten, or had, by the persons appointed by the justices of order of the justices in counties, or the the peace at the general quarter sessions surveyor of county bridges, shall be assembled, or by the justices of the peace vested in the said surveyor. of the county of Lancaster at their The inhabitants of counties shall annual general sessions ; see Rex v. and mny, by sect. 4, sue for damages Derby, 3 B. & A. 147 ; 37 R. R. 370 ; done to bridges, &c., in the name of If ex v. Lancashire, 2 B. & A. 813 ; 36 their surveyor, and shall and may be R. R. 753 ; Rex \. Deron, 2 N. & M. sued in his name ; provided always that 212 ; 39 R. R. 507 : Iteer8on or persons whom- relating to Highways, 2nd ed. (1897), soever, and the I,aw of Highways, by Pratt Sect. 5 describes the bridges which & Mackenzie, 15th ed. (1905). inhabitants of counties shall be liable See, too, Stephen's Blackstone, to repair and maintain, it being pro- vol. iii. p. 243. BRIDGES. 587 " as the preventing and removing of all nuisances and annoy - " ances, shall be and the same are hereby vested in the surveyor " of county bridges, and the roads at the ends thereof repairable " therewith ; and the several penalties, forfeitures, matters, and " things in this Act contained relating to highways shall be and " the same are hereby extended and applied, as far as the same " are applicable, to such bridges, and the roads at the ends ~. " thereof as aforesaid, the said surveyor or surveyors of county "bridges making satisfaction and compensation for all trespass " and damage done in the execution of the powers of this Act, in " such and the same manner as the surveyors of highways are " required to make under the provisions of this Act." l Sect. 33 of 24 & 25 Viet. c. 97 2 enacts that" Whosoever shall " unlawfully and maliciously pull or throw down or in anywise " destroy any bridge (whether over any stream of water or not), " or any viaduct or aqueduct, over or under which bridge, viaduct " or aqueduct, any highway, railway, or canal shall pass, or do " any injury with intent and so as thereby to render such bridge, " viaduct, or aqueduct, or the highway, railway, or canal passing " over or under the same, or any part thereof, dangerous or im- " passable, shall be guilty of felony, and being convicted thereof " shall be liable, at the discretion of the Court, to be kept in penal " servitude for life or for any term not less than three years, or "to be imprisoned for any term not exceeding two years, with or " without hard labour, and with or without solitary confinement, " and if a male under the age of sixteen years, with or without " whipping." 8 By sect. 12 of 33 A 34 Viet. c. 73, it is provided that where a 33 & 34 vict. turnpike road shall become an ordinary highway, all bridges c - 73 > s - 12> which were previously repaired by the trustees of such turnpike road shall become county bridges, and shall be kept in repair 1 As to what is a " drain or water- Highway Board, supra. "course" under the Act, see Croft v. 2 "An Act to consolidate and amend Ricltmansworth Highway Board, 39 Ch. " the statute law of England and Ireland D. 272; 58 L. J., Ch. 14; A.-G. v. "relating to malicious injuries to pro- Bromleif Rural Council and Copeland, " perty." (1902) 1 K. B. 694 ; 71 L. J., K. B. 472 ; 8 Cf. sects. 58, 73, and 54 & 55 Vict. 86 L. T. 486, ante, p. 291. A highway c. 69, s. 1. If acts of this kind cause authority has no right to construct, or death the offender is indictable for maintain if previously constructed, a murder or manslaughter according to " dumb well " on private lands adjoining the amount of premeditation ; and if the highway as part of its drainage done with murderous intent, even if system although the use of dumb wells they fail, they are indictable under may be a recognized mode of drainage 24 & 25 Vict. c. 100, s. 15 (Offences in the district : Croft v. liickmanstcorth against the Person Act, 1861). 588 OF FERRIES AND BRIDGES. 38 A: 39 Viet, c. "w. 5fi A: 57 Viet, c. 73. 40 A: 41 Viet. c. 14. 41 A: 42 Viet. c. 77. 51 A: 52 Viet. c. 4. accordingly. 1 Provided, however, that, for the purposes of this Act, such bridges shall be treated as if they were bridges built subsequently to the passing of the Highways Act, 1835. The powers of surveyors of highways and of vestries under the last-named Act were vested in the urban authorities by the Public Health Act, 1875, who were also empowered to construct or adopt public bridges, &c., over canals and railways and by agreement with the proprietor (sects. 144 148). These powers are now, however, transferred to rural district councils by sect. 25 of the Local Government Act, 1894, which declares such councils to be the successors of the rural sanitary authority and highway authority and also to exercise all powers, duties and liabilities of an urban sanitary authority under sects. 144 148 of 38 d 39 Viet. c. 55. It should be noted that by sect. 1 of 40 d- 41 Viet. c. 14, 2 it is enacted that on the trial of any indictment or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible witnesses, and compellable to give evidence. Sect. 21 of 41 d 42 Viet. c. 77 provides that certain existing bridges may be accepted by county authorities, and by sect. 22, contributions out of county rates towards erecting bridges may be made by the county authorities in accordance with the provisions of sect. 5 of 34 Oeo. III. c. 59. 3 Sect. 3 (viii.) of the Local Government Act, 1888, transfers to the county councils the functions previously exercised by the justices in quarter sessions with respect to bridges and roads repairable with bridges, 4 and "any powers vested by the High- " ways and Locomotives (Amendment) Act, 1878 (41 & 42 Viet. " c. 77), in the county authority"; and they are empowered by sect. 6 to purchase, 5 or take over on terms to be agreed on 1 ' An Act to continue certain Turn- pike Acts in Great Britain, to repeal certain other Turnpike Arts, and to make further provisions concerning turnpike roads" (1870). - An Act for the amendment of the law of evidence in certain cases of misdemeanour." " An Act to amend the law relating to highways in England, and the Acts " relating to locomotives in roads, and " for other purposes." 4 As to the Transfer of Bridges under the Crown Lands Act, 1906 (6 Ed. VII. c. 28), s. 6 (1), see ante, p. 27, n. 4. 5 The quarter sessions boroughs in- cluded in sect. 35 of the Local Govern- ment Act, 1888, are not liable to con- tribute to the cost of maintaining or erecting county bridges which have been BRIDGES. 589 " existing bridges not being at present county bridges, and to " erect new bridges, and to maintain, repair, and improve any " bridges so purchased, taken over, or erected." By sect. 11 (1) the entire maintenance of every main road within the meaning of the Highways and Locomotives (Amendment) Act, 1878 (sect. 20 of which is, by sub-sect. 13, to apply as if enacted in the Act), inclusive of every bridge carrying such road if repair- able by the highway authority, is vested in the council of the county in which the road is situate, which is to have the same powers for the purposes of such maintenance and to be subject to the same duties as a highway board, and may also exercise any powers vested in the council for the maintenance and repair of bridges, and the enactments relating to highways and bridges shall apply accordingly. The Highways and Bridges Act, 1891 54 & 55 Vict - (54 & 55 Viet. c. 63), empowers county councils to make and carry into effect agreements with highway authorities and the councils of adjoining counties in relation to the construction, recon- struction, alteration, or improvement, or freeing from tolls, of any main road or other highway, or of any bridge (including the approaches thereto), wholly or partly situate within the juris- diction of any one or more of the parties to the agreement, the expenses being defrayed as part of those incurred in relation to the maintenance of bridges, main roads, and other highways in such proportion as shall be determined by the agreement. It is, however, provided that a highway board may, with the approval of the county council and the assent of such parish or parishes in vestry assembled, charge such expenses or any part thereof on any parish or parishes specially benefited by the construction, alteration, or improvement (sect. 3). The general mode in which the common law liability with regard to bridges has been confirmed and amplified by statutes having been thus briefly indicated, it will be necessary to examine more particularly some points as to such liability to repair. A bridge of public utility is to be repaired at the public expense ; l for, " if a man builds a bridge, and it becomes useful " to the county, the county in general shall repair it." 2 purchased, taken over, or erected by the Suffolk County Council, 67 L. J., Q. B. County Council under sect. 6 of the Act. 750 ; (1898) 2 Q. B. 246 ; 78 L. T. 624. Such expenses are "special" and not * Rex v. W. R., Yorkshire, 5 Burr. - " general " county purposes within the 2594 ; 2 Sir W. Bl. 685 ; Lofft, 238 ; 2 meaning of sect. 68 of the Act : Bury East, 342 ; 6 R. R. 439. St. Edmunds Corporation v. Weft 2 Ibid. Per Mr. Justice Aston. 500 OF FERRIES AND BRIDGES. The onus of repair being therefore divided between the public represented by the county and individuals or bodies of individuals, we shall proceed to consider: (i.) The liability of the county to repair; (ii.) The liability to repair ratione temme ; and (iii.) The liability to repair by prescription. Under the first heading it will be necessary to examine what is meant by the terms " public user," and what structure can legally be described as a bridge, as well as to examine the rules with regard to bridges built under special authority, and the statutory provisions as to public liability. Liability of As a general rule the county is liable to repair bridges built by private individuals before the County Bridges Act, 1803 (48 Gco. III. r. 59), if the public use such bridges. 1 Where a bridge has been built over a public highway prior to the Act, a County Council can only avoid the common law liability to repair by proving that the liability is cast on some one else. 2 The question of the liability of the county to repair bridges built by individuals was carefully considered in the case of Reg. v. Inhabitants of Southampton. 9 There, the owners of land on one side of a river made a road across such land and built a bridge connecting such road with an existing highway on the other side of the river, and dedicated both bridge and road simultaneously to the public, who afterwards used the same. The Court of Appeal held, 4 dissenting in part from the Divisional Court, 5 that upon the trial of an indictment against the inhabi- tants of a county for the non-repair of a bridge built by private owners, but not built in an existing highway, the true effect of the evidence as to the dedication to and the adoption of the bridge by the county is always a question for the jury. The fact that such a bridge is of public utility and is used by the public is not necessarily conclusive against the county on the question of liability, user and utility being only elements for consideration in determining that question ; but there need not, in addition to evidence of public user and public utility, be proof of an overt act 1 If no man, by reason of tenure or County Council, (1903) 67 J. P. 173 ; 1 otherwise, ought to repair a bridge, the L. G. R. 223. county ought to do it : County oj Hunt- 19 Q. B. D. 590 ; 17 Q. B. D. 424 ; uiijdon case, Pop. 192; Reg. v. Ely, 4 see also Reg. v. Wandticorth, 1 B. &Ald. New Sess. Gas. 222 ; 15 Q. B. 827 ; 14 63; 18 R. R. 434. Jur. 9r> ; 19 L. J., M. C. 223 ; Keg. v. * R. v. Inhabitants of Southamiiton, Saintiff. 6 Mod. 255. 19 Q. B. D. 590. s A.-G. v. Wat Riding of Yorkshire 6 Same case, 17 Q. B. D. 424. BRIDGES. 591 amounting to a formal adoption by a body capable of represent- ing and binding the county. Where a verdict of not guilty has been returned upon an indictment for non-repair, a new trial will not be granted ; but under very special circumstances the Court may order all proceedings upon the judgment to be suspended, so as to give an opportunity for the question to be again raised upon a fresh indictment. Lord Coleridge, C. J., says : l " The opinions which have " been given by the learned judges before whom this case " has already come seem to be conflicting. I do not stay " to inquire whether my brother Stephen at the first trial " intended to lay it down as a legal proposition that, granting " the building of a bridge by a private person, and that the " bridge when built is of utility to and is used by the public, " those facts would be conclusive against the county on the " question of its liability to repair ; the learned judge is under- " stood so to have laid down the law, and if he did so, we are of " opinion that his view was not correct. Such a view would " involve what we conceive to be the unsound proposition that a " bridge built by an individual merely for his private purposes " would at once become repairable by the county upon its " turning out to be of public utility as evidenced by public user. " If, on the other hand, the learned judges in the Divisional " Court (Wills, J. and Grantham, J.) really did say that, granting " the same premises, there must in addition to evidence of public " user and public utility be some proof of an overt act amounting " to a formal adoption by a body capable of representing and " binding the county, then we think that their judgment cannot " in its breadth be sustained. To say that public user supple- " men ted by public utility is no evidence to fix the county with " the liability to repair is too broad." Where a bridge has been rendered necessary in consequence of Bridges of an authorized interference for private purposes with a public p **' highway, and the user of the bridge by the public has been so rendered necessary by such interference, the parties so interfering with the original highway, and not the county, are bound to keep the bridge in repair. 2 1 19 Q. B. D. at p. 600. showed that certain adventurers had, 2 Where, therefore, to an indictment for the purposes of draining lands for against the inhabitants of a county their own benefit, and under certain for non-repair of a bridge, the plea powers vested in them, cut an artificial 592 OF FERRIES AND BRIDGES. This principle is confirmed by the remarks of Blackburn, J., in Reg. v. Kitchener. 1 " At common law the highways within a " parish or township were repairable by the inhabitants of the " parish or township, and where they were carried across small " streams the inhabitants of the parish or township were " probably by immemorial custom also liable to repair the bridges. " But the bridges over large streams were repairable by the " inhabitants of the county. In the case of Reg. v. Ely* it was " held that he who, under lawful power, makes an artificial cut drain or river, which intersected and obstructed an immemorial highway, and that they had erected the bridge in question over the said drain, in the line of the former highway, and not upon the ancient course of any river, and that the former highway had been thenceforth carried over the bridge ; and that after the making of the bridge the said drain mid bridge and large quantities of land, for the purpose of draining which the said drain was made, were vested by Act of Parliament in a certain corpora- tion in trust for the said adventurers, with power to the corporation to levy money for maintaining the works, and that the drain was very useful to the adventurers and to the corporation, and had been always maintained for their benefit, and that since the passing of the said Act the drain and bridge had always been vested in the corporation, and re- tained by them for their own benefit, and for that of the said lands vested in them, and for furthering the purposes of the said corporation, and that the said corporation were liable to repair, and of right ought to repair, the said bridge ; it was held that the plea showed a liability in the corporation to repair the bridge, by reason of such bridge having lecn rendered necessary through the interference for private purposes with a public highway, and that it furnished a defence to the indictment: Held, also, that the allegation that the bridge and drain were vested in the corporation did not make the plea double : Reg. v. Ely, 4 New Sess. Cas. 222. Cf. as to this, Re* v. Kent (13 East, 220; 12 R. R. 330) ; and Ilex v. Lindsry(U East, 317 ; 12 U. R. 529) ; and see also decision men- tioned in Roll. Abr. 368, tit. " Bridges," pi. 2 ; 2 Inst. 761 ; Rex v. Salop, 13 East, 95 ; 12 R. R. 307 ; Reg. v. Kerriwn, 3 M. & S. 526 ; 16 R. R. 342 ; Hex v. Oxfordthire, 6 D. & R. 321 ; 4 B.& C. 194 ; Rex v. W. //., Yorkxhire, 2 East, 342 ; 6 R. R. 439 ; Ri-x v. Kent, 2 M. & S. 513 ; 15 R. R. 330. The dictum in the case 1 Roll. Abr. is : If a man erects a millfor hi* oicti profit, and makes a new cut for the water to come to it, and makes a new bridge over it, and the subjects use to go over this as over a common bridge ; this bridge ought to be repaired by him who has the mill, and not by the county, because he erected it for his own benefit. Patteson, J., in Reg. v. Ely, observes with reference to the judgment of Lord Ellen borough in Rex v. Kent (2 M. & S. 513 ; 15 R. R. 330) that" Lord Ellenborough in " delivering judgment seems to admit " that it was a decision contrary to the case, 1 Roll. Abr. 308, Bridges, pi. 2 ; but states that, in reference to the record. Rolle appeared not to have been warranted in the abstract given by him ; indeed, that no such question as he supposed had been raised or decided " in it. Considering the great learning " and accuracy of Rolle, and the greater " familiarity which he undoubtedly had ' with ancient records than could be " expected of the Court in Lord Ellen- " borough's time, so entire a blunder as " is charged upon him may well excite " surprise, and it was pointed out by ' Mr. Maude, for the defendants, that <: whereas Rolle refers to a record of 8 " Edw. II., the roll examined by the ' Court from which an extract is given 1 in 2 M. & S. 520, is of the 6 Edw. II. ; ' and the result of his industrious re- ' search leaves it very questionable ' whether the Court in Ilex v. Kent did 'successfully dispose of the authority ' in Rolle, &c. . . . It would be safer, ' therefore, perhaps to rely neither on ' the case in Rolle, nor in the mere ' decision in Rex v. Kent, further than ' as a general affirmance of the general ' rule." 1 29 L. T., N. S. 697 ; 12 Cox, C C. 522; 43 L. J., M. C. 9. As to term " highway," cf. Reg. v. Saintiff, 6 Mod. 255 ; Holt, 129 ; and MejMlf, p. 598. 2 19 L. J., M. C. 233. BRIDGES. 593 " through a highway, and in whom the cut is vested for his own " advantage, incurs the obligation to repair the bridge over the " highway, yet not so as to relieve the parish or township from " liability, for the Queen's subjects are not to be deprived of " their right of coming on the parish or township to repair." 1 A bridge may be a public bridge which is used by the public What is a at all such times as are dangerous to pass through the river ; 2 p but it is competent to a county, upon an indictment for non- repair of a public bridge, to give evidence of the bridge having been repaired by private individuals. 2 Where a person forty-five years back erected a mill and dam thereto for his own profit, per quod he deepened the water of a ford through which there was a public highway, but the passage through which was, before the deepening, very incon- venient at times to the public, and the miller afterwards built a bridge over it, which the public had ever since used : Held, that the county and not the miller were chargeable with the reparation. 3 A bridge used only on an occasion of floods and lying out of and alongside the road commonly used has been held to be a public bridge ; 4 but a bar across a public bridge kept locked except in time of flood is conclusive evidence that the public have only a limited right to use the bridge at such times ; and if an indictment for not keeping it in repair states that it is used by the king's subjects "at their free will and pleasure" the variance is fatal. 5 1 Cf. pot(, pp. 598 et eq. With regard to R. v. Maryuii of 2 R. v. Northampton, 2 M. & S. 262 ; Buckingham, the indictment alleged 15 R. R. 241. that the bridge was "used for all the 3 R. v. Kent, 2 M. & S. 513 ; 15 R. R. " liege subjects of our lord the king and 330. " his predecessors, with their horses, 4 R. v. Decon, R. &, M. 14-t (Abbott). " carts and carriages, to go, return, pass, 5 R. v. Marquis of Buckingham and " ride, and labour at their free will others, 4 Camp. 189; 27 R. R. 530, "and pleasure." Lord Ellenborough 531 . observed " A bar kept shut and opened In R. v. Duron, the bridge in ques- " as this is I think conclusively shows tion was approached by a causeway " that the public have only a right to lying alongside the main road, which led " use the bridge at times of flood. It is through a ford close by and below the " easy to see how such a qualified right bridge. The bridge and causeway were " might be created, and there is no open at all times to carriages, ice., but " objection to its legality. But the in- only used by the public in cases of floods, " dictment sets out a right without limit which rendered the ford impassable, and "or qualification. . . . Therefore, though in high floods the bridge itself was im- " the defendants may be bound, ratione ible. There was, moreover, no evi- ' tenurce, to maintain this bridge to be dence that the bridge had ever been " used in times of flood, they must be repaired, though its existence was " acquitted upon the present indict- spoken to for sixty or seventy years by " ment." old witnesses. The case of R. v. Glamorganshire, L.W. 38 594 OF FERRIES AND BRIDGES. About the year 1885, under the powers of a local Turnpike Act, a new turnpike road was constructed and was carried over a canal, now owned by the plaintiffs, by a bridge erected by the road trustees. This road ceased to be a turnpike road in 1875. The bridge, which was situate in a county borough, of which the defendants were the highway authority, replaced an accommoda- tion bridge erected by the plaintiffs' predecessors in title. Owing to mining operations the bridge and the canal subsided, and the plaintiffs, acting reasonably for the protection of the canal, raised the banks, with the result that the level of the water carne so near to the under-surface of the bridge that the latter became an obstruction to the navigation ; the bridge was also dangerous to traffic passing over it. In an action by the plain- tiffs, in effect to compel the defendants to abate the nuisance, it was agreed between the parties that the bridge should be reconstructed at its original level, the cost of the work to be ultimately borne by the parties according to their respective legal liabilities. It was held, by Warrington, J., upon the construction of the local Turnpike Act, that the road and the bridge were repairable by the road trustees, that consequently by virtue of the Turnpike Acts Continuance Act, 1870 (33 cC 34 Viet. c. 73), s. 12, and the Highways and Locomotives Amendment Act, 1878 (41 t42 Viet, c. 77), . 13, the bridge had become a county bridge and was repair- able by the defendants, and that repair involved reconstruction. The Court of Appeal held, further, reversing Warrington, J., that, inasmuch as the obligation to reconstruct did not authorize the defendants to create a nuisance, they were liable for the cost given in a note on It. v. W. JR., York- that Sir H. Mackworth ought to repair thire (2 East, 356, n. ; 6 R. R. 450, n.), and abxyve hoc that the inhabitants of is instructive on this point. the county ought not to repair. The An indictment having been removed prosecutor replied that the inhabitants in Hilary Term, 1788. by writ of of the county ought to repair. And cert'utrari into the Court of King's upon the trial at the summer assizes for Bench against defendants for not re- the county of Hereford before Lord pairing a certain public bridge called Kenyon, the facts alleged in the plea Ynttj>fidwch bridge, erected in the king's were proved, and also that the business highway, across the river Tave ; the of the tin works could not be carried on defendants pleaded, that in the year without the use of the bridge. But it 1745 Herbert Mackworth, Esq., being also appearing that the public had con- seised of certain tin works, for his stantly used the bridge from the time of private benefit and utility, and for its being built, his Lordship directed the making a commodious way to his tin jury to find a verdict for the Crown, works, erected the bridge ; and that he viz., that the inhabitants of the county and Sir Herbert Mackworth his son, and were bound to repair which they did their tenants of tin works, enjoyed a accordingly and no motion was ever way over the bridge for their private made for "a new trial ; vide Bac. Abr. benefit and advantage ; and, therefore, 535, C. BRIDGES. 595 of raising the bridge to its original level as well as for the cost of reconstruction. 1 The word " riding " in the Statute of Bridges (22 Hen. VIII. c. 5) is not confined to districts technically called ridings, but comprises every division of a county which corresponds in its definition to a riding. 2 Similarly, a hundred bridge has been held to be a county bridge and not a highway* under 5 <& 6 Will. IV. c. 50, and therefore not repairable by a parish. 3 The inhabitants of a county are bound by common law to County only repair bridges erected over such water only as answers the ^palr bridges description Qlflumen vel cursus aqua (i.e., water flowing between erected over a banks more or less defined), although such channel may occa- sionally be dry,* and need not necessarily flow at all times. In such case it is a question of fact whether an arch thrown over a curstis aqua is such a bridge or not, 5 and the decision will depend on the evidence brought to prove the repair of the structure, and the nature of theflumen aqua. 6 " cursus aqute* Now if these words be " considered to denote waters flowing in " a channel between banks more or less " defined, although such channel may be li occasionally dry a rule will be estab- li lished of general and easy application. " If any other sense be put upon the " words, great uncertainty and confusion " will be introduced. It is of great " importance to avoid uncertainty by " the establishment of general rules. We " think no better or more certain rule li can be laid down than that which will " be given by the sense thus attributed " to tbe words, and, therefore, that such li ought to be considered as the general 11 rule of law. And consequently the " verdict should be entered for the de- " fendants, the county not being in our "opinion bound to repair the structures " in question." In the above case the road by which a bridge was approached passed between meadows which were occasionally flooded by a river, and, for convenient access to the bridge, a raised causeway had been made having arches 1 Xorth Staffordshire Rail. Co. v. Hanley Corporation, (1909) 73 J. P. 477 ; 26 T. L. R. 20, C. A. 2 Reg. v. Ely, 4 New Sess. Cas. 222. s Reg. v. Chart, Inltabitants of, 39 L. J., M. C. 107. 4 R. v. Oxfmrdthire, 1 B. & A. 289 ; 35 R. R. 302 ; R. v. Derbyshire, 2 G. & D. 97 ; 2 Q. B. 745 ; 6 Jur. 483 ; R. v. U'/nttiey, 4 N. & M. 594 ; 3 A. & E. 69 ; 7 C. & P. 208 ; 1 H. & W. 147 ; 42 R. U. 329. s R. v. WlMney, 4 N. & M. 594 ; 42 R. R. 329. Per Patteson, J. : "With " regard to R. v. Oxfordshire (1 B. & " A. 289 ; 35 R. R. 302), I do not " understand that case as laying down " that every arch thrown over a curgug "aqua is a bridge, but only as deciding "that in order to constitute a bridge " there must be cursus aquee." 6 "The question," said Lord Tenter- den. C. J., in R. v. Oxfordshire (1 B. & A. 289 ; 35 R. R. 302), therefore, seems to turn upon the " meaning of the words flumeti eel * In 2 Inst. 701, Lord Coke, in com- menting on the Stat. of Bridges, 22 Hen. VIII., says the ancient form of an indictment on this statute is : " Quod " pons publicus et communis situs in "alta regia viS super flumen seu cursum " aquae, &c. " ; see 1 B. & A. 294, 301. In R. v. Oxfordshire, Inhabitant* of, a case of a similar nature (1827). Bayley, J., says : " By the Statute of " Bridges, the bridge must be in the " highway to render the county liable, " and the county is liable, because the " bridge gives a passage along the high- " way." 382 590 OF FERRIES AND BRIDGES. A floating bridge is in substance a ferry, not a bridge. A floating bridge which consists of a vessel propelled by steam from one side of the stream to the other, and is kept in its course or culverts at intervals for the passage of the flood water, which were equally necessary to the safety of the main bridge and the causeway ; arid it was held, as has been stated, that the inhabi- tants of the county were not bound to repair such arches, being at the distance of more than 300 feet from the end of the main bridge. This case may be usefully contrasted with R. v. Derbyshire (2 G. & D. 97). There a structure, called Swarkestone Bridge, was 1,275 yards long, and at the eastern end were five arches under which the river Trent flowed, while at the western end were eight arches under one of which a stream constantly flowed. The rest of the structure consisted of a raised causeway at different intervals, in which there were twenty-nine arches, under most of which there were pools of water at all times, and under all of which the water of the Trent flowed in time of flood. There was no interval of causeway between the arches of the length of 300 feet. The county of Derby had immemorially repaired the whole structure. On an indictment against the inhabitants of the county for the non-repair of the structure, describing the whole as a bridge : Held, that it was properly so described, and that the verdict was properly entered for the Crown. Lord Denman, C. J., in delivering judgment, said : " The present case " differs from that of R. v. Inhabitants "of Oxfordshire (1 B. & A. 289, 297 ; " 35 R. R. 302, 308) in two respects " 1st. That it is here found by the case ' that the ' county of Derby have from ' ' time immemorial repaired the whole ' ' structure, the road and battlements, "from beginning to end, including the ' ' whole forty-two arches, as also 300 feet 1 ' at the eastern extremity of the same, 1 ' nnd have at different times, and at a ' ' great expense, rebuilt and widened 1 ' twenty-two of the twenty-nine arches 1 between the eight and five arches ; ' ' also, ' that from the year 1750 various " ' parts of the said structure, other than "'the said five arches over the Trent, " ' have been frequently presented under " ' the name of Swarkestone Bridge by the " ' grant! jury as out of repair, and such " ' parts have been repaired accordingly : ' " whereas in the case of R. v. Inhabi- "tant* of Oxfordshire, it was not shown " that the disputed arches had been re- " paired by the county ; 2ndly. It "appears by this case that there is a "constant flow of water under one of " the eight contiguous arches at the " western end of the structure, which, " therefore, would be a county bridge, ' independent of their connection with ' the arches over the Trent ; and also ' that most of the other twenty-nine ' arches are over water continually ' there, though stagnant, whereas in "/. v. Inhabitants of Oxfordshire, the " disputed arches stood on dry ground. " except at times of flood. We do not " consider it necessary to consider the " second difference, or to examine " whether an arch or number of arches " constructed across stagnant water, ' ought to be treated as constituting a ' bridge, or whether it is necessary that ' there should be ' fluinen rel citmvt ' ' aqu(B ' for that purpose because we ' think that the first difference is suffi- ' cient to take this case out of the 'authority of R. v. Inhabitants of ' Oxfordxhire, and to entitle the Crown to our judgment. " That case was tried twice. Upon the first occasion the indictment treated each of the arches as a separate ' bridge, and the Court held that to be ' wrong ; but Mr. Justice Bayley, in giving his judgment, used these words ' (1 B. & A. 299, note) : ' It is said that ' ' these arches are part of the bridge. ' ' There might be strong ground for ' 'coming to that conclusion, if it had ' ' appeared that they were erected at ' ' the same time as the main bridge, or ' ' if the inhabitants of the county had ; ' from time to time repaired 300 feet ' ' of the road beyond these arches, ' ' which (if they were part of the ' ' original bridge) they would have been ' ' liable to do. That is a matter of fact, ' ' and ought, to have been decided by a ' ' jury. We cannot say that they 1 ' necessarily are part of the bridge ; " ' and upon a special verdict we can " ' only draw necessary conclusions.' " Upon the second occasion (1 B. & "A. 289), the judgment treated the "whole as one bridge, and the jury " found a verdict for the Crown, which ' the Court set aside as being contrary ' to the evidence, and ordered a verdict ' to be entered for the defendants. ' None of these circumstances which ' Mr. Justice Bayley had mentioned in ' his former judgment as forming strong ' ground for coming to the conclu- ' sion that the arches were part of the BRIDGES. 597 by chains laid down across the bed of the stream, is in substance a ferry, and is not a " bridge " within the meaning of sect. 72 of the Mutiny Act (27 Viet. c. 3), which exempts from the payment of any duties or tolls on embarking or disembarking from or upon any pier, wharf, quay, or turnpike, or other roads or bridges, otherwise demandable by virtue of any Act already passed or hereafter to be passed. 1 Sect. 7 of 24 & 25 Viet. c. 70 (The Locomotive Act), enacts that where any bridge on a turnpike or other road, carried across any stream, watercourse, or navigable river, canal or railway, shall be damaged by reason of any locomotive passing over the same, ' bridge, were proved on that second : occasion. " Here, on the contrary, it appears ' that the whole structure has from time ' immemorial been treated as one 1 bridge ; that the whole of it f rom 1 beginning to end has been immemo- ' rially repaired by the county ; and. ' indeed, that twenty-two out of the ' twenty-nine arches in dispute have 'actually been rebuilt by the county. ' The facts, therefore, of this case are ' conclusive against the defendants to show that the whole structure is one 1 bridge, unless there be some rule of 'law which, under all and any circum- ' stances, prohibits every part of a ' structure from being treated as a 1 bridge under which water does not flow at all times. No such rule of law ' is to be found unless it can be deduced from the decision in R. v. Oxford- ' shire. Looking at all the circum- ' stances of that case, we do not think that any such rule can properly be deduced from that decision, notwith- standing the language used in the ' latter part of the j udgment and the 1 importance attached to the passage from 2 Inst. 701, aod to the use of the words ' super flume n Tel cursum aquce' 1 ~ in ancient indictments. Indeed, the confining of these words to a constant stre.im or course of water flowing at all times to the exclusion of flood waters, whether rarely or frequently occurring, is not altogether consistent ; with the doctrine laid down in a case ' in the same volume of reports, R. v. ' Trafford and others (1 B. & A. 874 ; 34 R. R. 680). In that case the ancient course and outlet of flood water had been obstructed by certain fenders or ; banks, and the Court in giving judg- ment said, ' Now it has long been ; established that the ordinary course " ' of water cannot be lawfully changed " ' or obstructed for the benefit of one " ' class of persons to the injury of ' ' another. Unless, therefore, a sound " ' distinction can be made between the " ordinary course of water flowing in a " ' bounded channel, at all usual seasons, " ' and the extraordinary course which " ' its superabundant quantity has been " ' accustomed to take at particular ' ' seasons, the erection and continuance " ' of these fenders cannot be justified. " ' No case was cited or has been found " ' that will support such a distinction.' " This view of the law was agreed to by " the Court of Exchequer Chamber, as is "reported in Bing. 210, though the " judgment was reversed from the in- " sufficiency of the special verdict. Now. "if it be unlawful to obstruct the "accustomed course of flood waters " which flow only occasionally, it is "difficult to see why a structure of "arches made to carry a highway in " such a manner as to permit flood " waters to flow in their accustomed " course should not be treated as a " bridge, though at ordinary times there " may be no water under them. At " any rate, where, as in the present case, " such arches are contiguous to, and, as " it were, the continuation of, an " acknowledged county bridge, and have " been immemorially treated by the " county as part of the bridge, no rule "of law prevents our saying that they " are so in point of law, as it is obvious " that they are in point of fact. " For these reasons we are of opinion " that the whole of this structure must " be taken to be one county bridge, " and that the verdict entered for the " Crown must stand." 1 Ward v. Gray, 13 W. R. 653 ; 11 Jur., N. S. 738 ; 34 L. J., M. C. 146 ; 6 B. & S. 345. f>9H OF FERRIES AND BRIDGES. A bridge may be a st reet within mean- ing of a statute. Persons building bridges under special autho- rity for their own benefit primarily liable to re- pair and maintain them. or coming into contact therewith, none of the proprietors, under- takers, directors, conservators, trustees, or other persons interested in, or having charge of, such navigable river, canal, or railway, or of such bridge, shall be liable to repair the damage, &c., but the same shall be repaired to the satisfaction of such proprietors, &c., by the owner or persons having charge of the locomotive at the time of the happening of such damage. This does not apply to county bridges. 1 A bridge may be so situate as to be a street within the meaning of a statute. 2 An indictment does not lie for not repairing a bridge unless it be in a highway. 3 " Highway " is a general term for all public ways, as well cart, horse and footways, 3 common to all the king's subjects. As has been remarked above, if a bridge be of public utility, 4 and used by the public, the public must repair it ; but where a bridge is built by an individual, or body of individuals, for his or their benefit, and constructed without public utility, or in order to restore to the public the use of a public way which such individual or body of individuals has obstructed, then the latter, and not the public, will be liable for the repair of such bridge. 5 By the common law where a person cuts through a high- way, even although empowered to do so by statute, there is an obligation imposed on him even if the statute is silent on the subject, to make a bridge for the passage of the king's subjects and to maintain it for all time. 6 Thus, in the case of Manley v. St. Helen's Canal and Rail. Company, 1 a canal company empowered to make bridges (inter 1 Reg. v. Kitchener, 29 L. T., X. S. 097. 2 Bearer v. Manchester, Mayor of, 26 L. J.,Q. B. 311 ; 8 E.&B.44 ; 29 L. T., O. S. 226. s Reg. v. Saintlff, 6 Mod. 25.1 ; Holt. 129; R. v. Saloji, 13 East, 95; 12 11. K. 307. 4 A bridge built in a public way with- out public utility is a nuisance, and so it is if built colourably in an imperfect or inconvenient manner, with a view to throw the onus of rebuilding and re- pairing it immediately on the county : //. v. Wett Riding of Yorkshire, 2 Kast, 342 ; 6 R. R. 439. 8 R. v. Went Riding of Yorkshire, 2 Kast, 342 ; 6 R. R. 439 ; "//. v. A'errisvn, 3 M. A: 8. 526 ; 16 R. R. 342 ; R. v. Lindsey, 14 East, 317 ; 12 R. R. 529; R. v. Kent, 13 East, 220 ; 12 R. R. 330 ; R. v. Simiertet, 16 East, 30:> ; Manley v. St. Heli-ris Canal, 4 H. & N. 840; 27 L. J., Exch. 159; Wiijyiiix v. lioddington, 3 C.& F. 544 ; 33 R. R. 699 ; AicJmll v. Allen, 31 L. J., Q. B. 283 ; 10 W. R. 741 ; 1 B. & S. 934 ; 6 L. T., Exch. 699 ; see Reg. \. Inhabitants of Southampton, ante, p. 590 ; as to right of access over land for the purpose of repairing a bridge, see MickletJncaite v. J\'ewl R R. 753. made repaiiable by the county) wholly R. v. Deronthire, 2 X. J: M. 212 ; rebuilt by order of the justices of 5 B. & Ad. 383 ; 39 11. R. 507. the island division of the county of BRIDGES. 603 The inhabitants of a county are not liable to widen a public County not bridge by force of their obligation to repair it. 1 Jj||| j. dges "A similar question to this," said Abbott, C. J., in Rex v. by force of Devon, 1 " came lately before the Court in a case from the county "of Lincoln, 2 and we then expressed a strong opinion that a " county was not bound to make a bridge wider than ever it had " been before. . . . The question now is, what extent of charge " can by law be cast upon the inhabitants of a county. . . . " Now, if we should lay down the law to be, that the inhabitants " of a county may be compelled to widen a bridge, I am utterly "unable to see why we should. not be at liberty to say that the " inhabitants of a parish are liable to widen a public highway." Where, however, a particular parish was bound by prescription Southampton. The new bridge was larger than the old, and different in form, and stood higher up the stream. The expense of the building and repairs were defrayed out of the island rate, imposed under a previous arrangement of 1774, under which bridges in the island were repairable by the tithings. The conditions prescribed by 43 Geo. III. c. 59 were not observed in building it : Held, that the county was liable to repair the new bridge. (See Reg. v. Southampton, 18 Q. B. 841 ; 17 Jur. 254 ; 2 L. J., M. C. 201.) By a local Act of 1807. a road parsing over a bridge was made repairable by trustees ; but at no time was the bridge or its approaches actually repaired by them. The road became an ordinary highway. By another local Act of the same year, a canal company was em- powered to support bridges across their navigation, provided no existing liability to repair a bridge not erected or altered by the company should be affected. The company raised the surface of this bridge without altering the structure, in order to give the approach to another bridge over their navigation the incline required by their Act. They did this without reference to the county surveyor or justices. By 33 & 34 Viet. c. 73. s. 12. where a turnpike road shall have become an ordinary highway, all bridges which were previously repaired by the trustees of such turnpike road shall become county bridges, and shall be kept in repair accordingly : Held that by this alteration the bridge had become repair- able by the canal company, and that this general provision of the last Act was not limited to those bridges erected by private expense, which alone were repairable by a county under 43 Geo. III. c. 59. s. 5. nor to bridges which had been actually repaired by trustees : Rey. v. Somerset, 38 L. T.. N. S. 452. Q. B. Div. 1 It. v. Inhabitants of Dtron, 7 D. & B. 147 ; 4 B. & C. 670 ; 28 K. E. 440. overruling R. v. Cumberland, 6 T. It. 194 ; 3 K. R. 149, where Lord Kenyon, C. J., laid down that an indictment for not repairing a county bridge may be removed by certiorari. notwithstanding stat. 1 Anne, c. 18, s. 5. and those who are bound to repair a bridge are bound to widen it if the exigencies of the public require ; Bayley, J., commented on Reg. v. Stratford, 2 Lcl. Baym. 1169, which had been cited by counsel for the Crown. 2 R. v. Inluilltants of Lincoln (E. T. 5 Geo. IV.. May 10th, 1824), where the Court suggested there was no case to be found in which it had been held that a county was liable to widen a public bridge, and intimated a strong inclina- tion of opinion that such a liability did not attach as an incident to the obliga- tion of repair. In R. v. Went Riding of Yorltxh ire, (2 East, 353. note (a) ; 6 B. B. 447. n.). where to an indictment against a riding for not repairing a public carriage-bridge, the plea alleged that certain townships hadiiiimemorially used to repair the said bridge ; evidence that the township had enlarged the bridge to a carriage-bridge, which they had before been bound to repair as a footbridge, was held not to support the plea. Where townships have so enlarged a bridge, which they were before bound to repair as a footbridge, they shall still be liable pro rata. Where an individnai builds a bridge, which he dedicates to the public, by whom it is used, the county are bound to repair it. 00-4 OF FERRIES AND BRIDGES. 43Ueo. III. c. 59, s. 2, as to widening bridges. Approaches to bridges. to repair an old wooden footbridge (used by carriages only) in times of flood ; and about forty years ago, the trustees of the turnpike road built on the same site a much wider bridge of brick, which was constantly used ever since by all carriages passing that way; it was held, that, to an indictment against the county for not repairing this bridge, a plea that the parish had immemorially repaired, and still ought to repair, the said bridge, was not supported by evidence of the above facts ; and that the burthen of repairing the new bridge must be borne by the county at large. 1 Sect. 2 of 48 Geo. III. c. 59, enacted that, " Where any bridge " or bridges, or roads at the end thereof, repaired at the expense " of any county, shall be narrow and incommodious, it shall and " may be lawful to and for the ' justices ' of the county, at any " of their General Quarter Sessions, to order and direct such " bridge or bridges, and roads, to be widened; improved, and " made commodious for the public." The section also contains a proviso, that " No money shall be applied to the amendment " or alteration of any such bridge or bridges until presentment ''shall have been made of the insufficiency, inconveniency, or " want of reparation of such bridge or bridges, in pursuance of " some or one of the statutes made and now in force concerning " public bridges." This section is permissive, and not imperative, and leaves the justices a discretion whether or not to order a bridge to be widened, though it is proved to them to be narrow and incommodious. 2 Till 1835 the inhabitants of the county were liable under the Statute of Bridges, 1531 (22 Hen. VIII. c. 5), *. 7, to repair not only bridges, but also the approaches for a distance of 300 feet on either side ; and, if indicted for the non-repair thereof, they cannot exonerate themselves, except by pleading specially that some other is bound by prescription or tenure to repair the same. 3 And this liability continues in the case of every bridge 1 It. v. Surrey, 2 Camp. 455. 2 lie Xetcport Uridge, 2 El. & El. 377 ; Jur., N. S. 97 ; 29 L. J., M. G. 52 ; 1 L. T., N. .S. 1131 ; cf. Reg. v. Adder- bury Euxt, 1 D. Ac M. 324 ; 5 Q. B. 187 ; 7 Jur. 1035 ; 13 L. J., M. C. 91. 3 Went. Riding uf Yorkshire v. R., (in error for King's Bench), 2 Dow. 1 ; 5 Taunt. 284 ; 7 East, 588 ; 3 Smith, 437 ; 14 K. R. 96, 751 ; R. v. Gloucester, 8 L. J. (0. S.), K. B. 97 ; 33 R. R. 394. The statute which imposes upon the person liable to maintain a bridge the liability to maintain the highway also to the extent of 300 feet from each end of the bridge applies to a case where the county at large is liable to repair the bridge and where a party is liable to do so by prescription or rationetenurfc,but the Court will not extend the operation BRIDGES. 605 built before that date. But as regards all bridges built since 20th March, 1836, the burden of maintaining approaches and the roadway supported by the bridge is thrown by sect. 22 of the Highway Act of 1835 (5 & 6 Will. IV. c. 50) on the highway authority, and not on the county. Under the Local Government Act, 1888, all county bridges are repairable by the county council ; and all business formerly done by quarter sessions in respect of bridges and roads repairable with bridges, and all powers vested in the justices of a county by the Highways and Locomotives (Amendment) Act, 1878 (41 <& 42 Viet. c. 77), are transferred to the county council (L. Gr. Act, 1888, ss. 3 and 11). Any bridge which is not a county bridge must be repaired as it was before the Act. The duty of repairing extends to the repair of all the artificial parts of the structure, and includes rebuilding if necessary ; as in the case of the bridge built by Queen Anne at Datchet (R. v. Inhabitants of Bucks). 1 Where there is a prescriptive liability to repair a bridge, it is an intendment of law, in absence of any evidence to the contrary, that the liability extends to 300 feet of the approaches of the bridge. 2 A new and substantive bridge of public utility, built within the limit of one county, and adopted by the public, is repairable by the inhabitants of that county, although it be built within 300 feet of an old bridge repairable by the inhabitants of another county, who were bound in course under the statute 22 Hen. VIII. c. 5, to maintain such 300 feet of road, though lying in the other county. 3 In such a case, each is a substantive bridge in a different county, and the bridge cannot be considered as an appendage to the other. The statute of Henry VIII. attaches equally on the inhabitants of each county in respect to its own bridge. 4 The liability imposed on a canal company by a private Act of Parliament of "making and perfecting," and maintaining and repairing bridges to carry highways over a canal, includes the liability to maintain and repair raised approaches which are of the statute to a case where the obliga- T. L. R. 686. tion to make and maintain a bridge is 1 12 East, 192 ; 11 R. R. 347. imposed by the statute which enables 2 Reg. v. Lincoln, 3 Ji. & P. 273 ; 8 the interference to be made with the A. & K. 65 ; 1 W., W. & H. 260 ; 2 Jur. highway : Hertfordshire County Council 615, 807 ; 47 R. R. 484. v. New Hirer Co., (1904) 2 Ch. 513 ; 74 3 R. v. Devon, 14 East, 477 ; 13 R. R. L. J., Ch. 491 ; 91 L. T. 796 ; 53 W. R. 285. 60 ; 68 J. P. 532 ; 3 L. G. R. 64 ; 20 4 Ibid., per Lord Ellenborough. 006 OF FERRIES AND BRIDGES. Where the parts of bridges arc in different counties. necessary at each end of the bridges, 1 unless they are relieved from such liability under their private Act. 2 Where a railway is carried over a highway by means of a bridge, no liability to keep in repair the immediate approaches on each side of the bridge is cast upon the county by any of the provisions in the Railway Clauses Consolidation Act, 1845, 3 even though the company have lowered the level of the old highway in making Ihose approaches. 4 It may sometimes happen that the two parts of a bridge may be situate in different counties, 5 in which case the lia- bility to repair would be naturally divided between the two counties. 6 The statute 5 < 6 Will. IV. c. 76, enlarging the boundaries of certain cities and boroughs in England and Wales, for the pur- poses therein mentioned, does not relieve a county from the repair of bridges situate within the new limits of boroughs, but which, previous to the Act, were without the old limits, and repairable by the county at large; 7 but where a county of a town has been created by charter and declared to be a separate 1 Xottingham County Council v. ~Mun- rliexter, Sheffield, and Lincolnshire Illy., K. H. 35 : 71 L. T. 430. * A-(f. v. Oxford Canal, (1903) 72 L. J., Ch. 285 ; 88 L. T. 520 ; 58 W. R. 386 ; (57 J. P. 130 ; 1 L. G. R. 282, C. A. Scmble, the duty lay on the County Council. A railway company held bound to widen a bridge but not its approaches under the Railways Clauses Consolida- tion Act, 1845 (8 & 9 Viet, c. 20) : llhondila I'rlmn District Council v. T.tff Vale. Hall. Co., (1909) A. C. 283. Sec also C'alednniaii Hail. Co. v. Glax- gow Cor/wratinn, (1909) A. C. 138, H. L. Sc. 8 &. 9 Viet. c. 20, ss. 4665. Sect. 46 imposes no obligation on a railway company to carry a public footpath over the railway, or the railway over a footpath by means of a bridge : Dartford liiiral Council v. Bexley Heath Jf/i/., (1898) A. C. 210 ; 67 L. J., Q. B. 231 ; 77 L. T. tfUl ; see also S. C., 65 L. J., Q. B. 463. As to liability of railway company, who, being authorized to make H level crossing for their own con- venience, make a bridge, see London and Xorth Western Illy. v. Of/icen Dittrirt. (1899) 80 L. T. 401, and 8. C., 79 L. T. 208. 4 London and Xorth Western lily. v. vv, 33 L. J.. M. C. 158 ; 5 B. & S. 559. Cf. Wtiterford and Llinerlclt Rail. Co. v. Kearney. 12 Ir. Com. Law Rep. 224. and Fosberry v. The Waterfordand Limerick Hall. Co. 13 Ir. Com. Law Rep. 494. 5 lie,/, v. Xew Saruiii. 2 New Sess. Cas. 133 ; 7 Q. B.241 ; 10 Jur. 176 ; 15 L. J., M. C. 15 ; Ilea. v. Brecon, 4 New Sess. Cas. 272 ; 15 Q. B. 813 ; 19 L. J., M. C. 203. Cf. It. v. Devon, 14 East, 477 ; 13 11. R. 285. 6 In A.-G. v. Forbes, 3 Myl. & C. 123 ; 45 R. R. 15, an injunction was granted on an information and bill, upon the ground of public nuisance, to restrain the magistrates of a county from cutting the timbers supporting the roadway of a bridge, which timbers and roadway, at the place proposed to be cut, were within their jurisdiction, but of which the other extremity was within the jurisdiction of a different county. ' Iteg. v. Neiv Sarunt, 2 New Sess. Cas. 133. Referring to this case, Patteson, J., in /^i/. v. Brecon. 4 New Sess. Cas. 272, said : " In that case, a parish containing " a bridge was added to an old borough, " which had never been liable to maiit- " tain any bridges, and it would be strange to say, that, in such a case, a ' new liability was cast where none had " existed before." BRIDGES. 607 county, the county in which it was originally situated is not liable for repair of a bridge within its boundaries. 1 Where a bridge over the Wye was situated in a certain parish, part of which was on the right and part on the left bank of the river ; and where, owing to the passing of 7 & 8 Viet. c. 61, doubts arose as to the liability of two counties on opposite sides of the river to repair the said bridge : Held, that, in the absence of any words in the Act determining the boundary between the two counties, the ordinary rule of medium filiim aqiue must apply, and that the middle of the river continuously was such boundary line. 2 A bridge at B. was partly within the county of Stafford and partly within the county of Derby. By a local Act the expenses of maintaining it were to be borne in equal moieties by the respective county rates. B. was an urban sanitary district partly within the two counties. Under sect. 50 (1) (b) of the Local Government Act, 1888 (51 d- 52 Viet. c. 41), B. became wholly included in the county of Stafford : Held, that notwith- standing the above section the local Act remained in force, and that both counties were still liable to pay equally for repairs. 3 " With respect to the liability at common law for the repair of Liability to " bridges ratione tenures," said Lord Denman, C. J., in Baker v. r t e e }^ atione Greenhill* " the result of the authorities seems to be to throw The owner of "the charge ultimately upon the owner, though primarily, as lan f I s t " far as the public are concerned, the occupier maybe the person though " chargeable by indictment in case of non-repair ; 5 (The Queen v. " Bucknell, 6 and the cases there cited) ; and it would seem from be. "those authorities, that, if the owner of land charged with the "repair of a bridge ratione tenure suffer it to be out of repair, " and the occupier of the land be indicted and fined, he would be " entitled to look for reimbursement to the owner who ought to 1 Reg. v. Inhabitants of Southampton, Ad. 201 ; 37 R. R. 396. An owner of 19 Q. B. D. 590 ; 17 Q. B. D. 424. lands who is not the occupier of them 2 Reg. \. Brecon, 4 New Sess. Cas. cannot be charged ratione. tenures with 272 ; 15 Q. B. 813 ; 19 L. J., M. C. 203. the repair of & common highway. Where 3 Staffordshire and Derbyshire County a highway repairable ratione tenuree is, Councils, In re. 54 J. P. 566 (1890). under statutory powers, so altered in its 4 3 Q. B. 148 ; 2 G. & D. 435. nature and course as to be practically 5 R. v. Sutton, 5 N. & M. 353 ; 42 destroyed, the liability to repair ratione R. R. 490 ; and also R. v. Kerrison, tenurte ceases : Reg. v. Barker, 25 Q. B. 1 M. & S. 435 ; 14 R. R. 491 ; R. v. D. 213 (1890). Oxfordshire. 16 East, 223; 14 R. R. 6 7 Mod. 55, 91; Hawk. P. C. b. 1, 491 : R. v. Hay man, M. & M. 401 ; 31 c. 77, s. 3. vol. 2. p. 258, 7th ed. R. R. 742 ; R. v. Middlesex, 3 B. &; 608 OF FERRIES AND BRIDGES. Liability of an infant seised of lands in socage. Of proprietor of a naviga- tion. "have it repaired, and who holds the land by the service of "repairing the bridge." 1 The remedy for the recovery of the expenses of putting in repair a highway or bridge repairable ratione tcnurte from "the person liable to repair," given to district councils by sect. 25 (2) of the Local Government Act, 1894 (56 f Yorkshire, 2 East, had of and in a certain mill, from time 359 ; 6 R. R. 447, n. Per Littledale. J. : whereof the memory of man runneth " I think the footbridge which was 392 612 OF FERRIES AND BRIDGES. What is evidence to negative an immemorial liability ratione tenura. Evidence of reputation admissible in proof of liability. Liability to repair by prescription. the inhabitants of the county for non-repair of a footbridge, that it was parcel of a carriage bridge which A. B. was bound to repair ratione tenime. The liability to repair the carriage-bridge, which had been built in 1119, and the repair charged on certain abbey lands of which A. B. was the present proprietor, was admitted ; but it was denied that the footbridge was part of the same, and it was proved that the latter had been constructed in 1768 by trustees of a turnpike road with the consent of a certain number of the proprietors of the abbey lands : Held, that this (being the footbridge mentioned in the indictment) was not parcel of the carriage-bridge which A. B. was bound by tenure to repair, and consequently that the county was bound to repair the footbridge. Per Lord Tenterden, " Now it is well established " that the inhabitants of a county, though bound to repair a " bridge are not bound to widen." On an indictment for the non-repair of a bridge ratione tenura : Held, that a record of 18 Edw. III., setting out a presentment of the Bishop of Lincoln for non-repair of the bridge and his acquittal by the jury, which was shortly after followed by a grant of pontage from the Crown, on the ground that it had been found by inquest that no one was liable to repair the bridge, is admissible in evidence to negative an immemorial liability ratione tenurce. 1 Where, in an answer to an indictment, it is pleaded that one A. is liable to repair ratione tenura, evidence of reputation is admissible in proof of such liability. 2 The principle as to prescriptive liability is discussed by Lord Ellenborough in Rex v. Ecclesfield. 3 Eeferring to the Statute of Bridges and Magna Charta, he says : 4 " From both which statutes it appears that towns or districts " smaller than a county had been accustomed in some cases to " make bridges ; and so, in fact, they continue to do until this ' erected in comparatively modern times ' cannot be considered as having become ' parcel of the old carriage-bridge re- ' pairable by the owners of the abbey ' lands, but was a distinct structure, ' and, therefore, that the verdict must ' stand for the Crown." 1 Reg. v. Sutton, 3 N. & P. 569 ; 47 R. R. 782. The jury, after finding a verdict of acquittal, also found that the bridge had been recently built, and that no one was liable to repair it. Semble, that such finding by a jury in ancient times is admissible as reputation on questions as to the liability to repair ratione tenures. 2 Reg. v. Bedfordshire,, 4 El. & Bl. 535 ; 1 Jur., N. S. 208 ; 24 L. J., Q. B. 81. 8 1 B. & A. 348 ; 19 R. R. 335 ; R. v. Hendon, 4 B. & A. 628, note O) ; 38 R. R. 333. * Page 359. BRIDGES. 613 " day. And upon the whole it seems manifest that the extent " of the territory chargeable in the case is to be ascertained by " usage and custom, and that in default only of an usuage and " custom to charge a smaller territory, the charge shall be upon "the larger, i.e., upon the county"; and he then goes on to draw an analogy between the liability of a parish to repair a bridge and that of a township to repair a road by usage. 1 As stated above, 2 the repair of bridges by tenure or prescrip- tion is a remnant of the trinoda necessitas, the common law liability of the county not being established fully till the passing of the Statute of Bridges in 22 Hen. VIII. c. 5. In such few cases, therefore, as the immemorial custom of repairing a bridge can be proved, it can be pleaded in defence to an indictment. 3 Hence, a parish may be indicted for non-repair of a bridge A parish maj' without stating any other ground of liability than immemorial b usage. 4 So, too, a hundred may be charged by prescription with the So, too, a reparation of a bridge ; and this, although it appears that by a hundred - statute within time of legal memory one of the townships, parcel of the hundred, was then annexed to it. 5 In such a case the proper way would be to allege that the corporation had immemorially repaired ; and then, however constituted the corporate body may have been at different periods, the allegation would be sustained. 6 A charter of Edward VII., granted upon the recited prayer of Or a prescrip- the inhabitants of the borough of Stratford-upon-Avon, recited [! cor P ora - that a guild in an ancient borough was founded and endowed with lands, out of the rents and revenues and profits of which a school and an almshoitse were maintained and a bridge repaired. Thus on the dissolution of the guild and the passing of the lands to the Crown, the inhabitants of the borough, reciting that the said borough had from time immemorial enjoyed franchises, liberties, &c., &c., &c., which had been enjoyed by reason of the said guild, and that by the dissolution thereof the borough and 1 Cf. Blackstone's Com. vol. i.p. 357 ; 4 B. v. Hend-on, 4 B. & A. C28 ; 38 9 Hen. III. c. 15 (Ruff.) ; 22 Hen. VIII. R. R. 333. c. 5. 5 -B. v. Oswestry, 6 M. & S. 361 ; 18 2 Ante, p. 583. R. R. H98. 3 R. v. Stratford-on-Ai-on, 14 East, 6 Holroyd, J., in R. v. Oawcstry, G 348; R. v. Oswestry, 6 M. & S. 361; M.&S.361 ; 18 R. R. 398. See note (a), 18 R. R. 398 ; R. v. ffendon, 4 B. & p. 361, of the report, for form of an Ad. 628 ; 38 R. R. 333 ; and cf. Reg. v. indictment against the corporation of Surrey, 2 C. & M. 455 ; Reg. v. Adder- Kingston for the non-repair of Kingston bury, 1 D. & M. 324. Bridge. 614 OF FERRIES AND BRIDGES. its government would fall into a worse state without speedy remedy, &c., &c., prayed to be deemed worthy to be made a body corporate, &c., &c. That they were in consequence granted to be a corporation " with the same bounds and limits as the " borough and the jurisdictions thereof jrom time immemorial had " extended to," and that the king, "willing that the almshouse " and the school should be kept up and maintained as heretofore " (but without mentioning the bridge), and that the great charges " to the borough and its inhabitants from time to time incident "might be the better sustained and supported," granted to the corporation the lands of the late guild. By parol testimony it was proved that as far back as living memory went, the corpora- tion had always repaired the bridge : Held, taking the whole of the charter and the parol testimony together, the preponderance of the evidence was, first, that this was a corporation by prescrip- tion, though words of creation only were used in the incorporating part of the charter of Edward VI. ; and secondly, that the burden of repairing the bridge was upon such prescriptive corporation during the existence of the guild before that charter ; though the guild out of their revenues had in fact repaired the bridge, which was only in ease of the corporation and not ratione tenurce ; and that the corporation were still bound by prescription, and not merely by tenure; and, therefore, that a verdict against them upon an indictment for the non-repair of the bridge charging them as immemorially bound to repair was sustainable. 1 Where there is a prescriptive liability to repair a bridge, it is an intendment of law, in the absence of any evidence to the contrary, that the liability extends to 300 feet of the approaches at each end of the bridge. 2 1 R. v. Stratford-on-Avim, 14 East, 807 ; 47 E. R. 484. See remarks of Lord 348 ; cf. R. v. Oswesfry, 6 M. & S. 361, Denman, C. J., therein on the Abbot <;/' note (a) ; 18 R. R. 398. Combe's case, 43 Assis. pi. 37 ; and on 2 lleij. v. Lincoln, 3 N. & P. 273 : 8 A. R. v. West Hiding of Yorkshire, 7 Si E. 65 : 1 W., \V. & H. 260 ; 2 Jur. 615, East, 598 ; 8 R. II. 688. ( 615 ) CHAPTER IX. OF TOLLS AND RATES. OF the incidents mentioned in the previous chapter, two viz., Tolls and tolls and rates remain to be noticed. Of these the first-named is naturally connected with the right of navigation, and has been ri " hts of already incidentally alluded to. 1 The second, that of rateability, arises from the improvement of land in value by water which either rises on it in the form of springs, or passes over it in the form of a natural watercourse, or is conveyed over it artificially, as by open channels or pipes. Toll, tolnetum, or telagium are all of them terms of the same Tolls. import, and signify, in a general sense, a sum of money paid by Definition. the buyer for exporting or importing goods and merchandise. 2 Toll has also been defined as " a tribute or custom paid for " passage " ; 3 while in the Termes de la Lay* it is described as " a " payment used in cities, towns, markets, or fairs for goods and " cattle brought thither to be bought or sold, and is always paid " by the buyer, and not by the seller, unless there is some " custom otherwise." 5 Such definitions are, however, as is stated in the authority above quoted, too general for practical purposes ; and the nature of toll will be better understood if we briefly examine the distinc- tion between toll thorough and toll traverse, the two chief species of toll. This will be conveniently done here, since as the law Of tolls relating to the taking of tolls for passage on a highway or g through a street applies equally to that along the sea or navig- able waters, it will be necessary to consider some points relating to the general law of tolls before treating of those incident to various rights of water. 6 1 See Chap. I., Chap. V., and Chap. "toll:" Pryce v. Monmouthnhlre Canal VII., and as to Ferries, Chap. VIII. Co., 4 A. C. 197 ; 49 L. J., Ex. 130 ; 40 2 Gunning on Tolls, p. 1 ; 2 Inst. 58. L. T. 630. 3 Wharton's Law Lex. (Cowel), p. Gunning, p. 2 ; Haspurt v. If ilia, 937 ; Brown's New Law Diet. 362. 4 Vent. 71 ; 1 Sid. 454 ; 1 Mod. 47 ; * See, too, Gunning, p. 1. Warren v. Pridfaux, 1 Mod. 104 ; 5 Gunning, p. 1. A charge for " stop- Mayor of Nottingham v. Lambert, ping loading and unloading" is not a Willes, 111; Truman v. Walgham, 2 616 OF TOLLS AND RATES. Toll thorough, definition of. Toll traverse, definition of. The distinc- tion between the two species of toll. Mayor of Nottingham v. Lambert. Toll thorough is a sum paid for passage through a highway, 1 or a toll taken from men for passing through a vill in a street, 2 both of which definitions apply equally to a toll taken for passage over the sea or on a navigable river, or over a public ferry or bridge. 3 It cannot be claimed unless the party demand- ing it can show that the public, whose common law right to a free passage along the highway he seeks to abridge, receive from him a good consideration for the imposition. 4 Toll traverse, on the other hand, may be prescribed for by a corporation or an individual without alleging any consideration, and the prescription will be good. 5 It derives its name from the fact that it is a toll paid for traversing the land of another, 6 and has been defined as " a sum demanded for passing over the "private soil of another," 7 and also as "a duty which a man " pays for passing over the soil of another in a way not a high " street, 8 though it may under certain circumstances, be payable " for passing over the common public highway." 9 The distinction between the two species of toll was exhaus- tively discussed in the judgment of Willes, C. J., in Mayor of Nottingham v. Lambert, 10 which was a prescription to take a toll for passing on an ancient navigable river. "... A difference has always been taken between toll thorough " and toll traverse. It has been holden several times and by the " best authorities that toll thorough cannot be supported without " a consideration ; but toll traverse may, because it in itself " implies a consideration. In the Book of Assize, 22 Edw. III. " c. 58, it is expressly laid down as a rule that toll thorough is " against common law and common right, and cannot be sup- " ported by usage. It is so likewise holden in Keilw. 148, 149, " that such toll is not allowable without some particular con- " sideration. It is said in 1 Leon. 232, that the king cannot Wilson, 296 ; Hill v. Smith (in error), 4 Taunt. 520 ; 10 R. R. 357 ; Richards v. Bennett, 1 B. & C. 223 ; 25 R. R. 372, &c., &c. 2; Com. Dig. tit. 2 ; Vin. Abr. tit. 1 Gunning, p. Toll (C). 2 Gunning, p. Toll. (A). 8 Haspurt v. Wills, 1 Vent. 71 ; 1 Sid. 454 ; 1 Mod. 47 ; Warren v. Prideauv, 1 Mod. 104; 2 Lev. 96; Mayor of Nottingham v. Lambert, Willes, 111. 4 Gunning, p. 3 ; Smith v. Shepherd, Moore, 574 ; Cro. Eliz. 710. As to definition of a " toll in gross," see Swansea Harbour Trustees v. Swansea Union, .post, p. 669. 5 Gunning, p. 27 ; Truman v. Walg- ham,2 Wils, 296. 6 Gunning, p. 26 ; Crispe v. Belwood, 3 Lev. 424. 7 Gunning ; Com. Dig. tit. Toll (D.) 8 Gunning ; Vin. Abr. tit. Toll (A) ; 22 Ass. 58. 9 Gunning; Pelham v. Pichersgill, 1 T. R. 660 ; 1 R. R. 348 ; Brett v. Beales, 10 B. & C. 508 ; 34 R. R. 499. 10 Willes, 111 et seq. ; see also Wool- rych, 302, and Gunning, 22. TOLLS. 617 " grant toll thorough for passing through a highway, for that is " an oppression to the people, for that every highway shall be " common to everyone. In 1 Vent. 71, in the case of The City " of Norwich? such custom was holden to be illegal and unreason- " able, unless for such vessels as unloaded at the quay there. " In several books it is called malum tolnetum, or an outrageous " toll, and an oppression on all the subjects of England, which " sort of tolls are condemned in Magna Charta (9 Hen. III. c. 30), " and by the Statute of Westminster 1 (3 Edw. I. c. 31), where it " is said that if anyone take outrageous tolls contrary to the " common law of the realm, if it be in a vill of the king's, the " king shall take away the franchise. And this distinction is " supported by reason as well as authority ; for how can a duty " be imposed on all the subjects of England only for enjoying " that privilege which is their ancient birthright, and which " every subject had a right to before ? If, indeed, they receive " any particular benefit, as going over a bridge, coming into a " quay, wharf, port, or the like, this, indeed, may alter the case ; " but then this must be particularly shown. 2 Some cases have " been cited to the contrary, but when looked into they either " stand on some particular reason which plainly distinguishes " them from the common case, or it is only said obiter that such " tolls may be supported by prescription without any considera- " tion ; but the reasons given for it are such as make such dicta " of no weight or authority. 3 It is said, indeed, in some books, 1 Haspurt v. Wills (in error), 1 them, but if they had received their Vent. 71 ; 1 Mod. 47, S. C. (reported freight at the wharf, it might extend to by name of Heshod v. Wills), 1 Sid. them. The reports of this case in Vent. 454. See, too, Gunning, p. 21, Wool- and Mod. differ ; on which point see rych, p. 302. This was a special action Gunning, p. 22, and Woolrych, p. 301. on the case on a custom of wharfage 2 Mayor of Yarmouth v. Eaton, 3 in Norwich. Plaintiff stated in his Burr. 1402. Mayor and corporation of declaration that he had and maintained Yarmouth prescribed to have a toll a common wharf and crane thereto called measurage from every merchant attached for unloading such goods as exporting corn or grain from the port were brought up the river in vessels to of Great Yarmouth to ports beyond the the city, and custom alleged was that seas, but the consideration was not set every vessel passing through the river forth. There was a demurrer, and it by the wharf paid a certain duty for was said that there could not be any which the action was brought. The thorough toll without a special con- Court held the custom bad and void as sideration ; but the Court were of a to all vessels which did not unload "at different opinion. See, too, Gunning, " the wharf or any other place within p. 23, and VVoohych, p. 301. "the city," there being no benefit 3 His lordship then referred to 21 redounding to them from the main- Hen. VII. fol. 16; Smith v. Shepherd, tenance of the wharf, they only passing Cro. Eliz. 711 ; Moor, 576 ; James v. by bound for another place, and they Johnson, 1 Mod. 232, and other authori- could, therefore, have no imposition on ties. 618 OF TOLLS AND RATES. " and particularly in the case of James v. Johnson, 1 that if the " prescription be found (as it is in the present case), it must have " a reasonable commencement ; but this is laid down generally " without consideration, and without distinguishing the nature " of the cases. For though this may be true sometimes in the " nature of a private right, it is plainly otherwise in the case of " a right to which all the subjects of England are entitled. For " if a reasonable commencement be presumed, it must be that it " began by agreement, and that such an agreement, being so long " ago, cannot be proved well, may be well enough in the case of " a private right. But who could agree for all the subjects of " England ? They cannot consent to part with their rights any " otherwise than by Act of Parliament, in which the consent of " everyone is implied. This distinction is obvious, and founded " on good sense. ... In several of the cases cited there is a " particular benefit to the subject, as coming into a port, or land- " ing on the plaintiff's manor or quay, which distinguishes it " from toll thorough. So are the cases Haspurt v. Wills? " Mayor of London v. Hunt, 3 Crispe v. Belwood* and several " other cases which were cited. 5 And there is a further reason " to be given for the determination in 3 Lev. 37, that the duty " was claimed by the city of London, whose customs and " franchises are all confirmed by Act of Parliament. 6 In the " case of Wilkes v. Kirby, 1 the duty was expressly laid to be paid 1 1 Mod. 232. the easement in landing goods on his 2 Ibid. 478. soil. The case was distinguished from 8 3 Lev. 37. that of Warren v. Prideavx, 1 Mod. 4 3 Lev. 424 ; andcf. Colton v. Smith, 104, which see post. Cowp. 47 ; Willes, 117, note (a). 6 Mayor of London v. Hunt, supra. 5 In The Mayor of London v. Hunt, it ' 2 Lutw. 1519. This case (also was objected in assumpsit for weighage reported 1 Lutw. 490, and see Gunning, of goods brought into the Port of London pp. 19, 20; and Woolrych, p. 300) was that there was no consideration for the an action of trespass for taking plaintiff's duty. But as the defendant had the goods at the port of King's Lynn in liberty of bringing his goods into port, Norfolk. Defendant justified under a which is a place of safety, it was plea of prescription for owners of the resolved that the consideration was port of King's Lynn, to take a certain implied (3 Lev. 37 ; see, too, G unning, toll for merchandise loaded there, to be pp. 29, 33, 115 ; and Woolrych, p. 300). exported from thence by foreigners not In Crispe v. Belwood, 3 Lev. 424 (see free of the borough, and plea alleged also Gunning, p. 21; and Woolrych, that il this was towards the necessary p. 300), on the other hand, the Court " reparation of the port," and a right to supported the claim of a lord of the distrain on refusal to pay. On demurrer, manor, to toll for all goods landed it was objected that this was not a good within the. manor, though not upon the plea, because it was stated only that the wharf, which alone, as appeared by the toll was towards the reparation of the plea, the lord repaired ; remarking that, port, and not that the owners of the originally the lord was owner of all the port in fact repaired, or were bound to soil in the manor, and that, therefore, repair, the port, and, in consideration the prescription was good in respect of of such obligation, took the toll. It TOLLS. 619 '* erga reparationem portus. It is best, therefore, to adhere to the " old rule, which is founded upon the best reason, that toll " thorough cannot be maintained without a particular considera- " tion shown." The principles here stated have been confirmed by subsequent decisions ; and there seems no ground for believing, as stated by counsel in James v. Johnson, 1 that the terms " toll traverse " and " toll thorough " are used promiscuously. Though Woolrych seems not to dissent from that doctrine, 2 it appears to be satis- factorily refuted by the remarks of Willes, C. J., in the judgment just noticed, who states the distinction between the two " to be " obvious, and founded on good sense " ; and according to Gun- ning on Tolls, 3 the case of James v. Johnson is one of questionable authority. 4 These authorities seem sufficient to support the distinction above given between toll thorough and toll traverse, the former of which, being contrary to common right, 5 is treated with great jealousy by the Courts, 6 which will require the person seeking to charge the public with it to prove to their satisfaction a good consideration for it, and such consideration will not be implied even from a prescriptive taking of toll. 7 It is, however, frequently a right incident to ports, as will be seen later on. Toll traverse, which can only be demanded when it has been used to be taken time out of mind, 8 and the reservation of which must be contemporaneous with the dedication of the way to the was also objected that the consideration " tion, and payment time out of mind is itself was insufficient in law, even if it " sufficient, and will support the pre- was well pleaded. The case was not " scription." Cf., too, the remarks of decided; but the Court (according to Lord Tenterden, C. J., in Brett v. Beales, Gunning) strongly inclined for the tie- 10 B. &C.508 ; 1 M. & M. 416 ; 34 R. R. fendant, because he might have been 499 ; Hill v. Smith, 4 Taunt. 520 ; 10 indicted for not repairing the port. R. R. 357 ; Popham, J., in Smith v. 1 1 Mod. 232, per Serjeant Maynard. Shepherd, Cro. Kliz. 710 ; Moore, 574. 2 Woolrych, p. 303 ; and see Ste'imon See also Pel/tarn v. Piclfersgtil, 1 T. R. v. Heath. 3 Lev. 400. G60 ; 1 R. R. 348, remarks of Buller, J. ; 8 Gunning, p. 26. Brecon Markets Co. v. Neath and Brecon * In Truman v. Walnham (2 Wilson, Rail. Co., 42 L. J., C. P. 63, Exch. ; 296), the Court said:' "This is a pre- Richard* v. Bennett, 1 B. & C. 223 ; 25 " scription for toll for passing through R. R. 372 ; Lauretife v. Hitch, 9 B. & 'the Kind's highway; . . . which S. 467; Middleton v. Lambert, 1 A. & ' cannot be taken unless a good con- E. 401 ; 40 R. R. 309 ; Peg. v. Salisbury ' sideration be alleged : the reason is, (Marquis), 3 N. & P. 476. 1 because it is to deprive the subject of 5 Gunning, pp. 3, 25 ; Thorpe, J., 22 ' his common right and inheritance, to Ass. 58 ; 2 Roll. Abr. tit. Toll (B), pi. 1 ; 'pass through the King's highway, Mayor of Nottingham v. Lambert, which right of passnge was before all Willes, 111 ; Woolrych, p. 299. ' prescriptions [Smith v. Stephen, Moore, 6 Truman v. Walgham, 2 Wils. 96. '574]. Toll traverse, or for going 7 Mayor of Nottingham s v. Lambert. 'through a man's private land, may be Willes, 111. 'prescribed for. without any considera- 8 KHz. tit. Toll, pi. 3. 620 OF TOLLS AND RATES. public, 1 is sometimes due for the private ferry, bridge, &c., of another. 2 The right to take tolls exists only by Act of Parliament, 3 by express grant from the Crown, or by immemorial usage, which pre-supposes such a grant, and from which, if uncontradicted, a grant must be presumed. In no case can a claim for toll be supported unless some consideration can be shown on which to found the claim, an express grant from the Crown being void unless founded on sufficient consideration, the creation of a toll being only a mode of paying for a public service. 4 When an Act authorizes the exaction of a toll, the accommodation for which the toll is authorized must be provided. Thus where the fishermen of a sea village had been immemorially accustomed to beach their boats in winter on ground adjoining the harbour, and where the proprietor had subsequently obtained a local Act authorizing his levy of five shillings yearly for each boat beached, the fishermen's rights were enforced against him, and it was held, that he could not exclude the fishermen from the ground used for beaching without assigning them other ground equally well-adapted for the purpose. 5 1 Pelham v. PicJterxgill, 1 T. R. C60 ; 1 R. R. 348. 2 1 Sid. 454. 8 When an Act of Parliament has confirmed a right to take toll which formerly existed by custom or prescrip- tion, such right becomes thenceforward a statutory right, and the lower right is merged in the higher Parliamentary title: Taylor v. Windsor, (1899) A. C. 44 ; 68 L. J., Q. B. 87 ; 79 L. T. 150. In London County Council v. General Steam A'avigation Company, Ltd., (1907) 96 L. T. 57 ;' 10 Asp., M. C. 340 ; affirmed 97 L. T. 57 by two private Acts of Will. IV. the Greenwich Pier Company was authorized to make and maintain a pier and to take certain rates, duties, and tolls prescribed by such Acts. Woolwich Pier was constructed as a private undertaking and the lease became vested in the Thames Steam- boat Company, who made certain charges for the use of such pier. Under the Thames River Steamboat Line Act, 1904, the London County Council bought from the Greenwich Pier Company " their undertaking (including " therein all the property, estates, rights, " and privileges ... of the Greenwich " Company)," and they also purchased the Woolwich Pier "and any rights "and powers connected therewith." By sect. 15 of the Act of 1904 the London County Council could "charge "and levy in respect of vessels calling at " the piers and landing-places a toll not "exceeding the amount stated in the " schedule to this Act." Held, that the London County Council had no statutory right to charge any tolls in respect of Greenwich Pier or Woolwich Pier beyond those chargeable by virtue of sect. 15 of the Act of 1904 ; and that they were not entitled to charge the tolls prescribed by the pri- vate Acts of Will. IV. in respect of Greenwich Pier, or any reasonable sum in addition to the tolls pi-escribed by the Act of 1904 in respect of Woolwich Pier. Any facilities, however, provided by the London County Council which they were not bound to provide under the Act of 1904 would have to be paid for by the person at whose request, express or implied, they were provided. 4 Jenkins v. Hareey, 1 C. M. & R. 877 ; 40 R. R. 769 ; Jtingston-on-Hull Docks v. Lama re he, 8 B. & C. 42 ; 32 R. R. 337 ; Falmouth v. George., 5 Bing. 206; 30 R. R. 597 ; Gann v. Free Fishers o/ Whitstable, 11 H. L. 192 ; Mayor of Nottingham v. Lambert, Willes, 111 ; Mayor of Exeter v. Warren, 5 Q. B. 773 ; see ante, Chap. I. pp. 69 et seq., and post, pp. 626 et seq. 6 Alton v. Stephen, 1 A. C. 456 ; H. L., Sc. (1876). TOLLS. 621 Previous to the Prescription Act, 1 " it was necessary to show Prescription " that the right prescribed for existed in the time of Richard I., " which was done either by positive proof of its existence at that " remote period, or by the evidence of modern usage from which " its existence at that time could be inferred." 2 Though, however, it is now regulated by that statute, the question of immemoriality may still arise. " ' Prescription,' ' from time whereof the memory of man " runneth not to the contrary,' and ' time out of mind,' are all " one in law, 3 and this, says Lord Coke, 4 is to be understood not " only of the memory of anyone living, but also of proof of any " record, writing or otherwise to the contrary." 5 Where rights are claimed by prescription, the jury ought to be directed that from modern usage they are warranted in presuming that the right claimed is immemorial, unless they are satisfied of the contrary by other evidence. 6 No objection can be made on the ground of rankness 7 to a toll the right to levy which depends upon a corresponding obligation to do something beneficial to the payers of the toll. The long enjoyment of tolls lays a foundation for a good con- sideration in respect of them. 8 " Where a record is produced to prove a custom, and there is " no direct issue on the custom, the constant practice is," said Lord Abinger, C. B., 9 " to give some evidence to show that the " custom was really in question, otherwise a verdict in indebitatus " assumpsit would prove nothing." "It is well known," said Best, C. J., " that many tolls are good " under a custom of which a good grant could not be made at the <: present time. A custom which is proved to have existed imme- " morially will be good if it be of such a nature that it is possible " it can have had a good beginning. Although it be such as to " confer what the king cannot now grant, yet if it be not contrary " to reason it may be supported ; for it might have had its com- " mencement from an Act of the legislature. Custom is a local " law which supersedes the general law, and if the law gives us 1 2 & 3 Will. IV. c. 71. 7 Ibid. ; 1 Gale, 454 (Exch.) ; 5 Tyr. 2 Gunning, pp. 27, 28. 187. Com. Kg. tit. Prescript (E). Woolrych p. SOo , ; Mayor of JBrrtrr 4 Co. Litt. 115 a. v. Warren, o Q. B 773 ; ***;* 5 Gunning, p. 27. M. 524 ; Reg. v. Simpson, (1901) 2 Ch. e Jenkins v. Harvey, 1 Gale, 23 671 (C. A.). (Exch.) ; 40 R. R. 769. See Goodman*. 9 Laybvrn v. Crisp, 4 M. &, YY. AM, Saltath Corporation, 7 A. C. 633. ante, 325. pp. 381 et seq. 622 OF TOLLS AND RATES. " the maxim, 'Comueto ex certd causa rationabili privat communem " ' legem,' the custom on which the plaintiff rests his claim appears " to us to be reasonable and convenient, even to those who resist " its establishment ; advantageous to the public by encouraging l< a valuable fishery ; and highly beneficial as tending to the "preservation of human life. . . . " Wherever customs are set up, judgments in cases between " parties are admissible to prove or disprove such customs." l Where an undertaker improved the navigation of a river by making locks and cutting channels under ancient charters which gave him and his heirs and assigns the sole licence and power of carrying goods in and through the river and all profits by carry- ing such goods, but did not specifically grant to him a right to take tolls, and it was proved that a rate had been charged and paid for more than two centuries for the passage of boats laden with merchandise through each of the locks, it was held that the public were entitled to pass through the locks, but only on the payment of a reasonable toll for boats laden with merchandise. 2 The right to A toll reasonable in amount, but varying from time to time according to the value of money, is valid in law. 3 Tolls on canals are now regulated by 36 & 37 Viet. c. 48, s. 15, the Eegulation of Eailways Act, 1873, and 51 & 52 Viet. c. 25, the Eailway and Canal Traffic Act, 1888. See ante, pp. 562, 563. Equality clauses are, however, expressly introduced into all modern Acts empowering companies to levy tolls, which provide that the tolls shall not exceed the maximum allowed by the Act. 4 On this the case of Hwtgerford Market Co. v. City Steamboat Co. is important. 5 By sect. 76 of 11 Geo. IV. c. to., the Hungerford Market Com- pany were empowered to take from the masters of steamboats in respect of passengers landing on or embarking from the wharf authorized to be erected by them such tolls within the maximum of 2d. for each passenger as should " at any time or from time " to time be fixed and appointed by the company." By sect. 53 of 6 (6 7 Will. IV. c. cxxxiii., for building a footbridge over the Thames from Hungerford Market, called " The Charing 1 Lord Falmouth v. George, 5 Bingh. M. C. 86. 286 ; 2 M. & P. 457 ; 30 R. R. 597. 4 See ante, pp. 562 et teg. As to right 2 Reg. v. Simjjgan, (1901) 2 Ch. 671 of lessee of tolls under a private act to (C. A.). raise the rates, see Milnian v. Renwick Laurence v. Hitch, 9 B. & S. 467 ; Wilton # Co., 22 T. L. R. 168. as to notice of varying of tolls, see 3 30 L. J., Q. B. 25 ; 3 L. T., N. S. Gregton \. Potter, 4 Ex. D. 142 ; 48 L. J., 732. TOLLS. 623 " Cross bridge," reciting that it was contemplated that the northern pier of the bridge should be a landing-place for pas- sengers embarking or disembarking at the pier, or from any float attached thereto, the company were empowered to take the same tolls as they were empowered to take at their wharf under their former Act. The bridge having been built, and the northern pier having been used as a landing-place, the plaintiffs resolved that the toll to be paid should be 2d., subject to such " modifications " as may have been agreed on, or may hereafter be agreed upon " in any particular cases, between this company and the owners " or proprietors of steamboats or vessels." By sect. 125 of 6 < 7 Will. IV. c. cxxxiii., the tolls to be taken by the Hunger- ford Bridge Company by virtue of that Act were to be charged equally, and no reduction or advance in them was either directly or indirectly to be made in favour of any particular person or company : Held, 1st. That there was no obligation on the plaintiffs to impose an equal toll on all persons or steamboat companies ; and that sect. 76 of 11 Oeo. IV. c. Ixx. did not restrain them from making agreements with steamboat companies for a lower toll than that fixed and appointed; 2nd. That sect. 125 of 6 & 1 Will. IV. c. cxxxiii. applied only to tolls taken by the bridge company, and not to the defendants. 1 Where certain justices convicted a person for taking a toll greater than by law he was allowed to do, and a rule was obtained to remove the case into the Court of King's Bench: held that a mere claim of a right to take certain tolls, without showing clearly that it is a bond fide claim, is not sufficient to oust the justices of their jurisdiction to convict for taking them improperly. 2 The power to take tolls entails on bodies incorporated by Power to take . , . , , t tolls entails statute the same liabilities as would exist in tne case * on bodies in- individuals, and which liabilities form part of the consideration ^f^ 7 necessary to support a toll. " Where a body (such as the Mersey liability as " Docks and Harbour Board) is constituted by statute having the " right to levy tolls for their own profit, in consideration of their " making and maintaining a dock or canal, there is no doubt of 1 See remarks of Cockburn, C. J., as 2 R. v. Hampshire Jmtices, 3 D. P. to the power of the company to vary C. 47 ; 35 R. R. 407. See, too, as to the tolls and on Lord Ellenborough's judg- alteration and variability of tolls, Lan- ment in Lees v. Manchester and Axhton- cum, v. Lorell, 6 C. & P. 463 ; Barton v. Hder-Lyne Canal, 11 East, 645; 11 Benett, 12 W. R. 709, Q. B. R. R. 297, post, p. 661. 624 OF TOLLS AND RATES. Even where such bodies receive tolls for beneficial or fiduciary purposes. Tolls, how extinguished. " their liability to make good to the person using it any damage " occasioned by their neglect in not keeping the works in proper " repair." l Therefore, such a corporation being empowered by Act of Parliament to make and maintain docks for the use of the public, and to take tolls from persons using them, was held liable to the owners of ships in actions for negligence, as long as the docks remained open for the public, and was held bound, whether they received the tolls for beneficial or fiduciary purposes, to take care that the docks were navigable without danger. 2 Tolls granted by statute may be extinguished either by the act of God or by law. 3 A franchise to take tolls becomes extinguished where a private Act dealing with such tolls does not operate as a mere recognition of the customary title to take such tolls, but gives a statutory title with different incidents to take tolls of the same amount. Where an Act of Parliament, according to its true construction, has embraced and confirmed a right which previously existed by custom or prescription, such right becomes henceforth a statutory right, and the lower right by custom and prescription is merged in and extinguished by the higher title of the Act of Parliament. 4 Lease of tolls. It would appear that in order to pass any interest by a Lease of tolls a deed is necessary. Thus where certain tolls traverse of a bridge were let, but not by deed, it was held that no interest passed, and that the owner of the bridge was therefore rateable in respect of his beneficial occupation. 5 Swatman v. Ambler 6 was an action of debt on an indenture bearing date 27th December, 1849, and made between five com- missioners of an inland navigation, under the authority of several Acts of Parliament, of the one part, and the defendant of the other part, whereby the commissioners, in consideration of a certain rent, demised the tolls of the said navigation to the defendant for a year from the 1st of January, 1850, at the rent 1 Lord Cranworth, L. C., in Mersey Dock Co. v. Gibbs, 11 H. L. Cas. 686 ; 12 Jur., N. S. 571. 2 Ibid, (affirming the judgment of the Court of Exchequer Chamber, 8 Jur., N. S. 486) ; Parnabyv. Lancaster Canal Co., 11 Ad. & E. 213 ; Mersey Dock and Harbour Soar A v. Cameron, 11 Jur., N. S. 746. See ante, p. 310, and pp. 533 et seq. 8 Brown v. Mayor of London, 9 C. B.. N. S. 726 ; 17 Jur., N. S. 755 ; affirmed on appeal, 13 C. B., N. S. 82. 4 Taylor v. New Windsor Corporation, 67 L. J., Q. B. 96 ; (1898) 1 Q. B. 186 : 77 L. T. 585 ; 62 J. P. 5, C. A., affirmed in House of Lords, 68 L. J., Q. B. 87 ; 79 L. T. 150. 5 Reg. v. Marquis of Salisbury, 3 N. & P. 476 ; 8 A. & E. 716. 6 8 Exch. 72 ; 22 L. J., Exch. 81. See the judgment of Martin, B. ; and cf. Pitman v. Woodbury, 3 Exch. Rep. 4 ; 22 L. J., Exch. 83 : and the judgment of Parke, B., therein. TOLLS. 625 of 8,470J. together with certain other payments, and the defendant covenanted with them, and also with the whole body of the commissioners, as a separate covenant for the payment of the rent. Breach, non-payment of the rent. Plea that the com- missioners never executed the lease, and that the entry and occupation was at the will of the commissioners only, and not under the demise. Eeplication that the defendants had entered, and had received and enjoyed the tolls, &c., by the permission of the commissioners, under the terms of the indenture. Held, that as the lessors had not executed the lease, the lessee had never received the consideration for which he had stipulated, namely, a permanent estate during the demise and under its terms, and therefore that he was not liable to be sued on his covenant on the lease. A right of distress is incident to every toll, 1 and the distress Right of dis- may be made on the thing itself in respect of which the toll is ^toiisT due, or on any portion of it, as on a ship or any part of it for a toll due on goods exported in the ship, 2 or under sect. 17 of the St. Katherine's Dock Act on any goods of the same owner on the premises. 3 A power of distress implies an antecedent right of action. 4 Having thus indicated some of the points which it was Tolls incident necessary to consider with regard to the general law of tolls, we fc ' ^s hts of will proceed to consider those incident to the rights of water, in the following order : 5 Customary ) I. Tolls on the sea and navigable rivers, which Tolls, j will be found to include port tolls. 6 o, , , \ II. Tolls for harbours, lighthouses, docks, and ^ Tolls/ 7 I piers * J III. Tolls on canals. 1 Gunning, p. 216 ; Bac. Abr. tit. ment. There are also certain species of Distress, pi. 6 ; Vin. Abr. tit. Toll, I.; tolls closely connected though not en- Heddy v. Wheelhouse, Cro. Eliz. 558 ; tirely identical with port tolls, which and post, p. 665. Lord Hale (see p. 640, post) terms shore 2 Chinning, p. 216. Vinkemterne v. tolls, which sometimes are originated by Ebden, 1 Raym. 386 ; 1 Salk. 248 ; Carth. custom and sometimes by statute. The 357. division, therefore, of tolls customary, * Green v. St. Katherine's Dock Co., tolls partially statutable and partially 19 L. J., Q. B. 53 ; 13 Jur. 116. customary, and tolls statutory, might 4 G E. Rail. Co. v. Harwich Corpora- have been adopted. It would not, how- tion, 41 L. T. 835 ; 44 J. P. 104, H. L. (E.). ever, seem to be so convenient in a work 5 While the first class of tolls are treating specially on tolls incident to created only by grant, custom, or pre- water, and it has, therefore, been deemed scription, it will be found that the better to follow the method adopted by second and third are for the most part Woblrych. levied on the authority of Acts of Parlia- 6 For ferry tolls see ante, Chap. V 1 1 1. L.W. 40 626 OF TOLLS AND RATES. Tolls on the sea and navig- able rivers. 1. Where benefit is done to the community. 2. Where toll is created by legislature. Mayor of Nottingham v. Lambert. "The rights of water," says Woolrych, 1 "are not in general " liable to tolls. Indeed, it may be laid down as a principle, '* subject to certain qualifications which will be stated by and by, " that public waters are exempt from any claim of this kind. " They are the birthright of every man, and a duty cannot there- " fore be imposed in respect of such privileges." Hence no toll is demandable from vessels navigating the high seas, which have been called " the great highway of the world " ; 2 and there can be no prescription to take toll on an ancient navigable river, 3 which is in the nature of a highway, and where, if the water alters its course, the way alters also. 4 This freedom from toll, however, is subject to two exceptions, 5 both in the case of the sea and navigable rivers. As has been stated above, toll over a public highway is usually toll thorough, and a prescription for toll thorough 6 cannot be supported in law unless a good consideration be shown for it, though toll traverse, where a consideration is implied, may. 7 Hence the exceptions referred to occur, 1st, where benefits are done to the community at large, which form a good consideration for a toll ; and 2nd, where a toll is created by the legislature. 8 With regard to navigable rivers, as well as to tolls generally, the case of Mayor of Nottingham v. Lambert? which has already been alluded to, is of great importance. It was a case on a special verdict, in which the plaintiffs declared that Nottingham has been time out of mind a town corporate, and called by several names according to the several charters set forth in the declaration. That the manor of Nottingham is an ancient manor, and that time out of mind till 15th of September, 28 Hen. F/., it was parcel of the county of Nottingham, and from that time and still is within the county of the town of Nottingham. 10 That the river Trent in and through- out the said manor is, and time out of mind hath been, an ancient 1 Woolrych, Law of Waters, p. 298. 2 Ibid. p. 299. 8 Mayor of Nottingham v. Lambert, Willes, 111 ; cf. Lord Chelmsford in Gann v. Free Fishers of Wkitstable, 11 H. L. Gas. 223. * Gunning, p. 19. Com. Dig. tit. Chein. A. 1 ; citing Thorpe, L, 22 Ass. 93 ; and cf. Gunning, p. 18 ; 10 Mod. 384 ; Willusi v. Kirby, 1 Lutw. 490 ; 2 Lutw. 1619. 5 Woolrych, p. 299. 8 See ante, pp. 615 et seq. 7 Mayor of Nottingham v. Lambert, Willes, 111. 8 Woolrych, p. 299. 9 Willes, 111. The case was twice argued, first, on 1st June, 1738, and again on the 2nd November of the same year. 10 Which was made a county of itself by the charter of 15th September, 28 Hen. VI., the last charter that of 19th October, 4 W. & M., incorporating the plaintiffs by the name of the Mayor and Burgesses of the town of Nottingham. TOLLS. 627 navigable river ; and that the mayor and burgesses of Nottingham, and all their predecessors by their several names, have time out of mind had and received and used, and ought of right to have and receive, by their ministers and servants a certain duty or toll of every master or navigator of every boat, barge, or other vessel laden with goods, wares and merchandise navigated on the said river Trent through the manor aforesaid (the said master or navigator being a foreigner and not a burgess or freeman of the said town), viz., 2d. a ton for every ton of goods loaden and being upon any vessel so navigated as aforesaid. Then they set forth that the defendant was a foreigner and not a burgess or freeman ; that he became indebted to the plaintiffs, &c., and being so indebted promised to pay and hath not paid, &c. Likewise they further declare for a toll for passing through a certain bridge. The jury found a special verdict on the first count (to which the defendant pleaded the general issue that he had made no such promise), affirming the matters alleged in the declaration, and also "that there was not any consideration proved to them " at the trial for the payment of the said duty or toll," and concluded as usual, submitting the matters of law to the judg- ment of the Court. Willes, C. J., who delivered the opinion of the Court, was of opinion that the toll claimed was a toll thorough, that a prescrip- tion for toll thorough in a navigable river cannot be supported in law unless a consideration be shown for it, and that, as in this case no consideration was proved, judgment must be given for the defendants. The plaintiffs did not claim as lords of the manor or owners of the soil of the river ; but from the case of Gann v. Free Fishers of Whitstable, 1 cited hereafter, which decides the point with regard to tidal estuaries, it may be pre- sumed that such a claim could not be supported even in non-tidal waters without consideration. Commenting on this case, Woolrych 2 observes : " Hence it There can be " appears that there are two cases in which toll may be had "JJ^"^^ " upon a public river ; 1st. Where a sufficient consideration save where " appears, and 2nd. Where the nature of the benefit is such cScon"* ft as to imply a consideration." As an example of the first- sideration, or H ocncnt to named instance, he cites an action for toll 3 brought by the the public implying such 1 11 H. L. Gas. 192. See ante, p. 71, 2 P. 303. consideration. and post, p. 635. 8 Ibid. 21 Hen. VII. c. 16. 402 628 OF TOLLS AND RATES. Tolls on the sea only demandable where such consideration as a port can be shown. mayor and burgesses of Gloucester in respect of every boat passing up the river when the claim was allowed ; and for the second case he adduces as an authority Roy v. The Corporation of Boston, 1 where quo warranto was brought against the corpora- tion for demanding toll thorough, and they justified the demand by reason of a consideration for repairing a bridge and a pave- ment, and also a sea bank, when the Court held, that although toll thorough could be claimed as such without more, yet as here it was founded upon a consideration, it should be deemed good. 2 All the principal navigable rivers of the kingdom are now under the control of conservators incorporated by particular statutes, which regulate the amount and mode of levying tolls thereon. Such tolls, being statutory tolls, will fall within the rules to be noticed hereafter. 3 With regard to the sea, the rule laid down as to navigable rivers will be found to hold good, and toll may be lawfully demanded where private exertions have succeeded in forming a port, harbour, or quay, so as to be beneficial to the public ; 4 or where accommodation is made on the land of any party demanding therefor a toll. 6 1 Ibid. Cro. Eliz. 11, by Popham, C. J. Sir W. Jones, 162. 2 Cf. Haspurt v. Wills, (1 Mod. 47 ; S. C. 1 Ventr. 71 ; S. C. 8th ed. 454, nom. Heshod v. Wills; S. C. 2 Keb. 624, 665: and see Woolrych, pp. 301, 302; and Gunning, pp. 624, 665) ; and Culton v. Smith (1 Cowp. 47 ; and see Wool- rych, p. 301 ; and Gunning, pp, 7, 31 , 33). The first was a special action upon the customs of wharfage and craneage in the city of Norwich. The declaration stated that there was a common wharf with a crane to it, and that there was a custom for all goods brought down the river and passing by to pay a duty. It was objected that this claim of toll was bad, being for toll thorough. " If," said Mr. Justice Twisden, "they, the ' citizens, had unladed at the quay, they ' should have paid the whole duty, or 'even had they done so at some other ' place within the city, there might have ' been some reason for the charge, or ' had they cleansed the river." The earned judge added, " that there had ' been a toll claimed at Gravesend for ' boats lying in the river Thames, which ' had been adjudged ill by Parliament." The second-named case was an action for tolls for landing goods on a wharf at Gainsborough. Declaration stated that the plaintiff was lord of the manor of Gainsborough, and that he and all those, &c., had used to keep and repair a wharf within the manor, and that in consideration thereof "they had been used to receive toll for all goods landed within the manor, not confining it to the wharf, which alone the declaration stated the plaintiff to have maintained. The plaintiff having recovered, the de- fendant afterwards moved in arrest of judgment, on the ground that the pre- scription laid was too large for the con- sideration alleged ; but the Court thought otherwise, Lord Mansfield, C. J., observing " that everybody that paid ' had a benefit of it, and if they landed ' their goods elsewhere within the ' manor, they landed them on the private 'property of the plaintiff, and origi- ' nally, indeed, the lord was the owner ' of all the lands in the manor, and the 'prescription was good according to ' many cases." 8 See post, pp. 657 et seq. 4 Woolrych, p. 299. 5 Ibid. In the second case the toll will be traverse, in the first usually thorough. Cf. Liverpool and N. Wales Steamship Co. v. Mersey Trading Co., TOLLS. 629 Of common right the subjects of the king have the liberty of Ancient ports using the ancient ports of the realm, and they are as free to all b^onoUto as the king's highway ; and those who seek to restrain them of a11 subjects of this free liberty ought to show a meritorious consideration a quid pro quo. 1 " If a man," said Lord Hale, C. J., in Warren v. Prideaux* " will prescribe for a toll on the sea, he must allege a good " consideration, because by Magna Charta and other statutes, " every one hath a liberty to go and come upon the sea without " impediment. If defendant had said that he had a port, " and was bound to maintain that port, that might have been " a good prescription. But in this case there must be a special " inducement, and compensation to the subject, by reason of " those statutes by which all merchants and others have liberty " to come and go out." There a prescription for toll was claimed in consideration of maintaining a certain quay, and a bushel of salt had been immemorially taken from every ship which came laden with salt into Slipper Point. The ship in question came within Slipper Point, and was distrained for toll. It was contended that the avowry could cot be supported for want of a meritorious consideration, and although the Court were of that opinion, and so against the prescription, yet they distinctly held, that if the prescription had been for a port, it would have been good. 3 In The Mayor of Yarmouth v. Eaton * Lord Mansfield, C. J., said : " The plaintiffs set out that they have a right by prescrip- tion to the. port duties of Yarmouth; and the question is, " whether they are obliged to set out a consideration. The only " cases like the present are port duties, the rest are out of the " question. The making a port is itself a consideration it is " a self-evident convenience to the merchants ; it speaks for " itself ; it may never require repair therefore I do not know " that it is necessary to show repair. The ownership of the soil " is out of the case." The plaintiffs, therefore, had judgment. 5 (1908) 2 Ch. 460, 77 L. J., Ch. 658, 72 S. C. 3 Keb. 249, 275 ; S. a Sir T. J. P. 385 ; 24 T. L. B. 712 ; 78 L. J., Ch. Raym. 232 ; S. C. 2 Lev. 96, reported as 17 ; 25 T. L. R. 89, C. A. where it was Prideaux v. Warn*, S. C. Freem. 355, held that plaintiffs could not recover under the same name), pier tolls paid under protest to the 8 See Woolrych, p. 300. owners of a pier which was illegal and 4 See Ibid., p. 301 ; 3 Burr. 1402 ; a nuisance because they had received and see Gunning, pp. 23, 24 ; and see consideration for such payment. ante. p. 617, n. 2. 1 Gunning, p. 3, &c., &c. 5 Toptell v. Ferrers. Hob. 175 ; Mayor 2 See Gunning, p. 20 (1 Mod. 104 ; of Condon v. Hunt, 3 Lev. 37 ; Exeter, 630 OF TOLLS AND RATES. The erection of ports is a royal prero- gative. Every public port is a franchise. Title thereto involves the question of 1, interest in soil, and 2, interest of franchise. The law relating to the erection and creation of ports has already been discussed in a previous chapter, 1 and it will, there- fore, only be necessary to recapitulate some few points respecting it which are necessary to the explanation of the present subject. It is part of the royal prerogative to erect public ports in the kingdom ; 2 and the Crown has therefore a special interest in the franchise of a common port, and consequently no subject can erect one without a charter or lawful prescription, either for all comers or for the men of a particular fee or precinct, as for his own tenants. 3 Lord Hale states 4 that " Every public port is a franchise or " liberty, as a market or fair, and much more, for 1st, It is a " place of common resort of merchants and shipping ; 2nd, Every " port had of necessity a market belonging to it, as well for the " vent of merchandises that were imported or to be exported, " as for the vent of victuals and provisions for the supply of " mariners and victualling of ships ; and 3rd, To every public " port there were certain common tolls incident, as for wharfage " and land leave, and the like, which by law cannot be taken " without a lawful title by charter or prescription." The question of the title to a port involves, according to Lord Hale, 5 tico considerations, " 1st, That of the interest of the soil " both of the shore and town, which is the caput portus, and " also of the haven itself, ' wherein ships ride or apply ' ; and " 2nd, That of the interest of franchise, or the liberty itself, " that civil signature which doth give the liberty of public " arivage, which is in truth the formate constitnens of a port in a " legal signification." Both of these interests " may be acquired by prescription ; " and upon this title a port may as well belong to a subject " as to the Crown, as well in point of property in the soil as in " point of franchise," of which several instances are given by Lord Hale, inter alia Liverpool, Milford, Poole, Topsham, and others. 6 There are two kinds of ownership of a port which the Crown prima facie has, but which a subject may have, and these are, (Mayor of), v. Trimlett, Trin. 32 Geo. II. were referred to for the plaintiff. 1 See ante, Chap. I. pp. 63 et geq. 2 Ball v. Herbert, 3 T. R. 261 ; 1 R. R. 695. 8 Gunning, p. 1H. Hale, de Port. Maris, part 2, chap. 2., p. 51. 4 De Port. Maris, part 2, chap. 2, p. 50. 5 De Port. Maris, part 2, chap. 2. pp. 71. 72. 6 Gunning, pp. 115, 116, 117, TOLLS. 631 1st, The ownership of property ; and 2nd, The ownership of franchise, both of which usually concur in the same person, though they may be divided. 1 The first occurs where the Crown, or a subject by charter or prescription, is owner of the soil of a creek or haven where ships arrive and come to shore, and may belong to a subject, though he has not thereby the franchise of a port, neither can he so use and employ it unless he has that liberty by charter or prescription. He may bring his own boats thither to import and export his own goods that are not customal ; but he cannot use it as a public port, or admit foreigners, or take toll or anchorage. 1 The second species of ownership gives the formality or denomi- nation of a public or lawful port for ships to lade or unlade their merchandise at ; and this, as has been said, may be acquired by charter or prescription. And although the soil of a creek or harbour may belong to A., the Crown may grant there the liberty of the port to B. ; but if A. have bank of the port, the Crown cannot grant to anyone a liberty to unlade his goods upon the bank without A.'s consent, although such liberty may by custom be free to all. 2 " From this jus dominii of property or franchise, or of both, Port dues " there arise several port duties, sometimes called portatica; ^ mMi O f " sometimes tolls, sometimes customs. some of which are incident property or f r&ncnisc " to the ownership of the port, while others are due only by " special usage or prescription." 3 The dues incident to the ownership of a port are 1. Anchorage* A toll for anchoring a vessel in the port, which Anchorage. properly and primd facie arises from or in respect of the soil, of which it is evidence, but sometimes it is due to the owner of the franchise merely. 2. Ballastaye* of ships A toll for the liberty of taking up Ballastage. ballast from the bottom of the port, and arising out of the pro- perty in the soil. In the Thames this liberty is granted by the 1 See Gunning, pp. 116, 117 ; Hale, de But little is said of anchorage in the Port. Maris, part 2, ch. 6, p. 72. books, and it is not mentioned in Comyn 2 Gunning, p. 117. or Viner or Bacon. Lord Hale mentions s Cf. Gann v. Free Fishers of Whit- Plymouth as an instance where the stable, 11 H. L. Gas. 192; and Free shore of the harbour belongs to one, and Fishers of Whitstable v. Foreman, L. E., the anchorage to the lord of the port in 2 C P. 688 ; Foreman v. Free Fishers point of franchise. Gunning, p. 117. of Whitstable, L. R., 3 C. P. 586 ; L. R., 4 Cf. Trinity House v. Staples, 2 Chit, 4 H. L. 266, both of which see ante, p. 689, pp. 71 et seq., and post, pp. 635 et seq. OF TOLLS AND RATES. Duties due to owner of a port by custom. Busselage. Keelage, &c. Ports may be created in modern times port duties. Crown to the Corporation of the Trinity House and the amount per ton which the corporation may charge the masters of vessels for ballastage is restricted by statute. The duties due to the owner of a port by custom or prescription are various, and differ in various ports, but the following may be enumerated : 1 1. Bussela.ge,' 2 which Lord Hale mentions as claimed at Hull, and one of the profits which were answered for " to the King and " Dukes of Cornwall in the Port of Plymouth." 2. Keelage " For every vessel coming within the port a "certain toll." 3 Besides these, may be mentioned petty customs* average, primage, 5 petty loading, lastage, prisage, all of which may law- fully be taken by prescription in a port. 6 These duties were sometimes called tolls, sometimes consuetu- dines, from which, when in the king's hands, he might grant a discharge by charter, but which, when they were already in a subject or corporation, either by grant or prescription, he had no power to exempt anyone from payment of. They would pass under the words " Omnes consuetudines " or " tolneta portus de A." 1 Lord Chelmsford, in his judgment in Gann v. Free Fishers of Whitstablef commenting on Hale's 9 account of the port duties above mentioned, said : "It appears to me that the correct inter- " pretation of his language is, that without the king's grant or " charter a subject cannot have the franchise of a port, and " without having a port he cannot take toll or anchorage, which " are dues arising from and incident to it." A port may be created in modern times with a right to receive 1 Gunning, p. 117. 2 Cf. Serjeant v. Reed, 2 Str. 1228 ; S. C. 1 Wils. 91 ; Woolrych, 301. 8 Ibid. Hale, de Port. Maris, part 2, ch. 6, p. 72 ; and see part 3, ch. 4, p. 132. 4 " In the king's grant of the fee 1 farm of the port and city of Exeter 'are mentioned certain duties called ' petty cvttonit, which are small rates ' paid in respect of goods imported e.g., ' those prizes and customs belonging to ' the king in his port of Newcastle, ' which are set forth in record, 20 Ed. I." Hale, de Port. Maris, part 3, ch. 4, p. 132 ; see Gunning, p. 117. * Cf. Bradley v. Newcastle -9 n-Tyne, 2 El. & Bl. 427, which see, post, p. 639. 6 Hale, de Port. Maris, part 2, ch. 6, p. 74. 7 Hale, de Port. Maris, part 3, ch. 4, p. 132. " The fullest account of this kind of ' dues is in an old book called ' Con- ' ' suetudines et usus Sandaici,' men- 'tioned by Lord Hale (part 3, ch. 2, 'p. 118 ; ch. 4, p. 133), and there is a ' long enumeration of them in Mayor of ' Waterford's case (Davy's Kep. 6) ; " Gunning, p. 117. 8 11 H. L. Cas. pp. 219,220. 8 De Port. Maris, ch. g, p. 46 ; ch. 6, pp. 73, 74. TOLLS. 683 a port duty from all who come within its limits. A port duty ex vi termini implies a consideration for it. 1 " There is no doubt a port duty may be created within time of " memory. The Crown may grant to the subject the right to " create a port, and may grant to the owner of the port, the " person under an obligation to repair, the right of receiving a " consideration for all who use it, a right to receive so much " for every quantity of coals or other commodity imported into "the port. The subject receives for that duty an equivalent in " repairs of the port, and the advantage he derives from it." 2 Where, however, a party suing for port duties as owner of a port, gave no other evidence of title than the continual payment of a certain duty, which the jury found unreasonable in amount ; it was held that he could not have a verdict for a less amount found by the jury to be reasonable. 3 Lord Denman, C. J., said, inter alia, " We think the jury could not properly be told " that they might presume a grant where the plaintiff refused " to produce it, especially a grant of a toll of unreasonable " amount. This would be pressing the doctrine in Jenkins "v. Harvey* too far. The doctrine held in that case is not " indeed altogether satisfactory, and any person affected by it " ought to have an opportunity of tendering a bill of exceptions. " We also think it open to question whether the Crown can grant " a right of taking toll indefinitely throughout a port beyond the " limits of the grantee's land, and where the grantee may not " even have it in his power to do repairs. The question, too, as " to the legality of applying ancient port duties to new objects " of commerce raised in the Liverpool case, but not decided, is " proper to be considered." The decisions on the subject of ports turn chiefly on the validity of the custom or prescription in virtue of which toll is claimed. In Vinkensterne v. Ebden 5 a custom was alleged that the mayor customs by and burgesses of Newcastle had been accustomed from time jjjjjjjjm, immemorial to repair the port of their town, and that they had claimed must be well sup- ported. 1 Jenkins v. Harvey, 1 Gale 23 ; 40 plaintiff, the jury ought not to be R. R. 769. directed to presume such grant upon 2 Ibid, per Parke, B., 1 Gale, p. 27. mere evidence of usage. 3 Brune v. Thomson, 4 Q. B. 543. < 1 Gale, 23 ; 1 C., M. & R. 849 ; 40 Semble, that where the duty is claimed R. R. 769. under a grant from the Crown, which 5 1 Ld. Raym.384; 8. C.,1 Salk. 248. appears on the evidence to be enrolled of See, too, Gunning, pp. 28, 62, 119, 216 ; record, but is not produced by the Woolrych, p. 300, 634 OF TOLLS AND RATES. used to have a toll of 2rf. per chaldron for all coals exported. The Court considered this a very reasonable custom ; for without ports there would be no navigation, and without a duty the port would not be repaired. In assumpsit for weighage of goods brought into the port of London, it was objected that there was no consideration for the duty ; but as the defendant had the liberty of bringing his goods into port, which is a place of safety, it was resolved that the consideration was implied. 1 In Lord Falmouth v. George, 2 it was held that keeping up a capstan and rope in a cove to assist boats in landing, and without which they could not safely land in bad weather, was a good consideration for a reasonable toll on all boats frequenting the cove, whether they used the capstan or not ; and the custom to exact the toll was also held good, although the party claiming it was neither owner of the cove nor lord of the manor, nor were his predecessors shown to have been such ; but he and they had always been owners of the spot on which the capstan stood, and of an estate in the neighbourhood. A fisherman frequenting the cove was, however, held not to be a competent witness for a party resisting the toll. 3 In that case the plaintiff sought under a custom to establish a claim to the second best fish out of every boat load of fish landed in Senan Cove in Cornwall. A verdict having been found in his favour, a rule nisi was obtained by Bosanquet, serjeant, to set it aside, but the case having been argued before Best, C. J., the rule for a new trial was discharged, the Court saying : 4 " It " has been objected that there was no consideration for the " custom for taking toll from the owners of boats who did " not make use of the capstan to draw up their boats from " the sea. Although it is not always necessary to use the " capstan, yet if boats in certain seasons could not safely " approach this place unless they were certain of having the " assistance of the rope of the capstan to draw them out of the " surf of the sea, we think that the keeping of the capstan and " rope ready for the use of fishermen who resort to this cove is " a sufficient consideration for a toll to be paid by them, whether " they actually use it or not. . . . 1 Mayor of London v. Hunt, 3 Lev. Queenborough Corporation v. Smeed, 37 ; Gunning, pp. 29,33, 118 ; Woolrych, Dean % Co., post, p. 645, n. 5. p. 30. 8 5 Bing. 286. 5 Bing. 2b6 ; 30 R. R. 597. See * Ibid. 291, 292, TOLLS. 635 " There is no doubt that the King may at this time establish "a reasonable toll for the performance of any duty that the " public convenience or safety requires should be performed. " The creation of a toll is only a mode of paying for a public " service. The power of creating tolls depends upon the neces- " sity of the service and the reasonableness of the toll taken " for it. If the service be not of public advantage, or the toll " be unreasonable, it cannot be supported. But it is impos- " sible to contend that this capstan and rope is not of the " greatest importance to these fishermen. And it was not sug- " gested either at the trial or in the argument here that the toll " demanded was excessive or unreasonable. If the plaintiff had " purchased this land a year ago and had made a landing-place " in this cove, had built a capstan, provided a proper rope, and " undertaken to keep the capstan and rope in a proper state at " all times for the use of the fishermen, it would have been a " sufficient consideration for the grant of such a toll by the "Crown, as the jury have found was due to the plaintiff by " virtue of a custom. . . . We have therefore no doubt that "this is a valid custom. In the case of The Earl of Falmouth " v. Penrose l the validity of the custom was never disputed ; the " objection then taken was that the pleadings were not applicable " to the case proved." A claim of anchorage dues cannot exist merely in respect of claim for the use of the soil ; it must be founded on proof that the soil dues cTn^ot of the claimant was originally within the precincts of a port or be made harbour, or that some service or aid to navigation was rendered respect of the by the owner of the soil who claimed the anchorage dues. 2 A use of the soil, liability to make compensation for actual injury done to certain oyster beds by anchoring, is therefore not to be con- founded with a liability to toll for casting anchor in the soil itself. 3 Lord Chelmsford, in his judgment in Gann v. Free Fishers of Gann v. Whitstable* said: "My Lords, the principal question intended "to be raised between the parties in this appeal is, Whether the " respondents, the Company of Free Fishers and Dredgers of 1 6 B. & C. 385. 688 ; 36 L. J., C. P. 173 ; Foreman v. Free 2 Gann v. Free Fishers of Whitttable, Fishers of Whitstable, L. R., 3 C. P. 586 ; 11 H. L. Cas. 192 ; 35 L. J., C. P. 29 : 20 L. R., 4 H. L. 266. C. B.. N. S. 1 ; 13 W. R. 589 ; and see 3 Ibid. Cf. Mayor of Colchester v. ante, Chap. I. pp. 71 et seq. ; Free Fishers Brooke, 7 Q. B. 339. of Whitstable v. Foreman, L. R., 2 C. P. Ml H. L. Cas. 215, 222, 223, 636 OF TOLLS AND RATES. " Whitstable, who are owners of a fishery for the growth and "improvement of oysters within the limits of the manor of " Whitstable, are entitled to demand from the appellant a pay- " ment for anchoring his vessel within the manor ; their title to " demand such payment being derived from the lord of the " manor, whose predecessors have from time immemorial received " a customary payment, ' for and on account of the anchorage " of any ship or vessel within the said manor.' ... In con- " sidering the question it is necessary to bear in mind that it " applies exclusively to the claim of a toll or due for anchoring " on the high seas, and not in any port or haven. ... I have " therefore arrived at the conclusion that the undoubted right " of the public freely to navigate the highway of the sea cannot " be restricted by the imposition of any payment whatever " unless some good consideration can be shown for it; and the " respondents have failed to establish any other ground of title " in the lord of the manor to the anchorage due than the mere " use of their soil. I consider this to be wholly insufficient to " justify the demand in question, unless it can be held that the " right of navigation does not include the right of anchoring, " which can hardly be seriously contended. " I admit that every intendment ought to be made in favour " of a payment which has been uninterruptedly received time " out of mind, supposing it presumably capable of a lawful " origin ; but not being able to discover any ground upon which " this claim of an anchorage due could have had a legal com- " mencement, the case of The Mayor of Nottingham v. Lambert l But in case of " is an authority for showing that no length of prescription can a navigable giye it va lidity." arm of the sea, * if claim be If, however, a claim for anchorage dues on a navigable arm * ^ ne sea ^ e presumably capable of a legal origin, and the pay- legal origin, ment of dues is shown to have been uninterruptedly received mentwiifbe time out of mind, every intendment will be made in its made in its favour. 2 favour. Free Fishers I n Free Fisheries of Whitstable v. Foreman? an oyster of Whitstable fishery has been possessed, and an anchorage due had been claimed and received from time immemorial by the lords of the manor of Whitstable, in respect of all vessels casting anchor 1 Willes, 111. 173 ; Foreman v. Free Fisherg of Whit- 2 Free Fishers of Whitstable v. Fore- stable, L. R., 3 C. P. 586 ; L. R., 4 H. L, man. L. R., 2 C, P. 688 ; 36 L. J., C. P. 266, TOLLS. 637 within the limits of certain anchorage ground within the manor. In 1795, the fishery and soil thereof (including the anchorage ground) were conveyed by the lord, with all its rights and appur- tenances, to the plaintiffs, who thenceforth claimed and received the anchorage due. There was some evidence that Whitstable was a limb of the port of Sandwich; but there was no direct evidence to show that the anchorage ground was within or con- nected with the port, or that the franchise of the port was ever granted out by the Crown. There was, however, evidence that the lord of the manor was the owner of a landing-place called Le Craston, within the limits of the manor, and that he took toll upon merchandise landed there, and also that he was the owner of the anchorage ground, and took the anchorage due as such lord and owner of the soil. The recitals in the Act of Par- liament, by which the plaintiffs were incorporated and empowered to purchase the manor and manorial rights, stated that there were " customary payments, usually and of right, made to the " lord of the manor for or in respect of any ship or vessel on the "landing of goods or merchandise within the said manor." There was also evidence that the plaintiffs had, as far back as living memory extended, maintained buoys and beacons, which served the double purpose of pointing out the channel by which vessels of small burthen might safely reach the anchorage ground, and also of protecting the oyster beds : Held, that the maintenance of the buoys and beacons, taken in connection with the ownership of the soil of the anchorage ground, and the benefit to the public therefrom, afforded a sufficient consideration to support the plaintiffs' claim to the anchorage due. Bovill, C. J., in delivering the judgment of the Court of Common Pleas, 1 contrasted this case with that of Gann v. Free Fishers of Whitstable, noticed above. " The right claimed by the plaintiffs in this case is similar to "that which was questioned in the case of Free Fishers of " Whitstable v. Gann, viz., the right to an anchorage due from all "vessels casting anchor on certain land covered by the sea, "called the anchorage ground, near Whitstable, in the county "of Kent. In the former case the right was sought to be " maintained by reason of the plaintiffs' ownership of the soil, " upon which the anchors were cast. . . . The plaintiffs' 1 Bovill, C. J., Willes, J.. Keating, J.. and Montague Smith, J., L. R., 2 C. P. 688. 638 OP TOLLS AND RATES. " case being on that occasion based upon the ownership of the " soil, their evidence had been directed to that point alone. No " facts appeared from which the claim could be supported upon " any other grounds, and the ultimate decision upon the then " statements of their case were adverse to the plaintiffs. The " present case is brought before us now in a different form. The " claim is not now based upon the mere ownership of the soil of " the anchorage ground ; and we are called upon to decide " whether, under the circumstances set forth in this special case, " the plaintiffs have established their right to the payment in " question. " The view which we take of this case is entirely in accordance " with the decision of the House of Lords, which was that the " claim could not in point of law be supported in respect of the " ownership of the soil alone." (His Lordship then quoted the judgment of Lord Westbury, L. C.), 1 and continues : " In the former case no consideration whatever was attempted " to be shown for the payment, no facts were proved from which " it could be inferred. . . . Upon the statements in the case " now before the Court, it seems to us that the defects which " existed in the former case have been supplied. The buoys and " beacons have been maintained as far back as living memory " extends ; and we think we ought to presume that they have " existed and been maintained from time immemorial ; and " when we find that the anchorage due has been received " without interruption during the same period, and, therefore, " ought to be referred to a legal origin, if it can be done ; we " consider that the maintenance of these buoys and beacons may " be treated as the consideration for the payment that has been " so immemorially made ; and as there would be a benefit to " navigation by pointing out the anchorage ground, and on a safe " channel or entrance to it, under the circumstances before " mentioned, we think there would, in point of law, be a sufficient " consideration to support the claim. " Even if these buoys and beacons were maintained wholly " and solely for the purpose of preventing vessels grounding " upon the oyster beds, it is not certain that this also might not " be sufficient consideration upon the principle stated by Lord " Wensleydale in his judgment. 2 Our judgment is, however, '* founded upon the ground which we have already stated, viz., 1 11 H. L. 208 ; 20 C. B., N. S. 14. Ml H. L. 216 ; 20 C. B., N. S. 29. TOLLS. 639 " the maintenance of the buoys and beacons for the purposes and " under the circumstances before mentioned, in connection with " the plaintiffs' ownership of the soil and the uninterrupted " enjoyment of the anchorage due from time immemorial." This case was affirmed on appeal by the .Court of Exchequer Chamber 1 and the House of Lords, 2 on the ground that the evidence showed the former existence of a port in the locus in quo from the immemorial payment of the tolls for merchandise and anchorage ; for as anchorage dues were almost, if not universally, incident to a port, and as every intendment should be made in favour of a payment uninterruptedly made time out of mind, they were justified in drawing the inference that a port did exist, and therefore that the tolls had a legal origin. In Bradley v. Neivcastle-on-Tyne, a a charter of 3 Jac. II. Primage, granted to the corporation of the master pilots and seamen of Newcastle-on-Tyne primage (described in the charter as an ancient duty) upon goods brought by ship into the Tyne or any of the creeks of the port of Newcastle, of which Sunderland was one, to be rated and accounted in manner and form following, that is to say : aliens and strangers born, and all other persons arriving with ships in the Tyne or within any of the creeks, members of the port of Newcastle, and not belonging to the same, to pay before they depart with their ships ; and every free merchant and inhabitant of Newcastle arriving in the Tyne with a ship, within ten days after landing the goods. The charter also granted to the corporation all other perquisites, ancient duties and profits, which they had theretofore lawfully had and enjoyed ; and also provided, that the sums granted by the charter should be in lieu of all other duties theretofore received ; it was held that the charter was not inconsistent with the claim of primage in respect of goods imported into Sunderland by merchants resident there, and also that evidence of usage was admissible in support of the claim. Ancient charters, if ambiguous, are to be explained by the usage under them ; and the jury in that case may interpret the charter by the usage. As in the instance of the above-named charter of 3 Jac. II., upon the issue of which a question was raised in 1851, when, in the case of Newcastle Pilots, dc. v. Bradley & Potts, it was disputed whether the charter permitted 1 13 L. T., N. S. 734. s 2 1. & Bl. 427 ; 18 Jur. 246. 2 L. B., 4 H. L. 266. 640 OF TOLLS AND RATES. shore duties custom and statute 6 ' primage to be taken of all ships entering Sunderland (a creek of Newcastle-upon-Tyne), or exempted ships belonging to merchants of Sunderland. 1 In delivering judgment, making the rule for a new trial absolute, Coleridge, J., said : " The rule has never " been laid down in. this matter more strongly than in Jenkins " v. Harvey? It has been questioned whether it was not there " laid down too strongly ; 3 but adopting the language used there " it went no farther than this : that ' from uninterrupted modern " ' usage,' a jury ' should find the immemorial existence of the " ' payment unless some evidence is given to the contrary.' " The same charter of Jac. II. granted to the master pilots and seamen of Newcastle-upon-Tyne, certain dues to be " paid by all " persons being owners of any goods which should be brought in " any ship from beyond the seas into the river Tyne," in manner following : " that is to say, aliens and strangers born, and other " such persons who, with their ships should arrive within the " said port and not belong to the same, before they depart with "their said ships from the said port, should pay the duties " aforesaid, and every free merchant and other inhabitant of " Newcastle, arriving with their said ships within the river Tyne, " should pay the duties aforesaid within ten days after the " landing of the goods as aforesaid, upon lawful demand." The duties had always been paid by the importer: Held, that a person who gratuitously landed, entered, and warehoused goods for the owners, who resided in London, was an " owner " within the meaning of the charter, and liable to the dues. 4 The varieties of tolls hitherto noticed have been purely founded on cus * om > ^ w ^ now ^ e necessary to consider briefly certain duties closely connected with ports, though not identical with them, which are sometimes regulated by custom and sometimes by statute. These dues, which are termed by Lord Hale shore duties, arise by reason of interest in the soil of the shore of a port, and vary in different places both in kind and amount. It is rare, he observes, to find any port where the owner of the franchise has not a convenient portion of the shore and land adjoining where wharves and quays and warehouses may be built for the lading and unlading and safe custody of merchandises ; but the interests may be and sometimes are divided, and the 1 2 El. & Bl. 428, note (a). 8 1 C. M. & R. 877 ; 1 Gale, 23 ; 40 R. R. 769. 8 Brune v. Thtmpton, 4 Q. B. 543, 552. * Master Pilots and Seamen of New- castle-upon-Tyne v. Hammond, 4 Exch. 285. TOLLS. 641 duties arising by reason of the goods when unladen and laid on shore are different from those already spoken of. And it often happens that a particular place within a port may be of great convenience to make a common quay or wharf, when the property in the soil may belong to a subject, who is not the owner of the port, when either his interest must be bought in by the owner of the port, or he must have the benefits which arise by the taking or landing the merchandise there. 1 Of these duties the most important are wharfage and craneage. Wharfage Wharfage is a toll or duty for the pitching or lodging of goods and cranea & e - upon a wharf, 2 or " money paid for landing goods on a wharf or "quay, or for shipping or taking goods into a boat from "thence." 3 " A duty for wharfage and craneage," said Lord Mansfield in Stephen v. Coster, 4 " can not be due where the party has not had " the use of the wharf or crane. Wharfage is due for landing on " the u-harf, and craneage for the assistance of the crane. Anchor- " age or moorage are very different things." The owner of a wharf or quay is entitled at common law to Owner of a remuneration for the use of them, 5 and in Serjeant v. Read? the wh arf entitled 1 at common claim for wharfage was compared to that for stallage, the party law to re- bringing his goods to the wharf or quay having an easement, and the owner of the wharf or quay a damage. With regard to amounts payable for wharfage duty, in many Amount may ports they are fixed by prescription, or by the grant under which J^fripti^n the owner takes them ; or settled by statute, 7 and in both of these or grant, cases the amount so fixed cannot be exceeded, for it is part of that jus publiciim which is vested in the community to have their access to ports as freely as formerly was used. 8 A. may also for his own private advantage in a port or town set up a wharf or crane, and take whatever rates he and his can agree for wharfage, craneage, &c. ; for he does not more than what is law- ful for every man to do viz., make the most of his own ; and such are the coal, wood, and timber wharves in the port of London, and some other ports. 8 In such a case, however, where 1 Hale de Portions Maris, part 2, * 3 Burr. 1409 ; 1 W. Bl. 413, 423. ch. 6, p. 76; see Gunning, pp. 122, 5 Gunning, p. 123 ; see ante, p. 629. 123. 6 1 Wils. 91 ; 2 Stra. 1228 ; Woolrych, 2 Gunning, p. 123. As to meaning of p. 301 . word "wharfinger" see A.-G. v. Ply- 7 E.g., the duties, in Hull are fixed by mouth Corporation, 72 J. P. 493 ; 6 27 Hen. VIII. c. 3, and 33 Hen. VIII. L. G. R. 1154 ; 25 T. L. R. 29. c. 33 ; see Gunning, p. 123. 8 Gunning, p. 123; Cunningham's s Hale, pp. 77, 78. Law Diet. tit. Wharfage. L.W. 41 642 OF TOLLS AND RATES. private property, by consent of the owners, becomes invested with a public interest or privilege for the benefit of the public, the owner can no longer deal with it as private property only, but must hold it subject to the rights of the public in the exercise of that public interest or privilege conferred for their benefit. 1 Lord Ellenborough, C. J., in Allnutt v. Inglis* when speaking on this point, quoted Lord Hale. " According to him," said his Lordship, " wherever the accident of time casts upon a party the " benefit of having a legal monopoly of landing goods in a public " port as where he is the owner of the one wharf authorized to " receive goods which happens to be built in a port newly erected " he is confined to take reasonable compensation only for the " use of the wharf. Lord Hale puts the case either way : where " the king or a subject have a public wharf to which all persons " must come who come to that port to unlade their goods, either " ' because they are the wharves only licensed by the queen, 3 or " ' because there is no other wharf in that port as it may fall out, " ' in that case' (he says) ' there cannot be taken arbitrary and " ' excessive duties for craneage, wharfage, &c. ; neither can they " ' be enhanced to an immoderate rate, but the duties must be " ' reasonable and moderate, though settled by the king's licence "'or charter.' And then he assigns this reason, ' for now the " ' wharf and crane and other conveniences are affected with a "'public interest, and they cease to be juris privati only.' " In the above case the London Dock Company having built warehouses in which wines were deposited, upon payment of such rent as they and the owners agreed upon, afterwards accepted a certificate from the Board of the Treasury under the General Warehousing Act of 43 Geo. III. c. 132, whereby it became lawful for the importers to lodge and secure the wines there without paying the duties for them in the first instance. It did not appear that there was any other place in the port of London where the importers had a right to bond their wines (though if the exclusive privilege had been extended to a few others, it does not appear that that would have varied the case) ; and it was held that such a monopoly, and public interest attaching upon their property, they were bound in law to receive the goods into their warehouses at a reasonable hire and reward. 1 Allnutt v. Inglw, 12 East, 627 ; 11 to ascertain the limits of ports and R. R. 482. assign quays for the exclusive landing a 12 East, 527 ; 11 R. R. 482. of merchandise, see ante, Chap. I. p. 67. 8 As to the prerogative of the Crown TOLLS. 643 Wharfingers in London are entitled 1 to wharfage for goods unladed into lighters out of barges fastened to their wharves ; 2 and it appears that a custom exists in the same city of mooring barges for a tide at low water to the piles in front of the wharves erected along the river ; but the custom does not extend to allow them to be moored to the wharf itself, except through distress. 3 The amount to which a party claims to be entitled for Amount wharfage by prescription ought in a plea to be set forth with ^set forth 3 * sufficient certainty. 4 wi . th CCT: To an action of trespass for seizing the plaintiffs barley defendant pleaded that one E- D. was seised in fee of the manor of Penzance, in which there was a quay or pier, part of the manor ; and that he and all those whose estate he had, at their own cost and time out of mind, repaired and ought to repair such quay or pier ; and had of right taken a reasonable toll (called barleyage), to wit, three Winchester bushels of barley out of every ship's cargo brought upon the quay or pier, to be exported in any ship. The plea then alleged that the plaintiff brought upon the quay 1,200 Winchester bushels of barley to be so exported. A verdict having been found for the defendant, it was pleaded in arrest of judgment that the prescription, as set forth in the plea, was bad being to take a certain out of an uncertain quantity : that it was uncertain, because " cargo " was too general, and unreasonable, as one fixed toll of varying quantities. But the Court held the prescription good; observing that the word " cargo " was a mercantile word well understood. 4 So, again, where the Corporation of Newcastle claimed 5d. for every chaldron of coal exported, and it was contended that this was unreasonable and excessive, being 5d. duty for a quantity of coals which was only worth 2s. ; as the value of the coals did not appear on the pleadings, the Court observed that they could not say that the toll was excessive. 5 In Kingston-upon-Hull Dock Co. v. La Marche 6 the facts disclosed were that, by an Act of Parliament, certain persons were incorporated as the Hull Dock Company ; that premises (before the property of the Crown) were given to them for the 1 Under 22 Car. II. c. 11. and Order Wils. 91. of Council of 1st March, 1674. * Viiihenxterne v. Ebden, 1 Lord 2 Stephen* v. Coster, 3 Burr. 1409 ; 1 Raym. 384 ; 1 Salk. 238 ; 5 Mod. 359 ; W. Bl. 413, 423. Carth. 357. Wyatt v. Thomson, 1 Esp. 252 ; see 8 B. & C. 42 ; 32 R. R. 337 ; see. too, Gunning, p. 126. Gunning, p. 126. * Serjeant v. Pead, 2 Stra. 1228 ; 1 412 644 OP TOLLS AND RATES. Tolls for harbours, lighthouses, docks and piers are statutory tolls. Exemption of the Crown from toll. Meaning of the legisla- ture to tax the subject must be clearly ex- pressed where a burthen is imposed. purposes of the Act ; and that they were authorized to make a dock, quays, wharves, &c., which, it was enacted, should be vested in them for the purposes of the Act. Amongst other things it was provided that " All goods, &c., which should be landed or dis- " charged upon any of the quays or wharves which should be " erected by virtue of the Act, should be liable to pay, and should " be charged and chargeable with the like rates of wharfage and " payments, as were usually taken or received for any goods, &c., " loaded or discharged upon any quays or wharves in the Port of " London : " Held, that, as the premises were only vested in the company for the purposes of the Act, they had no common law right to a compensation for the use of them ; and that the statute did not give them any right to claim wharfage for goods shipped off from their quays. The class of tolls now to be treated of, as well as those payable on canals, which it is proposed to consider in the next section, are levied almost entirely by the authority of particular statutes ; and all the decisions in both cases turn almost entirely on the construction of these special Acts. 1 It will be therefore convenient to notice here two general principles which seem to apply in all such cases before proceeding to consider them in detail. It is to be observed, firstly, that the prerogatives of the Crown cannot be affected except by express legislative enactment a rule which is very clearly explained by Cockburn, C. J., in The Mayor of Wey mouth v. Nugent, 2 with express reference to tolls. The other principle to be noted may be best stated in the words of Lord Brougham in Stockton and Darlington Railway v. Barrett? "It must be observed," said his Lordship, " that, in dnbio, you " are always to lean against the construction which imposes a " burthen on the subject. The meaning of the legislature to tax " him must be clear. It was so held in The Hull Dock Company " v. Browne* which both parties in this case relied on, though 1 As to right of lessee of tolls under a private Act to raise the rate, see Millman v. Remmch Wilson $ Co., 22 T. L. R. 168. As to meaning of " mooring " under a special Act, see Liverpool Steam- ship Co. v. Mersey Trading Co., ante. pp. 497, 498. 2 11 L. T., N. S. 672. See the judg- ment of Cockburn, C. J. ; and cf. as to vessels employed in the service of the Crown, Maxter of Trinity House v. Clark, 4 M. & S. 288 ; see Woolrych, p. 304 ; Vallego v. Wheeler, Camp. 143 ; and S. v. Jones, 8 East, 451 ; Trinity Corpora- tion v. Staples, 2 Ch. Rep. 689 ; Smithett v. Slythe, 1 B. & A. 509 ; 35 R. R. 358; see Woolrych, p. 304 ; Hamilton^. Stow, 5 B. & A. 649 ; see Woolrych, p. 305 ; Gunning, p. 121. 8 11 C. & F. 590 ; 8 Scott, N. R. 641. * 2 B. & A. 43 ; 36 R. R. 459. TOLLS. 645 " for different purposes ; and which the plaintiffs in error " especially cited in support of the argument for them. The like " law was laid down by the Court of Queen's Bench in the case of " a company claiming against the public. Gildart v. Gladstone l " and other cases entirely concur in the same reasonable view. " The Court there said in effect, Here is a company which gets " an Act of Parliament to tax the subject ; it is incumbent upon " that company to do two things : to take care that the Act of " Parliament is made clear and undoubtful, especially upon those "clauses by which the company seeks to impose a burden upon " the public ; and if companies do not choose to take the trouble " to do that, let them abide by the consequences ; they will not " be able to levy the duty. But here the question is of an " exemption or restriction of the duty imposed. The Article in " question restricts the duty on exported coal to a halfpenny, " being 3|d. less than the second Article allows, making it one- " eighth part only of the tax : therefore we are, according to the " books cited, to lean in favour of the construction, where it is " doubtful, which, by extending the limits of the port, enlarges " the bounds of the exemption from the special taxation." 2 We will now note a few of the decisions on Acts relating to lighthouses and harbours and docks. It is well known that the beaconage and lighthouse duties 3 Lighthouses, demanded by the Corporation of the Trinity House are authorized by Parliament by reason of their evident utility, 4 but there must be some benefit accruing to the vessels chargeable for the dues so demanded. 5 1 11 East, 675 ; 12 East, 439 ; 2 768, note (a). Taunt. 97. 5 Ibid. ; Motion v. Scobell, 4 Burr. 2 Cf. as to this principle, Tindal, C. J., 2258; Poole or Pole v. Johnson, 2 Sir in Barrett v. Stockton and Darlington W. Bl. 764. In Queenborough Corpora- Railway, 2 Scott. N. B. 337 ; 2 M. & G. tion v. Smeed, Dean % Co., (1904) 68 ' 134, where in addition to Gildart v. J. P. 244 ; 20 T. L. R. 279, a harbour Gladstone, 11 East, 675 ; 12 East, 429 ; authority were given by their special 2 Taunt. 97 ; Hull Dock Co. v. Browne, Act power to levy a toll on every vessel 2 B. & A. 58 : 36 R. R. 459 : Leeds lying within the limits of their harbour and Liverpool' Canal Co. v. Hustler, 1 for more than one tide. They were also B. & C. 424 ; 2 D. & R. 556 ; 36 R. R. empowered by the same Act to raise a 746, 748 ; and Britain v. Cromford sum of 2,5001. to be spent on buoys, Canal Co., 3 B. & Aid. 139 ; were cited beacons, lights, and moorings, and a in support of H. See, too, Casher v. similar sum on other harbour works ; Holmes, 2 B. & Ad. 592 ; 36 R. R. 680. they had, in fact, borrowed and spent 3 Profits from tolls of a lighthouse are 5.000/., but all except 370*. of this sum real estate and not subject to probate or had been spent on works of the second legacy duty ; A.-ff. v. Jones, 1 Mac. & G. class. They had, however, spent a sub- 574 ; see remarks of Cotton, L. J., in In stantial sum out of revenue on buoys, re Christmas, 33 Ch. D. 332, at p. 342. lights, &c. Trinity House v, Sorsbie, 3 T. R. In an action to recover tolls m respect 646 OF TOLLS AND RATES. Exemptions of the Crown and its servants. Hence, it has been held that British ships in passing by the Eddystone and other lighthouses in the Channel, not touching at any place in Great Britain or Ireland, are not liable to pay the lighthouse duties to the Trinity House, 1 and where a harbour Act 2 gave the trustees a duty of sixpence per ton on every British or foreign ship sailing from, to, or by Eamsgate, or coming into the harbour there, the Court were of opinion that such duty was not payable by a vessel passing on the north-east side of the Goodwin Sands, and not through the Downs, 3 nor by a foreign ship sailing from a place in Norway for Falmouth, and which, in the course of her voyage, sailed four leagues south-east of the Goodwin Sands, and did not put into the Downs, nor sail within sight of Kamsgate. 4 It has been noted above that the Crown is, unless expressly charged, exempt from payment of tolls. Thus, the exception of her Majesty's ships of war in an Act empowering the promoters of a lighthouse to take tolls was held not to warrant the inference that other ships belonging to the Crown were chargeable. The exception might be ex majori cauteld. 5 Where the owner of a ship chartered it to the commissioners of transport service on behalf of the Crown, it was considered that a temporary ownership in the vessel thereby passed to the Crown, and that he consequently, during the voyages made in the course of such employment, was not considered as owner within the charters granted to the Trinity House which imposed lighthouse duties and duties for buoyage and beaconage on the owners or masters of ships. 6 Similarly a. vessel hired by the Postmaster-General to carry the mails and government despatches to and from Dover to Calais, &c., the master of which was per- mitted to carry passengers and their luggage, and bullion upon freight, was held to be a vessel within the exception of an Act of certain sailing barges, in which the defence was: 1. That the tolls had been granted to the plaintiffs in order to enable them to provide buoys, beacons, lights, and moorings, and that these had not been provided and therefore that the defendants could not recover ; and 2. that the plaintiffs were guilty of negligence in not carrying out the bye- laws made under the Harbour Act. Held (per Walton, J.), that the toll was a general toll, payable by every vessel sheltering in the harbour as above, nnd that the fact that the whole 2,500. had not been applied to buoys, lights, &c., afforded no defence to the action. 1 Trinity House, v. Sorsbie, 3 T. R. 7(58 ; see Woolrych, p. 304. 2 22 Geo. II. c. 40. 8 Matfon v. Scobell, 4 fiurr. 2258. 4 Poole or Pole v. Johnson, 2 Sir W. Bl. 764. * Smithett v. Myth*, 1 B. & A. 509 ; 35 R. R. 358. 6 Master of Trinity House v. Clark, 4 M. & S. 288 ; cf. Vallego v. Wheeler, Cowp. 143 ; R. v. Jones, 8 East, 451 ; 9 R. R. 368 ; Trinity House v. Staple*, 2 Chit. 689, TOLLS. 647 imposing a tonnage duty on vessels coming into the harbour of Dover, but which contained an exception in favour of all vessels employed on her Majesty's service. 1 Abbott, C. J., said, a " The " statute contains two exemptions, 1st, all vessels belonging to " his Majesty ; and, 2nd, all vessels employed in his service ; the " case of Rex v. Jones 3 is a good authority to show that the vessel " in this case belonged to the captain and not to the king ; but " it does not apply to the latter branch of exemption. It is " impossible to say that this vessel was not employed in his "Majesty's service when it came into Dover. The captain is "appointed by the Postmaster-General. The appointment of " the captain states the vessel to be employed in his Majesty's " service, and he is directed to obey such orders as he shall from " time to time receive from the agents of the government. This " latter stipulation is quite inconsistent with the right of employ- " ment being in the captain. Whatever is taken on board the " vessel besides the mails and despatches is by the express " permission of government. I am clearly of opinion that this " vessel was at the time of committing the trespass in the service "of his Majesty." All the cases regarding the rights and duties of harbour Piers and trustees will be found to depend, like the above, on the con- struction of particular statutes. Where an Act for keeping in repair a harbour imposed certain duties on goods exported and imported, and under the definition " metals," certain specified duties were imposed on copper, brass, pewter, and tin, and on all other metals not enumerated in the schedule of the Act, for every 101. value lOd. ; it was held, that the latter words did not include gold and silver ; and, therefore, that the commissioners were not entitled to demand for specie or bullion Wd. for every 107. value. 4 In the case of Jones v. Phillips and others, 5 certain harbour commissioners under a local Act of Parliament 6 were authorized to charge a sum not " exceeding Id. for every ton or less quantity " than a ton, and for every package and parcel of goods, wares, " merchandise, &c., exported or imported over the bars of certain 1 Hamilton v. Stow, 5 B. k A. 649 ; the defendant, the harbour- master of see, too. Woolrych, p. 305 ; Gunning, Dover, p 121 4 Cosher v. Holmes, 2 B. & A. 592 ; ' Smtthett v. Blythe, 1 B. & A. 509 ; 36 R. R. 680. 35 R. R. 358. d 7 Exch. 85 ; 21 L. J., Exch. 7. ? 8 East, 451 ; 9 R. R. 368 ; cited for 6 55 Geo. III. c. clxxxui, 648 OF TOLLS AND RATES. " rivers ; " and the question for the opinion of the Court was whether the commissioners could legally claim Id. per box, harbour dues on certain exported boxes of tin plates, which formed part of and composed one entire shipment in one vessel, to the same consignee, at a uniform rate of freight on the quantity of tons weight ; or whether the sum was to be charged for at the rate of Id. per ton : Held, that they were entitled to charge the former rate, and were not bound to charge Id. per ton weight. The words "shipped for exportation" are not necessarily restricted to an exportation to foreign countries, but may mean exportation in its widest sense ; that is, a carrying out of a port. 1 A Railway Act empowered the proprietors to levy on all coals carried along any part of their line, such sum as they should direct, " not exceeding the sum of 4d. per ton per mile." It then went on thus : " And for all coal which shall be shipped " on board of any vessel, &c., in the port of Stockton-upon- " Tees aforesaid, for the purpose of exportation, such sum as " the said proprietors shall appoint, not exceeding the sum of " %d. per ton per mile. " Held, that with respect to coals shipped for exportation, this was not a cumulative but a substituted toll. 2 Held, also, that the words " the port of Stockton-upon-Tees "aforesaid" meant the whole port of that name, and was not restricted to the port of the town of Stockton-upon-Tees; 3 and that there was not such an ambiguity in the enacting part of the Act as to compel a reference to the preamble of it; and that the word " aforesaid " did not limit the expression to the port of the town as described in that preamble. Another Act, passed on the same subject, after reciting the former Act, and also reciting that the proprietors had been at great expense in forming inclined planes on the line of railway, authorized them to demand " for all articles, &c., for which a 1 Stockton and Darlington Railway v. 550 ; 36 R. R. 746, 748) ; and Holroyd, Barrett, 11 C. & F. 590 ; 8 Scott, N! R. J.,in Britain v. Cromford Canal (3 B. 641 ; and cf. on this point the remarks & Aid. 139). of Tindal, C. J., in Barrett v. Stockton 2 As to coals as " deck cargo," under and Darlington Bailway (2 Scott, N. R. sect. 85 of the Merchant Shipping Act, 337 ; 2 M. & G. 134), who there com- 1894, see Cairn Line of Steamships v. ments on Gildart v. Gladstone (1 East, Corporation of Trinity Jfouse, (1908) 1 685), per Lord Ellenborough ; Kingston- K. B. 518 ; 77 L. J., K. B. 363 ; 98 L.T. on-Hull Doelt Co. v. Browne (2 B. & Ad. 88. 58 ; 36 R. R. 459), per Lord Tenterden ; 8 As to limits of Ports, see also cases Baylcy, J., in Leeds and Liverpool Canal cited, ante, p. 64. v. Hustler (1 B. & C, 424 ; 2 D. $ R. TOLLS. 649 " tonnage is hereinbefore directed to be paid, which shall pass " any inclined plane upon the said railway, such sum as the said "proprietors shall appoint, not exceeding the sum of Is. per " ton : " Held, that this was a cumulative charge. It was recited by stat. 48 Geo. III. c. civ. that the harbour of Berwick-upon-Tweed 1 had gone to decay for want of funds, and that it was expedient that the duties on goods should be fixed, and vested in commissioners, to be by them applied for the pur- poses of the Act, and commissioners were appointed for carrying the Act into execution, and empowered to rebuild the pier of the harbour, to deepen the harbour, to remove obstacles, to set up within the harbour jetties, posts, &c., for carrying on the naviga- tion, and rendering the harbour more commodious, and for other works and conveniences, as they should think fit ; and to make and repair quays, wharves, and docks for the better accommoda- tion of shipping. Duties, to be paid to the commissioners, were imposed, according to a schedule, on goods " imported into or " exported from the said harbour." It was enacted that the said harbour should be deemed to extend down the Tweed and its shores, from the bridge over the Tweed to the sea. A vessel brought goods from the sea into the harbour, made some use of the posts erected therein by the commissioners, and passed, without otherwise using the harbour, under the bridge, up the river, and landed the goods at a point above the bridge within the flow of the tide, where there was no harbour : Held (on a special case, which empowered the Court to draw inferences of fact), that the goods were not imported into the harbour, and therefore not liable to duty, although the schedule of duties spoke of " goods imported and shifted to another vessel for " exportation and not landed." 2 In Ribble Navigation Company v. Hargreaues, 3 which was an action brought to recover from the defendant the amount of certain tolls imposed by the 71st section of the Kibble Navigation Act, 4 in respect of goods " carried or conveyed in or upon the "river Kibble," for every time of passing " the Kibble Sea Line " and "the Kibble Inner Line" respectively. The point raised was the meaning of the terms " owner," " shipper " as governed by sects. 3, 42 and 45 of the The Harbours, Docks and Piers 1 Wilson v. Robertson, 4 El. & Bl. 4 El. & Bl. p. 931. 923 ; 1 Jur., X. S. 755. 17 C. B. 385 ; 25 L. J., C. P. 97. 2 See remarks of Lord Campbell, C. J.' < 16 & 17 Viet. c. cixx. 650 OF TOLLS AND RATES. Dock dues dependent entirely on Act of Parliament creating the dock. The reason- ableness of a toll is for the Court and 7iot the jury to decide. Clauses Act, 1847 (10 & 11 Viet. c. 27), which is incorporated with the special Act, and it was held, that one who delivers goods on board a vessel provided by the purchaser is not the "owner" or the "shipper" within the statutes, so as to be liable to an action for the tolls imposed by the 71st section of the special Act. Where 1 the defendants were empowered by a local Act to levy tolls on all goods landed within their harbour, and in pursuance of a practice which had continued for many years, stones brought along the coast into the harbour were shot from the plaintiff's boat on to the shore, below high water mark, and remained on the spot where they were deposited till they were shipped for exportation from the harbour : It was held that the stones were not landed within the meaning of the Act. Dock dues are payments made to the owners of docks by the owners of ships using the docks in proportion to the tonnage 2 of the ship, and by owners of goods, viz., by shippers when they are entered at the customs-house. 3 Mr. Gunning, in his work on Tolls* points out that the right to dock dues depends in every case upon the particular Act of Parliament under which the docks are erected, and is quite dis- tinct from the question of ports and port dues, and that the property in a port and that in the docks situated within the town which is the head of the port, is frequently in different persons, and he cites Liverpool and London 5 as instances. The powers and rights of owners of docks are usually expressed in the Act of Parliament under which they are erected, and when that is the case they cannot be exceeded. 4 Where the Act is silent on this point the public have a right to enjoy the privilege of using the docks upon " reasonable terms," and the owner cannot impose what tolls or duties he pleases on them. 6 The question as to the reasonableness of a particular toll is for the Court and not for the jury to decide. 7 The jury are to give 1 Harre.y v. Mayor and Corporation of Lyme Regis, L. R., 4 Exch. 260 ; 38 L. J., Ex. 141 ; see remarks of Bramwell, B., as to the term " landed" 2 As to right to recover excess rates paid under invalid regulations, see Moss v. Mersey Docks, 26 L. T. 425 ; 20 W. R. 700. 3 Encyclopaedia of the Laws of Eng- land, 2nd ed., vol. iv., p. 683. 4 Page 129. The London Dogks are nqw vested in the Port of London Authority by the Port of London Act, see ante, p. 6(J, n. 6. 6 Allnutt v. Ingll*, 12 East, 527 ; 11 R. R. 482. 7 2 Inst. 222 ; Vinkensterne v. Ebden, 1 Lord Raym. 384 ; 1 Salk. 248 ; 5 Mod. 366 ; Garth. 357 ; Corporation of Stamford v. Paulet, 1 C. & J. 57 ; 35 R. R. 675 ; S. C., in error, 1 C. & J, 400. TOLLS. 651 their verdict according to the invariable and reasonable custom, the judge alone can decide whether such tolls are reasonable or not. 1 The term "port" is used in its popular sense when the limits Meaning of of a place liable to the burden of dock duties requires a legal term "P ort " construction. 2 Thus Goole, which is without the port of Hull, was held not liable to such duties, although Goole and Hull might be considered as a district for the purposes of revenue. But a vessel proceeding with a cargo taken in at Goole to Hull is liable for tonnage. 3 Dock duties, when assigned by virtue of an Act of Parliament, Assignment of are not mere chattels but charges upon the docks : and it was accordingly held that an auctioneer could not be called upon to pay the duty upon them when viewed in any other light than as interests in land. 4 It would be out of place here to enumerate all the various decisions on special Acts relating to docks. We shall, therefore, merely select from the cases such as seem to embody important principles. The case of Allnutt v. Inglis has already been alluded to 5 as Decisions as turning on points relating to wharfage payable to the London l Dock Company; 6 Harden v. Smith and Shrceder v. Smith 1 were Docks, important cases with regard to the West India Dock Acts. These were actions against the defendant as treasurer of the West India Dock Company 8 to recover back certain sums which had been paid by the plaintiff (who had purchased certain hogsheads of sugar before then imported from the West Indies into the port of London, which had continued all the time in 1 Lowden v. Hlerom, Holt, N. P. C. In re Christmas, 33 Ch. D. 332 ; In re 647 ; 2 B. Moo. 102 ; 2 Inst. 222 ; 19 David, 43 Ch. D. 27 ; Ion v. Ashton, 28 R. R. 542; Wright v. Brewster, K. B., Beav. 379. November, 1832 ; 38 R. R. 232. 4 Hex v. Winstanleij, 8 Price, 180 ; 2 King tton-upon- Hull Dock Co. v. 22 R. R. 743. Browne, 2 B. & A. 43 ; 36 R. R. 459 ; 5 12 East, 527 ; 11 R. R. 482 ; see see Woolrych, p. 318 ; and Gunning, ante, p. 642. p. 112, note 2. As to meaning of " the 6 As to the meaning of "grain" "limits of a port" under private Acts, under the Port of London Act, 1872, sec Axheton-Smith v. Owen, ante, p. 63. s. 4, see Cotton v. Voyren % Co., (1896) 3 Hull Dock Co. v. Priestley, S. C., 1 A. C. 457 ; 65 L. J., Q. B. 686 ; 76 Nev. & M. 85 ; see Woolrych, note (c), L. T. 598, H. L. (E.) ; see also Scott v. p. 318, and ante, p. 63. As to the mean- Tylor, 48 J. P. 426. ing of "town dues" under 2:{ & 24 7 8 East, 16. Viet, c 125, see Mersey DocJts v. " Cf. Blackett v. Smith, 11 East, 533, Hunter, Craig $ Co., 80 L. T. 96 ; 8 which was an action for wharfage and Asp., M. C. 489 ; as to when harbour porterage against the same party. And dues are an interest in land within the see Woolrych, p. 317. Mortmain Act, 9 Geo. II. c. 36, see 652 OF TOLLS AND RATES. the company's warehouses, and for which all the importation rates and duties had been satisfied), to the officers of the com- pany for wharfage, and for shipping into lighters sent into the docks by the plaintiffs for that purpose, the same hogsheads of sugar, part for home consumption, part for exportation. The company, on the one hand, contended, that they were only bound, in consideration of the rates and duties received upon importation of the goods, to deliver the same free of further charge from their warehouses by inland carriage ; the plaintiffs, on the other hand, maintained, that they had a right, for the same compensation, to receive the goods from the ware- houses across the quays, and by means of the cranes thereon into their lighters and so remove them by water carriage, as well as to receive and remove them immediately from the company's warehouses by land carriage. The West India Dock Company is incorporated by Act of Parliament, and sect. 137 of 39 Geo. III. c. 69, gives the company certain rates and duties for all goods imported from the West Indies which shall be landed, &c., from on board any ship entering into and using the dock ; which rates are directed to be " accepted for the use of the docks and the quays, wharves and " cranes and other machines belonging thereto, and the land " waiter's fees on account of such goods, after being unshipped, " and all charges and expenses of wharfage, landing, housing, " and weighing such goods, and of such cooperage as the same " may want after being unshipped, and all rent for warehouse " room for twelve weeks, and all charges of delivering the same "from the said warehouses.'" The Court held that the latter words include a delivery of the goods into lighters in the dock, as well as any immediate delivery from the warehouses into land carriages placed under the cranes of the warehouses, although for the purposes of such delivery into lighters it be necessary to put the goods upon trucks in order to carry them across the quay, and afterwards crane them into the lighters. But it seems that if the owner require any work to be done upon the goods ultra the mere transitus of them from the warehouse to the lighters, the company are entitled to an extra compensation, to be settled by convention between the parties, as in other cases out of the Act. Blackett v. Smith l was a decision on another part of the same I 12 East, 518 ; see Gunning, p. 133. TOLLS. 653 section of this statute, 1 in which it was held, that the owner of a homeward-bound ship entering the West India Docks in so leaky a condition as to require immediate unloading and assistance, without waiting her turn to be unquayed and unloaded in rota- tion in the manner required by 39 Geo. III. c. 69, is bound to bear, in addition to the ordinary tonnage rates, the extra expenses of labourers for pumping the ship after the crew are discharged, and for delivering the cargo into lighters in the outward dock or basin ; also for coopering previous to such delivery into lighters ; the company having afterwards unladen the cargo out of such lighters upon the quays, in the import dock and performed the requisite coopering, &c., upon such unloading, in the same manner as they would have done if the cargo had been delivered out of the ship itself in its proper time and place. By sect. 76 of the West India Dock Act, 1831, the Dock Company are empowered to take certain rates in respect of every lighter entering into any of the docks or lying therein ; and by sect. 83 all lighters entering into a dock to discharge or receive goods to or from on board of any ship or vessel lying therein shall be exempt from payment of rates so long as they are bond fide engaged in discharging or receiving such goods. A lighter entered into one of the docks for the purpose of discharging her cargo into a vessel lying therein, but was unable to do so because the vessel was already full, and the lighter thereupon left the dock without discharging any of her cargo. The majority of House of Lords held, 2 reversing the decision of the Court of Appeal, 3 that, as the lighter had not discharged any part of her cargo, she was not exempt from rates. Sect. 136 of the London and St. Katherine Docks Act, 1866, provides that " All lighters and craft entering into the docks . . . " to discharge or receive ballast or goods to or from on board of "any ship or vessel lying therein shall be exempt from the " payment of any rates so long as the lighter or craft is bond fide " engaged in so discharging or receiving the ballast or goods." A lighter finished discharging into a ship in a dock on the afternoon of Saturday, and the next high tide was at midnight. The ship left the dock by that tide, but the lighter remained in the dock until 1 a.m. on Monday. The dock company claimed 1 39 Geo. III. c. 69. W^ *"> v - Pa 9 e > So>l and 2 London and India Docks Co. v. 24 T. L. R. 834, H. L. (E.). Thames Steam Tug and Lighterage Co.; 8 23 L. T. R. 590 ; (1908) 1 K. B. 786. The same v. McDougall and Bonthron ; 654 OP TOLLS AND RATES. 6d. per ton on the lighter's tonnage under a rate which provided that lighters, having discharged or received goods to or from a ship and remaining in dock beyond the first available tide, should pay Gd. per ton register per week. Held, that when the lighter stayed on in the dock after mid- night of the Saturday she ceased to be " bond fide engaged in " discharging," and was not exempt from the rate. A lighter entered a dock for the purpose of discharging into a ship which was then lying in the dock. The ship was unable to take the cargo owing to want of cargo space. The lighter then discharged into a ship which came into the dock after the lighter. The House of Lords held, reversing the decision of the Court of Appeal, 1 that the lighter was not exempt from rates, as it was a condition of exemption that the ship into which the barge discharged should be lying in the dock at the time when the lighter entered. 2 Liverpool The case of Gildart v. Gladstone, 3 which turned on the con- Docks ' struction of certain statutes incorporating and regulating the Liverpool Docks, is one of importance, in which the question as to what constitutes the same voyage out and home was discussed. By the Liverpool Dock Acts of 8 Anne and 2 Geo. III., certain tonnage duties are payable to the dock company on all vessels sailing with cargoes outwards or inwards, so as no ship shall be liable to pay more than once for the same voyage out and home, if there be either an outward or an inward cargo on such voyage ; but without making any advance if there should be both. Thus, a Liverpool ship carrying a cargo out to the West Indies, and bringing another home to Liverpool, is only liable to pay one duty, viz., the duty outwards ; and a foreign ship bringing a cargo to Liverpool, and carrying another out, is only liable to pay the duty inwards. But where a ship was built in another port, for an owner residing at Liverpool, where she was registered, and sailed to the West Indies without first coming to Liverpool, but brought her return cargo there as to her home ; this was held to be one entire and distinct voyage within the meaning of the Acts, for which the duty inwards was payable, and did not privilege the ship from payment of the duties again, when next she sailed with another cargo upon her outward voyage to the 1 23 T. L. R.765 ; (1908)2 K. B. 175. 97 ; and cf. Lord Brougham's remarks * See cases ante p. 653, n. 2. in Stockton and Darlington Ely. v. 8 In error, 11 East, 675 ; see, too, Barrett, 11 C. & F. 590 ; ante. p. 644. Gunning, p. 135 ; 12 East, 439 ; 2 Taunt. TOLLS. 655 West Indies, though, in fact, she only used the dock inwards on her first voyage ; for the privilege of using the docks with an outward and inward cargo upon one payment of duty is confined to the same voyage out and home* The same point was raised in another action in which the same parties were concerned, 2 where it was held that a voyage out from Liverpool with a cargo to Halifax in North America, where the ship delivered it, and took in another cargo there for Demerara in South America, and after delivering that returned to Liverpool with a cargo from Demerara, ivas all the same voyage out and home within the meaning of the Liverpool Dock Acts (8 Anne and 2 Geo. III.), and chargeable only with one tonnage rate for the use of the docks. 3 Where, however, an Act provided that vessels trading inwards to the port of Liverpool should pay dock rates according to a fixed scale proportioned to the distance of the port from which they were trading, and that vessels arriving in ballast, but trading outwards, should pay in proportion to the distance of the port to which they were trading ; it was held that a vessel that had discharged her cargo at a port in England, and taken on board ballast prior to sailing to Liverpool for the purpose of loading a cargo for the West Indies, and which took on board a bale of cotton and a few other articles, admittedly in order that she might pay docks rates as a vessel trading inwards from the port where she took on board such articles, and not as a vessel arriving in ballast, was a vessel arriving in ballast within the meaning of the Acts. 4 The Southampton Dock Company are empowered by their Southampton Act, 6 Will. IV. c. xxix. s. 149, to charge for the landing of goods in their docks the several sums mentioned in the schedule thereto annexed, and for articles not therein particularized such sums as shall be equal to the sums affixed on goods, &c., " of " a similar nature, package, value, and quality" in the schedule. All the charges mentioned in the schedule were of small fixed sums none being ad valorem except the charge for " sculptured 1 Irish linens imported to Bristol are Liverpool Docks v. Gladstone and brought "from ports beyond the seas" another, 5 M. & S. 328; see Gunning, and not "coastwise" : Battersby v. Kirk, p. 137 ; and Kingston-upoii-Hull Dock 5 L. J., C. P. 166 ; 2 Bing., N. C. 584. Co. v. Huntingdon, 2 Chit. Kep. 597 ; 2 Qildart v. Gladstone and Gladstone, see Woolrych, p. 315. 2 Taunt. 97 ; S. C., in error, 12 East, 4 De Garteig v. Mersey Docks and 439. Harbour Board, 37 L. T., N. S. 411. 8 Ibid. ; cf. on this point, Trustees of C. P. D. 656 OF TOLLS AND RATES. " marble " : Held, that the company were not entitled to make an ad valorem charge for the landing of goods not enumerated, or at all approaching in "nature, value, and quality" to those enumerated in the schedule. 1 Tyne eel men By a local Act, 2 a toll or tax of id. per chaldron is imposed v. Danson. J * upon the owners or lessees of any collieries or coal mines near " the river Tyne," for every chaldron of coals sold or delivered by them to be exported from or out of the said river, and which shall be so exported ; such toll " to be collected or received at the " offices or places respectively where the contracts for the sale " or delivery of such coals are usually made," in aid of the Tyne Keelmen's Charitale Fund, created by 28 Geo. ITT. c. 59. Since the formation of railways and docks, the services of the keelrnen in the shipment of coals on the Tyne have become unnecessary, the coals being brought down to the wharf or quay by railways and shipped direct : Held, that coals shipped on the Tyne from collieries " near " to the river were still liable to the payment ; and that a colliery situate ten miles from the Tyne is " near the " said river Tyne " within the meaning of the Act. Held, also, that coals brought for shipment to the Tyne by a public railway from collieries which, before the formation of railways, had always shipped their coals on the river Wear, to which they had been conveyed by private tramways from the collieries, were equally liable to the keelmen's dues. 3 By the Leith Harbour and Docks Act, 1892, s. 58, the Harbour Commissioners are empowered to levy rates from the owners of every ship coming into or going out of the harbour and docks of Leith ; and the statutory regulations provide that all vessels enter- ing the harbour " only for safety, convenience, or repairs, shall " be charged half rates, but if they shall land or take on board " goods or remain in the harbour or docks above one month they " shall be charged full rates." It was held, that as the vessel had entered Leith harbour under a contract between the owners and the charterers that she should be delivered there to the charterers she had not entered "for " convenience only," and that the owners were liable in payment for the full rates due for her entry. 4 1 Southampton Dock Co. v. Hill, 14 Society of Guardians of Keelmen of the C. B. 243 ; 11 W. R. 646. Tyne v. Elliott, 16 C. B., N. S. 622. 2 1 Geo. IV. c. liii. * Aktieselssabet "Lina" v. Turnbull 8 Society of Guardians of Keelmen of Sf Co., (1907) S. C. 507. the Tyne v. Darison, 16 C. B., N. S. 612 ; TOLLS. 657 The Commercial Dock Company was created by 50 Geo. III. Dresser v. c. 207 (local and personal declared public). 51 Geo. III. c. 66 otan ^ wt - (local and personal declared public), empowered them to dis- train and sell ships for non-payment of rates and charges due for dockage of ships, receiving, warehousing, and storing goods ; and if any consignor or consignee of any goods or merchandise neglects or refuses to pay rates or charges, the company may detain goods, &c., until paid, and, if removed before payment, may distrain any goods of the owner, consignor, or consignee, and detain and sell same, or may prosecute actions for those duties. 10 & 11 Viet. c. 27, s. 45, contains similar provisions, which by 14 & 15 Viet. c. xliii. are extended to the Commercial Dock Company. The plaintiff having purchased from the owners some timber stored at the Commercial Docks, and which was entered in the books of the company in the name of a broker, the company refused to transfer the timber into the name of the plaintiff, on the ground that the broker was indebted to them for rent and charges in respect of other goods standing in his name in the books of the company, although the plaintiff ten- dered to them the specific rent and charges due in respect of the goods purchased by him : Held, 1st, That the above statutes conferred on the company no right to do so ; 2nd, That the com- pany could not rely on any general lien to that extent by the common law, supposing that such existed, as the statutes must be taken to displace such right. 1 " Those who seek to impose a burthen upon the public should Toils on " take care that their claim rests upon plain and unambiguous " language," said Bayley, J., in Leeds and Liverpool Canal v. Hustler. 2 This principle, which has been confirmed by several important decisions, 3 applies very fully to canal tolls ; for where Right to, de- a canal is made by Act of Parliament, the right to take tolls ^m theArt 7 is derived entirely from the Act, and is to be considered as a of Parliament bargain between the owner and the public ; and where there is any ambiguity, it must be construed against the canal proprietors, who can claim nothing which is not given them by the Act. 4 1 Dresser v. Bosanqiwt, 4 B. & S. 460 ; Stockton and Darlington Ely., 2 Scott, 34 L. J., Q. B. 374. N. R, 337 ; 2 M. & G. 134 ; Stockton 2 1 B & C 424 ; 2 D. & R. 556 ; 36 and Darlington Rly. v. Barrett, 11 C. & R. R. 746, 748. F. 590 ; 8 Scott, N. R. 641. 3 Britain v. Cromford Canal, 3 B. & 4 Stourbridge Canal v. Wheely, 2 B. Aid. 140 ; Hull Dock Co. v. Browne, 2 & A. 793 ; 36 R. R. 746 ; see, too, Wool- B. & Ad. 58 ; 36 R. R. 459 ; Gildart v. rych, p. 312. Gladstone, 11 East, 675 ; Barrett v. L.W. 42 658 OF TOLLS AND RATES. No obligation on companies to impose equal tolls. There appears to be no obligation on a company, however, to impose an equal toll on all persons, provided they keep within the amount appointed by their Acts, 1 though on grounds of public policy such an equality may be desirable for the public who have an interest that the canal should be kept up, and the tolls consequently to be kept as equal as possible. 2 The legality of canal tolls is now, however, regulated by 51 d- 52 Viet, c. 25. 3 At common law tolls only become due at the end of a voyage, respect to through rates, are extended to any canals which, in connection with any river or other waterway, form part of a continuous line of water communi- cation, notwithstanding that tolls may not be leviable by authority of Parlia- ment upon such river or other water- way (sect. 37 (3) (4) (5)). Where a railway company has the control over, or the right to interfere with respect to the traffic conveyed or the tolls levied on a canal, and the tolls, rates, or charges levied are proved to be calculated to divert traffic to the rail- way to the detriment of the canal or of persons sending traffic over it or other canals adjacent to it, the commissioners, on the application of any person interested, may make an order requiring them to be altered in such a manner as to be reasonable in comparison with those charged for the conveyance of merchandise on the railway. If the alteration is not made within the time prescribed by the order, the commis- sioners themselves are empowered to make such alteration as they shall think just and reasonable by order, and the tolls, rates and charges so altered and adjusted are binding on the company or persons owning or controlling the traffic or the tolls levied thereon. No applica- tion may be made under this section until the Board of Trade have certified the fitness of the applicant, and that the application is a proper one for sub- mission to the commissioners ; and the commissioners may make no crder unless the company and persons have been previously served with notice of the application in such manner as the Board of Trade may direct. On the application of any company or person affected thereby, and after notice to and hearing such companies or persons as they may by any general rules or special order prescribe, the commissioners may at any time rescind or vary any order made under this section (sect. 38). 1 Cockburn, C. J., in Humjerford Market Co. v. City Steamboat Co., 1 Jur., N. S. 67 ; see ante, p. 622. 2 Leesv. Manchester and Anton Canal, 11 East, 645; 11 R. R. 297. 8 The Railway and Canal Traffic Act, 1888 (51 & 52 Viet. c. 25) empowers the railway and canal commissioners to hear and determine any questions or dis- putes involving the legality of the statutory tolls levied by canal companies and to enforce payment of such tolls or so much of it as they decide to be legal : and if any company charges one trader or class of traders in any district lower tolls than they charge other traders, this is, primd facie, an undue preference (sects. 10, 27 (1), 36). Sect, 15 of the Regulation of Railways Act, 1873 (36 & 37 Viet. c. 48), is made applicable to the charges of a canal company ; and the Railway and Canal Traffic Act, 1854 (17 & 18 Viet. c. 31), as amended by that Act, is extended to any person whose consent is required to any variation of any rates, tolls, or dues charged for the use of any canal, or by any canal com- pany, "in like manner as if such person were a canal company, and the ex- ' pressions ' canal company ' and ' rail- ' ' way and canal company ' in the said ' Acts and this Act shall be construed ' accordingly to include such person " (sect. 37 (1) (2)). The provisions of these Acts respecting rates apply to the tolls and dues of every description chargeable for the use of any canal, and the commissioners may enforce any order for a through rate or toll which may in their opinion be required in the interest of the public. Any company allowing traffic to pass from a canal on to any other canal or any railway, or from a railway on to a canal, shall be deemed to be a forwarding company, and the allowing of traffic so to pass shall be deemed to be the forwarding of traffic within the meaning of the above- mentioned Acts ; and their provisions, and those of the Act of 1888, with TOLLS. 659 since the contract is not completed till the port of delivery is reached, and though this may be altered by legislative enact- ments so as to make tolls payable at intermediate distances, they must be demanded according to the rules of law respecting the carriage of goods from one place to another. 1 It is in accordance with these facts that, as a general rule, the principle seems to be that Acts imposing a toll should be construed as strictly as possible, 2 since, as has been said by a learned judge, " though "such construction may be perhaps inconvenient, the Court " cannot make a new toll." 3 " No general rules or principle," says Gunning, 4 " can be laid No general " down applicable to canals in general " ; and this is evident Ible > to! >P when it is remembered that in the case of canals, as in that of docks and harbours, each is dependent upon a particular Act, and therefore, as is pointed out by Woolrych, 5 " since the cases " which have arisen were decided upon the construction of the " several statutes relating to each particular subject, the general " principle is rather to be gathered from the effect which the " Courts have given to the enactments themselves, than from " the decisions." We shall, therefore, consider such cases as seem to be most important. In the case of The Stourbridge Canal v. Wheely* the plaintiffs made a canal on two levels, which were connected by locks. On the upper level there was no lock. By their Act all persons were to be at liberty to navigate the canal on payment of certain rates, and the company were authorized to take certain tolls for certain goods which might pass through one or more of the locks, while owners of adjoining lands might use pleasure boats not carrying goods, so long as they did not pass through any locks, without paying dues : Held, that the Act gave no right to demand tolls for boats navigating the level of the canal where there were no locks. 36 Geo. III. c. 67, empowered certain persons to make the Tamar navigable for boats, barges, and other vessels, with proper cuts and deviations from the sides thereof, from M. Quay to Boat 1 Buller, J., in R. v. Page, 4 T. R. * Page 102 ; cf. Woolrych, p. 306. 549 ; 2 R. R. 454 ; cf. It. v. Aire and 5 Woolrych, p. 306. A canal Act is Colder Xarlijation, 2 T. R. 660 ; 1 R. R. not necessarily a public Act : 1 Moo. & 579. Malk. 421 ; Brett v. Beale*, 10 B. & C. 2 Woolrych, p. 306. 508 ; 34 R. R. 499. 3 Ibid. ; Bayley, J., in Britain. v. 6 2 B. & A. 793 ; 36 R. C. 746. Cromford Canal, 3 B. & A. 140. 422 660 OF TOLLS AND RATES. Pool ; and thence to make a canal, and to make and maintain a collateral cut or canal navigable for boats, &c., from the said canal to R. mill, and authorized them, in consideration of expenses, to take from time to time tolls at so much per ton per mile for goods, &c., " carried upon the said navigation, canal, cut, or any " of them." They had expended considerable sums in clearing and deepening the river for the purpose of making it navigable to a point about one-quarter mile from Boat Pool, but had not made the canal or collateral cut : Held, that they were entitled to recover tolls for carriage of goods over the part of the river made navigable. 1 Where a canal company were authorized by their Acts to make a canal and do other things necessary for the making, improving and using it ; but were forbidden to make more than 8 per cent, profit, and were to lay their accounts annually before justices : It was held that they were authorized by their Act to deepen and widen the canal after it had been completed (that being beneficial to the public) ; and that the widening and deepening being done at the request of those using the canal, the charge for so doing was a charge attending the using of the canal. 2 In another case 3 under the same Acts, it was shown that the company were empowered to "make all such other works as " they shall think necessary or proper for effecting, completing, " maintaining, improving, and using the said canal and other " works," and that they were required to lay before sessions an annual account of the tolls collected, and of the charge of sup- porting the navigation. The sessions were authorized under certain circumstances to reduce the canal rates. After the completion of the canal, and after the first account of the capital expended in the undertaking had been delivered upon which the dividends were to be calculated, the company deemed it necessary to erect a reservoir and steam engines. When applying to have an annual account allowed, the company included the expenses of these new works, but certain freighters of the canal having objected to the items, the justices disallowed the sums in question, although it appeared in evidence before them that the works had been erected for the support and improvement of the original line of road, and for the better supplying it with water 1 Tamar Navigation v. Wagstaffe, 4 722. B. & S. 288 ; of. Reg. v. Simpson, (1901) 8 R. v. Glamorganshire, 12 East, 2 Ch. 671 (C. A.) ; ante, pp. 621, 622. 156 ; see Woolrych, p. 310. 2 R. v. Glamorganshire, 7 B. & C. TOLLS. 661 in dry seasons. This order being brought before the Court of King's Bench by certiorari, was quashed, it being held that, though the works were new in specie, yet, being for the main- tenance of the old canal and works, they were justifiably made. Had they been colourably executed for the benefit of individuals, the charges might and would have been repudiated ; but this was not so, and the sessions having proceeded on a wrong principle, their order could not stand. It has been held that no toll was imposed on empty boats by the provision in a canal Act, that no boats navigating thereon of less burthen than twenty tons, or which should not have a loading of twenty tons on board, should pass through any of the locks unless on payment of a tonnage equal to a boat of twenty tons. 1 A canal company was empowered to take tolls on all goods excepting manures, and it was also provided that no boat or vessel should pass through any lock unless such vessel should pay duty equal to what would be paid by a vessel loaded with thirty tons : Held, that this only applied to toll-paying goods, and therefore that a vessel laden with manure was entitled to navigate the canal, and pass through the locks at any time without payment of any toll whatever. 2 An Act of Parliament provided that the Monmouthshire Canal Company were not to take any higher toll for the time being than the Brecknock Canal. The latter by general resolution lowered their tolls : Held, that the company could not question collate- rally the validity of such resolution, but were bound by it, Abbott, C. J., saying : "If, indeed, without any colour of authority, the " rates of the Brecknock Canal had been lowered the case would " have been different." 3 "Where a canal Act imposed a toll on " coal, lime, timber, " bricks, stone, and all other goods, wares, or merchandise " whatsoever," gravel and materials for turnpike roads were held liable to toll. 4 Lees v. Manchester and Ashton Canal Co.? has been already 1 Lee&ss and Liverpool Canal v. M. & W. 880; cf. Hall v. (frantham Hustler, 1 B. & C. 424 ; 2 D. & R. 556 ; Canal Co., 13 M. & W. 114 ; 13 L. J., 36 R. R. 746, 748. Since this decision, Exch. 203. 59 Geo. III. c. 10, has imposed a simple 3 Monmoutlisldre Canal v. Xfiidal, 4 lockage duty of 5*. upon empty boats ; 1$. & Aid. 453. note (a), 1 B. & C. 424. 4 Cmlton v. Amblfr, 3 Rail. Cas. 724. - Grantham .Canal Co. v. Hall, 14 Ml East, 645 ; 11 K. R. 297. 662 OF TOLLS AND RATES. referred to with regard to the alteration of tolls. 1 There the defendants, being authorized by their Act to take such tolls as were fixed at a general assembly (at the rate of not more than Id. per ton per mile), and also to reduce rates at a general assembly, though not without the consent of the major part of the proprietors, made a contract with the plaintiffs (but not at. a general meeting), whereby, in consideration of their making a cut from their collieries to carry water to the canal, ami conveying the same to the company, the latter were to permit them to convey coals at a less rate. It was held that this contract was illegal and void, since it was a speculation by which the company might gain more or less than the legis- lature intended, and which would extend the company's power to purchase land beyond the limits in the Act, and enable them to raise more capital. Also, that it was void because the tolls could only be reduced at a general meeting. Lord Ellenborough, who delivered judgment, said, inter aim, " The public have an interest that the canal should be kept up, " and whatever has a tendency to bring it into hazard is an " encroachment upon their right in it. They have also an " interest that the tolls should be equal upon all ; for if any " are favoured the inducement to the company to reduce " the tolls generally below the statute rate is diminished. " But as it is sufficient in this case to say that this bargain "is not binding upon the company of proprietors, inasmuch " as it abridges their rights in a way the statutes do not " warrant, it is unnecessary to give an opinion whether it so " interferes with the rights of the public as to be on that " ground also void." Cockburn, C. J., commenting on these remarks in Hvngerford Market Co. v. City Steamboat Co., 2 said : " The observations " of Lord Ellenborough go no further than to show that on " grounds of public policy it may be desirable that such an " obligation (i.e., not to lower the tolls), should attach to " the power of a public company to take toll ; yet authority " would certainly seem to be required to establish a pro- " position directly at variance with the well-known axiom, " that every one is at liberty to renounce a right established " in his favour." 1 See ante. p. C,L>:{. 30 L. J., Q. B. 25 ; 3 El. \ P.!. :.ante, p. 625. Hen. VII. c. 2 ; 19 Hen. VI c 12 ; 22 3 Jenkim v. Cooke, 1 A. & E. 372. Hen. VIII. c. 12 ; 27 Hen. VIII. c. 2;> ; M A. & E. 354 ; see, too, Woolrych,61. 3 & 4 Edw. VI. c. 16 ; 2 & 3 iihp and 5 See the remarks on the history and Mary, c 5 ; 5 Eliz. c. 3 ; 18 Eliz.^c. 3 ; development of this branch of law in 39 Eliz. c. 3 ; 43 Eliz. c. 2 ; 3 : Car. I the Historical Introduction to Castle's c. 4 ; see Castle, 4th ed. pp. 9- Law and Practice of Rating, 4th ed. too Ryde's Law and Practice of Hating, pp. 1-16 ; cf. 3rd ed. pp. 1-78. The 2nd ed. 1904 ; cf Konstann , a 'Reports of principal authorities and statutes to be Rating Appeals, li) 666 OF TOLLS AND RATES. piers, har- property. Estuaries and arms of the sea prim a facie extra- Parish ex- Land covered with water. An estuary or arm of the sea is primd facie extra-parochial ; but this presumption may be rebutted, 1 and, with respect to the presumption of extra-parochiality, there is no distinction between the sea shore and the shore of a tidal river. 2 By 31 & 32 Viet. c j22, every accretion of the sea, whether natural or artificial, J and the part of the sea shore to the low water mark, and the bank of every river to the middle of the stream, which at the date of Act were not incorporated with any parish, are for all civil and parochial purposes annexed to and incorporated with the next adjoining parish with which it has the longest common boundary. Where a wet dock was constructed on a portion of land reclaimed from the ooze or bed of a navigable tidal river, and in order to prove that it was not part of the adjoining parish, evidence of perambulations of that parish, and of others abut- ting on other portions of the reclaimed land was given, which seemed to show that the rights of those parishes extended only to high water mark, but, against this, it appeared that in each of the parishes considerable tracts were reclaimed from the ooze or bed of the river, and rated to the poor ; it was held, that the presumption of parochiality, arising from payment of these rates, outweighed the contrary presumption arising from the perambulations. 3 Where, in beating the boundaries of the parish of Kotherhithe, ^ was shown that the authorities proceed along the ernbank- ments, wharves, or other shore of the river, while in the adjoin- ing parish of Bermondsey the authorities go along the middle of the river ; and that the parish of Rotherhithe has never done or exercised any parochial act or authority beyond the enibank- . ments, &c. it was held, that the inference from the above circumstances was that the parish of Rotherhithe extended to the middle of the river, and that, therefore, a pier built on piles in the bed of the river opposite one of the embankments, but not connected with it, was rateable to the poor rate of the parish. 4 By sect. 55 of The Local Government Act, 1858, " the occupier Q f anv j an( j covere( j w ith wa ter, 5 or used only as a canal or 1 Ipswich Duck Commissioners v. St. 8 Ipswich Docli Commissioners v. St, Peter's, Ipswich, 7 B. & S. 310. Peters, Ipswich, supra. 2 Trustees of Dulte nf Bridgewater v. 4 Me Cannon v. Sinclair, 28 L. J., Surveyors of Highways for Bootle-cum- M. C. 247 ; 2 E. & E. 53 ; 33 L. T., O. S. Linacre, 7 B. & S. 348. See ante, pp. 13, 226. 22, 92. 5 This exemption is continued by RATES. 667 " towing-path for the same or as a railway constructed under the " powers of any Act of Parliament for public conveyance," is to be assessed to the district rate at one-fourth only of the net annual value as ascertained by the last poor rate. It has been held that a wet dock was " land covered with water " within this provision ; and that a railway which had been constructed by a dock company in connection with their docks and joining a public railway and canal under the powers of their private Act, by which the company were bound to complete the railway for the use of the public on the payment of tolls, was a railway within the provision, although it was not constructed to carry passengers, but that warehouses and other adjuncts to docks are rateable at the net annual value. 1 An artificial reservoir is " land covered " with water " under the section. 2 Where two companies, incorporated under The Companies Act, Piers and 1864, received tolls for the use of a pier which extended from harb the shore into the sea for several feet below low water mark, being constructed of a wooden deck resting on iron piles driven into the sands, so that the water flowed under it, and no altera- tion was made in the line of low water mark ; it was held, that the part of the pier below low water mark, being beyond the realm, was not extra-parochial within the meaning of 31 d- 32 Viet. c. 122, s. 27, and, as such, annexed to any other parish, nor was it an accretion from the sea, and that, therefore, that section did not enable it to be rated. 3 By an Act of Parliament, certain commissioners were appointed for effecting improvements in the harbour of S. They were authorized and required to deepen and cleanse the channel of the harbour, and to make an artificial entrance with piers, by which ships might pass from the sea into the harbour. Tolls were to be paid in respect of such vessels as entered the harbour, but were not to be received by the appellants to the full amount authorized by the Act, until the whole works were completed. sect. 10, sub-sect. 1 of the London 2 Hampton Urban District Council v. Government Act, 1899 (62 & 63 Viet. Southwark and Vavxhall Water Co., c. 14), as regards hereditaments in (1900) A. C. 3, H. L. (E.) ; 69 L. J., metropolitan boroughs notwithstanding Q. B. 72 ; 64 J. P. 260. the repeal of the Public Health Acts in 3 Blackpool Pier Co. v. Fylde Union, those areas: London and India Docks 46 L. J., M. C. 189; 36 L. T. 251 ; 41 v. Woolwich Borovgh, (1902) 1 K. B. J. P. 344. See remarks of Lord 750 ; 71 L. J., K. B. 394 ; 86 L. T. 619; Coleridge, C. J., on the construction of 50 W. R. 639 ; 66 J. P. 484. this section ; 46 L. J.. M. C. 191 ; 1 Reg. v. Newport. 31 L. J.. M. C. and Buryhead Harbour Co. v. Qeorge, 267 ; 6 L. T. 456. post, p. 673. 668 OF TOLLS AND RATES. The piers were erected, and the channel deepened and cleansed, and the commissioners received tolls in respect of the vessels which entered the harbour. There was nothing in the Act to show that they were to be considered as purchasers or owners of the land upon which the works were to be done : Held, first, as to the channel, that the commissioners had simply a power to make a right of passage from the sea to the harbour, and that they were not rateable to the poor rates in respect of such right of passage ; secondly, that although they were occupiers of the land upon which the piers stood, yet that the occupation could not be taken to be enhanced in value by the revenue derived from the tolls, inasmuch as an occupier of the piers would get no part of the tolls, or derive any benefit 1 from the harbour; and, therefore, that the appellants were not liable to be rated to the poor rates, the piers themselves being worth nothing. 2 Where commissioners were empowered by Act of Parliament to improve the navigation of a harbour, the soil of which was not vested in them, and were authorized to demand and receive certain " harbour dues " for every vessel clearing the harbour, and also certain "goods dues" on all wares, merchandise, &c., shipped or unshipped, within it, and such dues were greatly augmented by facilities provided on certain pieces of land con- veyed to them for quays and mooring places ; it was held that as they received the dues by reason of statutory rights indepen- dent of their right to the quays, the receipt did not affect the rateable value of the quays. 3 Harbour trustees were constituted and incorporated by a private Act of Parliament, and were appointed conservators of the harbour and river within certain definite limits, and were empowered to erect piers and light- houses and fix mooring rings and capstans, and to dredge, light, and control the port and to charge harbour rates and tolls on vessels using the harbour. Held, that such tolls were tolls in gross, their " meritorious " cause " being the services above mentioned, and that they were not levied on account of the occupation by the trustees of the soil of the harbour or of land along its banks so that they ought 1 As to "beneficial occupation" see v. Swansea Orerneers, 5 El. & Bl. 500; London County Council v. Erlth 25 L. J., M. C. 33 ; 1 Jur., N. S. 1108. Overseers, (1893) A. G. 562. 3 Blytli Harlour Comitiixnioners v. 2 New Shoreham Harbtnir Coinmis- NewsJiam and South Blyth Ocerseers, ftioners V. Lancing, 39 L. J., M. C. 121 ; 63 L. J.. M. C. 274 ; (1894) 2 Q. B. 675 ; L. K., 5 Q. B. 489 ; 22 L. T. 434 ; Lewis 9 R. 618 : 71 L. T. 34 ; 59 J. I'. 4, C. A. RATES. 669 to be taken into consideration in estimating the rateable value of such land. The trustees had also constructed a floating dock which occupied part of what had been the bed of the river, but had not purchased the soil under this dock which remained the property of the lord of the manor. Held, that they were rateable in respect of their occupation of such floating dock. 1 By sect. 33 of 3 c 4 Will. IV. c. 90, 2 the owners and occupiers wet docks. of houses, buildings, and property, other than land rateable to the relief of the poor, shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purposes of the Act. It has been held, 3 where certain appellants were the occupiers of certain docks, covering an area of 165 acres, 95 of which formed a wet dock or tidal basin, that this dock or basin was property ejusdem generis with the houses and buildings mentioned in the Act, and, therefore, that the appellants were rateable at the higher amount. Profits, if rated at all, must be rated where they are earned. 4 Profits of In Reg. v. Bristol Dock Co. 5 it was held that no portion of the dues payable by ships on entering the port was a profit arising they are from a new basin, and that the basin was rateable to the relief of the poor as ordinary land, and not in respect of such dues ; 6 and in Keg. v. Hull Dock Co., 1 where the company constructed a R eg , v . Hull harbour and docks, but had no property in the harbour, though Docli Co - the soil of the docks was vested in them, and were empowered to take toll on all vessels, whether they used the docks or not, coming into the harbour, the Court held that they were rateable only for such dues as were paid by ships using the docks. " As 1 Swansea Harbour Trustees v. Swan- * Reg. v. Bristol Dock Co., 10 L. J., sea Union, (1907) 97 L. T. 585 ; 71 J. P. M. C. 105 ; see Castle, p. 304 ; cf. R. 487 ; 5 L. G. R. 1240. H. L.(E.), affirm- v. Hull Dock Co., 7 T. R. 219 ; R. v. ing 22 T. L. R. 433, C. A. See also Hull Dock Co., 5 M. & S. 394. Holywell Union v. Halkyn Drainage Co., * 10 L. J., M. C. 105 ; 1 Q. B. 335 ; 1 71 L. T. 818 ; (1895) A. C. 117. ' G. & D. 76. 2 The Watching and Lighting Act. 6 See judgment of Lord Denman, C. J., 3 Peto v. West Ham, 28 L. J., N. S., and the cases there cited, 10 L. J., M. C. 240 ; 2 E. & E. 144 ; per Lord M. C. 111. Campbell, C. J., Wightman, J., and ~> 14 L. J., M. C. 114 ; 7 Q. B. 2 ; 9 Crompton, J. ; Erie, J., holding that J. P. 405 ; cf. R. v. Dock Company of they were rateable at the lower amount, Hvll, 1 T. R. 219; R. v. Hull Dock as the area of ninety-five acres was land. Co., 5 M. & S. 394; and Berwick Cf. Berwick Harbour Commissioners v. Asesment Committee v. Tweedmoutk, Tweedmouth Churchwardens, 54 L. T. 54 L. T. 159 ; 5 Asp., M. C. 532 ; 51 159 ; 5 Asp., M. C. 532. L. J., M. C. 84. 670 OF TOLLS AND RATES. " to those ships which do not come into the docks," said Lord Denman, C. J., "and which never are on the property of the " company at all, the case is very different. The toll given to " the company, and which such ships are obliged to pay, is doubt- " less given in respect of the company having made those docks, " but still it does not arise from the use of the docks, nor is it " earned in them. It is a naked toll, just as much as toll paid " by vessels passing lighthouses in similar cases." The view of the law taken in these cases has, however, been modified by subsequent decisions, and railways and other pro- perties are now habitually rated parochially for earnings collected elsewhere. 1 Apportion- In the case of The Mersey Docks and Harbour Board v. Overseers mentof earn- O j Liverpool? the appellants occupied docks in several parishes Verwi Docks an ^ townships on the Lancashire and Cheshire sides of the v. Overseers of Mersey, which they held and administered under their Act of Parliament as one estate, the docks on the Lancashire side of the Mersey, being by far the most profitable part of the under- taking, which was carried on at a loss on the Cheshire side of the river. The appellants had been rated by the parish of Liverpool on the principle of ascertaining the net income of the docks, &c., locally situated within the parish of Liverpool, without taking into account the profits of the whole undertaking, and it was held, that the parochial principle must always, except in cases of insuperable difficulty, 3 be preferred ; that no such difficulty was shown in the present case, and that the assessment was accord- ingly right. This decision was approved in the recent case of Sculcoates Union v. Hull Dock Co.* in which it was held, that in assessing to the poor rate docks extending over more than one parish, the rateable value should, wherever it is possible, 5 be ascertained by attributing to each parish the receipts earned and the expenses incurred in that parish, and not by obtaining a rateable value for the whole of the docks and then allocating this value to each parish in proportion to the water area of the docks in that parish. 1 Castle's Law and Practice of Rating, See also London and India Docks v. 4th ed. pp. 303 et seq. Poplar Union, (1900) 83 L. T. 371 ; 64 2 41 L. J., M. C. 161 ; L. R., 7 Q. B. J. P. 820. 643 ; 26 L. T., N. S. 868 ; 37 J. P. 165. 5 Cf. as to this the remarks of Lord 8 As in The Queen v. Kingston-upon- Herschell, (1895) A. C., at pp. 144 145, Hull Dock Co., 21 L. J., M. C. 155 ; on the distinction between Reg. v. Hull 18 Q. B. Rep. 325. Dock Co., 18 Q. B. 325, and Mersey * (1895) A. C. 136 ; 64 L. J., M. C. 49 ; Docks v. Liverpool, L. R.. 7 Q. B. 643 ; 71 L. T. 642 ; 59 J. P. 612, H. L. (E.). Castle, 4th ed. pp. 167 et /> 308. RATES. 671 The occupiers of property capable of beneficial occupation are Beneficial liable to be rated in respect of its full rateable value, without regard to the amount of benefit which they themselves derive from that occupation. 1 The true test "of beneficial occupation is not, however, whether a profit can be made, but whether the occupation is of value. 2 Where railway and tramway lines formed part of a dock system, but the dock company were pro- hibited by statute from taking any tolls for the use of the lines, it was held, that as the dock company were prevented from earning rent because of the statutory prohibition, the rent which could have been earned but for prohibition ought not to be taken into consideration in determining the value of their property. 3 In Reg. v. Southampton Dock Co.* the premises of the company consisted in part of the custom house, rented and occupied by her Majesty's commissioners of customs, and a manufactory and several workshops, rented and occupied by the West India Mail Packet Company and J. W., and it was held that sect. 25 of 13 Geo. III. c. 50, 5 which provided that every person, whether landlord or tenant, who should let out his house in separate apartments or ready furnished to lodgers, should for the purposes of the Act be deemed the occupier and liable to be rated, did not apply to the part of the company's premises of which they were not the occupiers. Allan v. Overseers of Liverpool, and Inman v. Overseers oj Kirkdale, 6 raised the question as to whether certain persons were rateable as occupiers through the fact that the Mersey Dock and Harbour Board, under the powers of their Act, appropriated certain accommodation in the docks for their use, in the first case certain berths for the use of steamers with sheds attached, and in the other a certain space as a coal depot ; and it was held, that the board had not parted with the occupation of any part of 1 Reg. v. Rhymney Rail. Co., 10 B. &S. houses, see Bootle Overseers v. Liverpool 198 ; 35 L. J., M. (J. 75 ; L. R., 4 Q. B. 276 ; Warehouse Co., (1901) 85 L. T. 45 ; 65 Mersey Docks and Harbour Board v. J. P. 740 ; R. v. Henderson, (1905) 92 JBirkenhead, L. It., 8 Q. B. 445 ; 42 L. J., L. T. 662 ; 69 J. P. 294 ; 3 L.G. R. 756. M. C. 141 ; 29 L. T. 454 ; 21 W. R. 913 ; 3 Sculcoates Union v. Hull Dock Co., Glamorganshire Canal v. Me.rthyr (1895) A. C. 136 ; 64 L. J., M. C. 49 ; 71 Tydvil Union, (1902) 88 L. T. 85 ; 67 L. T. 642 ; 43 W. R. 623 ; cf. Sutton J. P. 52, C. A. Harbour v. Plymouth Union, 63 L. T. 2 London County Council \. Erith 772 ; 55 J. P. 232. Overseers, (1893) A. C. 562 ; Reg. v. 4 20 L. J., M. C. 155 ; 14 Q. B. 587. School Hoard for London, 17 Q. B. D. 5 "An Act for the better regulating 738; Bvrton-on-Trent Corporation v. " the poor, &c., of Southampton." Churchwardens of EggMon, 24 Q. B. D. 6 43 L. J., M. C. 69 ; L. R., 9 Q. B. 197. As to rating of 'unoccupied ware- 180 ; 30 L. T. 93 ; 38 J. P. 260. 672 OF TOLLS AND RATES. Exemption of the Crown from rates. The Mersey Dock caxes. Deductions allowable in the assess- ment. such sheds so as to render the appellants rateable in respect of such occupation. Fixed hydraulic cranes in a dock have been held as increasing the rateable value of the dock undertaking, as they were on the premises for the purpose of making them fit as premises for the purposes for which they were used. 1 Dockyards in the occupation of the Crown, or occupied for Government purposes, are exempted from the payment of rates, but tenants of the Crown holding for their private benefit are rateable ; and it has been held, that the Crown not being named in 43 Ellz. c. 2, property in the occupation of the Crown or of persons using it exclusively in or for the service of the Crown is not rateable to the relief of the poor. 2 Various deductions have been allowed by the Courts with respect to the assessment of docks. A dock company empowered by their Act to build or provide out of their income steam-tugs for towing vessels into or out of the docks from or to Southampton or to any part of the English Channel, had in use a steam-tug which offered considerable advantages, though it was not indispensable, to those who used the docks, and was conducive to the general profits of the dock business ; and attached to the freehold and essential to the business of the company was a certain fixed plant, consisting of cranes, steam engines, derricks, and other ponderous machinery, which, however, were capable of being detached as easily and with as little injury to the freehold as tenants' fixtures put up for the purposes of trade and business, and usually valued as between incoming and outgoing tenants. Held, that the steam-tug must 1 London and India Docks v. Poplar Union, (1900) 33 L. T. 371 ; 64 J. P. 820. 2 Jones v. Mersey Dock and Harbour Hoard, Mersey Dock and Harbour Board v. Cameron, 11 H. L. Gas. 443 ; 35 L. J., M. C. 1 ; Castle, 4th ed. pp. 1720. In Sion College v. Corporation of London, (1901) 1 K. B. 617 ; 84 L. T. 133, it was held by the Court of Appeal affirming the Queen's Bench Division that the exemp- tion of certain lands reclaimed from the Thames " from all taxes and assessments " whatsoever" under 7 Geo. lll.c. 37, s. 51, applied only to existing taxes and assess- ments and did not apply to the "con- " solidated rate" under the City of London Sewers Act, 1848(11 & 12 Viet. c. clxiii.), which was substantially a new imposi- tion ; whereas in London Corporation v. Nettwrlands Steamboat Co., (1905) 93 L. T. 566 ; 69 J. P. 443 ; 3 L. G. K. 1087, H. L. (E.), the above case was distinguished, and it was held by the House of Lords, affirming the Court below, in a case in which the Crown has assumed a statutory liability for the payment of a commutation in lieu of rates upon property in the hands of the Crown, and the statute provided that such property " shall be ... to all ' intents and purposes free and exempt ' from the payment of all and all ' manner of rates and assessments 'although the same . . . may become ' private property by the sale or assign- ' ment thereof to individuals, any law, ' usage, or custom to the contrary not- ' withstanding "; that the property after it had passed into private hands was exempt from a "consolidated rate" imposed by a subsequent statute. HATES. 673 be taken as ancillary to the docks, and a part of the floating capital, and that the expense of it was a proper deduction to be made in estimating the amount of the company's assess- ment to the rate ; but that the cranes and other ponderous machinery were properly included in estimating the rateable value of the company's premises. 1 Where, however, a steamboat was used for towing barges filled with mud out to sea and back, a deduction of 1,200/. therefor (under the head of movable plant) was disallowed while the boat was used only for the purpose of constructing the dock; though it was held that it would be permissible in future rates if the boat became necessary for permanent use in removing silt. 2 The expenses of dredging a harbour have been held a proper deduction under sect. 37 of the Poor Law (Scotland) Act, 1845 (8 & 9 Viet. c. 83), (1) because physical structures such as quays and wharves derived their whole use and value from being pertinents of a harbour, and that the expense of dredging was necessary to maintain the harbour in a condition in which it could be used as a harbour ; and (2) that the harbour as a whole, including that part of it occupied by sea and extending below low water mark, was a complex heritable subject assess- able to poor rates, and that the expenses of dredging below as well as above low water mark were necessary to maintain that complex heritable subject in its actual state. 3 It was also held in Reg. v. Southampton Docks 4 that as an allowance to the directors for management, another proper deduction to be made was a reasonable amount of remuneration for personal trouble and expense, and for the exercise of the skill and judgment of a supposed lessee of the company in managing the affairs of the docks, independently of the profit on capital employed by him ; but a similar deduction (under the head of disbursements) of 300/. as " allowance for direction " was dis- allowed in the case of Reg. v. Tyne Improvement Commissioners? where the Act under which the commissioners constructed the dock gave them no power to remunerate themselves out of the dock funds for their services. In the latter case deductions of 1 Reg. v. Southampton Dock Co., 20 (1906) 8 F. 982, Ct. of Sess. See Leitk L. J., M. C. 155 ; 14 Q. B. 587. See Harbour Commissioners v. Leith Assesa- London and India Docks v. Poplar ment Committee, post, p. 675, and Black- Union, ante, p. 672. pool Pier v. Fylde Union, ante, p. 23. 2 Peg. v. Tyne Improvement Commis- * 20 L. J., M. C. 155. sioners, 6 L. T. 489. 5 6 L. T. 489. 3 Burghead Harbour Co. v. George, L.w. 43 674 OF TOLLS AND RATES. 500. for cash balance (under the head of capital for carrying on the dock), and also 150/. for watching by means of a public boat paid for out of other than dock funds, were disallowed ; while a deduction in respect of stores in hand was permitted. 1 It has been held that no deduction could be made for income tax in respect of the estimated profit of a supposed tenant of the docks, that not being a tax upon the subject-matter rated, but upon the net income of the tenant after paying the rent of the premises ; 2 and in Mersey Docks and Harbour Board v. Liverpool Overseers 8 the appellants were held not to be entitled to a deduction for tenant's profits in addition to the cost of collecting the rates they were authorized by their Act to charge for the use of their docks. In valuing the undertaking of the Leith Harbour Com- missioners, under 55 & 56 Viet. c. clxxvii., the assessor proceeded according to the " revenue " method, and he dis- tinguished between landlord's expenditure and tenant's expendi- ture, allowing only the latter as a deduction from the gross revenue. He further did not allow any deduction in respect of tenant's profits. The commissioners maintained that as the undertaking was not capable of earning profits, the whole expenditure, other than capital expenditure, ought to be deducted, or alternatively, that a sum should be deducted in name of tenant's profits. Held, that the undertaking was to be valued as a profit - earning subject ; that consequently the only expenditure to be deducted from the gross revenue was tenant's expenditure ; but that a sum in name of tenant's profits ought also to be deducted. The magistrates allowed in name of tenant's profits a sum reached by taking 10 per cent, on tenant's capital. The com- missioners maintained that tenant's profits ought to be fixed by taking a percentage on the balance of revenue left after deducting the tenant's expenditure. Held, that in the circumstances the sum allowed by the magis- trates as tenant's profits was fair and reasonable. The commissioners claimed that the whole expense of dredging the harbour and docks ought to be deducted from the gross revenue. The magistrates, being of opinion that the expense of 1 6 L. T. 489. 8 L. R., 9 Q. B. 84 ; 43 L. J., M. C. 33 ; 2 20 L. J., M. C. 155. 29 L. T. 454 ; 38 J. P. 27. RATES. 675 dredging the waterways and accesses to the docks was landlord's expenditure, held that only the expense of dredging inside the docks was to be deducted. The magistrates further allowed as deductions 60 per cent, of the expenses of management and half of the expenses of an inquiry by the Home Office with a view to regulations as to loading. The commissioners maintained that 80 per cent, of the expenses of management and a larger proportion of the expenses of the inquiry ought to be deducted. The magistrates further fixed the tenant's floating capital at one-third of the expenditure. The commissioners maintained that two-thirds ought to be taken. Held, that there was no ground for altering the determination of the magistrates on any of these points. 1 In ascertaining the net rateable value of the property assess- able to the poor rate, an allowance is to be made for rates and taxes, and such allowance ought to be made upon the net rateable value after the rates and taxes themselves, in addition to all other proper allowances, have been deducted. 2 Property is to be valued in communibus annis, that is as it may be considered to exist in ordinary years, and not as it may accidentally happen to be in exceptional years ; 3 and a dock company has been held rateable in respect of tonnage duties received under 14 Geo. III. c. 56, though it appeared that the expenditure in repairs during the period for which the rate was made exceeded the amount of such duties. 4 There have been many decisions as to the rateability of bodies, Rateabiiity of like floating piers or docks, barges, hulks, and the like, which marine P r - ' perty not TT actually Leith Harbour Commissioners v. properties benefited: Knight v Lanq- occupying Leith Assessment Committee, (1907) S. C. port Drainage Board 67 L J Q B the soil 751, Ct. of Sess. 482 ; (1898) 1 Q. B. 585 ; 78 L. 'T. 260 ;' Keg. v. fyne Improvement C'ommis- 46 W. R. 392 ; 62 J P 245 But see noners, 6 L. T. 489 ; Tyne Improvement Metropolitan Board of Works v Commissioners v. Churchwardens and Vauxhall Bridge Co 26 L J OB Overseers of Chirton 32 L. J., M. C. 192 ; 253 ; 7 E. & B. 964, and ante, p ''44.' ct '..Jt. v. Hull Dock Co., 2 B. & C. 516. Castle, 4th ed. pp. 184186 Ex- Where lands were charged with a rent- penses of one company such as super- charge under Commissioners of Sewers annuation allowances or rents of premises for the protection of land from the sea made payable by such company upon it was held that tenants assessed were an amalgamation of several companies entitled to a deduction from their rate- ought not to be deducted : London and able value in respect of the share of India Ducks v. Poplar Union (1900) other lands which benefited but were 33 L. T. 371 ; 64 J. P. 820 not assessed : Green v. Newport Union, 4 R. v. Hull Dock Co 5 M & S " T' XT"t, ?" ^ 9 9) A " - 394 ' 40 ' R - v " Mirjield, 10 East, 219 ;' 35, H. L. (E.). Rates levied under the 25 R. R. 412, 413. Sewers Acts must be equal upon all 432 676 of TOLLS AND RATES. while not themselves occupying the soil, are either attached to floats, &c., fixed in it, or otherwise kept permanently in the same position ; the question being usually whether they are in permanent beneficial occupation of the soil in the parish, and also whether such bodies have increased the rateable value of the occupation of the moorings. 1 Floating piers In Reg. v. Leith? a steamboat company were rated in respect docks atlDg f their floating pier or landing-place, by the description of Reg. v. Leith. " tenement, land, landing-place and premises, and the brow or " brows, barge or barges, &c., lying upon, fixed to, or connected " with, the same tenement, land, landing-place or premises, and " the easement or easements, anchorage or anchorages, held, " used, or enjoyed therewith," &c. The pier consisted of three floating barges, kept in their places by chain cables fastened to anchors sunk in the bed of the river, and connected by wooden bridges, the first of which rested on the first barge at one end, the other end being fastened to a platform resting upon an abutment made fast to the wall of a building on the shore, the ground floor of which was rented of one J. S. by the company, and formed part of a mill, the residue of which was occupied by J. S., and both bridges and barges rose and fell with the tide. Passengers embarking by the steamboats passed through the ground floor of the building, which floor, as well as the pier and landing-places, were in the exclusive occupation of the steamboat company. It was held, that the rate was laid not on the barges, &c., as distinguished from the land, but on the landing-place and premises together with the floating barges, &c., by which the occupation of the land was rendered more profitable, and was therefore valid ; also that the assessment in the rate of J. S. for "the mill and premises, exclusive of the steamboat pier," meant to exclude not the floating barges, but the ground floor and landing-place, and, therefore, that the latter were not twice rated. A floating pier on the Thames, rising and falling with the tide and kept in its place by an iron chain attached to an iron post affixed to landing stairs, and fastened to anchors in the bed of the river by iron chain cables, has also been held rateable to the poor. 3 In Reg. v. Morrison* however, where a ship dock, which 1 See the remarks of Mr. Castle as to and cf. Forrest v. Oreenuncli Churck- Jtoating bodies, Law and Practice of wardens, 8 E. & B. 890 ; 2 J. P. 130. Rating, 4th ed. pp. 286, 287. * 22 L. J.. M. 0. 14 ; 1 E. & B. 150 ; 2 21 L. J., M. C. 119 ; 1 E. & B. 121 ; 20 L. T., 0. S. 190 ; 17 J. P. 24 ; cf. 18 L. T., 0. S. 121 ; 16 J. P. 310. Castle, pp. 286, 313. ' Heq. T. Forrest, 30 L. T., 0. S. 284, RATES. 677 floated at high water, and grounded at low water, and was moored by chains to the bed of a tidal navigable river and to a building yard on the bank, the chains being capable of being slackened, to enable the dock to be taken into deeper water, which often occurred, while the harbour-master sometimes removed the dock altogether, Lord Campbell, C. J., distin- guishing the case from Reg. v. Leith, since the pier was there permanently fixed to the landing-place, held, that the floating dock could not be rated as accessory to the yard. Similarly, a boat club composed of the members of the University of Oxford were held not to be rateable as the occupiers of a barge floating on the river, and moored, at about thirty feet from the bank, by two iron rings passing loosely round fixed posts in the bed, of such a diameter as to allow the barge to rise and fall with the water of the river. 1 In the case of Cory v. Bristoice* however, where the appellants, by permission of the Thames Conservancy, lowered stones and ballast into the river so as to make permanent moorings for certain floating hulks for loading and unloading coal, and paid rent for the accommoda- tion to the conservators, at whose pleasure the moorings were removable at a week's notice, it was held by the House of Lords, affirming the judgment of the Court of Appeal, that the appel- lants were in the exclusive, permanent and beneficial occupation of the moorings and rateable in respect of the same. In the case of Tyne Pontoons Co. v. Tynemouth Union, 3 the company excavated a creek on land on the tidal portion of the Tyne of which they are occupiers and owners and placed in it two pontoons into which ships could be received for repairing purposes, and which were attached to piles and dolphins by shackles, easily detached, and joined to the land by a movable gangway. The pontoons could be towed out, but had not been moved, except for repairing purposes, for ten and four years respectively, and it was held that they were rightly rateable as being in occupation of the land over which they floated, and also that the occupation of the land was enhanced 1 Grant v. Local Board of District of 7 C. I'. 499 ; 27 L. T. 150. Oxford, 38 L. J., M. C. 39 : L. R., 4 2 2 A. C. 262 ; 46 L. J., M. C. 273 ; Q. B. 9 ; 19 L. T. 378 ; cf. Watltin* v. 36 L. T. 594 ; 41 J. P. 709. A**exsment Committee, of Graresend and s 76 L. T. 782; cf. Keg. v. Morrison, Milton Union, 37 L. J.. M. C. 73 ; L. R., 1 El. & Bl. 450 ; see also Swansea Har- 3 Q. B. 350: 18 L. T. 601; 32 J. P. hour Trustee v. Swansea L'nion, ante, 294 : and Cory v. Churchwardens of p. 669. Greenwich, 41 L. J., M. C. 142 ; L, R., 678 OF TOLLS AND RATES. Wharves. Anchorage tolls. Lighthouses and light- house tolls. 57 & 58 Viet, c. 60. by reason of their being attached and used in connection therewith. In Smith's Dock Co. v. Tynemouth Corporation, 1 which was a case relating to similar excavated land, the Court of Appeal held, (1) that the appellants were in occupation of the excavated land so as to be rateable in respect of it, inasmuch as they were in occupation of it before and after its excavation, and afterwards the most important part of their business was done over the site, and (2) that the excavated ground over which the pontoons floated was " land covered with water " within the meaning of sect. 211, sub-sect. 1 (b) of the Public Health Act, 1875. 2 In determining the rateability of certain wharves, it was held in Reg. v. Doulais Iron Co., 3 that certain wharfage dues were to be taken into account in addition to the rent of the wharves themselves. " Anchorage and beaconage tolls " have been held to be rate- able as connected with the use of the soil. 4 The non-rateability of public lighthouses is provided for by sect. 731 of the Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60). 5 This exemption does not, however, apply to lighthouses belong- ing to or under the control of private authorities, the occupier of which is rateable in respect of the annual value of the lighthouse machinery, &c., but not in respect of the tolls. 6 The Mersey Docks and Harbour Board had a statutory right to levy, inter alia, light-dues so fixed that, with other receipts applicable to conservancy purposes, the receipts must not exceed the expenditure on those purposes, so that no profit could accrue to the board in respect of the lighthouses, and they owned, as part of their conservancy apparatus, a tower used as a light- house, a telegraph station, and houses near the tower inhabited ' Trade, which are used or applied for 1 the purposes of any of the services for ' which these dues, rates, fees, and pay- ' ments are received, and all instru- ' ments or writings used by or under ' the direction of any of the general ' lighthouse authorities or of the Board 'of Trade in carrying on those services, 'shall be exempted from all public, ' parochial and local taxes, dues, and ' rates of every kind." 6 R. v. Rebowe, Cowp. 583 ; Cald. 155, 351 ; S. C., Lofft, 77 ; Const. 142, pi. 177 ; Nolan's Poor Law, vol. i. p. 99 ; cf. R. v. Tymmouth, 12 East, 46 ; 11 R. R. 328 ; R. v. Coke, 5 B. &, C, 797 ; 29 U, R. 408, 1 (1908) 1 K. B. 948 ; 77 L. J., K. B. 560 ; 99 L. T. 136 ; 72 J. P. 201 ; 6 L. G. R. 486 ; 24 T. L. R. 432, C. A. 2 38 & 39 Viet. c. 55. 8 10 B. & S. 208, n. ; cf. Sutton Har- bour v. Plymouth Union, 63 L. T. 772 ; 55 J. P. 232. 4 Reg. v. Durham, Earl of, 28 L. J., M. C. 232 ; 2 E. & E. 230 ; 1 L. T. 30. 6 This section is as follows : " All ' lighthouses, buoys, beacons, and all light-dues, and other rates, fees, or ' payments accruing or forming part of 'the Mercantile Marine Fund, and all 1 premises or property belonging to or ' occupied by any of the general light- ' hpse authorities or by the Board of RATES. 679 b their lightkeepers and workmen. It was held that the board were not liable to be rated in respect of the tower, inasmuch as its use was so limited by statute that no profit could arise therefrom and there could be no beneficial occupation of it by any tenant ; but that they were liable to be rated in respect of the adjoining houses, in estimating the value of which the fact of their proximity to the lighthouse tower ought to be taken into account. 1 Where rivers have been entrusted by Acts of Parliament to Rivers, companies or trustees for the purposes of improving the naviga- tion, the proprietors have been held not rateable 2 unless the incorporating Act actually vests the soil in them ; but in such case they are rateable in a parish through which the navigation passes though no riverage dues are receivable in the parish in pro- portion to their profits upon the whole navigation. 3 The occupier of a house as surveyor under the trustees of the Lee Navigation has been held liable for poor's rate although by Act of Parliament the tolls are exempted from being rated and the trustees have no beneficial interest but act for the public. 4 Where the commis- sioners of a navigation having borrowed 28,000/. on mortgage, and, in virtue of their incorporating Acts, let the navigation for ninety-nine years to a lessee who undertook to make certain advances and to pay the interest of the 28,000., it was held on appeal against a rate laid upon the lessee in respect of the navi- gation that the interest was in substance a rent, and that the rate ought to be calculated upon it. 5 In the recent case of Don- caster Union v. Manchester, Sheffield, and Lincolnshire Railway Co. 6 it was held that where the predecessors in title of a railway com- pany were empowered by statute to scour, enlarge, and deepen, and otherwise to improve the navigation of a river, and to make a towing-path, the company are not in occupation of the bed of the river, but have merely an easement ; nor is the ownership or 1 Mersey Docks and Harbour Bnard Stark. 543. v. Llanellan (Overseen), 54 L. J., Q. B. s R. v. Chaplin, 1 B. & Ad. 926 ; 9 49 ; 14 Q. B. P. 770 ; 52 L. T. 118 ; 33 L. J. (0. S.), M. C. 121. W. R. 97 ; 49 J. P. 164. 6 71 L. T. 585, H. L. (E.) ; 6 R. 280 ; 2 R. v. Mersey and Irwell Natiga- see judgment of Lord Herschell, L. C., tion, 9 B. & C. 95 ; 32 R. R. 591 ; R. 6 R., pp. 282284, and cf. Manchester, v. Thomas, 9 B.& C. 114 ; 32 R. R. 601 ; Slieffield, and Lincolnshire Rail. C<>. v. R. v. Aire and Colder Navigation, 9 Doncaster Union, 69 L. T. 350 ; 57 J. P. B. & C. 820 : 33 R. R. 344 ; 3 B. & Ad. 792 ; R. \. Mersey and Irwell jTariga- 139; 37 R. R. 363, 508 : Bruce v. Willis, tion, 9 B. & C. 95 ; 32 R. R. 591; 11 A. & E. 463 ; 9 L. J., M. C. 43. Badger v. S. Yorkshire Railway and s R. v. Portmore (Earl), 1 D. & R. Rirer Dun Navigation, 1 El. & El. 347 ; 422 ; 1 B. & C. 551 ; 25 R. R. 505. 28 L. J., Q. B. 188 ; Bruce v. Willis, 11 * T, Armstrong and others, 2 A, & E, 463. 680 OF TOLLS AND RATES. Ferries. Reg. v. North and South Shields Ferry Co. exclusive occupation of the towing-path vested in them. They are not, therefore, rateable in respect either of the bed of the river or of the towing-path. The lessee and occupier of an ancient and exclusive ferry, not being an inhabitant resiant within the township in which one of the termini of the ferry is situated, is not liable to be rated there for any share of the tolls of such ferry ; for supposing a ferry to be real property, it is not such real property as is mentioned in the statute 48 Eliz.c. 2, the occupancy of which subjects the party to the relief of the poor of the place. 1 So, too, the owner of a ferry residing in a different parish, but taking the profits of the ferry on the spot by his servants and agents, has been held not rateable for such tolls in the parish where they were so collected, and where one of the termini of the ferry was situated, and on which shore the ferry boats were secured by means of a post in the ground the soil itself at the landing-places being the king's common highway, and the owner of the ferry having no property in or exclusive possession of it. 2 In Reg. v. North and South Shields Ferry Company, 5 where a company was authorized 4 to maintain a ferry across the Tyne, and to erect ferry houses, landing-places, &c., on either side and were rated to the poor on the north side, as occupiers of a " ferry " landing and tolls," in a sum including half the net value of the tolls, it was held that the tolls could not be rated directly as being connected with real property occupied in the township, and thus ceasing to be incorporeal, or indirectly as profits of land ; but that the land should not be rated at its value as land merely, but on an estimate of the rent from its being available for earning tolls, and also that the rateable value could not be ascertained by dividing the profits in proportion of the land occupied in the two townships, and the length of transit. 5 1 R. v. Nicholson, 12 East, 330 ; 11 R. R. 398. 2 Williams v. Jones, 12 East, 346 ; 11 R. R. 411 ; and cf. judgment of Lord Ellenborough in R. v. Nicholson, 12 East, 341 ; 11 R. R. 398. 8 1 E. & B. 140 ; 22 L. J., M. C. 9 ; 7 Rail. Cas. 849 ; 20 L. T., O. S. 89 ; 17 J. P. 21. By 10 Geo. IV. c. 98. 5 Cf . as to ferries. Castle, 4th ed. pp. 294 297. Mr. Castle remarks that " in all " these cases of ferries, the passengers, "&c., nppcar to have been carried in " boats worked by wind or steam, or by 'hand freely over the surface of the 1 water. The cases where the ferry is ' worked by means of ropes or chains ' lying on the bed of the river, do not 'seem to have been brought before the ' Court. The distinction between the 'two seems to be similar to that be- ' tween a carriage driving freely over a ' road, and a tramway car that travels 'along the rails laid down for that particular purpose ; if this be so, the ' question of the rateability of a ferry ' so worked would probably be decided ' upon the same principle as the tram- way cases : " p. 297. RATES. 681 The right of fishery was not formerly rateable at common Fisheries, law, unless connected with the use of the land ; * but now, by 37 < 38 Viet. c. 54, 2 s. 6, it is enacted as follows : 1. Where any right of fowling, or of shooting, or of taking or killing game or rabbits, or of fishing (hereinafter referred to as a right of sporting), is severed from the occupation of the land, and is not let, and the owner of such right receives rent for the land, the said right shall not be separately valued or rated, but the gross and rateable value of the land shall be estimated as if the said right were not severed ; and, in such case, if the rateable value is in- creased by reason of its being so estimated, but not otherwise, the occupier of the land may (unless he has specifically contracted to pay such rate in the event of an increase) deduct from his rent such portion of any poor or other local rate as is paid by him in respect of such increase ; and every assessment committee, on the application of the occupier, shall certify in the valuation list, or otherwise, the fact and amount of such increase. 2. Where any right of sporting, when severed from the occu- pation of the land, is let, either the owner or the lessee thereof, according as the persons making the rate determine, may be rated as the occupier thereof. 3. Subject to the foregoing provisions of this section, the owner of any right of sporting, when severed from the occupa. tion of the land, may be rated as the occupier thereof. 4. For the purposes of this section, the person who, if the right of sporting is not let, is entitled to exercise the right, or who, if the right is let, is entitled to receive the rent for the same, shall be deemed to be the owner of the right. In Keg. v. Smith, 3 commissioners were empowered by a local fishery Act, passed for the preservation and increase of salmon, to raise a rate from every owner of a fishery in a large district for the purposes of the Act. The appellant was tenant of a fishery, for which he paid a rent of 305L, and a rate of 61/. to the commissioners ; and it was held that in ascertaining the rateable value of his property, the amount of the rate should be deducted, for that it was an " expense necessary to maintain the " property in a state to command such rent," and so allowed to be deducted under sect. 1 of the Parochial Assessment Act, 1834. 1 See Castle, 4th ed. pp. 15, 441 443 ; and valuation of certain property for the R. v. Ellis, 1 M. & S. 652. purposes of rates. 2 The Rating Act, 1874. An Act to s 55 L. J., M. C. 49 ; 54 L. T. 431 ; 50 amend the law respecting the liability J. P t 215. 682 OF TOLLS AND RATES. Canals. A canal company is rateable in each and every parish through Exemption of which its canal passes as an occupier of land covered with water. 1 Certain Canal Acts, passed at the time when such undertakings cases. were chiefly begun, contained provisions partially exempting such canals, in so far that they made " the rateability of the lands " taken for the canal independent of the profits of the under- " taking generally, by enacting that such lands are to be rated "as other lands in the parish." 2 And hence it was held, that companies so exempted were not liable to be rated for the land used for the purposes of the canal according to its improved value, but in the same proportion as other lands lying near should be rated, and as the same lands would be rateable in case the same were the property of individuals in their natural capacity. 3 Under a similar section it was held in Glamorganshire Canal v. Merthyr Tydfil Union,* that where coal was worked near a portion of the canal, and it began to subside and had to be closed, and could not be used, this portion was rateable as if it were open for traffic, and capable of being and in fact being so used. Value of ad- With regard to the question of the value of "the other joining lands, j an ; Warwick and 19 L. T. 311, Birmingham Canal Co. v. Birmingham 684 OF TOLLS AND RATES. Canal tolls were origin- ally held rateable per se ; but now are not so rate- able since. and occupiers of land shall be rated at and pay for the purposes of this Act. In Reg. v. Neath Canal Co. 1 the appellants were possessed of a canal and towing-path, bridges, and a dry dock, lined with masonry, used for repairing the canal boats, and it was held that " property " meant things ejmdem generis with houses and buildings, and did not include a canal and towing- path ; that the bridges and dry dock were accessories to the canal, and must be considered part thereof ; and that the whole ought to be rated as land. It was formerly held, that canal tolls were rateable per se, and not as part of the profits arising from the occupation of the soil, and, therefore, were rateable in the parish where they became due, that is, where the voyage terminated. 2 This rule was, however, completely reversed by the case of Rex v. Nicholson? above mentioned, where it was decided that tolls detached altogether from local real property are not rate- able per se. In Rex v. Milton* where certain tonnage dues were payable in respect of goods carried along a line of river naviga- tion, extending through several parishes, which were landed at a wharf locally situate within the parish of B. ; it was held that a rate on the proprietor of those dues for their whole amount in the parish of B., stated to be for river tonnage, could not be con- sidered as a rate upon that part of the river locally situate within the parish of B., but as a rate upon the parts of the river situate as well within as without the parish, and that it could not therefore be supported. These decisions in Rex v. Nicholson and Rex v. Milton were confirmed by Rex v. Palmer, 5 which decided that the proprietors of an inland navigation are rateable to the relief of the poor in every parish through which the navigation passes, as occupiers of the land situate in each parish used for the purposes of the navigation ; and, therefore, thai where the proprietors of such a navigation which extended through different parishes, were 40 L. J., M. c. 1 L. R., 6 Q. B. 707 193. 2 R. v. Cardington, 12 Cowp. 581 ; R. v. Page, 4 T. R. 543 ; 2 R. R. 454 ; 1 Nolan's Poor Law, p. 107, S. C. ; R. v. Aireand Calder Navigation, 2 T. R. 060 ; 1 R. R. 579 ; R. v. Staffordshire and Worcestershire Canal, 8' T. R. 340 ; 4 R. R. 683 ; R. \. Leeds and Liverpool Canal, 5 East, 325 ; R. v. St. Mar if 'g, Leicester, 6 M. & S. 400 ; 36 R. R. 452 ; R, v, Calder and ffebble Navigation C,>., I B. & Aid. 263 ; cf. Woolrych, Law of Water, p. 329 ; Castle, pp. 225230. 8 12 East, 330; 11 R. R. 398; see ante, p. 680. 4 3 B. & Aid. 112 ; 22 R. R. 317 ; cf. R. v. ('aider and Hebblr Nariyation, 1 B. & Aid. 263. It was also held that 41 Geo. III. c. 23, s. 1, does not give the Court of King's Bench the power of amending a poor rate. 5 1 B. & C. 546 ; 25 R. R. 502, 685 rated in one for the entire amount of their tolls, the rate could not be supported. The principles here laid down now appear to apply equally to cases where the payments are made irrespective of distance. 1 Where a canal runs through several parishes, a rate in one should be in proportion to the earnings in that parish, not in proportion to the length of the canal there. 2 The proprietors of a canal navigation are in general, and where there is no Act of Parliament directing otherwise, to be rated in proportion to the profits derived from the use of that part of the canal situate within the parish for which the rate is imposed. 3 In Rex v. Cardington* mentioned above, the grantee of the Lock dues. right of navigation of the river Ouse between Erith and Bed- ford, was held rateable to the poor in the parish of Cardington, in respect of the tolls arising from a sluice erected there, though he himself resided elsewhere, and the tolls were collected in another parish. Commenting on this case in Rex v. Nicholson, 5 Lord Ellenborough said : " The rate was " specifically upon the sluices, on that which was local and " visible property, and producing profit within the parish ; " and all the cases where tolls have been held rateable, when " they are examined, will be found to have proceeded on that " ground." This principle appears to hold good with regard to lock dues which have been decided " to be a local earning, and to be locally " rateable." 6 In Rex v. Macdonald, 1 this question came under consideration. Where an Act of Parliament empowered the Duke of Bridge- water to erect a lock upon the Rochdale Canal, and to receive at such lock certain rates or tolls upon goods in vessels navigated from that canal into his own, as a compensation for the profits arising to him from certain wharves at Manchester, which were sacrificed for the public benefit in that navigation, it was held that a poor's rate on his trustees and occupiers of the " Rochdale " canal, lock, tunnel dues or rates " (which rates or dues are 1 See Castle, Law of Rating, 4th ed. 8 R. v. Dudley Canal Navigation pp. 227230 ; R. v. Oxford Canal, 4 B. Proprietors, 1 M. & Ry. 20 ; 9 B. & C. & C. 74 ; 28 R. R. 216 ; R. v. Oxford 810 ; 8 L. J. (0. S.), M. C. 57. Canal, 10 B. & C. 113 ; Reg. v. Kings- * 2 Cowp. 581. winford, 7 B. & C. 236 ; 31 R. R. 181. 5 12 East, 341 ; 11 R. R. 398. 2 R. v. Chaplin, 1 B. & A. 926 ; 9 6 See Castle, pp. 230232. L. J. (0. S.), M. C. 12. 1. 12 East, 324 ; 11 R. R. 396. 686 OF TOLLS AND RATES. only other names for the lock rated therewith) is good, though the trustees were found not to be inhabitants of the township for which the rate was made. A more recent decision is that of Rex v. Lower Mitton, 1 where lock dues were expressly held locally rateable. There a canal company were empowered by their Act to take lock dues at two of their locks in lieu of making a mileage charge, as they were entitled to, of ll$d. a ton ; and the Court held, that the annual profits of the locks were to be considered for the purposes of the poor rate to have been produced in that parish where the locks were situate, and not in the several parishes through which the canal passed. Trade profits. " Trade profits," says Mr. Castle, 2 "unlike stock-in-trade, " never were rateable per se, even where personal property was " rated. But in the valuation of property, its capability for " earning profits of trade is an element of value that can " never be entirely eliminated : . . . . hence when they " improve the value of the occupation they must be taken into " account." The trade profits of a canal company arise from their duties as carriers. In Rex v. Trustees of Duke of Bridgewater, 3 it was held that the proprietors of a canal were rateable for the sum at which it would let, and not for their gross receipts minus their expenses. " I lay out of consideration," said Bayley, J., " the fact of the trustees being carriers, because their occupation " only is to be considered. The profits of carrying goods are " the profits of their trade. The tonnage is the profit of the land " occupied by them. The other sums received by them constitute " the profits of their trade." With regard to deductions, it may be noted that while the expenses of collecting tolls, of repairs of banks, and of supplying water (" all expenses incurred in repairing that part of the canal " in that parish "), must be deducted from the sum paid for poor rate, 4 on the other hand, it has been held by Lord Campbell, C. J., in Reg. v. Coventry Canal, 5 that the expenses 1 9 B. & C. 810 ; 4 M. & R. 711 ; 33 v. Lapley Overseers, 9 B. & S. 568. R. R. 337. 9 B. & C. 68 ; 7 L. J. (0. S.), M. C. 2 4th ed. p. 427 ; cf. pp. 223225 81 ; 32 R. R. 574. and 1st ed. p. 400. He points out * R. v. Oxford Canal, 10 B. & C. that canals differ from railways on this 163 ; 5 M. & R. 100. point, in that the latter have a monopoly 6 1 E. & E. 572 ; 28 L. J., M. C. 102. of carrying traffic, while the former have In contradiction apparently to H. v. to compete with the public. Cf. Keg. Lower Mitton, 9 B. & C. 68 ; 33 R. R. RATES. 687 of maintaining locks do not come under the head of local expenses. Where there is a profitable occupation of a public highway by Water corn- private persons or companies, the occupiers are rateable, though pani they have no property in the soil. But where a profit is made, it is not rateable unless it is an incident of the occupation of land, even if the person receiving such profit is the owner of the soil. Hence water companies are rateable for the land occupied by rateable for their pipes, mains, 1 and reservoirs, 2 and the Metropolitan Board by 1 their 2UF of Works were held rateable for their engine-houses, pumping works . &c - stations, and wharves, though not for their sewers, which are not the subject of beneficial occupation. 3 In Reg. v. South Staffordshire Waterworks Co.* a waterworks company had works extending over many parishes. All the works were in use for the supply of their customers, but they were in excess of the existing requirements of the company, and were created for and adapted to an increased supply in future years. In the calculation by which the rateable value of the mains and service pipes in one of the parishes supplied was to be arrived at, it was held that the whole of the works being used for the purpose of distributing water as a source of profit, the whole of the capital expenditure must be taken into account, and not merely so much as would have sufficed to provide the existing supply ; and also that the deduction to be made in respect of the rates which the hypothetical tenant would have to pay, is the amount of the rates that would be payable on the sum at which the works ought to be assessed, and not necessarily the rates based on the existing valuation list. In Talargoch Mining Co. v. St. Asaph Union, 5 where the 337 ; and R. v. Macdonald, 1 2 East, 333. 324 ; 11 R. R. 396 ; cf. on the subject, L. R., 4 Q. B. 15 ; 9 B. & S. 937 ; 38 Castle, p. 197. L. J., M. C. 24 ; New River Co. v. St. 1 Atkins v. Davit, Cald. 325 ; R. v. Pancras Vestry, 45 J, P. 75 ; Reg. v. JBath, 14 East, 609; 13 R. R. 333; R. Holme Reservoirs Directors, 10 W. R. v. Chelsea Waterworks, 5 B. & Aid. 156 ; 734 ; Slieffield United Gas Light Co. v. 2 L. J., M. C. 98 : 39 R. R. 438 ; R. v. Sheffield Overseers, 4 B. & S. 135 ; 32 Rochdale Waterworks, 1 M. & S. 634 ; L. J., M. C. 169 ; 8 L. T. 692. Reg. v. West Middlesex Waterworks, 1 * 16 Q. B. D. 359 ; 55 L. J., M. C. 88 ; E. & E. 716 ; 20 L. J., M. C. 135 ; 54 L. T. 782 ; 50 J. P. 20, C. A. Liverpool Corporation v. Rirkenhead 5 L. R., 3 Q. B. 478 ; 9 B. & S. 210 ; Union, (1906) 94 L. T. 509 ; 70 J. P. 37 L. J., M. C. 149 ; cf. R. v. Bilston, 146 ; 4 L. G. R. 273 ; cf. Castle, 4th ed. 5 B. & C. 851, where the owner and pp. 328 351. occupier of an ironstone mine, who 2 R. v. Rath, 14 East, 609 ; 13 R. R. erected an engine for the purpose of OF TOLLS AND RATES. Value of land enhanced by a spring. Where works extend through several parishes. owners of a lead mine diverted a stream from its natural course into an artificial watercourse passing to the machinery connected with the mine, paying the owners of the stream for its diversion, and paying small sums for the occupation of the land ; it was held that they were rateable in respect of the occupation of the watercourse at the full value of the land enhanced by its capacity for carrying water, and that the stream was not exempt by its connection with a lead mine, which is not rateable under 43 Eliz. c. 2. In the case of an " intake " from a river for which a payment was made to the conservators, it was held that the intake ought, beyond its structural value and its value as land, to be rated in an additional sum as having an enhanced value by reason of its fitness for the user made of it ; but that the statu- tory payments made to the conservators were not an element to be considered in arriving at the rateable value. 1 Land, the value of which is exhanced by a spring, has been held rateable to the poor at such improved value, although the New River Company, the owners and occupiers of the spring, received none of the profits in the parish, nor did any part of such profits become due in the parish where the land lay. 2 Bay ley, J., said : "I think it is clear that the company are liable " to be rated for the spring, which is part of the produce of tbe " land. The company have the means of carrying this produce " to market, where it affords a beneficial return." The question of the mode of rating a whole system of water- works extending through several parishes was raised in Hex v. Bath, 3 where the corporation were held liable to be rated for the springs, and for the reservoirs made by them in the parishes of Lydcomb and Widcomb, as for land occupied by them, which reservoirs, by means of aqueducts and pipes laid underground, partly in the same parish and through the three adjacent parishes for the supply of the city, produced a clear annual profit of 600/. ; but not for the whole of the entire profit drawing the water from the mine, using it for no other purpose, was held not rateable for the engine. R. v. Bilston seems to be much questioned ; see Talargoch Mining Company v. St. Awpk Union, L. R., 3 Q. B. 478 ; and Reg. v. Metropolitan Board of Works, L. R., 3 Q. B. 15 ; see Castle, 4th ed. pp. 353, 375. 1 New Ricer Co. v. Hereford, (1902) 2 K. B. 597 ; 71 L. J.. K. B. 827 ; 89 L. T. 360 ; 51 W. R. 49 ; 66 J. P. 724, C. A. 2 R. v. New Hirer Co., 1 M. & S. 503 ; 14 R. R. 514. Cf. R. v. Miller, 3 Cowp. 619, where the spring was a mineral spring consumed on the ground, and not conveyed to a distance. 8 14 East, 609 ; 13 R. R. 333. Cf. Chelsea Waterworks v. Putney Overseers, 3 El. & Bl. 108 ; 29 L. J., M. C. 236 ; 2 L. T. 663 ; 6 Jur., N. S. 940. RATES. 689 in the first-mentioned parish, in which the springs were first collected into the reservoirs, a proportion of such entire profit accruing to them from the underground aqueducts and pipes laid into the soil of the other parishes, in respect of which they were to be considered as occupiers of land yielding annual profit in these parishes. This point appears to have been satisfactorily settled by the case of Reg. v. Mile End Old Town, 1 where the works of a water company extended into several parishes, and consisted of two portions, one of which, being the service pipes which delivered the water to the consumer, was directly productive of profit ; and the other, consisting of reservoirs, buildings, &c., indirectly conduced to such production. In some parishes the company had no works, but service pipes, and it was held that the rateable value of the reservoirs, buildings, &c., ought to be first deducted from the total rateable value, and distributed among the parishes in which this portion of the works was situate, according to the extent of such works in each parish ; and that the residue of the rateable value should be apportioned among the parishes containing the service pipes, in the ratio of the net profits produced in each of those parishes. 2 This decision was followed in Reg. v. West Middlesex? where the cases on the subject were fully reviewed, and also in the recent case of Liverpool Corporation v. Llanfyllin Union* in which it was held that, when arriving at the rateable value of a reservoir and waterworks, when part of the works lie outside the parish for which the assessment is made, the reservoir and waterworks must be taken as integral portions of the undertaking, and although rateable separately, must not, for the purpose of assessment, be valued apart from the rest of the undertakings ; and also, that the effective capital value of the reservoir and works should be arrived at from their cost as a basis, and so that by a percentage of interest, the gross rental and rateable value can be arrived at. By the Acts which empowered the waterworks to be carried out the corporation had made roads and bridges, 1 10 Q. B. 208 ; 16 L. J., M. C. 184. B. K. 289. 2 Rug. v. London and South Western 3 28 L. J., M. C. 135. See judgment Mail. Co., 1 Q. B. 558 ; Reg. v. Grand of Wightman, J. Junction Railway, 4 Q. B. 18; Reg. v. i Liverpool Corporation v. Llanfyllin Cambridge Gas Light Co., 8 A. & E. 73 ; Assessment Committee and Llanwddyn 47 R. R. 490 ; R. v. New River Co., 1 Overseers, (1899) 2 Q. B. 14 ; 68 L. J. M. & S. 503 ; 14 R. R. 514 ; R. v. Q. B. 762 ; 80 L. T. 667 ; 63 J. P. 452, Kingswinford, 7 B. & C. 236 ; 31 R. R. C. A. 181 ; R. v. Waking, 4 A. & E. 40 ; 43 L.w. ' 44 690 OF TOLLS AND RATES. Rateability under 32 & 33 Viet c. 67. Urban autho- rities and other public bodies supply- ing water rated formerly as private under- takings, but now only with refer- ence to the actual profits earned. Mayor of Liverpool v. Watertre-e. and substituted a church and schools and a vicarage for those submerged by the lake, and it was held on appeal that the expense incurred in carrying out these operations ought to be included in the calculation in ascertaining the capital value, in order to arrive at the rent which a hypothetical tenant would pay. Where under the Valuation of Property (Metropolis) Act (32 & 33 Viet. c. 67) / . 43, the mains and pipes of a waterworks company have been inserted in the quinquennial valuation list? a supplemental valuation list under sects. 46 and 47 may be made during such period of five years, so as to include an increase in the value of the same mains by reason of their having been connected with newly-built houses since the date of the last valuation. 2 It remains to notice the rateability of bodies such as urban authorities and the like who purchase waterworks, or are empowered to provide them for special classes, 3 the question in these cases being whether the fact of their acting expressly on behalf of the public entitles them to any exemption, or whether they are liable to be rated as private undertakers or bodies of adventurers. In the cases of The Queen v. Churchwardens of Long wood,* The Queen v. Kentmere, 5 and Reg. v. Township of Longwood, 6 where certain commissioners were empowered by the provisions of private Acts to supply townships with water, the latter view appears to have been taken viz., that they should be rated as if the works had been a private undertaking : in the two cases about to be noticed, however, a different decision was arrived at. The Mayor of Liverpool v. Overseers of Wavertree 7 was a case in the Court of Queen's Bench stated under 12 <& 13 Viet. c. 45, s. 11. It appeared that by certain statutes the appellants were empowered to supply water for domestic and other purposes within certain limits, including therein the borough of Liverpool. Pursuant to their statutory powers they maintained waterworks in the township of Wavertree k By Liverpool Corporation Water- works Act, 1862, 8 the corporation of Liverpool were to estimate 1 An Act to provide for uniformity in the assessment of rateable property in the metropolis. 2 Rg. v. New Hirer Co., L. K., 4 Q. B. D. 309 ; Reg. v. St. Mary Ming- ton A*sfsment Committee, 4 Q. B. L). 309 ; 48 L. J., M. C. 123 ; 40 L. T. 322. 8 Cf. ante, Chap. V. p. 362 ; Castle, Law of Hating, 4th ed., pp. 3-15 et .sr., 1 A. C. no action lies for the non-repair of a 662 ; Hubert v. Groves, 1 Esp. 148 ; high road, though it does for placing a Ricket v. Metropolitan Rly., L. R., 2 dangerous obstruction in or near a high- H. L. 175 ; 5 B. & 8., p. 761, per Erie, way whereby an individual sustains an C. J. ; Wintej-botham v. Lord Derby, injury : R. v. Watts, 1 Salk. 357 ; L. R., 2 Ex. 316 ; Pain v. Patrick, 3 White v. Hindley Board, L. R..10Q. B. Mod. 289. 214. 8 4 M. & S. 101 ; 16 R. R. 405 ; see 6 R. v. Medley, 6 C. & P. 292. If art v. Burnett, T. Jones, 156 ; Greas- 6 See art. "Nuisance," Encyc. Laws ley v. Codling, 9 Moo. 489 ; 27 R. R. of England, 2nd ed, vol. x. pp. 83, 84. 712 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. law misdemeanours, such as nuisances lo highways, &c., are triable at Quarter Sessions. If there is a conviction the Court may impose such fine as it deems suitable, and may also, as part of its judgment, order the nuisance to be abated. 1 Sentence is frequently suspended in order to give the defendant an opportunity of abating the nuisance. An information by the Attorney-General is a civil proceeding commenced by writ and tried in the ordinary way. It may be instituted by him of his own motion ; but more usually it is initiated by some person aggrieved, who, as relator, asks for the sanction of the Attorney-General. 2 If the Attorney-General is simply proceeding on behalf of the public, the result of a suc- cessful information is an injunction to restrain the continuance of the nuisance, 3 but a claim for damages by the relator may be joined with the claim for an injunction, and an action commenced by an individual on his own behalf may by amendment be turned into an action and information in which the two claims are joined. 4 Under sect. 107 of the Public Health Act, 1875, local sanitary authorities may take such proceedings as are known to the law for dealing with nuisances, where, in their opinion, the summary proceedings which they are empowered to take would provide an inadequate remedy for the purpose. They cannot, there- fore, sue in their own name, unless the nuisance affects them as a corporation e.g., by injuring their property, 5 but must proceed by indictment or sue in the name and with the sanction of the Attorney-General. 6 They may, like any individual, act as relators in action brought by the Attorney-General, and, if aggrieved, themselves may join a claim in their corporate capacity for damages, just as an aggrieved individual might. 7 The Attorney- General may, in his discretion, and without leave, file an informa- tion for any misdemeanour. 8 1 Hawk. P. C., c. 75, s. 14. C. A. p. 95. 2 See O. S. C. 16, r. 20. * Caldwell v. Pagliam Harbour Co., A.-G. v. Shrewsbury Bridge Co., (1876) 2 Ch. D. 221.' (1882) 21 Ch. D. 752. " The Attorney- 5 Nuneaton Local Board v. General 'General coming to complain that a Sewage Co., L. R. 20 Eq. 127. ' public body is exceeding its powers, 6 Tottenham Urban District Council ' or committing some offence against a v. Williamson, (1896) 2 Q. B. 353; ' statute, is not entitled as a matter of 38 & 39 Viet. c. 55, s. 69. 'right to say that, in all circumstances 7 A.-G. v. Logan, (1891) 2 Q. B. 100. ' on proving his case, the Court is bound 8 See art. "Information," Encyc. ' to grant an injunction." Per Cozens- Laws of England, 2nd ed. vol. vii. Hardy, M.R., in A.-G. v. Birmingham pp. 198 et gey. Drainage Board, (1909) 26 T. L. R. 93, REMEDY BY ACT OF LAW. 713 The Criminal Appeal Act, 1907 (7 Edw. VII. c. 23) abolished, as from 19th April, 1908, when the Act came into force, the right previously possessed by persons convicted on an indictment of misdemeanour, tried on a record of the King's Bench Division of the High Court, of moving for a new trial, and gave precisely the same powers of appeal in misdemeanour and in felony. By sect. 20 (3) of this Act, however, in the case of convictions upon indictments at common law for obstruction or non-repair of a highway, public bridge, or a navigable river, an appeal now lies as on a verdict in a civil action at Assizes i.e., to the Court of Appeal. 1 An information will lie against a corporation which has become a sanitary authority under the Public Health Act, for allowing sewage to continue to run from a drain in the town into a canal ; and they are liable to be restrained by injunction from continuing such nuisance, though they derive no profit from the works causing the nuisance. 2 The proper remedy against a county for non-repair of a bridge 3 Indictment is by indictment, and no action will lie against the inhabitants rgpair'of of a county for an injury sustained in consequence of a county bridges, bridge being out of repair. 4 By 5 nilrlifti\ 18 Q. B. 287 ; Rochdale Canal v. King, 20 L. J., Ch. 675 ; 2 Sim., N. S. 78 ; Shand v. Henderson, 2 Dow, H. L C. 519 ; 14 R. R. 202 ; and cases in note 2, p. 340, ante. 6 Oldaker v. Hunt, 19 Beav. 425, and cases ante, pp. 199 et seq., 305 et seq. ; GoodJion v. Richardson, L. R., 9 Ch. 221. A local board under the Public Health Act, 1875, causing a nuisance by any act which, independently of the statute, would have given a cause of action to any person, may be liable in damages, or be restrained by injunction, unless they can show a justification under the powers of the statute. But if a local REMEDY BY A(!T OF LAW. 717 legislature is of opinion that certain acts will produce injury it is enough, and active injury need not be proved. 1 If the effect of granting an injunction would have the effect of inflicting serious damage upon the defendant, without restoring or tending to restore the plaintiff to the position in which he originally stood, or doing him any real practical good, or if the mischief complained of can be fully and adequately compensated by a pecuniary sum, an injunction will not issue. 2 If, on the other hand, the mischief complained of is of so material a nature that it cannot be properly, fully and adequately compensated by a pecuniary sum, and the granting an injunction will restore or tend to restore the parties to the position in which they formerly stood, it is the duty of the Court to interfere by perpetual injunction, notwithstanding the serious damage caused thereby to the defendant. 3 The Court will not hold its hand upon the ground of a decision being appealed from, unless it has some doubt of the justice of that decision. 4 The Court will not interfere by injunction in a case of merely Prospective prospective injury ; but although the fact of prospective nuisance 1! is not of itself a ground for the interference of the Court, 5 yet if some degree of present nuisance exists, the Court will take into account its probable continuance and increase. 6 Where the plaintiff has proved a right to an injunction, it is No part of no part of the duty of the Court to inquire in what way the the Courtfto defendant can best remove the nuisance. The plaintiff is entitled inquire in to an injunction at once, unless the removal of the injury is nuisances physically impossible ; and it is the duty of the defendant to find ma y ^ board do not act themselves so as to cause Bankart v. Haughton, 27 Beav. 431 ; a nuisance, but neglect to perform their A.-G. v. Bradford, L. R., 2 Eq. 71. See duty of providing a satisfactory and also Hobart v. Smthend -on-Sea Corpora- healthy system of drainage, it "is no tion, 75 L. J., K. B. 305 ; 94 L. T. 337 ; ground of action by an individual for 54 W. R. 464 ; 70 J. P. 192 ; 4 L. G. R. damages or an injunction, but the 757 ; 22 T. L. R. 307, 530. remedy is only by application under * A.-G. v. Bradford, L. R., 2 Eq. 71. sect. 299 of the Public Health Act, 5 A.-G. \. Kingston, 13 W. R. 888. 1875 (38 & 39 Viet. c. 55), to the Local 6 Goldxmid v. Tunbridge, L. R.. 1 Government Board : see cases, ante. Eq. 349 ; A.-G. v. Sheffield, 3 D., M. & p. 207, n. 1. G. 304 ; A.-G. v. Leeds, L. R., 5 Ch. 1 A.-G. v. Cockermmith, L. R., 18 Eq. 583 ; A.-G. v. Halifax, 39 L. J., Ch. 172. 129: Elliott v. ^'orth Eastern Rly., 10 2 Wood v. Sutcliffe, 2 Sim., N. S. 163 ; H. L. 333 ; A.-G. v. Hackney. L. R., 20 Bankart v. Houghton, 27 Beav. 431. Eq. 631 ; Earl Ripon v. Hobart, 3 M. 8 Penningtonv.rin*opHaU,5Ch. D. & K. 169; 41 R. R. 40; Cator v. 769 ; A.-G. v. Birmingham, 4 K. & J. Leivinham, 11 Jur. 340; Elwell v. 328 ; Spoken v. Banbury, L. R., 1 Eq. Crowthfr, 31 Beav. 163. 42 ; Wood v. Sutcliffe, 2 Sim., N. S. 166 ; 718 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. his way out of the difficulty, whatever the inconvenience and expense he may be put to. Where the difficulty of removing the injury is great, the Court will suspend the injunction for a time to render its removal possible. 1 Where an injunction was granted to restrain defendants from pouring sewage into a river, and execution of the order was stayed till July 1st, and the defendants did not subsequently to July 1st stop the nuisance, alleging that they had not yet found a way of deodorizing it, and that com- pliance with the order was physically impossible ; it was held that this was a gross and wilful contempt of Court, and seques- tration was ordered to issue. 2 In cases, however, where impor- tant public interests are involved the Court will protect the private rights of individuals, but will at the same time have regard to the nature and extent of the injury and nuisance, and to the balance of inconvenience. 3 Injunction to The Courts will grant injunctions to restrain the diversion and diversion and obstruction of water in a natural stream ; and though merely obstruction of nominal damages may have been recovered for the diversion, water the Court will interfere and vindicate the right by perpetual injunction, if the act complained of will cause irreparable mischief or permanent injury, or would have the effect of destroying a right,* or is calculated to found a claim which may ripen into a right. 5 Further, even though immediate damage cannot be described nor actual loss predicated, yet an injunction will be granted if it can be shown that a present obstruction may reasonably be expected to cause serious damage in the future. 6 If necessary, the injunction will be in a man- datory form. 7 Pollution. So the Courts will restrain the fouling and pollution 8 of water 1 A.-O. v. CUney Hatch, L. R.. 4 Ch. 146; A.-G. v. Halifax,? L. J., Ch. 129 ; Pennington v. Brinsop Hull, 5 Ch. D. 769 ; A.-G. v. Birmingham, 4 K. & J. 328. 2 Spokes v. Banbury Boar A of Health, L. R., 1 Eq. 42. 8 Lillywhite v. Trimmer, 36 L. J., Ch. 525; 16 L. T. 318; and cases ante, pp. 187 et seq. 4 Swindon Water Co. v. Wilts and Berk* Canal, L. R., 7 H. L. 697 ; Grand Junction Canal v. Shugar, L. R., 6 Ch. 483; A.-G. v. Great Eastern Ely., L. R., 6 Ch. 577; Elwell v. Crowthrr, 31 Beav. 163 ; Rochdale Canal v. King, 2 Sim., N. S. 79 ; Tipping v. Eckerxley, 2 K. & J. 264 ; Robinson v. Lord Byron, 1 Bro., C. C. 588 ; Weller v. Smeatttn, 1 Bro. C. C. 572. 5 Young v. Bankier Distillery Co., (1893) App. Cas. 691 ; 69 L. T. 853, H. L. (Sc.). Bickett v. Morris, L. R., 1 H. L. (Sc.) 47 ; On- Ewing v. Colquhoun, 2 App. Cas. 339 ; Ambler v. Bradford Corporation, (1902) 37 L. T. 217, C. A., ante, pp. 101 et seq. i Harrop v. Hirst, L. R., 4 Ex. 43. As to form of injunction to restrain diversion, see Roberts v. Fellowes, (1906) 94 L. T. 279, ante, p. 134, n. 3. 8 For procedure under the Rivers Pollution Acts, see ante, pp. 212 218, and notes. REMEDY BY ACT OF LAW. 719 to the injury of a riparian owner, even where the damage is only nominal, upon the ground of the inconvenience of leaving the parties to repeated and successive actions for damages ; l but it is right, in an order for an injunction, to insert the words " to the " injury of the plaintiff," to prevent the authority of the Court being invoked for trivial reasons. 2 The Courts will not grant an injunction unless some perceptible pollution exists; and in the case of A.-G. v. Cockermouth, 3 Jessel, M. R., refused to grant an injunction at the suit of a local board to restrain the defendants from discharging sewage into a stream eight miles above the intake of the plaintiffs waterworks, the evidence showing that chemical analysis failed to detect a-ny pollution in the water at the intake of the waterworks, though it was polluted at the point of discharge. In the same case, however, the Master of the Rolls granted an injunction at the suit of the Attorney-General, on the ground that The Local Government Acts, 1858 and 1861, rendered it illegal for the defendants to discharge the sewage by an outfall out of their district, so as to affect or deteriorate the water at the point of discharge. In Weeks v. Howard* Wood, V.-C., refused to grant an injunc- tion to restrain the defendant from draining the water out of a gravel pit, which water, the plaintiff alleged, being muddy, 5 hindered the growth of his watercresses, on the ground that the defendant had as much right to use the stream for such discharge as the plaintiff had to grow his watercresses there. Where actual substantial damage is shown, the Courts will interfere by injunction to prevent its continuance. 6 In granting injunctions to restrain pollution by sewage matter, the practice is to grant an immediate injunction restraining any new communications with the river ; but, as to existing drains, to suspend the operation of the order for a time to enable 1 Pennington v. Brinsop Hall, 5 Ch. 6 A.-G. v. Leeds, L. R., 5 Ch. 589 ; D. 769 ; Clowes v. Staffordshire, L. R., Crossley \. Lightowler, L. R., 2 Ch. 8 Ch. 125. 418 ; Goldsmid v. Tunbridge Wells, 2 Lingwood v. Stowmarket, L. R., 1 L. R., 1 Ch. 349 ; 35 L. J. Ch. 382 ; 14 Eq. 77. For form of order, see ibid. L. T. 154 ; A.-G. v. Birmingham, 4 K. 336. & J. 528 ; Bidder v. Croydon, 6 L. T., 3 L. R., 18 Eq. 172. N. 8. 778 ; A.-G. v. Luton, 2 Jar., N. S. 4 10 W. R. 567. 180 ; Manchester v. Worktop, 23 Beav. 5 Making water muddy is not pollu- 198 ; Wood v. Sutelijfe, 2 Sim., N. S. tion. See Tayler v. Bentiet, 7 C. & P. 163 ; Tipping v. Eckersley, 2 K. & J. 329 ; 39 & 40 Viet. c. 75, s. 20. See 264 ; Oldalter v. Hunt, 6 D., M. & G. ante, pp. 208 et seq. 376, 720 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. Purpresture and public nuisance to navigable rivers. Procedure. the defendants to comply with the order, by altering their works. 1 In the case of injury to riparian rights, the Courts will not, except in special cases, award damages in lieu of an injunction. 2 The injunction may be in a mandatory form. 3 Any invasion of the right of the Crown to the bed of the sea or navigable river is a purpresture, and may be restrained by injunction at the suit of the Attorney-General, whether it be a nuisance or not. If the act complained of be merely a trespass on the property of the Crown, and not a nuisance to the naviga- tion, the Court will generally direct an inquiry, whether it is more beneficial to the Crown to abate the purpresture, or to suffer it to remain. But if it be also a public nuisance this cannot be done, for the Crown cannot sanction a public nuisance. 4 Erec- tions on the bed of navigable rivers are not necessarily nuisances, but if they obstruct the navigation they may be abated by information and injunction, or by indictment. The true question in each case is, whether or not a damage accrues to the navigation in the particular locality. 5 In questions of title to the foreshore between the Crown and a subject the question can be brought before the Court by English information ; and it is then a matter for the discretion of the Court whether it will try the question itself or direct an issue before a jury. Such informations were formerly exhibited in the Court of Exchequer on its equity side, which had power to send any questions that might arise upon the title to a trial at law. 6 The jurisdiction, however, passed from the Exchequer Court to the Exchequer Division, and thence to the King's 1 Goldsmid v. Tunhridge Wells, L. R., 1 Ch. 349; A.-G. v. Colney Hatch, L. R., 4 Ch. 146 ; A.- 6. v. Leed*, L. R., 5 Ch. 583 ; A.-G. v. Halifax, 17 W. R. 1088 ; A.-G. v. Birmingham, 19 W. R. 561 ; Penning ton v. Brinsop Hall, 5 Ch. D. 769 ; Price's Patent Candle Co. v. London County Council, (1908) 2 Ch. 526 ; 78 L. J., Ch. 1 ; 99 L. T. 571 ; ante, p. 192 ; see also ante, pp. 189, et seq. 2 Pennlngton v. Brinsop Hall, 5 Ch. D. 769 ; Kerr on Injunctions, pp. 39, 40. 8 Spokes v. Banbury, L. R., 1 Eq. 42 ; 35 L. J., Ch. 105 ; 13 L. T. 428 ; affirmed 13 L. T. 453. 4 A.-G. v. lerry, L. R., 9 Ch. 423 ; A.-G. v. Lonsdale, L. R., 7 Eq. 388 ; A.-G. v. Johnson, 2 Wils. Ch. 87 ; 18 R. R. 156; Parmeter v. A.-G., 10 Price, 412; 24 R. R. 723, 745; A.-G. v. Parmeter, 10 Price, 378 ; 24 R. R. 723, 745 ; A.-G. v. Burridge, 10 Price, 350 ; 24 R. R. 705 ; Bristol Harbour case, cited 18 Ves. 214 ; A.-G. v. Richard*, 2 Anstr. 603 ; 3 R. R. 632 ; see also Gann v. Free Fishers of Whit- stable, 11 H. L. 292. 5 A.-G. v. Terry, L. R., 9 Ch. 423 ; A.-G. v. Lonsdale, L. R., 7 Eq. 388 ; Reg. v. Belts, 16 Q. B. 1023; R. v. Ward, 4 Ad. & E. 386 ; 43 R. R. 364. 6 A.-G. of Prince of Wales v. St. Aubyn, Wightw. 167 ; 12 R. R. 718, n. ; A.-G.v. Richards. 2 Anst, 603 ; 3 R. R. 632. REMEDY BY ACT OF LAW. 721 Bench Division and is not touched by the Judicature Acts (Order LXXII.), 1 nor by the Crown Suits Acts, 18551865, 18 d- 19 Viet. c. 90, 24 Jc 25 Viet. c. 62, 23 & 29 Viet. c. 104 ; 2 and the Crown has the same right as formerly to have any question affecting its right decided by this Division only. (See A.-G. v. Constable, 3 where a case by a lord of the manor against trespassers was removed from the Chancery to the Exchequer Division). Any interference with the right of access which a riparian Eight of owner has to a navigable river for the purposes of exercising a the public right of navigation, is an injury to a right of property, and actionable without proof of special damage, and may be restrained by injunction. 4 It is a question of fact in each case, whether an obstruction in a river amounts to an interference with the right of access to a river frontage. 5 An action will lie for the breaking and entering a several or a Fishery, free fishery. 6 The owner of a several fishery may maintain trespass for taking his fish, but the owner of a free fishery has not such a property as to enable him to maintain trespass for taking fish, such fish not being his property until caught. 7 The obstruction of the passage of fish, as by weirs or by diversion of water, is actionable by the owner of a fishery prejudiced thereby, and will be restrained by injunction. 8 The pollution of the sea 9 or a river, which has the effect of killing or driving away fish, may be restrained by injunction. 10 In a case where a man, by making an embankment and enclosing the bed of a river, shut out and prevented the tide from 1 A.-G. v. Emerson, 10 Q. B. D. 191 ; Acts, see ante, Chap. VI. ; and under A.-G. v. Jteete, 1 T. L. R. 675. the Rivers Pollution Prevention Act, 2 A.-G. v. Xewcastle-on-Tyne, (1897) ante, Chap. III. 5 Q. B. 284. 8 Pirie v. Kintore (Earl), (1906) A. C. 3 4 Ex. D. 172. 478, H. L. (Sc.) ; 75 L. J., P. C. 96 ; Weld 4 Lyon v. Fishmongers' Co., 1 A. C. v. Hornby, 7 East, 195 ; 8 R. R. 608 ; 662 ; Rose v. Grotex, 5 M. & G. 613 ; Marquis of Donegal v. Hamilton, 3 Dobson v. Blackmore, 9 Q. B. 991 ; Ridg. P. C. 267 ; Lecontield v. Lonsdale, Hubert v. Grates, 1 Esp. N. P. C. 148 ; L. R., 5 C. P. 726 ; 39 L. J., C. P. 305 ; Fineux v. Horeden, Cro. Eliz. 664 ; 23 L. T. 155, per Bovill, C. J. Coppinger v. Shehan, (1906) 1 Ir. R. 9 Hobart v. Southend-on-Sea Corpora- 519 ; ante pp. 721 et seq. tion, 75 L. J., K. B. 305 ; 94 L. T. 337 ; 5 Bell v. Corporation of Quebec, 41 54 W. R. 454 ; 70 J. P. 192 ; 4 L. G. R. L. T., N. S. 451 (P. C.). 757 ; 22 T. L. R. 307, 530. Holford v. Bailey, 13 Q. B. 426. 10 A.-G. v. Birmingham, 4 K. & J. i Blomfield v. Johnson, Ir. R., 8 C. L. 528 ; A.-G. v. Luton, 2 Jur., N. S. 181 ; 68 ; Child \. Green/till, Cro. Car. 553 ; Bidder v. Croydon, 6 L. T., N. S. 778 ; Gipps v. Woollicott, Skin. 577 ; Upton Oldaker v. Hunt, 6 D., M. & G. 376 ; v. JDawkins, 3 Mod. 97. For proceed- Aldred's case, 9 Rep. 59 a. ings under the Fishery an-1 Poaching L.w. 46 722 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. reaching a mussel bed and breeding ground, the Court granted an injunction to restrain this encroachment on the principle of irreparable damage to the fishery, without entering on or deciding the question as to the right of ownership in the soil. 1 Water For remedies by and against water companies, see cases collected companies ante > PP- 356 et 8e V'> an( * Canal Companies, ante, pp. 327 et seq. ' Bridget v. Hightim, 11 L. T., N. S. 653. ( 723 ) APPENDIX I. BYE-LAWS FOR THE REGULATION OF THE KIVER THAMES AND THE NAVIGATION THEREOF, AND FOR OTHER PURPOSES.* The Conservators of the River Thames in exercise of the powers and authority vested in them by the Thames Conservancy Act 1894 do make the following Bye-laws that is to say : 1. All bye -laws rules and orders for the regulation management and improvement of the River Thames and the navigation thereof and of the lands appertaining thereto and for the government good order regulation and registration of vessels in or upon the said river and of persons navigating the same or using the towing path piers landing places or any of the locks thereof except the bye-laws of the 26th day of August 1893 for the protection preservation and regulation of the fisheries and the Tower Bridge Navigation Bye-laws for the time being in force shall after these present bye-laws have been confirmed by the Board of Trade be and the same are hereby repealed. 2. These bye-laws may be cited as " The Thames Bye-laws 1898 " and shall come into operation the day after the same are confirmed by the Board of Trade. 3. These bye-laws shall be applicable to the Thames as defined by the Thames Conservancy Act 1894 and to all places over which the Conservators have jurisdiction to make bye-laws under the provisions of the said Act except where the same or any of them are expressly limited to any particular part or parts of the river or place. 4. In these bye-laws the words and expressions hereinafter mentioned shall have the meanings hereby assigned to them respectively unless there be something in the subject or context repugnant to such construction, viz. : The expression " The Thames " or " river " means and includes so much of the Rivers Thames and Isis respectively as are between the town of Cricklade in the County of Wilts and an imaginary straight line drawn from the entrance to Yantlet Creek in the County of Kent to the City Stone opposite to Canvey Island in the County of Essex and so much of the River Kennet as is between the common landing place at Reading in the County of Berks and the River Thames and so much of the River Lee and Bow Creek respectively as are below the south boundary stones in the Lee Conservancy Act 1868 mentioned and all locks cuts and works within the said portions of rivers and creeks Provided that no dock lock canal or cut existing at the passing of the Thames Conser- vancy Act 1894 and constructed under the authority of Parliament and belonging to any body corporate established under such authority and no bridge over the River Thames or the River Kennet belonging to or Former bye- laws repealed. Short title and commence- ment of operation of bye-laws. Application of bye-laws. Interpreta- tion clause. * The establishment of the Port of London authority under the Port of London Act, 1908 (ante, p. 63, n. 6), may necessitate the issue of new bye- laws. This application of some of the existing bye-laws indicated by a star (*) has been temporarily modified viz. : Bye-laws 30, 34 and 3653, pod, pp. 728 et seq. 462 724 APPENDIX I. vested in any county council or municipal authority or to or in any railway company shall be deemed to form part of the Thames. The word " person " includes a corporation whether aggregate or sole. The word " horse " includes all draught animals. The word " vessel " includes any ship lighter keel barge launch house- boat pleasure or other boat randan wherry skiff dingey shallop punt canoe yacht raft float float of timber or craft whatever whether navigated by steam or otherwise. The word " lighter " means any dumb barge or other like craft for carrying goods or any sailing barge with her mast and gear lowered on deck. The expression " steam vessel " includes any vessel propelled by machinery. The expression " steam launch" includes any vessel' propelled by steam electricity or other mechanical power not being used solely as a tug or for the carriage of goods and not being certified by the Board of Trade as a passenger steamer to carry two hundred or more passengers. The expression " pleasure boat " includes any ship launch houseboat boat randan wherry skiff dingey shallop punt canoe or yacht whether navi- gated by steam or otherwise not being used solely as a tug or for the carriage of goods and not being certified by the Board of Trade as a passenger steamer to carry two hundred or more passengers whether private or for hire. The expression " pleasure boat for hire " means any pleasure boat let for hire or used or intended to be used for any purpose of profit except such pleasure boats as are let for hire for a period of not less than four weeks continuously to one and the same person. The expression " private pleasure boat " means any pleasure boat other than a boat for hire and includes such as are let for a period of not less than four weeks continuously to one and the same person. The expression " steam whistle " includes any efficient sound signal approved by the Conservators. The word " master " when used in relation to any vessel means any person whether the owner master or other person lawfully or wrongfully having or taking the command charge or management of the vessel for the time being. The word " harbour-master " means and shall apply to each of the harbour-masters and the deputy harbour-masters and to any person authorised by the Conservators to assist them or to perform the duties of a harbour-master. The expression "permission of the Conservators" or "consent of the Conservators " means permission or consent of the Conservators in writing signed by the Secretary. The words " in writing " applied to any document include documents wholly printed or wholly written or partly printed and partly written. The expression " under way " applied to a vessel means when she is not at anchor or made fast to the shore or aground. The word " visible " when applied to lights means visible on a dark night with a clear atmosphere. The word " Secretary " means the person for the time being acting as Secretary to the Conservators. The expression "due notice" means a notice in writing given by the Conservators or by any person duly authorised in writing by them to act in their behalf. The word " certificate " means certificate in writing signed by the Secretary. The word " officer " means any officer of the Conservators or any person employed by them to carry out the provisions of these bye-laws. The words " the register " means the register kept by the Conservators in pursuance of sections 138 139 and 140 of the Thames Conservancy Act 1894. APPENDIX I. 725 Words importing the masculine gender only shall include females and words importing the singular only shall include the plural. 5. There shall be maintained as far as practicable between London Bridge and the Tower Bridge a navigable passage not less than two hundred feet wide for vessels passing up and down the river. 6. There shall be maintained as far as practicable between the Tower Bridge and Barking Creek a navigable passage not less than three hundred feet wide for vessels passing up and down the river and in all parts of the river where the navigable passage shall be in the stream between tiers of vessels the space for the navigable passage shall be reckoned from the vessel in each of the said tiers nearest the other or opposite tier. 7. No float or floats or raft or rafts of timber either singly or together exceeding sixty feet in length (excepting timber in one length) and twenty feet in width shall be permitted to go into or pass along any part of the river nor shall any following float or raft of timber go within the distance of three hundred yards of any such float or raft. 8- All vessels navigating Gravesend Eeach are to keep to the northward of a line defined by a skeleton beacon erected upon the India Arms Wharf and with the high chimney at the Cement Works at Northfleet and all vessels intending to anchor in the Reach are to bring up to the southward of that line. A lantern is placed on the above beacon which shows (at night) a bright light to the northward of the same line and a red light to the south- ward of it over the .anchorage ground. All vessels so anchoring and remaining beyond a period of twenty-four hours are to be moored. 9. Any vessel slipping or parting from her anchor shall leave a buoy to mark the position of such anchor. This bye-law shall not apply to vessels belonging to the Conservators employed in raising a wreck or to any wreck in charge of the Conservators. 10. No anchor shall be allowed to lie or remain in the river outside of the line of the tiers and if any anchor of any vessel shall be so allowed to lie or remain in the river outside of the line of any of the tiers the harbour-master may deliver or cause to be delivered on board the vessel from which such anchor is put out a notice in writing signed by him requiring the master of such vessel forthwith to remove such anchor and if the same be not so removed after the delivery of such notice the harbour-master may remove or cause to be removed such anchor and the expenses of such removal shall be recoverable from the owner or owners or the master of the said vessel to the use of the Conservators as provided by the Thames Conservancy Act 1894. 11. No vessel shall navigate or lie in the river with its anchor or anchors a cock bill nor with its anchor or anchors hanging by the cable perpen- dicularly from the hawse unless the ring shall be awash except during such time as may be necessary for fishing or catting such anchor or anchors or for getting such vessel under way or for bringing up. 12. No steam vessel shall be worked navigated or placed upon or anchored or moored in the river within three hundred and sixty feet of Her Majesty's dock-yard or arsenal at Woolwich or of Her Majesty's victualling-yard at Deptford except steam vessels belonging to or employed in the service of Her Majesty her heirs or successors and no vessel shall be anchored in the river within a similar distance of the powder hulk " Thalia " belonging to Her Majesty lying off the said arsenal except for the purpose of loading or discharging explosives out or or into such powder hulk. 13. The engine or engines of any steam vessel shall not be set in motion during the time such steam vessel is moored in the river except with the permission of the Conservators or their harbour-master. 14. The master of every steam vessel navigating the river shall be on one of the paddle boxes or on the bridge of such steam vessel and shall keep or cause to be kept a proper look-out during the whole of the time it is under way and shall remove or cause to be removed any person other than the crew who shall be on the paddle boxes or bridge of such steam vessel. Above Teddington Lock this bye-law shall apply only to steam vessels Navigable passage for vessels be- tween London Bridge and the Tower Bridge. Width of passage be- tween the Tower Bridge and Barking Creek. As to floats or rafts of timber. Course of vessels navigating Gravesend Reach. Left anchors to be buoyed. As to anchors in the stream. Anchors a cock bill or hanging up by a cable. Steam vessels not to be navigated or moored near Woolwich Arsenal or Victurtlling- yard, Dept- ford. No steam vessel while attached to mooring to have engines in motion. Master of steam vessel to be on 726 APPENDIX I. paddle-box bridge. Precautions in taking in or discharging ballast. Lighters and sailing barges to have fifteen inches free- board. Penalties for intoxication and use of abusive or indecent language, &c. As to pay- ment of ton- nage dues on vessels not entered at the Customs. Piers to be lighted or marked. No vessel to be moored to piers, &c., without per- mission. As to adver- tisements on vessels or river. Vessels to be navigated singly except when towed. Not more than six to be towed at one time below Albert Bridge, Chelsea. used for the carriage of passengers or for purposes of excursions which are not steered from the bows or bridge. 15. No master of any vessel shall take in or discharge ballast unless canvas or tarpauling be affixed below the ballast port and extended down inside the lighter so as to prevent the ballast falling into the river. 16. No lighter or sailing barge shall be navigated on the river below Battersea Bridge without having a freeboard of at least fifteen inches such freeboard to be measured amidships and coamings (if any) may be included in such measurement but in no case must the top of the deck or gunwale be less than three inches above the water's edge when such craft is decked and hatched or less than six inches above the water's edge when such craft is open. 17. Any person engaged in navigating or employed on or using or being in upon or about the river or the banks or towing paths thereof or any land of the Conservators who shall be intoxicated or make use of obscene scandalous abusive indecent or improper language to any officer of the Conservators whilst employed in the performance of the duties of his office or to the annoyance of any person who shall be in upon or about the river or the banks or towing paths thereof or any land of the Conservators or who shall obstruct any officer of the Conservators in the execution of his duty shall be deemed to have committed a breach of these bye-laws and be liable to the penalty hereinafter mentioned. 18. The master or owner of any vessel entering or leaving the Thames subject to the payment of duties of tonnage and which has not been entered at the office of Her Majesty's Customs and on which the duties of tonnage have not been paid to the receiver there shall furnish to the Conservators for the purpose of registration with full particulars of the name tonnage and owner of such vessel and the port to which she belongs and shall send a return once in every month of the arrival and departure of such vessel during the preceding month to the office of the Conservators who shall pay to the Conservators the duties of tonnage which are then payable for each time of arrival in and departure from the river pursuant to the Thames Conservancy Act 1894. 19. Any pier or jetty in the river or on the shore thereof shall be lighted or marked in such manner as the Conservators may from time to time direct. 20. No vessel shall be moored to or remain at any pier or premises belonging to the Conservators without the permission of the officer in charge of such pier or premises being first obtained and shall move away when ordered by such officer so to do. 21- No advertisement or advertising notice shall be exhibited upon or by means of any vessel or otherwise on or over the river except advertisements or notices by the owner of any vessel on such vessel for the purposes of or in reference to his trade or business. The expression "owner" in this bye-law shall mean the person whose name appears in the certificate of registration of such vessel. 22- All vessels navigating the river shall be navigated singly and sepa- rately except small boats fastened together or towed alongside or astern of other vessels and except vessels towed by steam. 23- Vessels towed by steam navigating the river below the Albert Bridge at Chelsea shall if more than two in number be placed two abreast (except vessels trading on any canal and not exceeding fourteen feet nine inches in width which may be placed three abreast) and not more than six of any such vessels shall be towed together at the same time and no tow of vessels shall exceed in limits the following limits namely : Above London Bridge 400 feet Between London Bridge and the landing place | or>n * f at the end of Trinity Street Charlton . . . J Below the said landing place 400 feet to be calculated from the stern of the vessel towing to the stern of the aftermost vessel towed. APPENDIX I. 727 24. Vessels towed by steam navigating the river between the Albert Bridge at Chelsea and Kingston Bridge may if more than two in number be placed two abreast (except vessels trading on any canal and not exceeding fourteen feet nine inches in width which may be placed three abreast) or may be placed in a single line but not more than six of any such vessels shall be towed together at the same time and the distance between any two of the vessels so towed shall not exceed fifty feet. 25- Vessels towed by steam navigating the river above Kingston Bridge shall be placed in a single line and not more than four such vessels shall be towed together at the same time and the distance between any two of the vessels so towed shall not exceed forty feet. 26. No vessel exceeding three hundred and one feet in length and in the case of a paddle wheel steamer exceeding sixty- five feet in width measured from the outside of the paddle boxes and in the case of other vessels exceeding thirty-six feet in width which is used only or principally for the carriage of passengers or for the purposes of excursions shall be navigated in the river above Blackwall Pier. For the purposes of this bye- law the length of a vessel shall be deemed to be the length appearing in her Certificate of Registry. 27. Any lighter navigating the river shall when under way have at least one competent man constantly on board for the navigation and management thereof and all such craft exceeding fifty tons but of not more than one hundred and fifty tons burden shall when under way have one man iu addition and all such craft exceeding one hundred and fifty tons burden shall when under way have two men in addition on board to assist in the navigation and management of the same with the following excep- tions : When being towed by a steam vessel or when being moved to and fro between any vessels or places a distance not exceeding two hundred yards. The word " burden " in this bye-law shall have the same meaning as the expression " burden tonnage " defined by the Thames Watermen's and Lightermen's Act, 1893. LIGHTS AND SIGNALS STEERING AND SAILING. PRELIMINARY. In obeying and construing the following bye-laws relating to lights and signals and steering and sailing due regard shall be had to all dangers of navigation and of collision and to any special circumstances which may render a departure from them necessary in order to avoid immediate danger. Nothing in the following bye-laws shall exonerate any vessel or the owner master or crew thereof from the consequences of any neglect to carry lights or signals or to keep a proper look-out or of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case. The bye-laws as to lights shall be complied with in all weathers from sunset to sunrise and during such time no other lights which may be mistaken for the lights prescribed by the bye-laws shall be exhibited. In the following bye-laws every steam vessel which is under sail and not under steam is to be considered a sailing vessel and every vessel under steam whether under sail or not is to be considered a steam vessel. LIGHTS REQUIRED BETWEEN YANTLET CHEEK AND TEDDINOTON LOCK. 28. A steam vessel other than a steam launch when under way shall Steamers' Not more than six to be towed at one time between Albert Bridge and Kingston Bridge. Above King- ston Bridge four only to be towed in a single line. No passenger or excursion vessel above three hundred and one feet in length to be navigated above Black- wall. Lighters above fifty tons burden to have two and above one hundred and fifty tons burden three persons to navigate them. On or in front of the foremast or if a vessel without a foremast then in the forepart of the vessel at a height above the hull of not less than twenty feet and if the breadth of the vessel exceeds twenty feet then at a height above the hull not less than such breadth so however lights. 728 APPENDIX I. Above London Bridge. Steamers when towing to have two white lights. Sailing vessels' lights. Vessels as anchor or that the light need not be carried at a greater height above the hull than forty feet a bright white light so constructed as to show an unbroken light over an arc of the horizon of twenty points of the compass so hxed as to throw the light ten points on each side of the vessel, viz.: from right ahead to two points abaft the beam on either side and of such a character as to be visible at a distance of at least two miles. Provided that steam vessels which navigate both above and below London Bridge shall not be required to carry their lights at a greater height than twelve feet above the hull. Steam vessels navigating above London Bridge only may carry the white light at any convenient height above and in line with the stem. (/>) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side and of such a character as to be visible at a distance of at least one mile. (c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass so fixed as to throw the light from right ahead to two points abaft the beam on the port side and of such a character as to be visible at a distance of at least one mile. (d) The said green and red side lights shall be fitted with inboard screens projecting at least three feet forward from the light so as to prevent these lights from being seen across the bow. (e) A steam vessel when towing another vessel shall in addition to her side lights carry two bright white lights in a vertical line one over the other not less than four feet apart. Each of these lights shall be of the same construction and character and shall be earned in the same position as the white light which other steam vessels are required to carry. Such steam vessel may carry a small white light abaft the funnel or aftermast for the vessel towed to steer by but such light shall not be visible forward of the beam. 29. A sailing vessel under way and any vessel being towed other than a lighter shall carry the same lights as are prescribed by bye-law 28 for a steam vessel under way with the exception of the white lights mentioned therein which they shall never carry. * 30. With the exceptions hereinafter named a vessel under one hundred and fifty feet in length when at anchor or moored shall carry forward where it can best be seen but at a height not exceeding twenty feet above the hull a white light (hereinafter called the riding light) in a lantern so constructed as to show a clear uniform and unbroken light visible all round the horizon at a distance of at least one mile. A vessel of one hundred and fifty feet or upwards in length when at anchor shall carry in the forward part of the vessel at a height of not less than twenty and not exceeding forty feet above the hull one such light and at or near the stern of the vessel and at such a height that it shall be not less than fifteen feet lower than the forward light another such light. The exceptions are as follows : (a) Where masted vessels are lying in tiers the outermost off shore masted vessel only of each tier shall carry the riding light. (i) Lighters lying at the usual barge moorings in the river above Gravesend are not required to exhibit the riding light. * The bye-laws marked with a star are in force and only apply to that part of the Port of London which lies to the westward of an imaginary straight line drawn from the Orowstone near Leigh in the County of Essex to the London stone at Yantlett Creek in the County of Kent. See Order of the Board of Trade, loth February, 1910, and Notice by the Port Authority, 24th February, 1910. APPENDIX I. 729 (c) Every steam vessel sailing vessel or lighter moored permanently head and stern in the river shall in addition to or in lieu of the riding light exhibit such light or lights as the Conservators shall from time to time order or direct. The length of a vessel shall be deemed to be the length appearing in her Certificate of Registry. A vessel of one hundred and fifty feet or upwards aground in or near a fairway shall carry the above light or lights. 31. Every person in charge of a lighter when under way and not in tow shall between sunset and sunrise when below London Bridge have a white light always ready and exhibit the same on the approach of any vessel. 32. The person in charge of the sternmost or last of a line of lighters when being towed shall exhibit between sunset and sunrise a white light from the stern of his lighter. 33- A vessel below London Bridge which is being overtaken by another vessel shall show from her stern to such other vessel a white light or a flare-up light. This bye -law shall not apply to boats wherries punts or canoes nor to lighters navigating above Barking Creek. * 34. All vessels when employed to mark the positions of wrecks or other obstructions shall exhibit two bright white lights placed horizontally not less than six nor more than twelve feet apart. 35. Every steam dredger moored in the river shall exhibit three bright white lights from globular lanterns not less than eight inches in diameter the said three Lights to be placed in a triangular form at right angles to the keel and to be of sufficient power to be visible at a distance of at least one mile and to be placed not less than six feet apart on the highest part of the framework athwartships. FOG AND STEAM WHISTLE SIGNALS. * 36. All signals prescribed by this bye-law for vessels under way shall be given : (1) By steam vessels on the whistle. (2) By sailing vessels and vessels other than lighters towed on the fog-horn. The words " prolonged blast " used in this bye-law shall mean a blast of from four to six seconds duration. A steam vessel shall be provided with an efficient whistle sounded by steam or some substitute for steam so placed that the sound may not be intercepted by any obstruction and with an efficient fog-horn to be sounded by mechanical means and also with an efficient bell. A steam launch shall be provided with a similar whistle or other efficient sound signal to be approved by the Conservators. A sailing vessel of twenty tons gross tonnage or upwards shall be provided with a similar fog-horn and bell. In fog mist falling snow or heavy rain storms whether by day or night the signals described in this bye-law shall be used as follows, viz. : (a) A steam vessel having way upon her shall sound at intervals of not more than two minutes a prolonged blast. (6) A steam vessel under way but stopped and having no way upon her shall sound at intervals of not more than two minutes two prolonged blasts with an interval of about one second between them, (r) A sailing vessel under way shall sound at intervals of not more than one minute when on the starboard tack one blast when on the port tack two blasts in succession and when with the wind abaft the beam three blasts in succession. (d) A vessel when at anchor shall at intervals of not more than one minute ring the bell rapidly for about five seconds. (e) A vessel when towing and a vessel under way which is unable to get out of the way of an approaching vessel through being not under command or unable to manoeuvre as required by these bye-laws Lights for lighters below London Bridge. Lights for lighters in tow. Overtaken vessels. Lights to mark positions of wrecks. Dredgers' lights. 730 APPENDIX 1. When steam vessels are approaching. Vessels not under command. Vessels coming out of dock. shall instead of the signals prescribed in sub-sections (a) and (c) of this bye-law at intervals of not more than two minutes sound three blasts in succession, viz. : one prolonged blast followed by two short blasts. A vessel towed may give this signal and she shall not give any other. Sailing vessels of less than twenty tons gross tonnage and lighters shall not be obliged to give the above mentioned signals but if they do not they shall make some other efficient sound signal at intervals of not more than one minute. * 37- Every vessel shall in a fog mist falling snow or heavy rain storms go at a moderate speed having careful regard to the existing circumstances and conditions. A steam vessel hearing apparently forward of her beam the fog-signal of a vessel the position of which is not ascertained shall so far as the circum- stances of the case admit stop her engines and then navigate with caution until danger of collision is over. * 38. All steam and sailing vessels when in the fairway of the river and not under way shall at intervals of about one minute ring the bell rapidly for about five seconds. *39. When two steam vessels are in sight of each other and are approach- ing with risk of collision the following steam signals shall be intimations of the course they intend to take : (a) One short blast of the steam whistle of about one second's duration to mean " I am directing my course to starboard." (/) Two short blasts of the steam whistle each of about one second's duration to mean " I am directing my course to port." (c) Three short blasts of the steam whistle each of about two seconds duration to mean " My engines are going full speed astern." * 40. When a steam vessel in circumstances other than those mentioned in bye-law 36 is turning round or for any reason is not under command and cannot get out of the way of an approaching vessel or when it is unsafe or impracticable for a steam vessel to keep out of the way of a sailing vessel she shall signify the same by four blasts of the steam whistle in rapid succession each blast to be of about one second's duration. * 41. A vessel coming out of dock shall signify the same by a prolonged blast of the steam whistle of not less than four seconds nor more than six seconds duration except in the case of a vessel coming out of the St. Katharine's Dock requiring the bascules of the Tower Bridge to be raised in order to get into position in the river which shall signify the same by a prolonged blast of the steam whistle of not less than five seconds duration followed by three short blasts in rapid succession. In the case of a vessel not under steam the tug boat in attendance shall make the foregoing signals. Signals by whistle to be made by ordinary steam whistle or approved sound signal aud not to be used for any other purpose. SOUND SIGNALS FOR VESSELS IN SIGHT OF ONE ANOTHER. * 42. The words " short blast " used in this bye-law shall mean a blast of about one second's duration. When the vessels are in sight of one another a steam vessel under way in taking any course authorised or required by these bye-laws shall indicate that course by the following signals on her whistle, viz. : One short blast to mean " I am directing my course to starboard." Two short b'asts to mean " I am directing my course to port." Three short blasts to mean " My engines are going full speed astern." * 43- The signals by whistle mentioned in the preceding bye-laws shall not be made by means of a siren or any instrument other than an ordinary steam whistle or other efficient sound signal previously approved by the Conser- vators and shall not be used on any occasion or for any purpose except those therein mentioned and no other signal by whistle or sound signal shall be made by any vessel. APPENDIX 1. 731 STEERING AND SAILING. * 44- When two sailing vessels are approaching each other so as to involve risk of collision one of them shall keep out of the way of the other, viz. : (a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled. (6) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack. (<) When both are running free with the wind on different sides the vessel which has the wind on the port side shall keep out of the way of the other. (J) When both are running free with the wind on the same side the vessel which is to windward shall keep out of the way of the vessel which is to leeward. (e) A vessel which has the wind aft shall keep out of the way of the other vessel. *45- If a sailing vessel and a steam vessel are proceeding in such a direc- tion as to involve risk of collision the steam vessel shall keep out of the way of the sailing vessel. *46. When two steam vessels or two steam launches proceeding in opposite directions the one up and the other down the river are approaching each other so as to involve risk of collision they shall pass port side to port side. *47. Steam vessels navigating against the tide shall before rounding the following points viz. Coalhouse Point Tilburyness Broadness Stoneness Crayfordness Cold Harbour Point Jenningtree Point Halfway House Point or Crossness Margaretness or Tripcock Point Bull Point or Gallionsness Hookness and Blackwall Point wait until any other vessels rounding the point with the tide have passed clear. *48. Steam vessels and steam launches crossing from one side of the river towards the other side shall keep out of the way of vessels navigating up and down the river. *49. Every steam vessel and steam launch when approaching another vessel so as to involve risk of collision shall slacken her speed and shall stop and reverse if necessary. *50- Steam vessels and steam launches navigating against the stream above Richmond Lock shall ease and if necessary stop to allow vessels coming down with the stream to pass clear particularly when rounding points or sharp bends in the river. * 51. Steam launches navigating above Bichmond Lock shall where the channel or depth of water permits be navigated in mid-river. *52. Every vessel overtaking another vessel shall keep out of the way of the overtaken vessel which latter vessel shall keep her course. Every vessel coming up with another vessel from any direction more than two points abaft her beam i.e. in such a position with reference to the vessel which she is overtaking that at night she would be unable to see either of that vessel's side lights shall be deemed to be an overtaking vessel and no subsequent alteration of the bearing between the two vessels shall relieve the overtaking vessel of the duty of keeping clear of the overtaken vessel until she is finally past and clear. As by day the overtaking vessel cannot always know with certainty whether she is forward or abaft this direction she shall if in doubt assume she is an overtaking vessel and keep out of the way. *53- Where by the above bye-laws one of two vessels is to keep out of the way the other shall keep her course and speed. Sailing vessels approaching. Steam vessels to keep out of the way of sailing vessels. All steam vessels to pass port side to port side. Steam vessels rounding certain points. Steam vessels crossing the river. Steam vessels when approaching each other to slacken speed. Overtaking vessel to keep out of the way. LIGHTS KEQUIRED ABOVE TEDDINGTON LOCK. 54- Every steam vessel and steam launch shall when navigating in or 732 APPENDIX I. above Teddington Lock carry and exhibit the following lights and no other that is to say : (a) On or before the foremast or if there be no foremast on the funnel or on a staff at the bow in either case at a height above the hull of not less than four feet a bright white light so fixed as to throw the light ten points on each side of the vessel viz. from right ahead to two points abaft the beam on either side which light shall in the case of a steam launch registered under the provisions of the Thames Con- servancy Act 1894 be behind a glass shade or slide upon which the registered number of such steam launch shall be legibly and con- spicuously painted in black figures and in the case of any other vessel the glass shall be perfectly plain and clear. (&) On the starboard side a green light so fixed as to throw the light from right ahead to two points abaft the beam, (c) On the port side a red light so fixed as to throw the light from right ahead to two points abaft the beam, (rf) Every such light shall be of such a character as to be visible at a distance of at least one mile. 55. The master of the vessel shall be responsible for the due carrying and exhibiting of such lights and no other. Obstructions 56. No person shall in such a way as to interfere with the navigation or on towing towing unload on the bank or towing path of the river any sand gravel paths. timber or other material or place any rubbish boat cart or other article or thing upon such bank or towing path. Trespassers 57. No person other than the occupier of land adjoining the towing path on towing shall allow cattle to pasture on the towing path and no person shall ride or paths, drive any horse thereon except when towing a vessel or drive any cart wagon or other vehicle over or upon any part of the towing path unless there be a public right of way for such cart wagon or other vehicle. Removing 58- No person shall remove any stone clay or other material from the stones, &c. banks weirs tumbling bays towing paths lands or other works of the Conservators. Vessels not to 59. No vessel shall be moored to or placed in front of the towing path so be moored or as to cause an obstruction to or interference with either the navigation or placed in the use of the towing path. front of tow- 60. The navigable part of the channel of the river above Richmond Lock ing paths. shall .at all times be kept clear for the passage of vessels navigated thereon Channel not and no vessel shall be stopped in the navigable part of the said channel to be ob- so as to impede or obstruct the free and clear passage of any other vessel and structed above no ryepeck or punt pole shall be left fixed in any part of the bed of the river. Richmond 6l. If any vessel or thing shall be stopped be aground or sunk or placed Lock. in any part of the river above Teddington Lock so as to impede or obstruct As to removal the free and clear navigation thereof the owner or any person having the of obstruc- care of such vessel or thing shall immediately on the request of any person tions above impeded or obstructed thereby or of any officer of the Conservators remove Teddington such impediment or obstruction so as to clear the channel and on the refusal Lock. or neglect of such owner or other person to remove such obstruction forth- with any officer of the Conservators may remove or cause the same to be removed and if necessary cause any such vessel to be unloaded and the costs of such removal and \inloadiiig shall be paid by the owner of such vessel or thing. Vessels not to 62- No vessel shall enter any lock unless there be sufficient water to float stop in locks, and carry such vessel through such lock and the channel or cut leading to or from the same and no vessel shall stop in any lock longer than is necessary for the filling or emptying the lock and passage through the same. As to vessels 63. If any vessel shall have passed through any lock and the toll for the passing locks passage thereof shall not have been duly paid such toll may be demanded without pay- and taken at any other lock through which such vessel is to pass before the iug tolls. same be permitted to proceed. Passage of 64. The passage of vessels through locks shall be regulated by the lock APPENDIX I. 733 keepers in accordance with the directions given from time to time by the Conservators. 65- No vessel shall enter any lock with sail up nor hoist'any sail during the time it continues in the lock. 66- When any vessel used for carrying goods or merchandize steam tug or steam launch enters a lock a rope or chain shall be immediately put out from the bow and stern of such vessel and made fast on shore in order to prevent the vessel from running foul of the gates or works or other vessels in the lock. 67- When any vessel is stopped between the towing path and the navigable channel the mast or towing mast or the funnel (if any) shall be lowered so as to permit the towing lines of any other vessel to pass without obstruction and when any vessel shall be moored at any wharf or elsewhere in the river the same shall be securely made fast at both ends thereof and shall be laid as close to and along the side or front of such wharf or mooring place as conveniently may be. 68. No person shall without the consent of the ferryman first obtained take away or use any ferry boat or any pole or tackle belonging to such ferry. 69. No person employed on board any vessel shall without actual necessity place or hold a pole or boat hook against any bank or towing path or works on the river so as to injure or damage the same. 70. No owner of a towing horse or his servant or driver shall permit or suffer the horse to go out of the towing path or to trespass graze or trample on land adjoining or leave any gate on the towing path or bridge open or leave any swing-bridge open or suffer the towing line to tear away or damage any rail gate post bridge or works. 71. No person shall without the previous consent of the Conservators erect any new buck or weir or drive or affix any pile or stake or make any hedge or plant any willows or osiers in the river. 72- No person without the previous consent of the lock keeper shall use interfere or meddle with the gear at any lock or weir or with any sluice belonging to the Conservators. 73. No vessel shall towed upon the river from the bank otherwise than from a mast of sufficient height to protect the banks gates and works from injury by the towing line except in places where the strength of the stream renders it necessary that the line should be brought down to the vessel and made fast. 74. No owner or occupier of a mill shall except in case of sudden necessity draw down the water at the mill for the purpose of repairing the works of such mill or for cleansing the mill stream unless he shall have given notice in writing of his intention so to do to the Conservators at their office seven days previously thereto. 75- Two flashes and no more shall be penned for or drawn in a week and those only on such days and at such hours as the Conservators from time to time appoint. Previously to the drawing for such flashes all the flood-gates and sluices and shuttles at all mills and weirs affected thereby shall be close shut in and be kept close shut in till the flash is at best and such flash shall then be drawn and all the flood-gates and sluices and shuttles at the several mills and weirs shall be opened. And all the flood-gates sluices and shuttles at the said mills and weirs shall be kept open to permit such flash to pass without obstruction until the water is drawn down to low water mark if necessary and be kept so for three hours if necessary after the opening or drawing thereof. Immediately after sufficient water has been drawn for the navigation the flood-gates sluices and shuttles shall be close shut in and kept close shut in until the water shall have risen to the low water mark affixed at the adjoining locks. 76- No sewage or any other offensive or injurious matter whether solid or fluid shall be allowed to pass or be put or thrown into the river from any vessel on the river above Teddington Lock. 77. Every houseboat and steam launch used on the river above Teddington vessels through locks. Sails not to be used in locks. Vessels to be made fast in locks. As to towing lines and mooring'of vessels. Ferry boats. Injury to banks. As to tres- passers on towing paths and injuries to works. As to erecting bucks or planting osiers. Persons not to meddle with sluices. Mode of towing. Mill-owners to give notice before draw- ing down water for repairs. Flashes. No sewage, ice. to pass or be put from vessels above 734 APPENDIX I. Teddington Lock. Vessels above Teddington Lock to be provided with approved sanitary appliances. Exception to bye-laws 76 and 77. Vessels at boat races, regattas, &c. As to offences against decency, bathing, &c. Owners or persons in charge of Lock shall be provided with such sanitary appliances as shall have been approved by the Conservators or their duly authorised officer and no certificate of registration shall be granted to the owner of any such vessel who does not show upon the form to be furnished to the Conservators when applying for the registration of such vessel that a satisfactory method exists thereon for the disposal of the sewage and other refuse. 78. The preceding bye-laws 76 and 77 shall not apply to the vessels of the Victoria Steam Boat Association Limited or their successors certified by the Board of Trade as passenger steamers to carry three hundred or more passengers whilst such vessels are bond fide, engaged in the business of the said Association or their successors below Molesey Lock. 79. Any vessel being on the river on the occasion of any boat race regatta public procession or launch of a vessel or on any other occasion when large crowds assemble thereon shall not pass thereon so as to obstruct impede or interfere with the boat race regatta procession or launch or endanger the safety of persons assembling on the river or prevent the maintenance of order thereon and the master of every such vessel shall observe the directions of the officer of the Conservators engaged in superintending the execution of this bye-law. 80. No person shall while using or while in or upon or about the river or the banks or towing paths thereof or any land of the Conservators do or cause or incite any other person to do any of the acts specified in the following sub-sections of this bye-law. 1 Commit any offence against decency or be otherwise disorderly. 2 Bathe without proper bathing dress or drawers. 3 Bathe or prepare to bathe between the hours of eight in the morning and nine in the evening during the months of June July and August or during the remaining months in the year between the hours of eight in the morning and eight in the evening except at bathing - places authorised by the Conservators and except in the river above Molesey Lock when wearing rowing costume. (4) Bathe or prepare to bathe at any place where or between any hours when bathing for the time being is prohibited by the Conservators. (5) Do any act which may cause danger to any person or property or occasion a nuisance obstruction or annoyance to the public or to any person. (6) Cast or throw into or upon or place or cause or suffer to fall or flow into or upon any of the places specified in this bye-law any sewage rubbish or other offensive or injurious matter or thing. (7) Destroy or injure any flowering or other plant or any shrub vegetation tree wood or underwood. (8) Light maintain throw down place or leave any fire or any flaming smouldering or burning substance or any matter or thing in any place where the same may cause danger or damage to property of any kind or annoyance to any person. (9) Kill injure take catch or trap or attempt to kill injure take catch or trap any animal or bird or the young of any animal or bird. Provided always that this sub-section shall not extend to prevent any person employed by the Conservators or acting with the consent of the Con- servators from killing vermin or shall affect any right of fowling shooting hunting or sporting existing on the 14th day of August 1885. Take destroy search for or disturb the nest of any bird. Destroy injure disturb or take out of or remove from the nest whether permanently or temporarily the egg of any bird. (12) Move injure or deface any notice notice-board work or thing whatso- ever the property or in charge of the Conservators or set up by them or with their consent. (13) Do any act injuriously affecting the safety or amenity of the river. 81. The owner or other person in charge of every vessel on the river shall APPENDIX I. 735 obey and conform to the directions of every officer of the Conservators and of vessels to every person for the time being in their employ. obey direc- 82. No houseboat or steam launch shall lie or loiter in any part of the tions of river from time to time marked off by the Conservators or defined by notice officers of given by the Conservators or by notice-boards set up by them as being a part Conservators, of the river in which no houseboat or steam launch shall lie or loiter. Houseboats Provided always that nothing in this bye-law shall prevent any pleasure boat an d steam from remaining during any regatta boat race procession or other special launches not occasion at such place and for such length of time as may be sanctioned by * ^ e In a nv the Conservators or their officers. ri^r 'marked EEGISTRATION. s b J Con - servators. 83- Every pleasure boat used or intended to be used upon the River Thames above Teddington Lock shall be registered and marked as in these bye-laws provided. 84. No person shall use or assist or be concerned in using or cause or suffer to be used upon the river above Teddington Lock any pleasure boat unless such boat shall be registered and marked as in these bye-laws provided. 85- Xo person shall hire or let for hire or hold out or offer for hiring or suffer or permit to be let for hire any pleasure boat to be used upon the river above Teddington Lock or ply for hire with any pleasure boat upon the river above the said lock unless the same shall be registered and marked as in these bye -laws provided. 86- The preceding bye-laws 83 84 and 85 shall not apply to steam launches required to be registered under the Thames Conservancy Act 1894 nor to any vessel required to be registered under the " Thames Fishery Bye-laws 1893." 87. Every person applying to the Conservators for registration of a house- boat shall furnish to the Conservators in writing upon a form to be obtained at the office of the Conservators Victoria Embankment London E.C. or from such of the officers or servants of the Conservators as may be from time to time supplied with such forms correct information as to the particulars following that is to say : fa) The length from head to stern of such houseboat. (b) The method of disposal of the sewage and other refuse in such houseboat. (c) The true name and usual residence of the owner thereof. (1) At the time of making such application for registration the applicant shall pay to the Conservators the sums following that is to say : (a) For a houseboat not exceeding thirty feet in length the sum of five pounds. (b) For a houseboat exceeding thirty feet in length the sum of five pounds and in addition thereto the further sum of two shillings for every complete six inches of length by which such houseboat shall exceed thirty feet in length. (c) Houseboats kept stationary throughout the year and used only for purposes in connection with boating such as for dressing places or store rooms for boat's gear shall pay 11. la. annually in lieu of the payments fixed by articles (a) (b) such reduced payment to be in the discretion of the Conservators. (d) Houseboats kept by boat owners and boat builders to be let for hire shall be exempt from payment of registration fees if neither let nor used during the year. (2) The Secretary may if he shall think fit before complying with any application for registration of a houseboat require such houseboat to be measured by such person in the employment of the Conservators as he shall think fit. (3) Upon registration a number shall be appropriated by the Conservators to each houseboat and such number together with the length of such 736 APPENDIX I. houseboat and the full name and address of the owner thereof and the date of registration shall be entered in the register. (4) Upon registration of a houseboat there shall be furnished to the person registering the same a certificate containing the name in full and the residence of the owner the register number and the date of such registration and such other particulars as the Conservators shall think fit. (5) The registration of any certificate for a houseboat shall become void immediately upon the expiration of twelve calendar months from the date of registration but may be renewed in the manner hereinafter mentioned. (6) Every houseboat registered under these bye-laws shall have legibly and conspicuously painted upon each side thereof either the register number or the name thereof subject to such conditions as the Conservators may require. 88- Every person applying to the Conservators for registration of a private pleasure boat other than a houseboat or steam launch shall furnish to the Conservators in writing upon a form to be obtained as in bye-law 87 mentioned correct information as to the particulars following that is to say:- (a) The true name and usual residence of the owner thereof. ( b} The number of such private pleasure boats belonging to such owner. (c) The class to which each of such private pleasure boats belongs as for example skiff or sculling boat pair-oar four-oar eight-oar canoe or punt or otherwise as the case may be. (1) At the time of making such application for registration the applicant shall pay to the Conservators the sum of two shillings and sixpence for every boat to be registered. (2) Upon registration there shall be appropriated by the Conservators to the owner of every such boat a number to be called the owner's number and such number shall be entered in the register together with the date of registration and shall be appropriated to such person in respect of every such boat which shall be registered in his name. (3) Upon registration of every such boat there shall be furnished to the person registering the same a certificate containing the name in full and residence of the registered owner and the owner's number and the date of such registration and such other particulars as the Conservators shall think fit. (4) The registration of and certificate for every such boat shall become void immediately upon the expiration of thirty-six calendar months from the date of registration but may be renewed in the manner hereinafter mentioned. (5) Every such boat shall have fixed in a conspicuous place inside such boat a plate with the registered number of the owner such plate to be made in accordance with a pattern approved by the Conservators. 89. Every person applying to the Conservators for registration of a pleasure boat for hire other than a houseboat or steam launch shall furnish to the Conservators in writing upon a form to be obtained as in bye-law 87 mentioned correct information as to the particulars following that is to say : (a) The true name and usual residence of the owner thereof. The number of such pleasure boats for hire belonging to such owner. The class to which each of such boats belongs as for example skiff or sculling boat pair-oar four-oar eight-oar canoe or punt or otherwise as the case may be. (1) At the time of making such application for registration the applicant shall pay to the Conservators the sum of two shillings and sixpence for every such boat. (2) Upon registration there shall be appropriated by the Conservators to the owner of every such boat a number to be called the owner's number and such number shall be entered in the register together with the date of registration and shall be appropriated to such person in respect of every such boat which shall be registered in his name. lent fa) r ( c ) APPENDIX I. 737 (3) There shall also at such time be appropriated by the Conservators to every such boat a number to be called the boat's number and a separate number shall be appropriated to every such boat and shall be entered in the register. (4) Upon registration of any such boat there shall be furnished to the person registering the same a certificate containing the name in full and the residence of the owner the owner's number the boat's number and the date of such registration and such other particulars as the Conservators think fit. (5) The registration of and certificate for every such boat for hire shall become void immediately upon the expiration of thirty-six calendar months from the date of registration but may be renewed in the manner hereinafter mentioned. (6) Every such boat shall have fixed in a conspicuous position inside such boat the owner's and boat's numbers which numbers shall be in plainly legible black figures on a white ground on a plate of an oval shape not less than four inches by three inches. 90. The members of any rowing club or canoe club may apply to the Conservators to register the club colours badge or mark as the distinctive mark of rowing boats or canoes belonging to such club and by these bye-laws required to be registered. (1) Every such application shall be in writing and signed by the secretary of such club or other authorised person and shall specify particularly : (a) The name and headquarters of the club. (6) "" ' " The name and description of every rowing boat or canoe used upon the Thames and at the time of such application owned by the club, (c) The colours badge or mark used by the club and where proposed to be painted or placed on the rowing boats or canoes or on the oars or paddles thereof. (2) The Conservators may if they shall think fit and subject to such conditions (if any) as they shall think fit register such club colours badge or mark. (3) The Conservators may in their absolute discretion refuse any such application whether in respect of any particular club colours badge or mark or in respect of any club generally. (4) The Conservators may at any time if they shall think fit to do so cancel any such registration. (5) Every such registration shall if not previously cancelled become void immediately upon the expiration of thirty-six calendar months from the date of registration but may be renewed in the manner hereinafter mentioned. (6) Every such rowing boat or canoe shall be marked in such manner as the Conservators may from time to time determine. 91. The members of any sailing club may apply to the Conservators to register a burgee as the distinctive mark of sailing boats belonging to members of such club and by these bye-laws required to be registered. (1) Every such application shall be in writing and signed by the secretary of such club or other person authorised in that behalf and shall specify particularly : (a^ The name and address of every member of the club. (b) The name and description of every sailing boat used upon the Thames owned by every such member. (2) The Conservators may if they shall think fit and subject to such conditions (if any) as they shall think fit register such burgee. (3) The Conservators may in their absolute discretion refuse any such application whether in respect of any particular burgee or in respect of any club generally. (4) The Conservators may at any time if they shall think fit to do so cancel any such registration. (5) Every such registration shall if not previously cancelled become void L.W. 47 738 APPENDIX I. immediately upon the expiration of thirty-six calendar months from the date of registration but may be renewed in the manner hereinafter mentioned. (6) The owner of every such sailing boat shall also cause such sailing boat to be registered under these bye-laws as a private pleasure boat but such sailing boat shall not be required to be marked otherwise than as is hereinafter specified that is to say : (7) Such sailing boat shall be distinguished by flying the registered burgee of the club and by having her name painted horizontally across the stern thereof in white or gilt letters of a black character not less than two-and-a- half inches in length and proportionately thick. Provided always that nothing in this bye-law contained shall exempt the owner of any sailing boat which shall not be registered and marked in accordance therewith from having the same registered and marked in accordance with such of the provisions of bye-laws 88 and 89 as may be applicable thereto. 92- Every person applying to the Conservators for renewal of the registration of or certificate for a pleasure boat shall furnish the same information and make the same payments as are hereinbefore prescribed with reference to the first registration or certificate and every such renewed registration and certificate shall if not previously cancelled have effect for twelve calendar months or for thirty-six calendar months as the case may be from the date thereof and no longer but may again be renewed in like manner. 93. Upon every transfer of the ownership of a pleasure boat registered under these bye-laws the transferor shall and the transferee may forthwith give to the Conservators notice in writing of such transfer and the Conserva- tors shall in either case thereupon without charge grant to such transferee a fresh certificate for the period for which the existing certificate shall be unexpired and shall cause his name and address to be inserted in the register in the place of those of the transferor and until such notice shall have been given the transferor shall for all the purposes of the Thames Conservancy Act 1894 and of these bye-laws and of all other bye-laws rules orders and regulations of the Conservators for the time being in force be deemed to be the owner of such pleasure boat. (1) Upon every such transfer of ownership the person previously registered as the owner of such pleasure boat shall return to the Conservators at their office Victoria Embankment London E.C. the certificate for the time being in force in respect of such boat. (2) Immediately upon the granting of a fresh certificate the certificate previously in force in respect of the same boat shall become void. (3) From and after the granting of a fresh certificate the person to whom the same is granted shall have the boat in respect of which the same is granted marked as if such fresh certificate were the first certificate in respect of such boat. 94. Notwithstanding anything contained in the preceding bye-laws relating to registration the Conservators may if in the case of any particular pleasure boat they shall think n't by writing under the hand of their Secretary require or sanction the marking of any such boat in some manner different from that required under the foregoing bye-laws and in such case such boat shall be marked according to such writing. 95. All names numbers or other distinctive marks or things by these bye- laws required to be placed or kept in upon or about any pleasure boat shall be placed in a conspicuous position and if outside the boat above the water line and shall be kept and maintained by the respective owners of every such boat in a cleanly and plainly distinguishable condition and to the satisfaction of the Conservators or their officers. (1) No person shall knowingly conceal or cause or suffer to be concealed any name number or other distinctive mark or thing by these bye-laws required to be kept in upon or about any pleasure boat. (2) No person shall display or cause or suffer to be displayed upon or APPENDIX I. 739 about any pleasure boat by these bye-laws required to be registered any number other than is required by these bye-laws. (3) Every certificate of registration when issued shall be subject to the condition that the owner or other person in charge of the vessel to which the same relates shall on demand either produce the certificate or show the registration plate or owner's or vessel's number club colours burgee badge mark or name as the case may be to any officer of the Conservators to any Proctor of the University of Oxford any Marshal or officer acting under such Proctor any officer or constable of the Metropolitan Police and to any police officer or constable acting for any of the counties of Surrey, Berks, Wilts, Gloucester, Oxon, Buckingham or Middlesex or the city of Oxford, or any borough the police jurisdiction of which extends to any place upon the' river. TOLLS FOE FEEEIES. 96- The following tolls shall be paid for the use of the Conservators' ferry boats above Teddington Lock for every time of passing, namely : For every horse not engaged in towing taken across by ferry boat the sum of 3d. For every carriage wagon cart or other vehicle in addition to the toll on the horse <- 3d. For every passenger . Id. For every bicycle, tricycle or velocipede . . . . Id. TOLLS FOE PLEASUEE BOATS. 97- Persons in charge of pleasure boats passing through by or over any of the locks on the Eiver Thames shall pay to the lock keepers or other persons authorised to receive tolls the following sums that is to say : For every steam launch and passenger steamer . . Is. Gd. Class 1. For every sculling boat pair-oared row-boat and skiff and for every randan canoe punt and dingey . 3d. Class 2. For every four-oared row-boat (other than boats enumerated in Class 1) and sailing boat . . . 6d. Class 3. For every row-boat shallop over four oars (other than boats enumerated in Classes 1 and 2) . . Is. Qd. For every houseboat under fifty feet in length . .Is. 6d. For every houseboat over fifty feet in length . . .2s. 6d. The above charges to be for passing once through by or over a lock and returning on the same day. In lieu of the above tolls pleasure boats may be registered on payment to the Conservators of the under-mentioned sums and shall in consideration of such payment pass the several locks free of any other charge from the 1 st day of January to the 31st day of December in each year. Per annum. s. d. For every steam launch and passenger steamer not exceeding thirty-five feet in length . . .500 For every steam launch and passenger steamer above thirty-five feet in length and not exceeding forty- five 7 10 Ditto exceeding forty- five feet in length . . . 10 For every row-boat of class 1 200 For every row-boat or sailing boat of class 2 . 2 10 For every row-boat of class 3 300 For every houseboat not exceeding fifty feet in length . 500 Ditto exceeding fifty feet in length . . . 7 10 472 740 APPENDIX I. In computing the tolls every number less than the entire numbers above stated is to be charged as the entire number. The plate with the registered number thereon is to be fastened on to the boat for which it is issued and is not transferable from one boat to another. Every vessel carried in or upon another vessel through by or over any lock will be charged as if separately navigated through by or over such lock to the extent of one-third of the above tolls. Penalty for 98. Any person acting in contravention of any of these bye-laws shall for breach of every such act be liable to a penalty not exceeding 10 and in the case of a bye-laws. continuing offence to a further daily penalty not exceeding the like amount which said penalties shall be recoverable enforced and applied according to the provisions of the Thames Conservancy Act 1894. The Common Seal of the Conservators of the Eiver Thames was hereunto affixed by order of the said Conservators in the presence of JAMES H. GOUGH, Secretary of the said Conservators. 1th March 1898. In pursuance of the powers conferred upon the Board of Trade by the Thames Conservancy Act 1894, the Board of Trade do by this order confirm the Bye-laws made by the Conservators of the Eiver Thames on the 7th day of March 1898, under their Common Seal and the Signature of their Secretary, and which Bye-laws are hereunto annexed. Dated this twenty-seventh day of April, 1898. By the Board of Trade, COUETENAY BOYLE, Secretary Board of Trade, WHITEHALL GARDENS, LONDON. BYE-LAWS FOE THE EEGULATION OF THE PASSAGE THEOUGH THE TOWEE BELDGE OF SUCH VESSELS AS EEQUIEE THE EAISING OF THE BASCULES. The Conservators of the Eiver Thames in exercise of the powers and authority vested in them by the "Thames Conservancy Act 1894," and of every other authority them hereunto in anywise enabling, do order and direct as follows, that is to say : 1. The master of every vessel intending to pass up the river through the Tower Bridge, and requiring the bascules to be raised shall, not- withstanding any previous bye-law or regulation, and in addition to the ordinary lights to be carried by such vessel when under way, exhibit before arriving at Cherry Garden pier, and shall continue to exhibit until such vessel shall have passed through the said bridge, the following signals : (a) By day, viz., between sunset and sunset, one black ball not less than two feet in diameter, placed in such a position on such vessel where it can best be seen at a height above the hull of not less than 20 feet. (fe) By night, viz., between sunset and sunrise, two red lights in globular lanterns of not less than eight inches each in diameter placed vertically six feet apart at a height of not less than twenty feet above the hull and in such a position where they can best be seen, and so constructed as to show a clear uniform and unbroken light visible all round the horizon at a distance of at least one mile on a dark night with a clear atmosphere. APPENDIX I. 741 2. The master of every vessel intending to pass down the river through the said bridge and requiring the bascules to be raised, shall, not- withstanding any previous bye-law or regulation, and in addition to the ordinary lights to be carried by such vessel, exhibit the signals prescribed by the preceding bye-law until the vessel has passed through the said bridge, but such signals shall not be exhibited until the vessel is ready and in position to proceed through the said bridge. 3- The master of every steam vessel intending to pass up the river through the said bridge, and requiring the bascules to be raised, shall in foggy weather, in addition to the signals prescribed by bye-law 1, give, when passing Cherry Garden pier, a signal by one prolonged blast of the steam whistle of not less than 5 seconds duration, followed by three short blasts in rapid succession and shall continue to give such signal at moderate intervals until the vessel is in sight of the said bridge. This signal shall not be used in clear weather. 4- The master of every steam vessel intending to pass down the river through the said bridge, and requiring the bascules to be raised, shall, both in foggy and clear weather, in addition to the signals prescribed by bye-law 1 , give the sound signal mentioned in the preceding bye-law when such vessel is ready and in position to proceed through the said bridge. 5. These bye-laws shall be in addition to, and not in substitution for any bye-laws now in force, or which shall hereafter be made by the Conservators under their general powers, and which shall apply to the navigation of the river below London Bridge, and nothing in these bye-laws shall diminish or affect the powers of the Conservators with regard to the regulation of vessels on the river below London Bridge. 6- The word " master " in these bye-laws shall have the same meaning and interpretation as in section 3 of the Thames Conservancy Act 1894. 7. The master of any vessel or any person committing any breach of or in any way infringing any of these bye-laws shall be liable to a penalty of and shall forfeit a sum not exceeding ten pounds, which said penalty may be recovered and enforced summarily, and shall be applied according to the provisions of the Thames Conservancy Act 1894. 8. These bye-laws may be cited as " The Tower Bridge Navigation Bye-laws." The Common Seal of the Conservators of the River Thames was hereunto affixed by order of the said Conservators in the presence of JAMES H. GOUGH, Secretary of the said Conservators. Confirmed by order of the Board of Trade this 23rd day of April, 1896. T. H. W. PELHAM, Assistant Secretary. ( 742 ) APPENDIX II. THAMES CONSERVANCY. BYE-LAWS FOR THE PROTECTION, PRESERVATION, AND REGU- LATION OF THE FISHERIES IN THE RIVER THAMES, FROM CRICKLADE, IN THE COUNTY OF WILTS, TO YANTLET, IN THE COUNTY OF KENT. (Order in Council of August, 1893.) The Conservators of the River Thames in exercise of the powers and authority vested in them by the Thames Conservancy Acts, 1857 awl 1864, the Thames Navigation Act, 1866, the Thames Conservancy Act, 1867, the Thames Navigation Act, 1870, the Thames Conservancy Act, 1878, the Thames Act, 1883, and the Thames Preservation Act, 1885, and of every other authority them hereunto in anywise enabling, do order and direct as follmvs, (that is to say] : 1. These Bye-laws may be cited as "The Thames Fishery Bye-laws 1893." 2. These Bye-laws shall come into operation the day after the same are allowed by Her Majesty in Council. 3. Except when the application of any Bye-law or Bye-laws is expressly limited to any particular part or parts of the River, or to any particxilar or specified class of fish or mode of fishing, these Bye-laws shall extend and apply to the River Thames and Isis, hereinafter called " The River Thames," as herein defined, and to all creeks, inlets and bends between Teddington Lock in the County of Middlesex, and Yantlet Creek in the County of Kent, so far as the tide flows, and. reflows therein at ordinary tides, and to every class of fish and every mode of fishing. MODES AND INSTRUMENTS OF FISHING. Upjier Jiiver. The following Bye-laws, numbered 4, 5, 6, 7, 8, 9, 10, and 11, shall only apply to so much of the River Thames as is situate above London Bridge. 4. The following instruments, nets, and apparatus shall be the only instruments, nets, and apparatus that may lawfully be used for taking fish: 1. Rod and line. 2. A flew or stream net. 3. A seine or draft net. 4. A single blay net. 5. A smelt net. 6. A flounder net. 7. A minnow net. 8. A hand or well net. 9. A landing net. 10. A casting or bait net. 1 1 . Grig Wheels. And such nets and apparatus shall only be used in the places at the times and in the manner hereinafter prescribed. APPENDIX II. 743 5. No rod and line shall be used except when fished with either a natural or artificial bait in a proper manner, and no person shall fish with more than two rods and lines at the same time. 6. No person shall allow any rod and line, or line to which any bait or hook, natural or artificial, is attached, to be drawn or trailed from any vessel on the River Thames. 7. No person shall fish for pike with any device or tackle that does not admit of the pike taken therewith being returned to the water without any serious injury. 8. No Flew or Stream net shall be used of a greater length than sixteen fathoms, measured along the head rope, nor with a mesh of less than three inches from knot to knot, the measurements to be made when the net is wet. No Seine or Draft net shall be used of a greater length than sixteen fathoms, measured along the head rope, nor with a mesh less than two-and- a-half inches from knot to knot, the measurements in each case to be made when the net is wet. No Blay net shall be used of greater length than thirteen fathoms, measured along the head rgpe, nor with a mesh less than two inches from knot to knot, the measurements in each case to be made when wet No Smelt net shall be used of a greater length than sixteen fathoms, measured along the head rope, nor with a mesh other than the following : for five fathoms, measured along the head rope from each end thereof, with a mesh not less than one-and-a-quarter inches from knot to knot, and for the remaining six fathoms, measured along the head rope which shall join the two portions of five fathoms, with a mesh not less than one inch, the said measurements to be made in all cases when the net is wet. No Flounder net shall be used of a greater length than sixteen fathoms, measured along the head rope, or of a greater depth than nine feet or with a mesh of less than two-and-a-half inches from knot to knot, the said measurements to be made in all cases when the net is wet. No Minnow net shall be used with a greater diameter than three feet in any part of the net. No Landing net shall be used with a greater diameter than two feet and a greater length than three feet from the ring and the end of the net, nor with a mesh of less than one inch from knot to knot, such measurements to be made when the net is wet. No Casting or Bait net shall be used exceeding twenty feet in circum- ference, nor with a mesh of less than one-half inch from knot to knot, nor with a sack or purse of more than six inches in depth when fully extended, the measurements in each case to be made when the net is wet. 9. The following nets and no other may be used by all persons for all fish. A Minnow net, a Landing net, and a Hand or Well net. The following nets may not be used except in that part of the Eiver Thames as lies between Isleworth Church Ferry and London Bridge, and except by the persons who used such nets during the year 1892. A list of such persons, with their full names and addresses, is contained in the Schedule hereto : A Flew or Stream net, a Seine or Draft net, a Blay net, a Smelt net, and a Flounder net. 10. The following nets shall only be used by the following persons, and in the specified way : A Landing net by a person angling, or by an assistant to a person angling, and as auxiliary to angling with a rod and line, to land fish hooked on a line by the person fishing. A Minnow net by a person angling or about to angle, or his servant or agent, for the purpose of providing Minnows for bait, to be used for angling in the Eiver Thames. A Casting or Bait net may only be used by Assistant Eiver Keepers in obtaining bait, to be used by persons for angling in the Eiver Thames. 744 APPENDIX II. 11. No night hook, night line, nor fixed hook or line shall be used in the Eiver Thames above London Bridge. MODES AND INSTRUMENTS OF FISHING. Lower River. The following Bye-laws, numbered 12, 13, and 14, shall only apply to so much of the Eiver Thames as is situate below London Bridge. 12. The following nets, implements, and apparatus shall be the only implements, nets and apparatus that may be lawfully used for taking fish : 1. Eod and line, 2. Hand lines fished with bait, 3. Trim-tram or four-beam nets, 4. Trawl nets, 5. Flounder nets, 6. Stow-boat nets until the 1st day of July, 1895, and such nets and apparatus shall only be used in the places at the times and in the manner hereinafter prescribed. 13. No Trim-tram or Four-beam net shall be used with a weighted beam of a greater length than twenty-one feet, or with a mouth of a greater total circumference than sixty feet, measuring in each of the sides. The netting of any such net shall not be of a greater length than thirty feet from the beam to the extreme end of the cod of the net, and shall not be less than three-quarters of an inch from knot to knot, the measurements to be made when the net is wet. 14. No Trawl net shall be used with a beam of greater length than thirty feet, and the netting of such net shall not be of a greater length than seventy-five feet from the beam, nor with a mesh of less than three-quarters of an inch from knot to knot, the measurements to be made when the net is wet. GENEEAL. 15. No net in any part of the Biver Thames shall be fixed or attached to the soil, or made stationary in any way, and a net held by any person or persons in a boat or boats, that is or are moored or anchored, shall be deemed to be a fixed net for the purposes of this Bye-law. 16- No person shall put down in any part of the Eiver Thames at the mouth of any brook, creek, river or backwater, communicating with the Eiver Thames, or running into the said Eiver, or at any mill, sluice, race, or branch of the said Eiver, any net or device whatever to stop, catch or hinder any fish, spawn, or fry of fish from coming into, or going out of the Eiver Thames. 17. No spear, gaff, strokehaul, hook, or other instrument of a like nature, or any other device, used in the manner such instruments are usually employed, shall be used in any part of the Eiver Thames. Provided that this Bye-law shall not apply to any person using a gaff as auxiliary to angling for pike with a rod and line. 18. No person shall use any rod and line, hook, wire, snare, or other device, either alone or in connection with a rod and line, or in any other way so as to take fish by means of foul hooking, snatching, or snaring in any part of the Eiver Thames. 19. No wheel, or basket for taking eels or other fish, shall be used in the Eiver Thames except Grig wheels not laid or placed near any dam, or weir, and having a diameter not exceeding six inches, and such wheels shall only be used in such part of the Eiver Thames as lies below the City Stone, Staines. TIMES IN WHICH THE TAKING OF FlSH IS PROHIBITED. 20- No Salmon, or Salmon-trout, may be fished for, taken, or attempted to be taken in the Eiver Thames between the 1st day of September and the APPENDIX II. 745 31st day' of March following, both inclusive, and no Trout or Char may be fished for, taken, or attempted to be taken in the Eiver Thames, between the llth day of September and the 31st day of March following, both inclusive. 21. No Smelts may be fished for, taken, or attempted to be taken between the 25th day of March and the 27th day of July following, both inclusive. 22. No Lamperns may be fished for, taken, or attempted to be taken between the 1st day of April and the 24th day of August following, both inclusive. 23- In that part of the Kiver Thames which is situate above London Bridge no person shall fish with or use any rod and line between the 15th day of - March and the loth day of June following, both inclusive, except a rod and line for taking Trout, and fished with an artificial fly or with a spinning or live bait. 24. No fish found in the part of the Eiver Thames above London Bridge may be taken between the loth day of March and the 15th day of June following, both inclusive, except Trout andRoach, Dace, Gudgeon, Bleak, and Minnows taken as herein provided as bait for Trout. 25- No person shall fish for, take, or attempt to take by any means what- ever in that part of the Eiver Thames which lies above the City Stone at Staines, nor from any vessel in that part of the Eiver Thames which lies between the City Stone and London Bridge, any fish between the expiration of the first hour after sunset and the last hour before sunrise. PlACES IN WHICH THE TAKING OF FlSH IS PROHIBITED. 26- The places hereinafter mentioned are places staked and marked out by the Conservators for the preservation and incubation of the fish in the Eiver Thames, that is to say : Eichmond From Bichmond Bridge upwards, a distance of about 700 yards in length or thereabouts to the building known as Buccleugh House. Twickenham From the upper end of the Lawn at Pope's Villa to the Island at Cross Deep, a distance of 400 yards in length or thereabouts. Kingston From Broom Hall, Teddington, through the Backwater (the Trowlock) up to the South- Western Eailway Bridge at Kingston, a distance of 1,960 yards or thereabouts. Thames Ditton From Long Ditton Ferry for 512 yards or thereabouts westwards. Hampton From Molesey Lock to the upper end of the Lawn at Garrick Villa, Hampton, a distance of 1,514 yards or thereabouts. Sunbury From the "Magpie" Inn for 683 yards or thereabouts to the westward to Sunbury Weir. Walton Walton Sale, a length of 250 yards. Shepperton The Upper Deep, a distance of 240 yards. Shepperton The Lower Deep, a distance of 200 yards. Weybridge From Shepperton Lock, along the course of the Eiver to the Weir, a distance of about 830 yards or thereabouts. Chertsey From a point 80 yards below the Bridge to the Weir, a distance of 445 yards or thereabouts. Penton Hook From the Weir round the Island and up to the Lock at Penton Hook, being a distance of 1,150 yards or thereabouts. Staines From a point below the Eoad Bridge, Staines, to the City Stone, a distance of 210 yards or thereabouts. 27- In any of the above-mentioned places no person shall do or aid or assist in doing any of the following things : (a) Take up, remove, injure or destroy any stake, burr, boat, punt, or any other thing placed for the purpose of impeding fishing or the protection of fish. (b) Disturb the said preserves or the fish therein, or any spawning bed or 746 APPENDIX II. place to which fish resort before, during, or after spawning in any of the said preserves. (c) Fish for, take, or attempt to take fish in any of the said preserves by any mode whatsoever except angling with a rod and line. Provided that any duly registered fishermen may use in such preserves grig wheels for taking eels during the time the same may be lawfully used. SIZES OF FISH. 28. No fish of the species hereinafter mentioned shall be taken in or out of the Eiver Thames, or, having been taken, shall be had in possession or exposed for sale on the Eiver Thames or on the shore thereof, or on any lands adjoining or near to the River, of less than the frizes and dimensions hereinafter respectively mentioned (that is to say) : Pike or Jack . . Extreme length . . 18 inches Perch . . . ,, ,, 8 ,, Chub . . 10 Roach , ,, 7 Dace . . 6 Barbel . . 16 Trout. . . 16 Grayling ... . . 12 Bream ... ,, . . 10 Carp .... . . 10 Tench Rudd ... . 6 Gudgeon ... . . 4 Flounders ... ,, 7 Smelts ... 6 Lamperns . Soles or Slips . Whiting . Plaice or Dabs . All shrimps to be sifted when alive through a sieve of fths of an inch between the wires, all which wires shall be placed either vertically or hori- zontally, and no shrimp that will pass through such sieve shall be kept or retained. But this bye-law shall not apply (a) To any person who takes any undersized fish accidentally and at once returns such fish alive to the water without injury. (6) To any roach, dace, gudgeon, bleak or minnows taken for use as bait, provided that except for the purpose of baiting eel-baskets, no person shall be entitled to have in his possession or under his control more than 50 of such fish for use as bait at any one time, or to take by himself, his servants or agents more than 50 of such fish on any day. 29. Any person who shall have in his possession, on, near, or adjoining the River Thames, any fish of less dimensions than those specified in the last preceding bye-law shall be deemed to be guilty of an offence against such bye-law unless he prove to the satisfaction of the Court before which he is tried that he was lawfully in possession of such fish. Provided that this bye-law shall not apply to the person in charge of any boat entering Hadleigh Ray, in order to land at Leigh, fish on board such boat which have been taken outside the limits of the jurisdiction of the Conservators. GENERAL. 30. Any person following the business of a fisherman on the River Thames, or letting for hire for fishing any boat, punt or other vessel to be used on the River Thames, shall be subject to the following regulations : (u) His name and place of abode shall be duly registered in a book kept APPENDIX II. 747 for that purpose by the Secretary to the Conservators of the Eiver Thames at their London office for the time being, which office is now situate at 41, Trinity Square, Tower Hill. (6) On the registration of his name he shall pay a fee of one shilling in respect of each boat, punt or other vessel. (r) The Secretary shall give to every such person on his registration a certificate thereof, such certificate shall contain the number of every such boat, punt or vessel. (d) Such person shall cause to be painted, and keep painted and legible, in characters not less than two inches long, and half-an-inch broad, on the starboard bow and on the port quarter of every such boat, punt or vessel, such number, together with his name and place of abode. Any person neglecting to have such number, name, and address painted on each such boat, punt or vessel and to keep the same so painted, or shall permit the same to be defaced or removed, shall be guilty of an offence against this bye-law, and shall, in addition to any other penalty on conviction for such offence, forfeit his certificate of registration. Provided that this bye-law shall not apply to cases in which any vessel is already marked in accordance with any existing law or regulation in force in the Kiver Thames. 31. No person shall follow the business of a fisherman nor shall let or use any boat, punt or vessel for hire for fishing on that part of the River Thames which is situate above London Bridge without being registered in respect thereof and without having the same marked with the registered number and his name and place of abode, as provided by the last preceding Bye-law. 32- Nothing in these Bye-laws shall prevent any person provided he has the previous consent in writing of the Conservators under their Common Seal from obtaining fish for the purpose of artificial propagation and other scientific purposes from any part of the Eiver Thames, or from having in his possession salmon roe or trout roe for any of these purposes, or from taking or attempting to take salmon or trout when spawning or near the spawning beds. 33. Nothing in these Bye-laws except the provisions relative to the fence season and to the sizes of fish shall take away or abridge the right of the owner or occupier of a private fisher}' or any person having authority in writing from any such owner or occupier, to do any of the following things within the limits of such private fishery only : that is to fish for or to take or attempt to take fish and eels by meaus of nets commonly called cast nets and crayfish nets, or by grig or ground wheels for eels, or by night lines or by means of eel bucks or stages, so far only as the same or any of them can be legally used irrespective of these Bye-laws. Provided that on a special license being obtained from the Conservators, in writing, under their Common Seal and not otherwise, such owners or occupiers or persons having authority as aforesaid may, in such private fishery only, take fish by means of a net commonly called a hoop net, having a mesh of not less than two inches from knot to knot when wet, or eight inches all round, and not being more than six yards long, or by means of a net commonly called a drag net, and having a mesh of not less than two inches from knot to knot when wet, or eight inches all round. 34 If any net, engine, apparatus, or device, the use of which is prohibited by these Bye-laws, or if any fish during the time at which the capture of the same is prohibited, or of a size of less than that permitted to be taken by these Bye-laws, is found in the possession or under the control of any person on the Eiver Thames or on the shore thereof, or on any lands adjoining to or near the Eiver Thames, such person shall be deemed guilty of an offence against these Bye-laws, unless he prove to the satisfaction of the Court before which he is tried that the same was legally in his possession or under his control. And if any such net, ensine, apparatus, device, or fish has been seized under the provisions of the Thames Acts or any of them or of these 748 APPENDIX II. Bye-laws, the Court may either before or after such trial order the same to be destroyed, but without prejudice to the infliction of a penalty or any other remedy against the person charged, or to the rights of such person if such charge shall be dismissed. 35. Any person acting in contravention of the foregoing Bye-laws or any of them, shall for every such act be liable to a penalty not exceeding o, and may on the direction of the Court forfeit any net, engine, device, apparatus, or fish, found in his possession or control. Every such penalty shall be recovered in manner prescribed by the Summary Jurisdiction Act, and shall be applied in manner directed by the Thames Acts, 1857 to 1885. 36- In these bye-laws, unless there is something inconsistent or repugnant in the context, the words and expressions hereinafter mentioned shall have the following meanings, that is to say : " Person " shall mean any number of persons, or any body of persons corporate or unincorporate. " Court " shall mean any Court of Summary Jurisdiction, whether con- sisting of two or more Justices, or of a Stipendiary Magistrate. " Fishing" includes oyster and shell fishing. " Fish " includes oysters, shrimps, crabs, lobsters, crayfish and shellfish, and the spat, spawn, brood, ova, or fry of oysters, shrimps, crabs, lobsters, crayfish or fish. " Vessel " means and includes any ship, lighter, keel, barge, boat, punt, wherry, raft, or craft, or any other kind of vessel navigated by any form of motive power. " Fisherman " means any person registered as a fisherman or the owner of a boat or vessel used for fishing, or let for hire for fishing on the Eiver Thames. "Measurement of Nets," except as provided in Bye-law 33, when in these bye-laws the measurement of nets is referred to, such measure- ment shall be made from knot to knot across the diagonal of the mesh, when such net is wet and the mesh is extended to the utmost. " Eiver Thames " shall mean and include (1) the Kivers Thames and Isis from Cricklade in the County of Wilts, to Yantlet in the County of Kent. (2) All back-waters, creeks, side channels, bays and inlets connected with or forming part of the said Kivers or either of them, as defined by the Thames Preservation Act, 1885. (3) All creeks, inlets, channels or bends between Teddington Lock in the County of Middlesex, and Yantlet Creek in the County of Kent, so far as the tide flows and reflows therein at ordinary tides. 37. All Eules and Bye-laws now in force for the protection, preservation, and regulation of the Fisheries in the Eiver Thames are repealed from the day when these Bye-laws come into operation. THE SCHEDULE REFERRED TO IN BYE-LAW 9. George Pearce ... The Hollows, Brentford. George Pearce . . . Back Lane, Strand-on -the-Greeu. Henry Pearce . . . Ditto. Charles Pearce . . 1 Ditto. Eichard Pearce . . . Ditto. Thomas Odell, Sen. . . Chiswick Ferry. Thomas Odell, Jun. . . Ditto. James Gibson . . . Spring Gardens, Putney. Louis Gibson . . . Ditto. Charles Gibson . . . Ditto. Moses Gibson Ditto. ( 749 ) INDEX ABANDONMENT. See Extinguishment. ABATEMENT, of nuisances, 697, 700 in the sea and public rivers, 52, 497, 506 508 in private streams, 121, 519 See Nuisances ; Remedies. ACCESS, right of, on the sea shore, 52 shore of a navigable lake, 54, 114 shore of a tidal navigable river, 104, 110, 495, 496, 508 right to land and cross the shore is incident to, 54 no right of the public over private lands on the sea shore or navigable rivers for the purpose of bathing, 59 is a private right to the enjoyment of land, 496, 721 the invasion of which may form ground of an action for damages, or of an injunction, 110, 496, 721 the obstruction of, is actionable without proof of special damage, 111, 508, 721 and is an injury to property quite distinct from injury to the public right of navigation, 111, 508, 721 whether such obstruction amounts to interference with the right is a question of fact, to be determined by the circumstances of each case, 112, 508, 721 See Sea ; Tidal Navigable River ; Lake. ACCRETION, property in land formed by, 39 41, 8592, 119 if gradual, belongs to owner of land added to, 85, 119 from the sea, whether natural or artificial, annexed by sect. 27 of 31 & 32 Viet. c. 122, to adjoining parish in proportion to the extent of the common boundary, 22 and being incorporated therewith for all civil and parochial purposes, rateable to the poor, 22, 666 ACQUIESCENCE, equitable doctrine of, with regard to the acquisition of easements, 241, 242 ACQUIRED RIGHTS OF WATER. See Easements, ACT, of God. See Vig Major. of Parliament. See Statute. ACTION, remedy by, for infringements of rights of water, 700, 721. See Remedies. interference with public rights is the subject of, on proof of special damage, 26, 205, 391, 711 750 INDEX. ADMIRALTY, COURT OF, criminal jurisdiction of, over English ships on the high seas, 2, 462, 463 origin and jurisdiction of, 462, n. (8) jurisdiction of the admiral transferred to the Central Criminal Court by 4 & 5 Will. 4, c. 3G...2, 3, 462 jurisdiction of, over foreign ships under 41 & 42 Viet. c. 73. ..8, 1, 462 over wreck, 57 59 has no cognizance of offences committed on the sea shore forming part of an adjoining county, 22 the justices of which have cognizance thereof, 22 the various duties and powers of, as to ports transferred to the Board of Trade by 25 & 26 Viet. c. 69.. .67, 68, 464 County Court, jurisdiction of, 703 ALIENS ACT, 1905, THE, the landing of immigrants is governed by, 487, n. (1) ALLUVION, property in land formed by, in the sea, 39 41 in tidal rivers, 8592 in private streams, 119 See Tidal Navigable River ; Private River. AMERICA, definition of navigable river under law of, 84, n. (1) law of, as to lakes, 125 riparian ownership, 128 ANCHORAGE, the right of, included in the right of navigation, 5, 463, 492 dues for, may be claimed in a port which is a natural roadstead, not artificially formed, 71, 73, 493 immemorial user of foreshore of tidal rivers by fixing moorings for fishing boats in soil, how supported, 493 the right to take, in a port implies a duty in the owner to keep it in repair, 70, 71 decisions as to, 635 639 See Tolls. and beaconage dues, rateability of, (!78. See Rates. ARTIFICIAL WATERCOURSE, easement of, 126, 127, 130, 285, 301 the most important, viz., canals and sewers, &ic., are the creatures of statute, 127 rights in, are acquired solely by grant or prescription, and are not natural rights, 126, 130, 272285, 286, 291 are incorporeal rights, 130, 238 effect of grant of, 244250 ownership of soil of, 126 right of fishery in, is prim a facie incident to the ownership of the soil, 423 rights in, depend on the character of the watercourse and the circum- stances under which it was created, 130, 285, 287, 295, 298 diversion and obstruction of, 28V 301 pollution of, 185 189, 296, 301 diversion of a natural stream by, 146, 290 liability of landowner for escape of water where an artificial has been substituted for a natural watercourse, 165167 INDEX. 751 ARTIFICIAL WATERCOURSE continued. easement to discharge water by, 238, 291 to receive water by, 291, 292 right of servient owner to compel dominant owner to continue discharge of water by, 292301 See Canal ; Watercourse ; Diversion ; Pollution. AVON (THE HAMPSHIRE) NAVIGATION ACT, 527, n. (1), 537, n. (3) AVON (THE WARWICKSHIRE) NAVIGATION ACT, 527, n. (1) BAILIFF. See Water Bailiff. BALLAST, RUBBISH, &c., throwing into rivers, prohibition against, under 54 Geo. 3, c. 159.. .556 into the Thames, 545 is a nuisance, and indictable, 499 BANKS, of a watercourse, definition of, 77. See Watercourse. of a tidal navigable river, ownership of, 104 right of landing and towing on, 104, 495 of private rivers, property in, 117, 120 of canals, duty of owners of, to repair, 342 duty of conservators to repair, 534 536 See Tidal Navigable River ; Private River ; Canal. BARGE, A FLOATING, rateability of, 677. See Rates. BATHING, no common law right of, in open sea or tidal rivers, 59 and the public is not justified in passing over private property to gain access to the water, 59 custom of, gives no right to use machines, 59, 60 laws of decency must be respected in enjoyment of, 60 BEACH. See Foreshore. BEACONAGE AND ANCHORAGE DUES, rateability of, 678. See Rates. BEAM TRAWLING, regulations with respect to, 16 21, 431, 432. See Moray Firth. BE D of a watercourse, definition of, 77 of the sea, property in, 1, 9, 23, 33 of tidal navigable rivers, property in, 81, 99, 104, 106 of private rivers and streams, property in, 117, 120 of lakes, property in, 123 of canals, property in, 314 See Sea ; Tidal Navigable River ; Private River ; Canal. BOARD OF TRADE, powers of, as to ports, 67 69, 464 rights and interests of the Crown in the foreshores transferred to under the Crown Lands Acts, 26 powers of, as to pilotage authorities, 481 485 Arbitrations Act, 1874 (37 & 38 Viet. c. 40), provisions of, as to navigable rivers and canals, 562 752 INDEX. BOARD OF TRADE continued. canal companies required to report annually to, under Railway and Canal Traffic Act, 1888... 564 powers of, as to abandonment of derelict canals, 565 BOATABLE, distinction between navigable in American law, 84, n. (1), 490, n. (1) BOUNDARY, of the realm of England, 1, 59, 13 of counties on the sea and tidal rivers, 22, 92 of parishes on tidal rivers, 22, 92 of the sea shore, 21 of grants by the Crown on the sea shore, 33 on tidal rivers, 84, 97 of lands on non-tidal waters, 117, 122 of lands on large navigable lakes, 123 125 international rights as to, on rivers bounding two States, 93, n. (5) BRIDGES, are incidents to rights of water, 568 definition of, 583 prerogative of Crown as to owners of, similar to that as to owners of ferries, 580 in early times repair of, was part of the trinoda necessltas, as in Roman law, 583 and was included in the repair of roads, which fell and is still cast on the parish, 583, 584 but repair of bridges has now, for the most part, passed to the counties in which they are situate, 584 incident to river conservancy, which might prove a nuisance, placed under Commissioners of Sewers by 23 Hen. 8, c. 5.. .522 statutory provisions as to, 584 590 Magna Charta, 584 applies only to making, and not to repairing, 584 22 Hen. 8, c. 5 (The Statute of Bridges), 584, 585, 595, and n. (6), 604 5 & 6 Will. 4, c. 50 (Highway Act, 1835), 585587, 595 1 Anne, st. 1, c. 12 ; 43 Geo. 3, c. 59, and other Acts, 585, n. (2) Malicious Injuries to Property Act (24 & 25 Viet. c. 97), 587 33 & 34 Viet. c. 73 ; 38 & 39 Viet. c. 55 ; 40 & 41 Viet. cc. 14 and 77 ...587, 588 Local Government Act, 188. ..588, 589 Highways and Bridges Act, 1891. ..589 liability of the county to repair, 590 607 a bridge of public utility is to be repaired at public expense, 590, 598 as a general rule extends to all bridges built by individuals before 43 Geo. 3, c. 59, if the public use them, 590593, 598601 but if rendered necessary by an authorized interference for private purposes with a highway, the parties so interfering must repair, 590595, 598601 what is a public bridge, 593 " riding ," meaning of, under 22 Hen. 8, c. 5, as to, 595 " hundred'' meaning of, under 5 & 6 Will. 4, c. 50, as to, 595 county only bound to repair bridges over water answering description olflumen vel cursus aqua, 595 and notes. INDEX. 753 BRIDGES continued. what is a public bridge continued. a floating bridge, propelled by steam from one side of a river to another is in substance a ferry, and not a bridge, 596 sect. 7 of the Locomotives Act does not apply to county bridges, 597, 598 a bridge may be a street within the meaning of a statute, 598 an indictment does not lie for not repairing a bridge unless it be on a highway, 593, n. (5), 598 highway is a general term including all public ways, 598 a bridge built on a public way without public utility is a nuisance, 598, n. (4) or if built colourably in an imperfect way so to throw the onus of rebuilding and repair on the county, 598, n. (4) powers of rural district councils as to, under Local Government Act, 1894. ..588 persons building bridges under special authority for their own benefit are primarily liable to repair them, 598 but not where the special authority is to do works for public benefit only, 600 or where it can be shown that the particular liability has been shifted by statute or otherwise on to the public, 600, 601 duties of canal companies to construct and maintain bridges, 343, 344, 598. See Canals. provisions as to construction and management of, under Railway Clauses Act, 1863. ..557, 558. See Navigation. statutory limitations as to the liability of the county, 600, 607 bridges built in counties by individuals, &c., to be erected to satis- faction of the county surveyor, &c., 602, and notes the county not bound to widen bridges by force of the obligation to repair, 603, 604 justices of county may widen and make commodious bridges or roads at end thereof repairable at expense of county, 604 but this section is permissive and not imperative, 604 county liable both at common law and under 2 Hen. 8, c. 5, to repair approaches to bridges to extent of 300 feet, 604 no liability on a county under Railway Clauses Act, 1845, to repair approaches to a railway bridge over a highway, 606 even though company have lowered level of old highway, 606 where two parts of a bridge are in different counties the liability is divided between the two, 606 in absence of words in 7 & 8 Viet. c. 61, determining boundary between two counties separated by a river, the middle of such river continuously is such boundary, 607 liability to repair ratione tenures, 607, 612 at common law owner of land is ultimately liable though primarily occupier may be, 607 liability of proprietor of a navigation, 608 of infant seised of hinds in possession of guardian in socage, 608 right to erect a new bridge, 609 how far covenant to repair binds when damage is done by an extra- ordinary flood, 610 where a bridge is built by an individual and dedicated to the public the ownership of fabric remains in builder, 610 L.w. 48 754 INDEX. BRIDGES continued. liability to repair ratione tenures continued. form of indictment for non-repair, ratione tenures, 611 liability of tenants of parcels of a manor held by service of tenure of repairing a common bridge or highway, 611 liability to repair must be immemorial, 611 liability to repair foot bridge part of a carriage bridge, 611, 612 what evidence will negative an immemorial liability, 612 evidence of reputation admissible in proof of liability, 612 liability to repair by prescription, 612, 614 extent of territory chargeable is to be ascertained by usage, 612, 613 and in default of usage the larger territory, i.e. the county, is liable, 613 immemorial custom may be pleaded in defence to an indictment against a county, 613 a parish may be indictable, 613 so too a hundred, 613 or a prescriptive corporation, 613 in absence of evidence to the contrary, prescriptive liability to repair extends to 300 feet of the approaches, 614 and bridge tolls, rateability of, 693, 695. See Rates. remedies for non-repair of, 713, 714. See Remedies. BULWARKS, ripa muniendce causa, right of riparian owners to erect, 99, 104, 177, 180, 499. See Riparian Owner; Overflow. BYE-LAWS, for the regulation and navigation of the Thames. Appendix J., p. 723 for the passage through the Tower Bridge of vessels requiring raising of the bascules. Appendix /., p. 740 for the protection, preservation, and regulation of the fisheries in the Thames. Appendix II., p. 742 under the Sea Fisheries Regulation Act, 430 Salmon Fisheries Regulation Act, 437 when ultra vires, 437, n. (4). CALEDONIAN CANAL ACT, THE, 537, nn. (1), (3) CANADA, definition of navigable river under French law in, 84, n. (1) CANAL BOATS ACT, 1877 (41 Viet. c. 60), the provisions of, as to canal boats used as dwellings, 566, 567 registration, authority under, 566 enforcement of Education Acts, 1870, 1873, 1876. ..567 definition of " canal " under, 567 " canal boat " under, 567 CANALS, definition of, 312 under the Railway and Canal TraflSc Act, 1888.. .565 Explosives Act, 1875... 565 Canal Boats, Act, 1877. ..567 how distinguished from a river navigation, 312, 536 plans for construction of must be deposited with the Admiralty or Board of Trade, 537 public may only navigate them on payment of tolls, 537 general statutes regulating traffic and navigation on, 555, 567 INDEX. 755 CANALS continued. are real property, 312 and tolls are profits arising from use of the land, 312 fishery in, 317, 423 status of proprietors of, defined, 311 rights of proprietors or undertakers are defined and limited by the Act creating the, 312, 313 general tenour of Acts incorporating, 313 and 559, n. (3) ownership of soil vested in undertakers, but only for purposes of Act, 314, 317 undertakers may have mere possession without being owners, 314 but this possession entitles them to maintain trespass, 314 undertakers cannot acquire an easement to water for other purposes than those authorized by their Act, 314 and easement to use water to fill a canal ceases when canal ceases to exist, 315 undertakers cannot grant right to take water for uses not sanctioned by their Act, nor can such rights be acquired against them by prescription, 76, 77, 267, n. (3), 271, 315, 316, 336339 reservations of rights of proprietors on lands adjoining, 250, 314, 315 324 right of support, reservations as to mines, 316 324 as to transport of minerals, 317 of the right to use pleasure boats on, 250, 315 of fishery in, 316, 317, 423 See Fishery, ordinary rules of construction as to conveyances binding on undertakers, 332, 333 powers of undertakers to take leases and give them, 334 liabilities of undertakers, 324, 332 for injury to mines, 324 326, 330 as to making compensation under their Acts for injuries, 324 327 at common law for negligence, 327 330, 343, 344 not liable for injuries caused in due execution of their works, 330 vis major, how far an excuse, 330, 331 remedies against undertakers, how enforced, 339, 340 rights of adjoining proprietors to surplus water, 76, 267, n. (3), 271, 315, 316, 334338 claim against undertakers to have water diverted, 339 undertakers are entitled to ordinary remedies at law, 339 but must use due diligence in bringing actions, 340 duties of undertakers as to navigation, 340 344 duty of, to maintain the navigation, 340, 341, 526, 531 must take reasonable care that navigation is safe so long as it is open, 340, 341, 470 duty of, to remove obstructions, 340, 341, 531 535 right of, to recover for damage to navigation, 342 works necessary to maintain the navigation, 342 duties as to roads and bridges, 242, 243, 343, 344, 598. See Bridges. power of undertakers to deepen and widen, 343. See Narigation. navigation of, open to public on payment of tolls, 344 by steamers, 344 and on Sundays, 345 powers of undertakers to make bye-laws as to navigation, 344, 345 tolls on, 345, 346, 657665 482 756 INDEX. CANALS continued. regulation of traffic on, provided for by statute, 346 mortgagee of tolls, how far a proprietor, 346 See Tolls. shares in, 346, 347 are not an estate and interest in land, 346 but have been held to be real estate and subject to dower under special Act, 346, n. (4) are deemed personal property under Canal Acts, 346 probate of will of shareholder, 346 calls for, 346, n. (3) rateability of, 682687. See Rates. enactments regulating traffic on, 561 566 provisions in the Railway and Canal Traffic Act, 1888, as to terminal charges and through rates, 564, 565 companies must make annual returns to registrar of joint stock com- panies stating name and place of office, 564 and to Board of Trade as to capacity of canal for traffic revenue and expenditure, &c., 564 provisions as to abandonment of derelict canals, 565 carriage of explosives on, 565 if used as dwellings must be registered under Canal Boats Acts, 1877 1884. ..566, 567 provisions of Education Acts, as to children dwelling on, 567 CANALS, INTER-OCEANIC, 93, n. (5) CANALS PROTECTION (LONDON) ACT, 1898, provisions of, 567 CARRIER, powers of a canal company to act as, under 8 & 9 Viet. c. 142, and 10 & 11 Viet. c. 94... 561, 562 definition of, under the Explosives Act, 1875. ..565 a common, by water is on the same footing as one on land, 581 and does not insure against the irresistible act of nature, 169, 581 trade profits of a canal company arise from its duties as, 686 See Ferry ; Canals. CENTRAL CRIMINAL COURT, jurisdiction of Court of Admiralty transferred to, as to the high seas, 2, 3, 462, 463 and tidal navigable rivers, 92 CHANNEL TUNNEL, exercise of the right of protection of Crown with respect to, 9, n. (5). See International Law. CHAR, enactments as to protection of, 425, 439, 440, 447, 457, 458. See Fishery. CISTERN, statutory restrictions as to fouling a public or private, 206, 211, n.(5) COLLISIONS, at sea, regulations under Merchant Shipping Acts as to, 467, 480, n. (1) do not apply to the Manchester Ship Canal, 467, n. (1) nor to rivers like the Thames governed by special rules made by local authorities, 467, n. (1) but apply to Swansea Harbour, 467, n. (1) INDEX. 757 COLLISIONS continued. when ships are liable for damage occasioned by, 480, n. (1 ) where ship is in fault under statute owner liable at law, 480, n. (1) and ship in Admiralty proceedings in rein, 480, n. (1) person whose negligence occasioned collision primarily liable to sufferer, 480, n. (1) Lord Stowell's dictum with respect to possible causes of, 480, n. (1) in navigable rivers, 487, 488, 511 514 local rules as to, 488, n. (1) in the Thames. Appendix L, pp. 727 732 COMMISSIONERS OF SEWERS, origin of commissions, 43, 521 derivation of " sewer," 521 duties and powers of, 44, 378, 522, 525 now vested partly in sanitary authorities, 522, 524 partly in inclosure commissioners, 522, 523, 524 and in conservancy boards, 466, 523. 526 may be created by Act of Parliament independently of any general commission, 524 bodies corporate authorized by the legislature to do matters properly cognizant by commissioners are thereby constituted, 524 saving clauses in motlern Acts preserving rights of, 524 property in embankments or sea-walls not vested in, 45 their powers limited to parts of coast not vested in conservancy or harbour authorities, 45 acting for a number of landowners, may erect defences if necessary, though injurious to adjoining owners, 51 liability of landowners under authority of, to keep sea-walls at a certain height, 170, 171 had powers to remove obstructions in navigable rivers, 525 but not to make rivers navigable which were not formerly so, 525 jurisdiction of, confined to such rivers as are necessary to, and useful in navigation, 45, 525, n. (6) See Sea Watt. COMMON OF FISHERY, definition of, 387 generally used to express rights of tenants of manor to fish in waters of the lord, 387 in private waters, 416 See Fishery. COMMON OR PUBLIC FISHERY, definition of, 385 in the high seas, is common to all the world, 385, 389 in territorial waters, only to the subjects of the realm, 389 in tidal waters, 389, 390 See -Fishery. COMPANIES CLAUSES CONSOLIDATION ACTS, 1845, 1863, 1869, incorporation of in special Acts of water companies, 347, 350 CONSERVANCY OF NAVIGABLE RIVERS, 105, 520567. See Navigation, Conservancy of. origin of, 520 authorities, definition of, under 40 & 41 Viet, c. 16. .,465, n. (4) 758 INDEX. CONSERVATORS OF RIVERS, are guardians of navigation, 105 ownership of bed and banks not usually vested in, 106 not bound at common law to keep navigation open or in repair, 109, 531536 but bound to take care that persons navigating run no undue danger, 109, 531 have no property in the water of their navigation, 529 and therefore cannot sell such water to third parties, 529 See Natigatwn ; Commissioners of Sewers. CONVENTION as to fishery between England and France, 13, 425, 426 between Great Britain and the United States as to fishery, 13, 425 and as to fur seals, 12, 425 between Great Britain, Holland, Germany, Belgium and Denmark as to police of fisheries, 13, 425 and as to liquor traffic in the North Sea, 13, 425, 427 between Great Britain and Belgium, as to differences between fishermen, 13, 425 such conventions may apparently be overridden by bye-laws under British Acts of Parliament, 16 21 CONVEYANCES to canal companies, how construed, 332. See Canals. CORNWALL, custom of tinbounders in, 276, n. (3), 291, n. (5). CORPORATION, a prescriptive, indictable for non-repair of a bridge, 613 COUNTY, extends to low water-mark, where high seas begin, 13 creeks and arms of sea within body of a, are subject to law governing inland tidal waters, 13 but those not within form part of territorial waters, 13 question as to what portion of sea is within, must be decided by evidence, 13, 14 an arm of the sea lying intra fauces terrce is or may be within, 13, 14 jurisdiction of courts over creeks and arms of the sea not within the body of a, 1421 sea shore forms part of the body of adjoining, 22 bed of public navigable river presumably within and subject to justices thereof, 92 where tidal river forms the boundary between two, boundary line will presumably pass through centre of stream, 93, 607 liability of, to repair bridges, 590 607. See Bridges. COUNTY COUNCILS, powers of, under Local Government Act, 1888, to enforce Rivers Pollution Prevention Acts, 217, n. (1) powers of in Scotland under Local Government (Scotland) Act, 219, 11. (4) COUNTY COURTS, extent of jurisdiction of , under the County Courts Act, 1888. ..702, 703 See Remedies. under the Rivers Pollution Prevention Acts, 218 INDEX. 759 COVENANTS, conferring easements, run with the land, 250 to build or repair a bridge, how far binding, when damage is caused by extraordinary flood, 610 See Bridges. CRABS, enactments as to protection of, 429, 430 CRAY FISH, taking in a private fishery not an offence under the Larceny Act, 458, n. (10) CREEKS AND ARMS OF THE SEA, within body of a county are governed by law relating to inland tidal waters, 13 but if not within, form part of the territorial waters of the State, 13 and are governed by the laws relating to such waters, 13 in order to be " navigable " must be affected by ordinary tides, 13, n. (4) " Tlie. King's Chambers,' 1 '' jurisdiction with respect to, 15 three mile limit with respect to bays under conventions with foreign countries, 13, n. (5), 15 21 grant by Crown of lands bounded by a non-navigable, held to pass soil ad medium Jilum aquee, 118 See Sea ; Sea Shore. CRIMINAL LAW OF ENGLAND, foreigners on foreign ships passing within three miles of English coast are subject to, under 41 & 42 Viet. c. 73.. .8 CROWN, title of the, to soil below low water- mark, 5 9 to mines below low water-mark, as against the subject, 10 questions of title to foreshore between Crown and subject, procedure as to, 642. See English Information. jurisdiction of, over the territorial waters of the realm, 5 9 over "the King's Chambers'"' 15 21 ownership of soil of sea shore between high and low water mark, by, 2339 is for the benefit of the public, 23, 28, 52, 81 and therefore grants by it are construed strictly, 28 but same rules of common sense apply in construing grants from Crown as from a subject, 28 power of, before 1 Ann. c. 7, to grant portions of shore to a subject, is now prohibited, 28, 97 prerogative of, to take royal fish and wreck, 26, 36, 57, 59 and before Magna Charta, to create a several fishery, on sea shore and tidal waters, 26, 55, 115, 116 property of, in land formed by alluvion or dereliction, 39, 40 and in islands arising in the sea, 42 is not the universal occupant of unclaimed dry land, 43, n. (4), 83 rights of, over lands lost by encroachments of the sea, 41 prerogative of, to protect from inroads of the sea, 43 47 liability to repair sea defences is not enforceable against, 46 power of, to prevent destruction of natural barriers from the sea, 46 rights of, in ports, 65. See Ports. 760 INDEX. CROWN continued. is conservator of all ports, havens, and arms of the sea in virtue of office of Lord High Admiral, 65, 464, 520. See Sea ; Sea Shore. ' rights of, in tidal navigable rivers, 82, 83, 94, 121, 128, 390, 520 property in soil of, may be granted to a subject by, 94 limits of such grants, 97 rights and interests of, in foreshore, transferred to the Board of Trade, 26, 27 and are regulated by the Crown Lands Acts, 27 has no right to soil of rivers above the flow of the tide, 81 83, 116, 390395. See Private River. has no de jure right to soil and fisheries of large non-tidal lakes, 83, 123, 394 grant from, when owner of soil of lake, of free fishery, lands adjacent, &c., not sufficient to pass soil, 125 See Lakes. public right of fishery in tidal waters possibly derived from the, 115, 393 but has now no longer power to create a several fishery on tlie sea shore or in tidal waters, 28, 55, 115, 116 See Fishery. a ferry may be established by grant or licence from, 568 rights and duties of, as to ferries, 568, 574, 577, 580 See Ferry. exemption of, from payment of tolls, 644 and of ships of, 646 See Tolls. dockyards in occupation of, or occupied for government purposes, exempted from payment of rates, 672 but tenants of, holding for private benefit, are not exempt, 672 See Pates. CROWN LANDS ACTS (18661906), THE, 27 CUSTOM of nations as to fisheries in the high seas must be respected by other nations, 5, 389 of bathing gives no right to place machines on foreshore, 60 to place chairs on foreshore not within Prescription Act, 61 as to erections on foreshore, 61, n. (2) as to hawkers on foreshore, 61, n. (2) to spread nets to dry on private land, 54, n. (7), 390, n. (1) modern practice of oiling nets may come within custom, 390, n. (1) acquisition of easements by, 275 for a right of passage over a ferry free of toll, 583 evidence of, admissible as to repair of bridges by prescription, 612 See Bridges. evidence of, as to payment of tolls, rules as to, 621, 622 See Tolls. wherever customs are set up judgments in cases between parties admis- sible to disprove them, 622 CUSTOMS CONSOLIDATION ACT, 1876, fish caught by trawling in prohibited areas comprised in table of pro- hibitions contained in sect. 42 of, 433 DAM. See Weir; Mill; Fishery. DECREE, obstructions to navigation may be restrained by, 497 INDEX. 761 DEED, necessary for the creation or assignment of an easement, 239 rules as to construction of, the same in grants by the Crown as in grants by subjects, 28, 98 "DEFINED CHANNEL," with respect to percolating water, definition of, 230 DERELICTION, land lost by, property in, 85, 119 DERRICK HULKS, rateability of, 677 See Rates. DISTRESS, the right of, incident to every toll, 625, 665 and may be made on the thing itself, or any portion of it, 625, 665 power of implies an antecedent right of action, 625 DIVERSION AND ABSTRACTION, of a natural stream by a riparian owner, 139, 140 must be reasonable, 140 and for uses of his tenement, 141 for supplying a town with water, not a reasonable riparian use, 141 for irrigation, 144 for mills, 144 of a natural stream by artificial means, 146, 273, 274, 290 of subterranean water from a well, 220 of water actually in a well, 227 actually in a surface channel, 228 easement of, 277 is within the Prescription Act, 267, n. (3) cannot be materially increased, 278 mere alteration, does not destroy, 279 claim to be relieved of water by, 295 continuance of, 339 against a canal company, 339 injunction to restrain, 718 See Easement ; Remedies ; Riparian Owner. DOCKS, dock companies are bodies possessing statutory powers, 305 See Statutory Powers, Bodies possessing. definition of, 371 ownership of, 372 undertakings of London dock companies now transferred to Port of London Authority by 8 Edw. 7, c. 68... 66, n. (6), 372, n. (1) provisions of Harbours, Docks and Piers Clauses Act, 1847, as to, 372 are usually primarily governed by special Act incorporating them, 372, 373 right to take dues derived entirely from the Act, 372 which is regarded in light of a bargain with public, and must be con- strued strictly, 373 liability of dock companies, 310, 312, 374, 380 for negligence generally at common law, 374 even where tolls are devoted to the maintenance of the works, 310, 311, 374 to repair, 378 762 INDEX. DOCKS continued. liability of dock companies continued. for compensation under Acts to persons injured by their works, 378380, 698, 599 dues, 644, 650, 657 See Tails. rateability of, 669675 See Rates. DOCKM ASTER, powers and duties of a, 374, n. (2) DOMESTIC PURPOSES, right of a riparian owner to use water of a stream for, 139 what are, 139, 355, n. (2) taking water for an engine by a railway company is not a, 140 owners and occupiers entitled to demand a supply of water for, under the Waterworks Clauses Acts, 355, 356. See Riparian Owner; Water Supply. DRAINS, right to make for agricultural purposes is unqualified, 220 no easement to the continuance of the flow of water from such drains can be acquired by prescription, 220, 299 implied grant of existing, on conveyance of tenement, 252 263. See also Pollution. DRIP, OE EAVES-DROPPING, easement of, 162, 299, 301 DUES, dock. See Docks and lolls. DUMB WELLS, highway authorities have no right to construct on private land adjoining highway, 587, n. (1) DYNAMITE, use of, to kill fish, is illegal, 449, 450, 457 EASEMENTS OF WATER, embrace all acquired rights of water, 237 definition of, 237 must be used in connection with a tenement, 237, 269 are incorporeal rights, 238 classification of, 238 how acquired, 238276 by express agreement, 239 243 can only be created and assigned by deed, 239 equitable doctrine of acquiescence, title to, by, 241 extinguishment of, by parol evidence, 243 construction and effect of express grant of, 244 250 extent of, determined by express words of grant, 244 benefits of right to an easement run with the land, 250 not so rights unconnected with the land, 251 no particular words of grant necessary, 251 by implied grant, 252263 on severance of tenements, 252 there is an implied grant of necessary easements to grantee but no corresponding reservation, 252 except of ways of necessity, 252 " temporary easement," definition of, 252, n. (2) reciprocal easements, 262, 292 easements not of necessity, words necessary to pass, 263 INDEX. 763 EASEMENTS OF WATER continued. by implied grant continued. secondary easements, 264 the burden of, cannot be increased, 264 easements are limited by words of grant or by the extent of user proved, 265, 303 a mere alteration does not destroy, 262, 279, 291, 292 by prescription, 265 276 See Prescription. by lost grant, 266 under the Prescription Act, 267269 what easements are within the Prescription Act, 267, 336 339, 384 the common law not superseded by the Act, 269 by and against whom claim to, by prescription may be made, 269 cannot be claimed when the servient owner is under a disability to grant, 270, 271 enjoyment must be nee ri, nee clam, nee precar'w, 272, 273, 299 and uninterrupted, 273 and adverse, 274 partial interruption may qualify without destroying, 273, n. (1 ) claims to, by custom, 275, 276 particular easements of water, 277 302 easement of watercourse, 238 See Watercourse. easement of diversion and obstruction, 277 See Diversion and Obstruction. of pollution, 279 See Pollution. of artificial watercourse, 285 See Artificial Watercourse. to discharge water and receive flow of water by artificial means, 291, 299 right of servient owner to compel dominant owner to continue discharge, 292 of drip, or eaves-dropping, 299, 301 See Drip. to draw water from a well, 238, 267, n. (3), 275 to take water to fill a canal, 315, 316 to take water from a canal for purposes not sanctioned by Act, cannot be acquired by grant or prescription, 76, 77, 267, n. (3), 271, 315, 316, 334, 338 to have water diverted by a canal, 277, 339 See Canals and Diversion. extinguishment of, 302 304 if granted by statute for a particular purpose, easement ceases when purpose is accomplished, 302, n. (4) by express lease, 302 by merger, 302 by licence, 243, 303 by abandonment, 303 by non-user, 303 by alteration of dominant tenement, 265, 278, 280, 303 by encroachment, 278, 280, 304 remedies for disturbance of. See Remedies. 764 INDEX. EAVES-DROPPING, easement of. See Drip. EDUCATION ACTS, 1870, 1873, 1876, provision to enforce under the Canal Boats Act, 1877... 567 See Canal Boats Act. EELS, statutory provision as to, 447 EMBANKING and inclosing evidence of ownership of sea shore, 34, 37, 38. See Sea Shore. under Improvement of Land Act, to defend from sea, is " an improve- ment of land," 523 ENCROACHMENT of sea, land lost by, 39. See Sea Shore and Dereliction. extinguishment of easements by. See Easement. ENGINES, " fixed," 453457 what are " fixed engines," 455 what are illegal, under Salmon Fisheries Acts, 452, 453 privileged, 457 railway, taking water to supply, is not a " domestic purpose," 139, 140, 143 See Fishery. ENGLISH INFORMATION, questions between Crown and subject as to title to foreshore can be brought before Court by, 720 and Court may try question itself, or direct an issue beforea jury, 720 jurisdiction now in King's Bench Division, and is not touched by Judicature Acts, 720, 721 ERECTIONS on bed of a tidal navigable river, when permissible, 99 104, 177182. See Tidal Navigable River. ESTUARY, power of Secretary of State under Salmon Fishery Acts to define limits of, 435, 436 See Creek. EXCHEQUER, COURT OF, English informations respecting title to foreshore between Crown and subject formerly exhibited in, 720 but jurisdiction passed to Exchequer Division, and thence to King's Bench Division, 720, 721 EXPIRING Laws Continuance Acts, provisions under, as to salmon fisheries, inspectors and commissions, 439, n. (9) EXPLOSIVES ACT, 1875, the, provisions of, as to carriers on canals and navigable rivers, 565 definition of carrier under, 565 canal company, 565 EXTINGUISHMENT OF EASEMENTS. See Eatementf. FERRY, franchise of, an incident to possession of rights relating to water, 568 definition of, 568, 574, 583 may be created by Act of Parliament, royal grant or licence, or by pre- scriptioHj 568 INDEX. 765 FERRY continued. incidents to the ownership of the franchise of, 568, 569, 583 the right to take tolls is usually part of privilege of, 569 but must be founded on adequate consideration, 569 and burden must be reasonable in amount, 569 rights of action and liabilities of parties entitled to franchise of a, 569. 583 against parties evading payment of toll, 569, 582, 583 for disturbance of franchise by setting a new ferry so as to diminish custom, 569, 570, 581 owners of, liable to criminal indictment if they wilfully or by neglect of duty obstruct subjects of realm in use of, 569, 581 description and limits of a, 571, 573 right to ply on Sundays, under the Watermen's Acts, does not con- stitute an ancient ferry, 573 right of Sunday ferries under the Acts now abolished by Port of London Act, 1908.. .555 existence of an ancient, does not preclude persons from using river as highway from or to all places on boats not in a line leading from one terminus to the ether, 574 581 owner of, is proprietor of a particular species of monopoly for public advantage, 576, 577, 581 but has not a grant of exclusive right of carrying by any means whatever, 577 but only by means of a ferry, 577 conditions of grant from Crown, 577 protection of Crown to grantees does not extend to future dis- coveries of entirely new means of transit superseding a, 577 no actions against persons violating rights otherwise than by means of boats, 577 how far owners are entitled to compensation for loss arising from creation of new highways, 577 579 prerogative of Crown respecting, similar to that respecting bridges, 580 liabilities of lessees and owners for injury by negligence, 581 common carriers by water on same footing as those by land, 581 and do not insure against irresistible acts of nature, 581 what constitutes a contract between owners of ferries and passengers, 582 a floating bridge propelled across a river by steam is not a, 596 598 or within the Mutiny Act, 596, 598 saving of legal rights of on the Thames under the Thames Conservancy Act, 1894... 547 tolls, 582 alteration of, no answer to an action for disturbance, 582 lie in grant and not in tenure, 582, 583 an agreement to lease must be under seal, 582, 583 " passage " denned, 583 the individuals or inhabitants of a particular town may have cus- tomary right of passage over a ferry without paying toll, 583 rateability of, 680. See Rates. FISH. See Fishery. shell. See Shell Fish. royal. See Royal Fish. 766 INDEX. FISHERMEN, British have exclusive right of fishing within three nautical miles from low water-mark on the British coast, 13, 389, 390 FISHERY, the various rights of, defined, 381 a territorial fishery, 381, 409 right of, when not connected with soil is & profit d prendre, 381, 382 but not an easement within the Prescription Act, 384 not an interest in land sufficient to give claim to compensation under Land Clauses Consolidation Act, 384 common or public fishery in the sea or tidal waters, 385 a several fishery, 385 free fishery, 385, 386 prescriptive claim by freeholders of manor for is unreasonable, 383, 384 effect of grant of fishery, 387 common of fishery, 387 See Territorial Fishery ; Free Fishery ; Common or Public Fishery ; and Common of Fishery. licence to exercise exclusive right of, must be by deed, 122, 388 effect of licences to fish, 388 in the high seas : prima facie common to all the world, 2, 5, 389 exclusive right of, how acquired by one nation as against another, 5 customs of other nations as to, must be respected, 5, 389 conventions with foreign States as to, 389, 425 no restrictions on, either as to season or means of catching fish, except as provided in conventions between States, 389, 443, 444, 449 a prescription for a fishery in the sea is bad, 390 in the territorial waters of the realm : common to all subjects of the realm, 13, 390 who have an exclusive right within three nautical miles of low water- mark, 13, 390 conventions with France, Holland, Germany, Belgium and Denmark as to, annexed to the Sea Fisheries Act, 1868. ..13, 389, 425 regulations as to fishery and boats under, 426 conventions with America, Belgium, Denmark, Holland and Ger- many as to, 13, 426, 427 but such conventions may apparently be overridden by bye-laws under a British Act of Parliament, 16 21 with respect to liquor traffic and fur seals, 425 427 provisions of the Sea Fisheries Act as to oyster and mussel beds, 427431 as to crabs and lobsters, 430 as to herrings, 1621, 431, 434 sea fishery districts under the Sea Fisheries Regulation Act, 429 restrictions as to season for taking or mode of capture of sea fish in sea fishery districts, 443, 444 in tidal waters : public right of, exists primd facie in all subjects of the realm, 55, 115, 390 subject to legal restrictions as to season and means of capture, 55, 443, 449 extends to the sea shore between high and low water-mark, 55, 390 INDEX. 767 FISHERY continued. in tidal waters continued. and to estuaries and tidal rivers so far as the tide flows and reflows, 115, 390 does not exist in non-tidal waters which have been made navigable, or been immemorially so, 82, 83, 392, 395 or in inland non-tidal navigable lakes, 394 semtle, depends on proprietorship of bed by Crown, 82, 83, 85, 393, 394 which prior to Magna Charta had right to exclude public and create several fishery, 55, 115, 395 the Crown cannot now interfere with the right, by grant or charter, 55, 115, 390 the right is subservient to that of navigation, 55, 116, 404, 405 includes right of fishing between high and low water-mark, and taking shell fish there, 55, 390 and of depositing oysters and shell fish on any part of the foreshore, 390 but not of using adjoining land, except by custom, 391, 404 or exercising rights inconsistent with nature of permanent private property, 391 See Custom. the public may take all the fish they can by lawful means, 391 , 407, 408 interference with right is indictable and actionable on proof of special damage, 391 right does not include that of taking royal fish, 26, 59, 392 right, how affected by change of bed, 85 92 a several fishery in, how claimed, 115, 116, 395, 403, 404 is subject to the public right of navigation, 116 by grant, 395 by prescription, 395 what evidence is necessary to support claim to, by prescription, 395398 as appurtenant to a manor, 385, 398 temble, cannot be claimed as appurtenant to land, 398 is a royal franchise, and does not merge on forfeiture, 399, 400 effect of grant of, 400404 does not, in absence of other evidence, pass the soil beneath water, 56, 116, 401 but grant of sea grounds, oyster layings, shores, and fisheries held to pass it, 401 and also grant of several fishery exercised by kiddles, 401, 402 effect where river changes its course, 403 a free fishery in, is a co-extensive right enjoyed by two or more persons, 404 user of fisheries, 404, 405 use of soil per se not sufficient to support claim for toll from vessels anchoring in limits of fishery, 404 obstructions to, 405 408 weirs obstructing navigation are illegal, unless granted by Crown prior to reign of Edw. 1, 405, 406 and are indictable, 405 so semble, if obstructing fishery, 406 obstructions to fishery and the passage of fish are actionable by the owners of the fishery, 407 768 INDEX. FISHERY continued. in private streams, 82, 83, 86, 122, 408 418 belongs prim A facie to the owners of bed ad medium Jilum agut$, 82, 408 as a territorial right, 409 where a man possesses land on both sides of a stream he has sole right of, 122, 408 right is vested in occupier of lands, 409 opposite proprietors are liable to actions of trespass for casting nets or lines beyond centre thread, 409 lord of a manor must make out his claim to right by evidence of his own, as by deed, 122, 410 lords of manors are prim a facie entitled to fisheries over waters of the waste, 410 where right is claimed in another's water, onus of proof is on claimant, 410 claim by the public to fish in private waters cannot exist in law, 82,412 or by custom, 412, 413 licences to the public to fish are revocable at any time, 413, 414 several fishery in, apart from ownership of soil, 122, 414 416 xemble, grant of, passes the soil by implication, 414 416 may be appurtenant to a manor, 414 but gemble, not to a tenement, 414 free fishery in, 416 does not import ownership of soil, 416 right of fishery in, subordinate to rights of navigation, 417 obstructions to fishery in, 417 statutes prohibiting weirs only relate to navigable rivers, 417 so a claim to a weir in private waters may be established by grant or prescription, 417 but obstructions to fishery are primd facie actionable, 418 though not a public nuisance or indictable, 418 pollution of a stream, rendering it unfit for fish to live in, is actionable, 418 and ground for interference by the Court by injunction, 418 in lakes and pools, 83, 123. 126, 418423 in small pools and ponds which are included in one property or manor is primd facie in owner thereof, 126, 418, 419 where boundary of two properties passes along it, it coincides with the medium Jilum, and fishery follows such line, 123, 419 fish are feree naturte, and cannot be subject of larceny at common law, 419 except in small ponds, tanks or stews, 419 in large inland navigable lakes the law as to the right is doubtful, 83, 123125, 419423 the Crown has no dejure right to it, 123, 419 421 semble, the public have no right in such lakes, 126, 419 422 or in the Norfolk broads, which are non-tidal, 422 grant of free fishery in, held not to pass the soil of the bed. 415, 419 in canals and artificial waters, 316, 317, 423, 436 is primA facie incident to the ownership of the soil, 423 and canal proprietors, &c., may let it if they think fit, 317, 423 INDEX; 769 continued. in canals and artificial waters continued. reservations of, to land owners, 316 is in many cases regulated by the Act incorporating a canal com- pany, and is then dependent on its construction, 423 boards of salmon conservators must not injuriously affect canals &c 436 statutory regulations affecting, 423 460 general enactments for protection of fish, 423, 443 special Acts relating to Scotland and Ireland, 424, n. (1) as to salmon, 423, 424, 434439, 445448. See Salmon Fisheries Acts ; Salmon. as to freshwater fish, 425, 439 443 formation of conservancy districts and boards for protection of salmon fisheries, 434 439 and of fishery districts for freshwater fish, 439 443, 457 as to sea fish, 425 434 provisions as to oyster, mussel, and cockle fisheries, 427 429 as to crabs and lobsters, 429 as to herrings, 16, 431433. 434 as to beam trawling, 16, 431, 432 statutory provisions as to the season during which it is illegal to catch fish, 443448 in the high, seas and territorial waters, 443 445 power of Board of Trade to create sea fishery districts in territorial waters on application of county and borough councils, 429 and to appoint local committees who may make bye-laws respecting close time for fishery, 429, 430 in inland waters, 445 448 as to salmon, 445, 446 trout, 447 eels, 447 lamperns, 447 freshwater fish other than trout and char, 447 as to the sale, exposure, or purchase for sale of sea fish, 445 of salmon, trout, or char, 447, 448 of freshwater fish, 447, 448 as to the means by which it is illegal to catch fish, 449 458 oyster beds, disturbance of, 449 salmon, disturbance of, 449, 450 using dynamite to kill salmon, trout, or other freshwater fish, 449, 450, 457, 458 or lime or noxious materials, 450 licences, provisions as to, 451 obstruction of fish descending a stream, 450 using snares, lights, spears, &c., 450 size of mesh of net to be used, 450 seine or draft nets, 451 dams, weirs, and fixed engines, 452 457 what dams and weirs are privileged, 453 455, 457 privileged fixed engines, what are, 453 457 evidence necessary to support a claim to, 453 455 what is a fixed engine, 455 457 " stop "-nets, 455 L.W. 49 770 INDEX. FISHERY continued. statutory regulations affecting continued. as to the means by which it is illegal to catch fish continued. privileged fixed engines, what are continued. what is a fixed engine continued. " toot and haul " nets, 456 " drift or hang " nets, 456 prevention of poaching fish, 419, 458 460 fish taken at sea subject of larceny, 458, n. (10) stealing fish in ponds is larceny at common law, 419, 458 taking or destroying fish in waters adjoining or belonging to a dwelling house, 458 or in other private waters, 458, 459 or in a several fishery in tidal waters, 458, n. (10) lessor of land who has not reserved right of fishery cannot prosecute, 458, n. (10) what is evidence of a private fishery, 458, n. (10) " adjoining," definition of, 468, n. (7) " unlawfully," definition of, 459 at night, 459, 460 or in the daytime, 459, 460 where a bond fide claim is set up, 459 seizure of nets and tackle, 460 maliciously destroying dams of fish ponds, 460 or putting lime or other noxious material therein, 460 in the Thames, bye-laws of the conservators as to, Appendix II., 742 rateability of a, 681. See Rates. what remedies will lie for infringement of rights of, 721 See Remedies; Trespass. FLOODS, right of riparian owners to protect their lands from, 51, 177 182 is not so extensive in the case of inland waters as in that of the sea, 177. See Sea Wall ; Overflow. proprietors may build bulwarks ripee muniendte causd to avert, 177, 178 ordinary and extraordinary channel for waters of, distinguished, 177, 178 rights of riparian owners to avert ordinary, 177, 178 and extraordinary, 180, 181 an extraordinary, is a common enemy, in providing against which riparian owners may exercise reasonable selfishness, 180 to avoid a common danger, 180 liability for escape and overflow of water, 155 177 in mines, 157 167. See Overflow ; Mines. duty of railway companies as to building sufficient bridges, 599 extraordinary, how far an excuse for damage at common law, 167 170 359, n. (1) where liability is imposed by contract or Act of Parliament, 170 177 531, n. (7) where Acts provide that no nuisance must be created, 173 in cases of negligence, 170, 171 in the Metropolis, provisions for prevention of, 548 See Overflow ; Vis Major ; Riparian Owner. FLOTSAM, definition of, 57, n. (11) INDEX. 771 FOG SIGNALS, rules of the sea as to, 467, n. (2) (Art. 15) in navigable rivers, 487 in the Thames, Appendix /., 729 FOOTBRIDGE, 601, n. (1), 604, 605, 611, 612. See Bridges. FOREIGNERS, on English ships are subject to English law, 3, n. (1), 4G2 on foreign ships, when subject to English law, 3, 8, 12, 16 21, 462 See Conventions ; Internatlonl Law. FORESHORE, of the sea and tidal rivers, 21, 63, 81, 459, n. (1), 666 definition and limits of, 21, 81, 85 comprises only that portion lying between high and low water mark, at ordinary tides, 21, 81 but this line varies as the sea recedes from or encroaches on the land, 21, 22, 84 land beyond this line is not shore, 21 though overflowed by high tides, 21 forms part of body of adjoining county, but not primd facie of adjoining parish or manor, 22, 23, 92, 666 justices of adjoining county have cognizance of offences committed thereon, 22, 93 whether shore is or is not covered with water, 22 incorporated by 31 & 32 Viet. c. 122, with adjoining parish for all civil and parochial purposes, 22, 93, 666, 667 and is rateable to the poor there, 22, 93, 666, 667 so, too, all artificial or natural accumulations from the sea, 22, 93, 666, 667 has been held to be extra-parochial within the Nuisances Removal Act (18 & 19 Viet. c. 121), s. 22... 23 property in, 23, 63 is primd facie in the Crown, 25, 81, 124, 489 but subject to public rights of navigation, 23, 52, 81, 99, 489 and of fishery, 23, 55, 81, 385, 390 may belong to a subject by ancient grant or charter from the Crown, 23,94 or by prescription, 23, 29 right of Crown appears to extend to whole area affected by tides, 23 construction and effects of grants of, by the Crown, 28, 97 of lands adjoining, 30, 97 method of determining boundary of, 98, n. (2) alienation of Crown lands prohibited by 1 Ann. c. 7, s. 5... 28, 97 grantees of Crown take subject to public rights, 25, 52, 55, 94, 95, 494 and cannot make any claim or demand interfering with them, 25, 5255, 94, 494 interference with public rights on, is a nuisance, 26, 52, 84, 99, 391, 497, 598, n. (4), 697, 720 with rights of the Crown on, is a purpresture, 26, 99, 499, 720 title of a subject to, as against Crown by prescription, 29 492 772 INDEX. FORESHORE continued, property in continued. questions as to title between Crown and subject, procedure as to, 720 may form parcel of a manor, 32 39 what acts of ownership are evidence of title to, 29 39, 57, 62 property in land formed by alluvion and dereliction, 39, 84, 92 duty of the Crown to protect from the sea, 43 right of riparian owners to protect from the sea, 46, 51, 170 from river floods, 99104, 177, 499 right of owner of tenement adjoining as regards access to sea similar to that of riparian owner on tidal river, 53, 114 See Sea Wall ; Overflow. public right of navigation, 52 includes the right to cross at low water, 52, 53, 104, 110, 114 no common law right of bathing from, 59 62 nor of holding religious services on, 61 nor of placing chairs for hire upon, 61 public right of fishery on, 52, 55, 115, 390 several fishery on, 55, 115, 395 See Fishery ; Several Fishery. of tidal navigable river, no public right to kill wild fowl on, 66 the right to take wreck on, 26, 36, 57, 58 See Wreck. erections on, validity of local byelaws respecting, 61, n. (2) and for regulating, selling and hawking on, 61, n. (2) to take sand, seaweed and shells on, 62, 63 See Sand; Seaweed. FOUNTAIN, statutory provision against fouling, 211, n (5) FREE FISHERY, A, definition of, 385 when an incorporeal hereditament, can only pass by deed, 122, 381 distinguished from a several fishery, 386, 387 effect of grant of, 387, 416 in tidal waters, 404 in private waters, 416 does not import the ownership of the soil, 416, 417 See Fishery ; Several Fishery. FRESHWATER FISHERIES ACTS, 1878, 1884 and 1886, the (41 & 42 Viet. c. 89, 47 Victc. 11, and 49 & 50 Viet. c. 39), 425, 439443, 447, 449, 450, 457 See Fishery. FRONTAGERS, rights and liabilities of, as to sea defences, 4652 See Sea Wall ; Commissioners of Sewers ; Overflow. FUR SEAL FISHERIES, convention between Great Britain and the United States respecting, 425, 426 GAS, statutory prohibition against pollutions by, 210 washings, liability for pollution caused by, 210, n. (1) INDEX. 773 GOIT, 146, 188, 290. See Artificial Watercourse ; Mill. GRAND JUNCTION CANAL ACT, the (33 Geo. 3, c. 80), 537, nn. (1), (3) GRAVEL AND SHINGLE, right to take, 62 HARBOURS, definition of, 464 under 40 & 41 Viet. c. 16.. .465, n. (4) and of harbour authority, 465, n. (4) tolls in, 4, 69, 644, 647. See Tolls. rateability of, 666 669. See Rates. conservancy of, 67, 464, 465 obstructions in, 69, 493, 497 facilities of authorities for keeping in good order, 67 69 See Ports ; Navigation. HERRINGS, enactments as to the protection of, 434 HERRING FISHERY (SCOTLAND) ACT, 1898, the, 431. See Scotland. HIGH SEAS. See&a. HIGHWAY, on water, the sea is the, of all nations, 1, 2, 462 a public navigable river is a public, 98, 494 on land, is a general term for all public ways common to the King's subjects, 598 no indictment lies for repairing a bridge unless it be situate in a, 593, n. (5), 598 at the extremity of bridges, repair of, 585, 604, 614 provisions of 5 & 6 Will. 4, c. 30, as to repair of, 586, 587, 595 highway authorities have no right to construct or maintain dumb wells on private lands adjoining, 587, n. (1) definition of, under 5 & 6 Will. 4, c. 50, includes bridges not county bridges, 586 law as to toll for passage along a, on land applies equally to that on the sea or navigable waters, 6 1 5 See Navigation ; Bridges ; Toll. INCIDENTS, accompanying possession of rights relating to water. See Bridges ; Ferry ; Rates ; Tolls. INCLOSURE COMMISSIONERS, jurisdiction of Commissioners of Sewers transferred to, 522, 523 powers of, under Improvement of Land Act, 1864, and the Land Drainage Act, 523 meaning of term " improvement of land," 523 INDICTMENT, interference with public rights is the subject of an, 26, 84, 99, 205, 391, 497, 598, n. (4), 611, 711,720 pollution of streams, when amounting to public nuisance, punishable by, 205, 711 774 INDEX. INDICTMENT continued. for obstruction of navigation, 84, 99, 501 of fishery, 391 for non-repair of bridges, 591, n. (2), 593, 598, 601, n. (1), 607, 608, 611, 612, 613 See Pollution ; Nuisance ; Bridges ; Fisheries ; Remedies. INFORMATION, at suit of the Attorney-General, interference with public rights the subject of an, 26, 52, 99, 205, 497, 711, 720 for pollution of a stream, 205, 282, 283, 711 for obstruction of navigation, 2, 52, 99, 499 individual sustaining injury may join as plaintiff and relator, 712 See Remedies; Pollution; Nuisance; Fishery ; Navigation. English. See English Information. I INJUNCTION, remedy by, Courts of Chancery and Common Law and County Courts have now equal powers as to granting, 701 when granted in cases of nuisance and injury to property, 714 interlocutory, 714 perpetual, 714 mandatory, 715 not granted where damages are sufficient compensation, 715 principles on which Courts will grant, 571, 714, 721 granted to prevent repeated actions, 715 and acquisition of rights, 141, 142, 715, 716 granted where an action lies by riparian owner for interference- with stream, even where no actual damage is proved, 715 damages not generally awarded in lieu of, for injuries to riparian rights, 190, 720 and balance of convenience and inconvenience cannot be considered, 190. 571, n. (2) no part of duty of Court to inquire how nuisance may be removed, 192, 717 Courts will not interfere in cases of merely prospective nuisance, 201, 717 however strong apprehension of injury may be, 201 but probable continuance and increase of nuisance will be considered, 202, 717 acquiescence in nuisance, how far a bar to obtaining, 201 Court will not hold its hand on ground of a decision being appealed from, unless it doubts justice thereof, 717 to restrain interference with right of access, 110, 495, 496, 721 diversion and abstraction, 140, 142, 233, 241, 296, 718 interference with a ferry, 571 573 injuries to fishery, 391, 417, 721 to navigation, 405, 417, 497508 pollution, 149, 183, 189, 205, 234, 280, 418, 719, 720 purprestures, 26, 99, 700, 720 statutory bodies from exceeding their powers, 198 201 INLAND WATERS, definition of, under the Explosives Act, 1875. ..566, Ml) INDEX. 775 INTERNATIONAL LAW, as to the sea washing the shores of states, 1, 9, n. (5), 11, n. (2), 12, 462 as to fishery, 5, 1321, 389, 425427. See Conventions. as to merchant shipping, 463, 470 475 as to rivers forming the boundary between two states, 93, n. (5) as to inter-oceanic canals, 93, n. (5) as to right of protection of Crown over subjects and foreigners, 9 INTRUSIONS. See Purprexture*. IRELAND, Fishery Acts specially relating to, 424, n. (1) application of the Rivers Pollution Prevention Acts to, 219, n. (5) provisions with respect to steam trawling in Irish waters, 432, 433 IRRIGATION, right of a riparian owner to use water for, 140, 141, 144, 274, 275 in India, duty of zemindars to maintain tanks in their zemindaries for, 169, n. (3) easement of, 274, 285, 286 See Riparian Owner ; Diversion. ISLANDS, in arms of the sea, when private property, 42 arising in the sea, property in, 42 such islands not within a county, 43, n. (4) and so without the realm, 43, n. (4) in private waters, property in, 119, 120 dividing alveus of private rivers determine position of medium filum, 117 JETSAM, definition of, 57, n. (12) JOINDER OF PLAINTIFFS, provisions of Judicature Act, 1875, with respect to, 706, 707 JUSTICES. jurisdiction of, on the sea shore, 13, 22, 27, n. (3), 42, n. (1), 704 as to offences on shores of tidal navigable rivers, 92, 459, n. (1), 704 as to cases of trespass with regard to fishery, rights of way and damage to property, 704 but jurisdiction of, ousted where a bond fide claim to right at law is raised, 704 LAKES AND POOLS, definition of, 123 ownership of soil of, 123 125 small ponds, 123 large and navigable, question of ownership is doubtful, 123 125 the Crown has no dejure right to soil and fisheries of, 123, 418 American law as to such lakes, 1 25 where there are several adjoining proprietors, rule as to ownership usque ad medium Jilum, difficult of application, 124, 419 grant from Crown as owner of soil of lands adjacent, of islands therein, and of a free fishery, held not to pass soil of, 125 grant of a several fishery in, passes the soil, 125, 414 right of navigation in, 125, 419, 520. See Navigation, 776 INDEX. LAKES AND POOLS continued. right of fishery, in small non-navigable lakes and pools, 126, 418 in large navigable lakes, 126, 394, 400, 418 423 See Fishery. LAMPERNS, law as to catching, 447 LAND CLAUSES ACTS, 1845, 1860, 1869, incorporation of, into special Acts of water companies, 347, 349, 350 deprivation of right of access to banks of tidal navigable river entitles sufferer to compensation under, 113 a ferry is land for which compensation can be given under, 570, n. (4) a right of fishery is not, 384 " LANDED," meaning of term as regards goods shipped into harbour, 650, n. (1) LANDING, the right of, as incident to the right of access, 52, 104, 114 LARCENY of fish in small ponds, 419, 458 See Fishery. LARCENY ACT, the provisions of as to poaching fish, 458, 459 LEE CONSERVANCY ACTS, THE, 527, n. (1), 537, n. (3) provisions of, as to restriction of pollution, 211 Conservancy Board constituted under, may enforce the Rivers Pollution Prevention Act, 216, 217 savings of rights under from provisions of Rivers Pollution Prevention Act, 219 LICENCE, to divert water, effect of a, 240, 243, 244 a parol, may extinguish an easement, 243, 303 to fish, revocable at will, 388, 413, 414 in order to be binding on grantor, must be by deed, 122, 388 LIGAN, definition of, 58, n. (1) LIGHTHOUSES, and buoys and beacons, regulations as to, under Merchant Shipping Acts, 486 tolls taken for, 645, 646 and lighthouse tolls, rateability of, 678 See Tolls ; Rates. definition of general lighthouse authority under 40 & 41 Viet. c. 16, 486 LIGHTS, rules of the sea as to vessels using, 467, n. (2) in navigable rivers, rules as to, 487, 488 in the Thames, Appendix Z, 727729, 731 LIQUOR TRAFFIC, convention between Great Britain, Belgium, Denmark, France, Germany and Holland respecting the, in the North Sea, 13, 425, 427 LOBSTERS, enactments as to the protectipn of. 429, 43Q INDEX. 777 LOCAL GOVERNMENT ACT, 1888 (51 & 52 Viet. c. 41), powers of county councils under, to enforce Rivers Pollution Prevention Act, 217, n. (1) powers as to bridges exercised by justices transferred to county councils by, 588 LOCAL GOVERNMENT ACT, 1894, powers of parish councils under, with respect to water supply, 367 transfers to rural district councils powers of urban authorities as to bridges under Public Health Act, 1875... 588 LOCAL GOVERNMENT BOARD, powers of, under the Rivers Pollution Prevention Acts, 214, 215, 216, 217, n. (1) the Canal Boats Acts, 566, 567 LOCK DUES, rateability of, 685 are a local earning, and locally rateable, 685 See Rates. LOCOMOTIVES ACT, THE (24 & 25 Viet. c. 70), s. 7, does not apply to county bridges, 597, 598 See Bridges. LORD OF MANOR. See Manor. MALICIOUS INJURIES TO PROPERTY ACT, THE, provisions as to restriction of pollution, 211, n. (5) protection of navigation, 556 as to fishery, 211, 460 MANCHESTER SHIP CANAL, regulations as to collisions under the Merchant Shipping Acts do not apply to, 467, n. (1) MANDAMUS, remedy by, 701 See Remedies. MANOR, the sea shore may form parcel of a, 32 39 on the sea coast, 32 effect of grant of, 32 acts of ownership admissible to prove extent of grant of, 33 37 a port may be parcel of a, 66, 71, 636 right to take wreck is frequently attached to, 36, 57 claim by lords of, to fish in waters of, 122, 410 " waste lands of," meaning of, 317 right of lord of, to fish in waters of waste, 410 See Sea Shore ; Fishery ; Ports. MARINE PROPERTY, rateability of, 666 678 where not actually occupying soil, 675 678 MASTER, definition of under the Canal Boats Act, 1877... 566 n. (3) MEDIUM FIL UMAQ UJE, rules as to determination of, as boundary, 93, 97, 98, n. (2), 117120, 6Q7 See Tidal Navigable River; Private tficerg and Streams. 778 INDEX. MEDWAY, local fishery Acts relating to, 425, n. (1) MERCHANT SHIPPING ACTS, 1894, 1906 and 1907, jurisdiction of English courts over foreign vessels under, 3, 462 summary of subject of Acts and regulations thereunder, 465, n. (1) provisions with respect to shipping and seamen serving abroad, 466 section 7 of the Workmen's Compensation Act, 1906, applies to crews of British ships, 466, n. (1) regulations as to the navigation of the sea under, 465, 487 of inland waters, 487, 488 Acts on the subject passed since passing of the, 488, n. (1) regulations as to pilotage under, 481 486 as to the Trinity House, 485, 486 as to lighthouses, 486 definition of general lighthouse authority under 40 & 41 Viet. c. 16, 465, n. (4) as to passengers, 486, 487 the landing of immigrants is governed by the Aliens Act, 1905. ..487, n. (1) See Sea, the ; Navigation. MERGER, natural rights of water are not extinguished by, 302 extinguishment of easements by, 252, 302 MERSEY CHANNELS ACT, 1897, THE, 488, n. (1) MERSEY AND IRWELL JOINT COMMITTEES ACT, 1892 (55 & 56 Viet. ch. cxci.), provisions of , 217, n. (1) METROPOLIS MANAGEMENT (THAMES RIVER PREVENTION OF FLOODS) ACT, 1879.. .548 METROPOLIS WATER ACT, 1902, THE, 369, 549 METROPOLIS WATER BOARD CHARGES ACT, 1907, THE, 370 MILL DAMS AND WEIRS, obstructing navigation, 405, 506 fishery, 406, 417, 436, 452, 456 powers of Conservancy Boards and Commissioners of Sewers over, in navigable rivers, 522, 525 property in, in the Thames vested in the Conservators; 544 See Riparian Owner ; Easement ; Fishery. MILLS, right of riparian owners to use water for, 139, 140, 144 for a mill newly erected, 131, 132, 135, 144 the use of the water for, must be reasonable, 139, 140 and not interfere with the rights of other riparian owners, 131, 132, 139, 140, 144 right to divert the water of a natural stream to, by artificial means, 146 easement to divert water to, 290 watercourses constructed solely for, are for a temporary purpose, 299 liability of owner of, to repair a bridge used by the public, 593 See Riparian Owner ; Easement, INDEX. 779 MINES, below low water mark, title of the Crown to, as against a subject, 10 the working of, evidence of ownership of the sea shore, 36 liability of owners of, for escape of water, 156 160, 163 167 the right to work, if duly exercised, begets no responsibility for injury by escape of water, 163 liability for throwing water on, which would not naturally have come there, 164 where an artificial is substituted for a natural channel, 165 no liability on owner of for draining away percolating or surface water, 221, 222 or for intercepting water which would have percolated into a well, 222 or for abstracting water actually in a well, 227 liability for abstracting water actually in a surface channel, 228 no right to support from water in, 232 prohibition under the Rivers Pollution Acts as to drainage into streams from, 212, 214, 215, 218 claim by custom to use a stream to carry away refuse from, 276 claim to use an artificial watercourse by the owners of, 276, n. (3), 291 , 293 claim to use, by tinboundera under custom of Cornwall, 276, n. (3), 291, 293 claim to continuance of flow of water from. 293, 296, 297 right to work under canals, 172, 318, 323, 324 reservations as to, in Canal Acts, 316, 318 324 rights of water companies to interfere with under the Lands and Water- works Clauses Acts, 350 352 owners of, rateability of, for a watercourse, 687, 688 See Overflow; Riparian Owner ; Canal. MOORINGS in the Thames, rateability of, 677 See Rateg. MORAY FIRTH CASE, rights of foreign fishermen in, 16 21 MUSSEL FISHERIES, law as to protection, &c., of, 427 430, 445 See Fishery ; Oysters. NAR NAVIGATION ACT, THE (24 Geo. 2, c. 19), 527, n. (1) NATQRAL rights of water. See Riparian Owners. NAVIGABLE, definition of, 84, n. (1), 490, n. (1) distinction between and "beatable," in American law, 84, n.^(l), 490, n. (1) NAVIGABLE RIVER. See Tidal Navigable River. NAVIGATION, and therein of the conservancy of navigation, definition of, 461 in the sea, 2, 12, 52, 462 the sea is the highway of all nations, 2, 462 780 INDEX. NAVIGATION continued,. in the sea continued. jurisdiction over ships on the high seas, 2, 462 in the territorial waters of the realm, 5, 8, 9, 12, 462 over pirates, 4, 463 treaty or acquiescence may give sole right of, 1, 464 gutsre, whether obstruction of, is inconsistent with international law, 2 right of, in territorial waters, 12 right of, includes right to anchor free of toll, 5, 52, 70, 71, 463, 635, 636 right is paramount to ownership of Crown and its grantees in soil of sea shore, 5, 52 includes the right to pass over shore at low water, 52, 115 no toll is demandable for navigating, except in ports and harbours, or where benefit is done to navigation, 4, 70, 71, 463, 616, 625, 628, 635, 636 in ports and harbours, 69, 464, 465 the regulations for, under the Merchant Shipping Acts, 465 487 as to rules of the sea in sailing, steering, &c., 467 486, and notes do not apply to the Manchester Ship Canal, 467, n. 1 foreign countries which have adopted the rules, 472 475 rules of the sea as to lights, fog signals, distress signals, sailing and steering, 467, n. (2) as to collisions, 479, n. (1) as to pilots and pilotage, 481 486 as to lighthouses, buoys, and beacons, 486 as to the duties of the Trinity House, 485 as to passengers, 486 as to lifeboats, 487 in inland waters, 52, 81, 84, 9799, 104, 105, 117, 120, 125, 129, 404, 417, 487520 on rivers forming boundary between two states, international law as to, 93, n. (5) rules as to lights, signals, and collisions in, under Merchant Shipping Acts, 487 exemption in favour of certain places where local rules are in operation, 488, n. (1) in tidal waters, 489 514 the general right of, is common to all the subjects of the realm, 52, 81, 489 and extends to all waters navigable at any state of the tide, 83, 489 and to the whole of the navigable channel, 98, 99, 104, 405, 492, 500, 515 and includes the right of grounding and anchoring free of toll, 98, 493 unless some benefit to the navigation can be shown as a con- sideration for the toll, 493 and of stopping for a reasonable time to unload and for a wind, 98, 495 immemorial user of foreshore by owners of fishing boats by fixing moorings in soil may be supported as an ordinary incident of navigation, 4.93 INDEX. 781 NAVIGATION continued. in tidal waters continued. or on presumption of a legal origin by grant from Crown, 493 and in the Thames on presumption of regulations prescribed by Port of London, 493 what is evidence that a river is navigable, 83, 490 change of course of a river does not destroy the right, 492 which can only be extinguished or abridged by Act of Parlia- ment, by writ ad quod damnum, or by natural causes, 84, 99, 497 the right is paramount to the property of the Crown and its grantees, 99, 129, 494 and to the right of fishery, 116, 404, 417 royal charter purporting to confer exclusive navigation of public river void under Statute of Monopolies and by com- mon law, 121, n. (2) so, too, exclusive right of transporting goods thereon, 121, n. (2) the right of passage is simply a right of way, and involves no rights of property, 104 includes the right to pass over the shore at low water, 104 but not of landing, mooring or towing on the banks, in the absence of custom, 104, 495 right of access enjoyed by riparian owners superadded to the public right of, 110, 129, 495, 496 includes the right of passing over the shore at low water, 496 obstruction* to navigation, 84, 99, 405, 417, 497 511 obstruction of the public right a public nuisance, and indict- able, 84, 99, 497 and public right is not barred by an artificial obstruction, 84,99 but erections on bed of a public navigable river are not necessarily a nuisance, 100, 104, 499 whether they are so is a question for the jury, 499 public benefit, how far a justification for obstruction, 502 private benefit too remote, 502, 506 weirs obstructing navigation illegal unless granted by Crown prior to Edw. 1...405, 417, 506 abatement of nuisances to, 508, 700 obstruction to navigation is actionable on proof of special damage, 99, 100, 497, 508 but obstruction of the right of access is actionable without such proof of special damage, 111, 508 whether obstruction of a river amounts to interference with right of access is a question of fact to be determined in each case, 112, 508 liability of persons erecting or keeping obstructions in a navi- gable river, 508 where authorized by a statute, 510, 511 duties and liabilities of persons navigating, 511, 515 are bound to use reasonable skill and care, 511 the duty arises out of the control of the vessel, and ceases when the vessel ceases to be under control of owner, 512 where vessels are sunk by accident, 512 782 INDEX. NAVIGATION continued. in tidal waters continued. duties and liabilities of persons navigating continued. liability for injuries caused in carrying on traffic, 513 in non-tidal waters, 120, 515, 520 right of, not a public franchise paramount to all rights of property in bed, 515 but can only be acquired by grant, or prescription, or Act of Parliament, 120, 515, 516 or by dedication to the public, 120 what amounts to a dedication, 121, n. (1) semble, does not extend primd facie to passage over whole navigable channel as in tidal rivers, 515 but is limited to extent of right granted or user proved, 515 temble, claim to right must be treated as if it were a claim to establish a highway on dry land, 516 right of recreation by custom cannot exist in the public, but must be confined to inhabitants of a particular district, 516519 quare, how far a cul de sac may be considered a highway, 519 obstructions to, illegal and a nuisance, 121, 519 it is doubtful whether large inland navigable lakes are navigable by the public at common law, 520 but such rights of navigation have been and may be acquired even where soil is private property, 520 the conservancy of navigation, 105, 520, 567 origin of conservancy, 520 duty formerly vested in Crown as the representative of State, 520 delegated to various authorities, of which Commissioners of Sewers were chief, 521 meaning: of " sewer" 521 duties and powers of commissioners, 522524 their jurisdiction as to nuisances, now vested in sanitary authorities, and as to land drainage in inclosure com- missions, 522 in navigable rivers transferred to conservancy boards, 523 conservancy of Thames vested in Mayor and Corporation of London by 17 Ric. 2, c. 9. ..525 general powers of Commissioners of Sewers to remove obstruc- tions in navigable rivers, 525 all rivers, ports and harbours now entrusted to conservators by Act of Parliament, 526 who are made guardians of navigation, performing in a fuller manner the powers of commissioners, 526 the statutes relating to inland navigation are of three kinds, 526 1 . Such as restore or improve navigation of rivers formerly navi- gable, 52fi 2. Such as make navigable rivers not formerly so, 526 3. Such as provide for construction of an inland navigation or canal, 526 under first two classes of Acts care and conservancy is vested in com- missioners, with certain powers, 526 but soil of bed is not generally vested in them, 106, 527, 529 679 INDEX. 783 NAVIGATION continued. the conservancy of navigation continued. under first two classes of Acts care and conservancy is vested in commissioners, with certain powers continued. and in such cases they are not in occupation of bed or towing paths, but have merely an easement. 679, 680 and are not rateable therefor, 680 distinction between rivers of which navigation is restored and those made navigable for first time, 527, n. (1) conservators are not liable for damage to adjoining lands in absence of negligence, 629 531 have apparently no property in the water of their navigation and therefore cannot sell to third parties, 529 not bound at common law to keep navigation open or in proper repair, 531 536 though so long as they take toll for its use they are bound to take reasonable care that persons using it are not exposed to undue danger, 533 536 even where the tolls are taken solely for maintenance of the navigation, 533 536 no duty exists where no tolls are taken, 536 duty of, to maintain towing paths, 534 536 provisions of third class of statutes respecting preservation of naviga- tion identical with those of the other two, but liability for injury by escape of water more extensive, 536 plans for construction of navigation to be approved by Admiralty or Board of Trade, 536, 537 public only entitled to use navigation on payment of tolls, 537 See Canals. specimens of Conservancy Acts, 537, n. (1) the Thames the best example of a complete system of conservancy, 540 Acts providing for the conservancy of the Thames, 540 555 The Thames Conservancy Act, 1894... 540 548 is designed for the preservation and improvement of the river for navigation and for water supply, 540, 544 definition of " Thames," 541 definition of "shore," 541 amended by the Port of London Act, 1908... 541 provisions of Port of London Act, 1908... 66, n. (6), 541548 definition of " landward limit " of Port, 541 of " seaward limit," 541 transfer of rights and duties of conservators below " landward limit " to Port Authority, 541 area of jurisdiction of conservators as reconstituted by Act, 541 property powers and duties of Port Authority, 66, n. (5) property powers and duties of conservators under Thames Conservancy Act, 1894, and Port of London Act, 1908... 542548 appointment, number and qualifications of conservators, 542 estate, right and title in bed and soil and shores of river vested in them, 542 bed under sect. 58 means foreshore, 542, n. (2) and no person other than conservators or their agents can dredge or raise gravel there without licence, 542, n. (2) 784 INDEX. NAVIGATION continued. the conservancy of navigation continued. The Thames Conservancy Act, 1894 continued. but conservators are owners of the soil and foreshore for certain specified purposes only, 544, n. (1) and not for purposes of the Public Health (London) Act, 1891, and so liable to abate nuisances not caused by their own fault, 544, n. (1) soil and bed of river above Teddington lock belongs prima facie to riparian owners, 544, n. (1) but conservators have acquired certain rights as to locks and towing paths therein by Act of Parliament, 544, n. (1) powers with respect to towpaths, ferries and bridges, 544 for regulating navigation, 544 for dredging, 545 dredging powers of conservators limited to improvement of bed of river as prescribed by statute, 545, n. (3) and their licensee is not entitled to dredge for profit where soil of the bed and right of fishery are property of private owners, 545, n. (3) limitations of rights of conservators as to tolls from piers, 546, n. (4) powers for prevention of pollution, 545 powers of metropolitan water companies under Act, 547 are now transferred to the Metropolitan Water Board, 369, 549. See Thames ; Water Supply. Thames Watermen's Acts, 549 555. See Watermen. prevention of Thames floods, 548 Thames River Steamboat Act, 549 general effect of Port of London Act, 1908, 555 See Port of London Act. general enactments relating to the protection of inland navigation, 555567 boards of salmon conservators must not injuriously affect any navigable river, canal or inland navigation, 436 prohibition against casting ballast, &c., into navigable rivers, 556 prohibition against injuries to banks, walls, &c., under the Malicious Injuries to Property Act, 556 Railway Clauses Act, 1863, provisions of, 557 560 as to construction and management of bridges, 557 as to access to tidal lands and tidal waters, 558 as to railways skirting tidal and navigable rivers, 559 as to abandonment of works, 559 as to surveys of works over tidal lands or tidal waters by order of Board of Trade, 599 definitions under, 560 police regulations as to navigable rivers and canals, 560 regulations as to tolls and rates, 561 565. See Tolls. regulations as to traffic on navigable rivers and canals, 561566 earlier enactments, 561, 562 Regulation of Railways Acts, 1873 and 1874... 562, 563 Railway and Canal Traffic Act, 1888... 563 565 INDEX. 786 NAVIGATION- continued. the conservatcy of navigation continued, general enactments, $c. continued. regulations as to traffic on navigable rivers and canals con- tinued. Act consolidates law and reconstitutes Railway and Canal Commission, 563 requires uniform classification of merchandise and uniform tolls and rates, 563 provisions as to terminal charges and through rates and tolls, 563, 564 special provisions as to canals, 564, 565. See Canals. the carriage of explosives, 565 definition of "carrier" under the Explosives Act, 1875.. .565 boats used as dwellings, &c., under the Canal Boats Acts, 1877 and 1884... 566, 567 provisions under the Education Acts with respect to children dwelling on board canal boats, 567 The Canals Protection (London) Act, 1898. . .567 See Sea; Tidal Hirer; Private Mirer; Commissioners of Sewers ; Canal; Thames. NECESSITY, easements of, 252264 NEGLIGENCE, definition of, 156 vis major, no excuse in cases of, 48, 170 liability of canal owners for, 327, 340, 343, 344 water company, 172, 352, n. (7), 359, n. (1) with regard to navigation, 340, 508, 509, 511, 531, 532, 623 of owner of ferry, 581 of conservators of rivers for, 531, 536, 623 See Statutory Powers, Bodies possessing. NETS. immemorial custom of spreading, to dry on private land, 54, n. (7), 391, n. (1) custom of oiling, may come within the custom, 391, n. (1) kind and size of, permissible, no restriction for sea fish other than salmon, 449 size of mesh for catching salmon, 450 used in contravention of the Steam Trawling (Ireland) Act, 1901, liable to seizure, 432 stop net, what is a, 455 " toot and haul " net, use of, 456 " drift or hang net." use of, 456 are all fixed engines within the Salmon Fishery Acts, 455, 456 draft or seine, regulations as to, under the Salmon Fishery Acts, 451 using a, not peculiarly an instrument for taking salmon, not an offence within 24 & 25 Viet. c. 109.. .457 and tackle, are forfeited by persons poaching, 460 L.W. 50 786 INDEX. NORFOLK and Suffolk, fisheries of, regulated by 40 & 41 Viet. c. 98 (local), 425, n. (1), 440 Freshwater Fisheries Act extended to, by 47 Viet c. 11. ..440, 441, n. (2) Broads, public no claim to fish in, where not tidal, 394, 422 NUISANCE, any interference with a public right is a, 26, 84, 99 and the subject of indictment or information, 205, 391, 497, 598, n. (4), 697, 720 or of an action, on proof of special damage, 26, 99, 205, 407, 497, 508, 711 pollution of a stream amounting to, may be proceeded against by indictment, information or action, 205 a bridge built in a public way without public utility is a, 598, n. (4) persons empowered by statute to construct works must do so so as not to cause a public, 599 a public, may be abated in a peaceable manner, 508, 700 but a private individual cannot abate, unless it does him special damage, 508, 700 all infringements of rights of water are either trespass or, 696 abatement of private, 697699 previous demand to remove, when necessary, 699 remedy by action for, 700 as to bridges, 598, n. (4), 613, 713, 714 by injunction, 714, 721 See Remedies. OBSTRUCTION, an artificial, on a navigable river will not bar the public right of navigation, 84, 99 to navigation, 84, 99, 103, n. (1), 405, 417, 497, 506, 508 to fishery, 391, 406, 418, 452 See Diversion; Navigation; Fishery; Tidal Navigable River; Riparian Owner. OTTER TRAWLING. See Trawling. OVERFLOW and escape of water, liability for injury caused by, 156 182, 352, n. (5), 359, n. (1) no liability where land is used in its ordinary manner, 156 same principles apply to underground as to surface water in cases of, 157 liability only extends to direct consequences, 156, 162 liability for throwing on a mine water which would not naturally have come there, 164 liability where an artificial is substituted for a natural watercourse, 165167 from extraordinary rainfall, how far vis major is an excuse for, at common law, 157, 158, 167170 how far vis major is an excuse where duty is imposed by contract or statute, 170 where caused by negligence vis major is no excuse, 170, 171 liability for, where works are authorized by Act of Parliament for bringing or storing up water, 171177, 305309, 352, n. (5), 359, n. (1), 531, n. (9) where such Acts provide that no nuisance must be caused, 173 INDEX. 787 OVERFLOW continued. negligence in cases of," defined, 156 rights of riparian owners to protect their lands in cases of, of the sea, 4352, 170 of inland waters, 99, 104, 177, 499 See Floods; Riparian Owner ; Vis Major ; Sea Wall. OYSTEK FISHERY, poisoning of oyster beds by sewage restrainable by injunction, 197, 198 and is prohibited by Sea Fisheries Act, 1868... 279. n. (1), 392, n. (1) appropriation of particular portion of foreshore for storage not incidental to public right of fishery, 390 but deposit on is incidental to such right, 390, n. (7) claim to, by prescription, 398 (1) " layings," grant of, held to pass the soil, 401 claim to take toll for anchorage on, 71 73, 404 damage to, by vessels navigating, 405, 508 provisions of 31 & 32 Viet. c. 45, as to powers of Board of Trade for establishment or improvement of mussel or, on sea shore, estuaries or tidal rivers, 427, 428 provisions of convention between England and France annexed to 31 & 32 Viet. c. 45, as to season during which it is illegal to catch oysters, 427, n. (8), 444 disturbance of oyster beds, 449 fishery boards constituted under 51 & 52 Viet. c. 54, may regulate, 429, 430, 444 PARISH, the sea and estuaries and arms of the sea are not primd facie within, 666 nor the sea-shore, 22 nor the shore or bed of tidal rivers, 93 the sea-shore between high and low water mark, the bed of rivers and accretions from the sea incorporated by 31 & 32 Viet c. 122, for all civil and parochial purposes with the adjoining, 22, 93 part of a pier below low water mark held not to be an accretion from the sea within 31 & 32 Viet. c. 122, but without the realm, 23. 667 extending along shores of a tidal river, rateability of, 666 may be indictable for non-repair of a bridge, by prescription, 613 See Sea; Foreshore; Bridges; Tidal Xavig able River ; Rates. PARISH COUNCILS, powers of, with respect to water supply under Local Government Act, 1894.. .326 PASSAGE, definition of, 583. See Ferry ; Toll. PASSENGERS, provisions of the Merchant Shipping Act, 1894, respecting rights and obligations of, 486, 487 the landing of immigrants is governed by the Aliens Act, 1905... 487, n. (1) PERCOLATING WATER, is not a watercourse or subject to the law of watercourses, 129, 162, 220 water percolating towards a pond is not water in any stream leading thereto, 227, 228 liability of mine owners as to, 163 502 788 INDEX. PERCOLATING WATER continued. abstraction and diversion of, not actionable, 220 right to drain for agricultural purposes, 220, 299 right of landowner to use of, not affected by statutory rights of water company to whom it subsequently passes, 226, 227 abstraction of subterranean water from wells, 220 long user gives no further right of action as to, 223 abstraction of water actually in a well, 227 and of water in a defined surface channel, 228, 231 water actually in a defined underground channel, 229 definition of " defined channel," 230 and of " known" 230 support from subterranean water, 232, 233 pollution of percolating water, 184, 233 See Subterranean Water ; Pollution. PIER. part of a, built on iron piles extending below low water mark on sea shore not rateable under s. 27 of 31 & 32 Viet. c. 122. ..22, 667 tolls for, 644, 647650 rateability of, 667669 floating, rateability of, 676, 677 See Tolls; Rates* PILCHARD FISHERIES in Cornwall, regulations as to, 449, n. (1) PILOTS, duties of, under Merchant Shipping Act, 1894. ..481 486 definition of, under Act, 484 definition of " pilotage authorities," 481, 482 such authorities are controlled by the Board of Trade, 483, 484 Board of Trade may constitute new pilotage authorities, 485 societies and corporations established by charter or local Acts exist in most ports for control of pilots in particular localities, 484 Trinity House the chief authority with respect to, 485 compulsory pilotage, provisions as to, 484, 485 liability with respect to collisions where compulsory pilot is employed, 480, n. (1) exemptions from compulsory pilotage partially abolished by Merchant Shipping Act, 1897... 488, n. (1) PIRATES, are the common enemies of mankind, and may be seized on the high seas and tried anywhere, 4, 463 POACHING OF FISH, fish taken at sea are the subject of larceny, 458, n. (10) stealing fish in ponds is larceny at common law, 419, 458 penalty for unlawfully taking or destroying fish in waters adjoining or belonging to a dwelling-house, 458 or in other private waters at night or in day-time, 459, 460 definition of " unlawfully," 459 where a bond fide claim is set up, 459 arrest of persons fishing, 459, 460 seizure of nets and tackle, 460 penalty for maliciously destroying dams and fish ponds 460 ; See Fishery. INDEX. 789 POLICE REGULATIONS as to canals and navigable rivers, 560 POLLUTION, of water in a natural stream, is actionable at suit of a riparian owner, without proof of actual injury, 182, 183, 714, 719 though actual pollution of some kind must be proved, 203, 719 what amounts to actual, 203 law as to, in Scotland, with respect to primary and secondary purposes of a stream, 183, n. (2) no defence to an action for, that fouling was also caused by others, 183, 184, 710 or that trade causing, is carried on in a lawful manner, 1 84 is in itself an unlawful act, and thus differs from diversion and obstruction, 184 by water raised from mines, 164 of service and percolating water is actionable, 182, 233 of subterranean water, 233 of wells, 210, n. (1), 211, n. (5), 234 of artificial watercourses, 185 189, 301 action for, will not lie at the suit of a mere licensee, 135, 136, 185, 186 where an action for damages by a riparian proprietor lies for, Courts will interfere to restrain by injunction, 189, 714, 719, 721 in case of damage to riparian rights by, Courts will not, except in special cases, award damages in lieu of injunction, 190, 720 practice of Courts as to granting injunctions to restrain, 190 198, 719 the Courts will restrain bodies possessing statutory powers by injunc- tion, where powers are exceeded or abused, 198, 716 acquiescence in existing cases of, how far a defence to actions for, 201 the Courts will not interfere by injunction in cases of merely prospective injury from, 201, 717 and injury must be actual and existing, and not future, 201, 717, 719 however strongly apprehension of injury may be supported by scientific evidence, 201, 202 value of scientific evidence in cases of, 202, n. (2) if some degree of present nuisance exists, Courts will take into consideration its probable continuance and increase, 202, 717 various sources of which have been held actionable, 203 205 under the Rivers Pollution Prevention Acts, 213, n. (1), 214, n. (2), 215, n. (1). under other Acts, 205211 of wells, 206 of a stream, when amounting to a public nuisance, may be prosecuted by indictment, or proceeded against by information at suit of the Attorney-General, 205, 711, 713 and an action will lie therefor on proof of special damage, 205, 711 by escape of gas washings, liability for, 210, n. (1) of a stream, so as to render it unfit for fish to live in, is actionable, 195, 204, 205 and ground for interference by injunction, 418, 721 statutory restrictions upon, 205 219 in the Waterworks Clauses Act, 1847. ..205 Public Health Acts, 205210 790 INDEX. POLLUTION co titinued. statutory restrictions upon continued. in the Gasworks Clauses Act, 210 Thames Conservancy Act, 1894...211, 545, 547 Lea Conservancy Act, 211 Salmon Fisheries Acts, 211, 450 Malicious Injuries to Property Act, 211, 460 Other Acts, 211, n. (5) Rivers Pollution Prevention Acts, 212, 219 See Pollution, Rivers, Prevention Acts. the easement of, the right to pollute is an easement, and within the Prescription Act, 267, n. (2) and may be acquired by Act of Parliament, grant, or pre- scription, 276, 279 can only be gained by continuance of perceptible injury for twenty years, 280 must not be considerably increased, 281 mere change in quality of, does not destroy, 284 of artificial watercourses, 284 See Riparian Owner; Easement; Nuisance; Artificial Water- course; Remedies. POLLUTION, RIVERS, PREVENTION ACTS, THE (39 & 40 Viet. c. 75 56 & 57 Viet. c. 31)... 212, 219 prohibition as to putting solid matters into streams, 212 214 prohibition of drainage of sewers or any solid or liquid sewage into streams, 214 saving of persons using best means of rendering sewage harmless, 215 proviso as to channels constructed, or in process of construction, at passing of Act, 214 duties of Local Government Board as to making orders, 214, 215, 216 persons not to be guilty of offence as to sewage passing along drains sanctioned by sanitary authorities, 214 proviso as to sanitary authorities under 56 & 57 Viet. c. 31. ..212, n. (1) prohibitions of drainage from manufactories and mines into streams, 212 restrictions on proceedings as to, 215 duties and powers of sanitary authorities, 216 who must obtain consent of Local Government Board, 216 and of the Lee Conservancy Board, 216 legal proceedings, how regulated, 218 offences may be restrained by summary order of the county court, 218 appeal to High Court by special case, 218 certificate of inspector of Local Government Board as to means for rendering sewage harmless conclusive, 218 orders as to costs, 218 saving of existing rights, &c., 218 as to rights of impounding and diverting water, 219 as to rights under certain Conservancy Acts and of certain local authorities, 219 definition of " stream," 219 county councils may enforce provisions of Act in streams passing through their county under Local Government Act, 1888... 217, n. (1) and Local Government Board may constitute joint committees of all administrative counties traversed by a stream, 217, n. (1) INDEX. 791 POLLUTION, RIVERS, PREVENTION ACTS continued. provisions of Mersey and Irwell Joint Committee Act, 1892. ..217, n. (1) and of Rivers Pollution Prevention (Border Councils) Act, 1898.. .217, n.(l) modification of law as to Scotland, 219, n. (4) application of law as to Ireland, 219, n. (5) PONDS and pools, definition of, 123 ownership of soil of, 123 ornamental artificial, liability for injury caused by bursting of dams forming, 167 fishery in, 418, 419 polluting, so as to kill fish in, 211, n. (5), 418 larceny of fish caught in, 419, 458 breaking down dams of, 460 jurisdiction of Commissioners of Sewers over, 522, 523 See Lakes; Fishery ; Overflow. POOLS. See Ponds. PORPOISE is " royal fish," 59, 392. See Royal Fish. PORTS, definition of, 63, 464, 651 privilege of erecting, part of the prerogative of Crown, 63, 464, 630 but may be granted to a subject, 64 ownership of soil of, 36, 64, 630 limits of, 64, 648651 such limits vary according to objects of institution, 64 for fiscal purposes not the same as for municipal purposes, 64 or for local pilotage or commercial purposes, 64 franchise of, evidence of ownership of sea shore, 36 what is evidence of the existence of an ancient, 72, 635 639 conservancy of, 67, 464, 465 originally was in Crown, but now is transferred to the Board of Trade, 67, 68, 464 removal of wrecks in, 69, 465 duty to repair, 70, 629 English, foreign vessels sailing to, liable to English law, 12 foreign, foreign vessels sailing to and having right of passage within three miles of English coast, not subject to English law, 12 unless by express provision of Act of Parliament, 12 tolls in, 4, 6973, 628 tolls for anchorage may be taken in, 5, 69, 71, 635 rateability of, 665, 667675 See Tolls; Rates; Sea; Port of London Act, 1908, the. PORT OF LONDON ACT, 1908, THE, provisions of, 66, n. (6), 372, n. (!), 541, 555 establishment of Port of London Authority, 66, n. (6), 541 limits of port, 66, n. (6), 541 transfer of the undertakings of London Dock Companies to Port Authority, 66, n. (6), 372, n. (1) extension of powers of authority as to dredging, 66, n. (6) repeal of exemptions as to tonnage under Acts of 1894 and 1905. ..66 n.(6) 792 INDEX. PORT OF LONDON ACT, 1 908 continued. powers of Conservators below Teddington transferred to Port Authority, 541 amendments of Thames Conservancy Act, 1 894, by, 542 549 and of Watermen's Acts, 549 555 general effect of redistribution effected by, 555 See Navigation ; Thames. PRESCRIPTION, definition of, 266 liability to repair sea walls by, 47 51 claim to easements by, 206, n. (4), 266277 by lost grant, 266 under the Prescription Act, 267 269 at common law, not superseded by Act, 269 by and against whom claims may be made, 269 275 necessary elements of enjoyment by, 269, 375 rights in artificial watercourses may be acquired by, 285 rights to a ferry by, 568 liability to repair bridges by, 612 614 and immemoriality as to tolls, 621 See Easement; Ferry; Toll; Prescription Act. PRESCRIPTION ACT, THE (2 & 3 Will. 4, c. 71), claim to a watercourse under the, 267 269 by twenty years' enjoyment, 267, 268 forty years' enjoyment gives an absolute right, 267, 268 claim to pollute water of a natural stream is within, 267, n. (2), 279 and claim to go on a man's close and take water from a well, 267, n. (3) and the right to keep an opening from a ditch into a stream closed, 267, n. (3) claim to have water diverted under, 267, nn. (3), (6), 293, 339 claim to waste water allowed to pass from a canal to another canal is not within, 76, 77, 267, n. (3), 336338 definition of " waste water," 338 claim to an easement under, for forty years' enjoyment can only be defeated by proof of licence by deed or writing, 267, 268, 273 a claim to a fishery in gross is not within, 384 does not supersede the common law, 269 now governs the question of immemoriality as to tolls, 621 See Easement ; Prescription. PRIVATE RIVERS AND STREAMS, all streams above the flow and reflow of the tide are primd fade, 116 even though subject to the public right of navigation, 81, 82, 116 the right of navigation gives no right of property or fishery in, 82, 116, 120, 515, 516 ownership of soil of bed of, is primd facie in the owners of the adjoining lands, ad medium filum aquee, 82, 83, 117, 408 and the share of each belongs to him in severalty, 117, 408 determination of medium Jilum where alveus is divided by an island, 117 INDEX. 793 PRIVATE RIVERS AND STREAMS continued. ownership of soil of bed of, &c. continued. presumption that grant of riparian land passes soil ad medium Jilum holds good in copyhold as well as freehold grants, 119 construction of conveyance or land described as bounded by a river, 117, 118 a river running along waste of a manor may be waste, 118 award under Enclosure Act of waste bordering on a river, effect of, 118 where a stream changes its course, 86, 119, 120 where same owner is proprietor of soil on both sides of a, he is primd facie proprietor of the whole channel, 117, 408 the more than ordinary breadth of, does not affect the limits of grants on, 118 islands in, ownership of, 119 effects of shifting islands on right of fishery, 120 presumption of ownership may be rebutted, 120 soil of land covered by, and the right of fishery therein, may be specially conveyed to a third person, whether he have land on borders thereof or not, 120, 409 rights of owners over bed of, 100, 104, 120, 156, n. (1) to protect lands from floods, 100, 120 the right of navigation on, may be acquired by the public by express grant, 120 or by immemorial user or Act of Parliament, 120 or dedication, 120 what amounts to dedication, 121, n. (1) and where such right has been acquired, the obstruction of it is a public nuisance, and indictable as in tidal rivers, 121, 515, 519 differs from the same right in the sea and tidal waters, in that the right of passage is limited to the extent of the grant, or the user proved, 121, 515 the public acquire no right of proprietorship in the bed thereby, 81, 82, 83, 116, 120, 515, 516 nor does it carry with it the right of fishery, 82, 90, 124 claim to a highway for boats over, must be treated as claim to establish a highway on land, 516 and right of recreation upon, by custom must be confined to inhabitants of a particular district, 516 the Crown has no right to property in such rivers when made navigable by Act of Parliament, 82, 121 or the public to the fishery, 82, 121 but the Crown has an interest of jurisdiction to reform and punish all nuisances in, 121, 519, 520 weirs in, are not illegal, unless they obstruct navigation, 406, 417 the right of fishery in : owners of land on, have exclusive right of fishery in, 122, 417 as a territorial right, 381, 408 See Fishery. tolls on, 615, 616, 626 rateability of property occupying soil in, 677 rateability of rivers, 679, 680 See Riparian Owner ; Navigation ; Fishery ; Tidal Navigable River. 794 INDEX. PROFIT A PRENDRE, how distinguished from an easement, 237 a right of fishery in alleno xolo is a, 381, 384 a right to draw water from a well is an easement, and not a, 267, n. (3), 275 PROTECTION from inroads of the sea, 4352, 170 See Floods ; Sea Wall ; Cbmmittinnen of Sewers ; Overflow. PUBLIC AUTHORITIES PROTECTION ACT, 1893, THE, 176 PUBLIC HEALTH ACTS, THE, provisions against pollution under, 205, 210 what are public wells under, 206, n. (4) provisions with respect to water supply, 363, 364 powers of urban authorities as to bridges under Act of 1875 transferred to rural district councils by Local Government Act, 1894. ..588 PUBLIC HEALTH (SCOTLAND) ACT, 1867, powers of local authority as to public wells under, 206, n. (4) PUBLIC HEALTH (IRELAND) ACT, 1878, what are public wells under, 206, n. (4) PUMP, statutory restriction against fouling, 211, n. (5) PURPRESTURE, any unauthorized intrusion or encroachment on soil of sea shore or a navigable river is a, 26, 51, 99, 499, 720 and may be abated by the Crown or owner of the shore, 26, 499, 700, 720 or restrained by injunction at the suit of the Attorney-General, whether it be a nuisance or not, 26, 99, 720 whether a nuisance to navigation is a question of fact, 26, 99, 104, 409 the punishment of, is evidence of the ownership of the sea shore, 36, 38 RAILWAY AND CANAL TRAFFIC ACTS, 1873 AND 1888, THE, provisions as to traffic on canals and navigable rivers, 562 565 RAILWAY COMPANIES, when riparian proprietors, right of, to water engines, 139, 140, 143 liabilities of, as to navigation under Railway Clauses Act, 1863 (26 & 27 Viet. c. 92), 557560 liabilities of, for compensation to owners of ferries, and for loss of traffic, under Railway Clauses Consolidation Acts (8 Viet. c. 18 ; 8 Viet. c. 20), 570, 576579 duties of, as to management and repair of bridges, under Railway Clauses Consolidation Act, 1845 (8 Viet. c. 20), 599, 606 RAINFALL, an exceptional, how far an excuse for injury caused by over- flow, 165170 See Vis Major; Overflow; Watercourse ; Artificial Watercourse. RAIN-WATER, liability of landowner for bringing on to lands of another by artificially raising the surface of his own soil, 160 or discharging it from roof of a house by means of a spout or drip, 161,162. See Drip. exemptions from liability where damage results from neglect or default of third party, 162 INDEX. 795 RATES for the poor, payment of, incident to rights of water, 568, 515 arising from the improvement in value of land thereby, 515 rateability of piers, harbours, docks and marine property, 666 679 estuaries and arms of the sea are prima facie extra- parochial, 666 but presumption may be rebutted, 666 and there is no distinction between the sea shore and the shore of a tidal river as to extra-parochiality, 666 parish extending along the shores of a river, 666 occupiers of land covered with water, how rated under Local Govern- ment Act, 1858, s. 55. ..666, 667 of piers, 667, 668 part of a, below low water mark beyond the realm and not extra-parochial within s. 27 of 31 & 32 Vict.c. 122. ..15, 667 nor an accretion from the sea, and therefore not rateable, 23, 93, 667 built on piles in bed of a river in a parish extending along the shore thereof, how rateable, 666 land occupied by piers from which occupiers had no benefit, not rateable, 667, 668 floating, rateability of, 676 of dock*, 669, 675 wet docks, 669 profits of docks, if rated at all, where formerly rated where they were earned, 669, 670 but such properties are now rated parochially for earnings collected elsewhere, 670 apportionment of earnings where docks extend through several parishes, 670 occupiers of property capable of beneficial occupation liable to be rated at full rateable value without regard to benefit derived therefrom, 671 test of beneficial occupation, what is, 671 rule, how affected by statutory prohibition from earning rent, 671 persons to whose use certain accommodation in docks is appropriated not rateable as occupiers, 671, 672 exemption of the Crown from rates, 672 dockyards for Government purposes are exempted, 672 but not tenants of Crown holding for their private benefit, 672 deductions allowable in the assessment of docks, 672 675 dock property must be valued in communibus aunt*. 675 of marine property not actually occupying tlie soil, 675 678 rateability dependent on whether such property is in permanent beneficial occupation of the soil, 675, 676 and whether the floating bodies have increased rateable value of the moorings, 676 floating piers and docks, 676678 barges, 677 permanent moorings in the Thames, 677 ofwharren, 678 of anchorage and beaconage tolls, 678 of lighthouses and lighthouse tolls, 678 occupier is rateable in respect of annual value of lighthouse, machinery, n. (3), 513, 514 See Navigation ; Collision ; Wreck. SHORE OF THE SEA. See Foreshore. of a river. See Bank. SPRING, A, definition of, 74 limits of, 75, 76 may be formed into a well, 76 808 INDEX. SPRING, A. continued. effect of grant of, 244, 250 i ight to search for, under local Act, 249, 250 claim to take water from, on another man's land as an easement, 267, n. (3) rateability of land, value of which is enhanced by, 688 a mineral, 688, n. (2) See Well; Watercourse. STATUTES, for making rivers navigable, general nature of provisions, 537. n. (3) for constructing canals, 537, n. (3) for improving the navigation of rivers, 537, n. (3) STATUTORY POWERS, bodies possessing, are substitutes for individual enterprise, 305 not responsible for injury caused by due exercise of their powers. 171, 172, 305, 306, 510, 531533 but responsible in case of negligence or exceeding their powers, 171, 172, 305, 306, 510, 531533, 62" whether they take tolls for thsir own benefit or that of the public, 108, 109, 310, 311, 624 and are bound to take reasonable care with regard to their works. 171, 172, 306, 310, 311, 510, 624 but may exercise powers to fullest extent, provided they occasion no needless injury, 305, 306 if exercise of powers occasion inconvenience or injury, may be treated as bound to take measures to prevent its recurrence, 306, 359, n. (1) canal, water and dock companies are such, being incorporated to supply public wants for their own profit, 305 or invested with powers for the public benefit, 305 courts will restrain by injunction the abuse or excess of powers by, 198, 199 See Canals; Water Companies; Do, 30G, 359, n. (1) WASTE WATEll, definition of, 338 claims to use of, 76, 77, 267, n. (3), 334338 WATER, sole right to, 137 special statutory property in, 80, n. (3), 138 waste, from a canal, is not a watercourse, or subject to the law of watercourses, 76, 77, 267, n. (3), 336338 right to draw from a well, 238, 264, 267, n. (3), 275. See Well. in a defined course. See Watercourse. percolating and surface. See Percolating Water. subterranean. See Subterranean Water. natural rights of. See Riparian Owner. acquired rights of. See Eaxements. land covered with, how rateable under the Local Government Act, 666 WATER BAILIFF, under Salmon Fishery Acts, powers of, 438 must produce his appointment before exercising his authority, 438, n. (2) WATER COMPANIES, diversion by, for supplying a town, not a reasonable riparian use, 141 See Riparian Owner. duties of, as to cleansing and maintaining reservoirs, channels, &c., and other works, 305, 359, n. (1) rights of, 350, 355 rights of the public against, 355, 359 the London, rights and duties of under Metropolis Water Acts, 367 371 transfer of undertakings of Metro- politan Companies to Metropolitan Water Board, 369, 549 under Thames Conservancy Act, 1894... 549 See Water Sujy/ly ; Sates. WATERCOURSE, definition of a, 74 extent and limits of, 7476, 229, 230 must flow in a regular and well-defined channel, 76, 129 definition of * : known and defined," 230 but it is not necessary that water should flow continually, 76 an arm of the sea held to be a, for purposes of a Drainage Act, 74, n. (4) INDEX. 817 WATERCOURSE continued. waste water allowed to pass from a canal is not a, 77, 267, n. (3), 336,. 338 consists of bed, banks or shore, and water, 77 definition of " bed," 77, 542, n. (2) " bank," 77 " bed " and " water " are correlative terms, 77 right to use of water in, does not arise from ownership of soil, 78, 128, 131 but from the right of access thereto, 79, 128, 131 owner of soil of bed may grant lands through which it flows, reserving to himself the soil of such bed, 80 and grantee in such case will have the full use of the waters of, 80 water in, is not bvnum vacann according to Roman law, 80, 1 33 and none can have any property in it, 80, 133 save by statute, 80, n. (3), 138 but it is publici juris only so far that all who have a right of access thereto may have a reasonable use of it, 79, 80, 133, 13-1 meaning of grant of, in law, 126, 127, 244, 245 must be shown by the context, 127, 245 may be either a real or incorporeal hereditament, 238 easement of, includes right of going on land to clear and repair, 264 constructed solely for purposes of a mill is for a temporary purpose, 299 1 natural rights on. See Riparian Owner ; Tidal River ; Private River. acquired rights on. See Easement. artificial. See Artificial Watercourse. subterranean. See Subterranean Water. jurisdiction of Commissioners of Sewers over pools, streams, and, 522 of the Inclosure Commissioners under the Land Drainage Acts, 523 WATERMEN AND LIGHTERMEN in the Thames, rules governing, framed by Company of Watermen and Lightermen incorporated by 7 & 8 Geo. 4, c. Ixxv., 549 which was repealed except as regards the incorporation and property of the Company by the Watermen and Lightermen's Amendment Act, 1859. ..549 and the powers, rights and duties of the Company are now trans- ferred to the Port Authority under the Port of London Act, 1908,. with respect to registration of craft and boats, 553 and licensing and government of lightermen and watermen, 553 with all property in connection with the duties transferred, 553, 554 saving in favour of Watermen's Hall and other property of the Company, 554 provisions of Act of 1859 as amended by the Thames Conservancy Act r 1894. ..550 and by the Thames Watermen's and Lightermen's Act, 1893, and the Port of London Act, 1908. ..550 definition of " lighterman " and " waterman" 550 " company ," 550 "passenger boat" 550 " craft" 553 " boat," 553 river steamboat not within term " boat," 553 constitution and election of the company, 550 repeal of rules as to plying on Sundays, 550,^555 L.w. 52 818 INDEX. WATERMEN AND LIGHTERMEN in the Thames continued. all owners of barges and lighters to be registered, 550, 553 freemen of the Company may employ apprentices on certain conditions, 550 persons other than freemen or qualified apprentices navigating wherries, lighters, &c., within limits of Act, liable to a fine of forty shillings, 550, 551 towing into dock is not navigating within the meaning of the Act, 450, n. (6) watermen and lightermen's licences, 551, 554 Port Authority may delegate powers as to licensing to Company by agreement, 554 except power of making bye-laws, 554 no bar^e, lighter or boats for goods or merchandize to be navigated within limits of Act unless in charge of a licensed lighterman or qualified apprentice, under a penalty of 51., 551 unlicensed persons rowing, steering or navigating for hire within limits of Act, liable to penalty of 51. for each offence, 552 provisions of the Act of 1894 with respect to apprentices, 553, n. (1) barges registered from places above Teddington may be navigated as far as London Bridge without freemen or apprentices licensed by Water- men's Company, 553, n. (1) no passenger boat to carry more passengers than licensed, under penalty of 40*. for each extra passenger, 552 regulations as to fares charged for passenger boats, 552 bye-laws may be made by the Port Authority, 552, 554 and no bye-laws valid until approved by the Port Authority, 552, 554 decisions with respect to bye-laws, 551, n. (6), 552, n. (1) proceedings for penalties, savings, &c., 553 duties of the Port Authority with respect to conditions, accommodation and sanitation of craft and boats, 555 WATER- RATE, liability for, 352, n. (7) definition of, 356, n. (2) WATER SUPPLY, companies with Parliamentary powers, 347 359 generally established by private Acts, 347 which incorporate the Waterworks Clauses Acts, 347 349 the Lauds Clauses Consolidation Acts, 349, 350 and the Companies Clauses Consolidation Acts, 350 rights aiid liabilities of companies, 350 362 rights of the public, 355 359 duty to supply water for extinguishing fires, 352, n. (7), 359, n. (1) rates and charges of companies, 356, n. (2), 358, n. (3) " domestic purposes," what are, 355, n. (2) water rate, definition of under 10 & 11 Viet. c. 17. ..356, n. (2) " annual value" and " annual rack rent," definition of, 356, n. (2) owner compounding for rates, decisions as to, 356, n. (2) recovery of rates, decisions as to, 356. n. (2) liabilities of companies for escape of water, 352, n. (4), 359, n. (1) vis major, how far an excuse, 359, n. (1) duty as to compensation under the Lands Clauses Consolidation Acts, 359, n. (1) decisions as to duties of companies, 359, n. (1) INDEX. 819 WATER SUPPLY continued. companies having no parliamentary powers, rights and liabilities of, 360 362 under the Gas and Water Facilities Act, 361, 362 local authorities empowered to supply water, 362 367 under earlier Acts, 362, 363 under the Public Health Acts, 1875 and 1878.. .363 365 meaning of "able and willing to supply," under s. 52 of the Act of 1875... 364, n. (1) meaning of " reasonable cost," under Act of 1878.. .366 under the Labouring Classes Lodging House Act, 1851. ..365 under the Municipal Corporations (Borough Funds) Act, 1872... 365 protection of, under the Conspiracy and Protection of Property Act, 1875... 366 under the Limited Owners' Reservoirs and Water Supply Further Facilities Act, 366 under the Local Government Act, 1894. ..366 London water companies, provisions of Metropolis Water Acts, 1852 and 1871, respecting, 367 369 definition of " company " under Acts, 368 Public Health (London) Act, 1891, provisions of respecting water supply, 371 The Metropolis Water Act, 1902.. .369, 370, 549 The Metropolis Water Board Charges Act, 1907. ..370 rateability of companies supplying, 687 690 of urban authorities and other public bodies supplying, 690 693 WATERWORKS CLAUSES ACTS, 1847 AND 1863, provisions as to restriction of pollution, 205 incorporation of, in special Acts of water companies, 347 349 See Water Supply. WEIRS, where obstructing navigation are illegal and a nuisance unless granted prior to Ed. 1, 405, 453, 454, 506 even if obstructing only part of the navigation, 506, 507 the statutes prohibiting them relate to navigable rivers only, 417 and a right to, in a non-navigable river may be established by pre- scription and is an easement within the Prescription Act, 267, n. (3), 417 where obstructing fishery in public waters, semble, are illegal and a nuisance, 406 and are actionable by owners prejudiced, 406, 418 what kinds of, are actionable as obstructing passage of fish, 418 enhancement of, such as the conversion of an ancient brushwood passable by fish into a stone weir not passable, is actionable, 418 fishing, and dams, what are illegal within the Salmon Fishery Acts, 452457 fish passes in, 452 privileged, what are, 457 what evidence will support a claim to, 453 taking salmon within fifty yards above and 100 yards below, 452 WELLS, definition of, under Public Health (Scotland) Act, 1867, s. 89... 206, n. (4) under the Public Health (Ireland) Act, 1878... 206, n. (4) 820 INDEX. WELLS continued. abstraction of water percolating into, is not actionable, 220, 226 nor of water actually in. 227 long user gives no further right of action, 223 pollution of, 233 statutory restrictions on polluting, 206, 210, n. (1), 211, n. (5) right to go on another's land to draw water from, 238, 264 is an easement within the Prescription Act and not a profit dprendre, 237, 238, 264, 267, n. (3) effect of grants of, 247, 248250 right of water companies to sink, 350 352 See Spring; Percolating Water ; Subterranean Water ; Easement WHALES, close time for, off Scottish coast, under 7 Ed. 7, c. 42. ..445 WHARF, right of access of owner to a, 110, 111, 495, 496 owner is entitled at common law to remuneration for use of, 641 rates chargeable at a private, are a matter of bargain between the parties, 73 amount may be fixed by prescription, 641 custom as to wharfingers in London, 643 amount claimed at, must be set forth with certainty, 643 rateability of a, 678 WHARFAGE AND CRANAGE, 641 definition of, 641 are shore duties dependent sometimes on custom and sometimes on statute, 641, 644 See Wharf; Tolls. WILD FOWL, no public right to kill and carry away on foreshore of a tidal navigable river, 56 WORKMEN'S COMPENSATION ACT, 1906, THE, sect. 7 of, applies to crews of British ships, 466, n. (1) WRECK, right to take, is a prerogative of the Crown, 26, 36, 57 in virtue of office of Lord High Admiral, 57 but may be granted to a subject apart from the shore, 26, 36, 57 right to take, evidence of ownership of sea shore, 36, 57 is not appurtenant to ownership of shore, 57 but frequently exists as a franchise attached to a sea-coast manor, 57 right to take, implies right of crossing shore for the purpose of taking, 57 grant of shore alone does not pass the right, 57 nor is the shore passed by a grant of, 57 meaning of, within Statute of Westminster 1st, c. 4. ..57 under 3 & 4 Will. 4, c. 52.. .58 17 & 18 Viet. c. 104.. .58 owners may claim goods within a year and a day, 57 if not claimed, goods to be delivered to officers of the Crown, 57 INDEX. 821 WRECK continued. where goods are perishable, they may be sold to prevent loss, 57 where belonging to other than the king, he is to have them in the same way, 57 flotsam, jetgam and ligan, being on the land pass by grant of wreck, 57, 58 but only where ship perishes or owner of goods is not known, 58 goods cast into the sea for fear of tempest not forfeited unless ship be lost, 58 grantee of, has a special property in all goods stranded in his liberty, 58 and may maintain trespass for taking them away, 58 even though such goods are part of a cargo of a ship from which persons escaped alive, 58 and though owners identified them within the prescribed time and before seizure by the grantee, 58 removal of, by harbour and conservancy authorities when obstructing navigation, under Merchant Shipping Act, 1894. ..69 ZEMINDAR, duty of a, to maintain tanks on his zemindary according to the laws of India, 169, n. (3). THE END. BKADBCRV, AMNKW, & CO LI)., PRINTERS, LONDON AMD TON BRIDGE. L.W. 53