pni I Ml %:=^l p 
 
 ^OAHvyaii^^"^ ^(?Aiivaan# 
 
 <rilJDNVS01^' 
 
 ^ 
 
 < 
 3 
 
 it W-J 
 
 
 <m3DKVS01^ 
 
 .^^\EUNIVERS•/A 
 
 
 
 -< 
 
 ^lOSANCElfj> 
 o 
 
 
 A^jS^lIBRARYQ^ 
 
 ^<!/0JnV3JO^ 
 
 ^OfCAllFO% 
 
 Qc ft /^-* A S 
 
 >&AavHanv{^ 
 
 #t 
 
 4s^ 
 
 V<y 
 
 -< 
 
 13WV 
 
 ■,nfT^ 
 
 -v;^l-llBRARY<9/ 
 
 ^^SlLIBRARYy?/, 
 
 ^OFCAIIFO;?^ 
 
 ^OFCAllFOfi'^ 
 
 ^ ^— ^P I. £;. 
 
 ^^\Fl)NIVFR5■//> 
 
 ^.!/0JllV3-J0^ ^TilJONVSOV^^ 
 
 A\^EUNIVERS/A 
 
 >&AHVMani^^ <f5l3DNVS01^ 
 
 I 
 
 = ^ 
 
 
 ^ 
 
 <I713DNVS01^ 
 
 ^/^aaAiNrtJWv 
 
 .^\\FUN(VER5•/A ^^. 
 
 -^HIBRARYQf 
 
 '^<yojiiv3jo>^ 
 
 ^•lOSANCElfj> ^OFCAIIFOM^ 

 
 'CAMvaan-i^ 
 
 
 <f^DNVS01^ 
 
 "^/raiAiNnrnv** 
 
 J\t UNIVTKi/^ _^lOSAW;flfJ> 
 
 
 
 I 
 
 virjNvsoi^ 
 
 "^/SHaAINOJWV 
 
 
 
 CO 
 
 ae • 
 
 OQ 
 
 ^tllBRARYQ^ 
 
 -j^lllBRARY(9/^ 
 
 ^^^\f•UNIVFR% ^lOSANcnfj^ 
 
 ^ojiivjjo't^ ^.!/ojnv}jo>' <rii]DNvsoi^ 
 
 -< 
 
 %S3A!Nn-3WV** 
 
 OFCAIIFO/?^ ^OFCAIIFO% 
 
 
 . ^MF UNIVER5/A 
 
 o 
 
 v^lOSANCFlfX;^ 
 
 %aaAiNn-3WV 
 
 
 ^. 
 
 t^EUNIVERy/^ vjvlOSANCElfj> 
 
 ^lUBRARYQr ^^lUBRARY/9/:. 
 
 71]DNVS01^ %a3AINn-3WV^ ^<!/0JnVDJO'f^ '^tfOJnVDJO^ 
 
 rtEUNIVERVA vS:lOSANCElfj> 
 
 ^<.0FCAIIF0% ^^;0FCA11F0% 
 
 \/r\' 
 
 ^^\^FU
 
 /^'Z/^. 
 
 3, CHANCERY LANE, LONDON. 
 
 s 
 
 Conveyancing, — BTtHEWOOD and Jarman's Precedents in Conveyancing (to be com- 
 pleted in about five or six vols.) Vols. I., IL k IIL Foiu-tli Edit. By L. G. G. 
 RoBiUNS. Royal 8vo. Price 38«. each, cloth. 1884-6 
 
 Swket's Concise Precedents in Conveyancing. 3rd Edit. By C. Comyns Tucueu, Esq. 
 and G. Cave, Esq., Barristers-at-Law. 2 vols. Roy. 8vo. Price 2/. 15s. cloth. 1884. 
 Statutes afFecting the Practice of Conveyancing passed in 1874, 1881, 1882. By 
 T. Cyphian Williams. 8vo. Price 21». cloth. 1884 
 
 Hayes' Concise Conveyancer, with Precedents adapted to the New Conveyancing 
 Act. Fourth Edition. By W. B. Coltmax, Esq., Barrister-at-Law. 8vo. 
 Price 21s. cloth. 1882 
 
 The Solicitors' Handy Book of Conveyancing Costs under the Act 44 & 45 Vict. c. 44. 
 By W. Halliwkll. 2nd Edition. Price 2s. 6rf. 1886 
 
 Pkrexicu^a ; or, Land Transfer, and other Conveyancing on Short Lines. By 
 H. T. FiiKNU, Barrister. Price 5s. 1885 
 
 County Courts. — Pollock's. (C.E.) Practice of the County Courts, including the Equity 
 Jurisdiction. 10th Edition. . Nearly ready. 
 
 Criminal Law. — AncnnoLl/s (J.F.) Law and-Pi-n. ! 'leading and Evidence 
 
 in Ciiniinal Cusch, by Sir John Jr; ' .>. 'v> ki.skv, Esq." 20th Edit. 
 
 I'.v WiMJAit BiMCK, Esq. Royal 1 1 lis. 6</. cloth. 1886 
 
 IN,: ,r /Sir W. 0.) on Crimes an.. .\l..,.u ..as. The Fifth Edition. By 
 
 iiCE, Esq., Q.C. 3 vols, royal 8vo, i'rice 5/-. 15s. 6(^. 1877 
 
 of Criminal Cases from 1756 to 1883 inclusive. By J. Mewh, C. M. 
 
 V liAi MAN-, H. H. W. Si'AiiHAM, artd A. H. Toi>d. Royal 8vo. Price 21s. 1884 
 
 ];. >■ ni: s ( H.) Digest of the Law of Evidence in Criminal Cases. 10th Edition. By 
 
 HoHACK Smith, Esq., Q.C. Royal 12mo. H. lis. 6rf. cloth. 1884 
 
 Dean Forest (Laws of) audHvindred of Saint Briavels, in the County of Gloucester, with 
 .1 Collection of Statutes, Awards, &c., &c. By James G. Wood, Esq. 25», 1878 
 
 Digest. — Fisher's Digest of the Reported Decisions of the Courts of Common Law, 
 Bankruptcy, Probate, Admiralty, and Divorce, together with a Selection from 
 tliose of the Court of Chancery and Irish Courts from 1756 to 1883 inclusive. By 
 John Mews, C. M. Chapman, H. H. W. Sparham, and A. H. Todd, Barristers-at- 
 Law. In 7 vols. Royal 8vo, cloth. 12^.125. Continuation for 1884, 12s. 6(;. ; 1S85, 15s. 
 
 Divorce. — Buownk'h (G.) Principles and Practice of the Court for Divorce and Matri 
 nionialCauscs : with the Statutes, Rules, Fees and Forms. 4th Ed. Price 24s. 1880 
 
 Sicclesiastical Law. — Phillijiop.e's Ecclesiastical Law of the Church of England. 
 By Sir Koeekt Phillimouk, D.C.L., Official Principal of the Arches Court of 
 Canterbury ; Jlember of Her Majesty's Most Honourable Privy Council. Two very 
 thick volumes, with Supplement. Reduced to SOs. ^ 1876 
 
 Elections. — Cunningham's (J. ) Law relating to Parliamentary and Municipal Elections 
 and IVtitions. With Ajijieudices containing portions of former Acts and all the 
 la'. hiding the Corrupt Practices Prevention Acts, 1854 — 1883, the 
 
 ^': I (Corrupt and Illegal Practices) Act, 1884, and the Acts of 1885 ; 
 
 aL>u <..ii.i!u iiui.-s and Fomis. Third Edition. By C. Tykkell Giles, Esq., 
 Barrister-at-Law. 8vo. Price 25,?. cloth. 1885 
 
 Equity. — A Practical Compendium of Equity, arranged ali>habetically under distinct 
 Titles, and forming a Concise Digest of the various Subjects comprised under the 
 general head of Equity Jurisprudence. Second Edition. By W. W. "Watson, 
 Esq., and B. P. Neuman, Esq., of the Inner Temple, Barristers-at-Law. 2 Vols. 
 Royal 8vo. Price 60s. - 1886 
 
 Svidence. — Best's (W. M.) Treatise on thfe Principles of theLaw of Evidence ; with 
 Rules for Examination. 7th Edit. By J. M. Lelt, Esq. Royal 8vo. \l 12». 1888 
 
 Sxecutors. — William.s' (Sir E. V.) Treatise on the Law of Executors and Adminis- 
 trators. Eighth Edition. 2 vols. Royal 8vo, Price 3Z.1 6s. 1879 
 
 iForms. — Chitty's (T.) Forms of Practical Proceedings in Queen's Bench Division ; with 
 Notes, Rules and Cases. 12th Edit. By T. AV. Chittt, Esq. 1/. 18s. 1888 
 
 Freehold, Seisin of the. — Williams' (Joshua) Twelve Lectures on the Seisin of the 
 Freehold, delivered in Gray's Inn Hall in the months of January and Febniary, 
 1876. 8vo. Price 8s. 1878 
 
 Handbooks of the Law. — By C. F. Morrell, Barrister-at-Law. 2s. 6rf. each, sowed, 
 No. 1. "Wills — Handbook for Testators. 
 ,, 2. Probate — Executors and Administrators. 
 ,, 3. Insurance— Fire, Life, Accid ' Marine.

 
 THE LAW 
 
 RELATING TO 
 
 TV^ A^ T E R S , 
 
 SEA, TIDAL AND INLAND. 
 
 BY 
 
 H. J. W. COULSON, B.A., 
 
 OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW, 
 
 URQUHART A. FORBES, 
 
 OF Lincoln's inn, esquire, barrister-at-law, 
 
 Author of " The Law relating to Savings Banks." 
 
 LONDON : 
 HENEY SWEET, 3, CHANCEEY LANE, 
 
 1880.
 
 T 
 
 LONDON: 
 FEINTED BY C. F. EOWOETH, BEEAm'S BUILDINGS, CHANCEEY LANE, E.C.
 
 PREFACE. 
 
 In the present Yolume, the Authors have endeavoured to 
 give a comprehensive view of the whole law relating to 
 Water. 
 
 The considerable changes which have been made by the 
 Legislature of late years in the various branches of the 
 law bearing upon the subject/ the further changes which 
 appear to be in immediate contemplation,^ and the fact 
 that recent and important decisions of the highest Court 
 of the kingdom have finally settled many points hitherto 
 considered doubtful, have appeared to the Authors a suffi- 
 cient justification of the task which they have undertaken. 
 
 No general Text-book on the subject has appeared in Eng- 
 land for more than twenty years. The Second Edition of 
 Woolrych on "Waters was published in 1851, and Mr. Phears' 
 Treatise on the Eights of Water in 1859. Mr. Woolrych's 
 work, though exceedingly useful at the time it was written, 
 has necessarily become of little value as a book of refer- 
 ence ; it, moreover, contains no notice of the laws regulating 
 the navigation and conservancy of the inland waters of 
 the kingdom. Mr. Phears' Treatise, and Mr. Grale's 
 
 ' Notably "The Territorial Waters Act, 1878 ;" " The Rivers Pollution 
 Act, 1875;" " The Fresh Water Fisheries Act, 1878;" and " The Canal 
 Boats Act, 1877." 
 
 * " The Rivers Conservancy Bill," which passed the House of Lords last 
 Session, 1879; "The Thames Sewerage Bill;" and " The London Water 
 Companies Purchase Bill." 
 
 79a6?9
 
 VI rUKl-ACE. 
 
 standard work on Easements, are restricted to the consi- 
 deration of those natural and acquired rights to the use of 
 Water which are considered in Chapters III. and IV. of 
 the present AVork. Mr. Angell's great works on " Water- 
 courses (1869)" and " Tidal Elvers (1849)," though of the 
 higliest value to legal students, are naturally devoted for 
 the most part to American law, which on many important 
 points differs matenally from our own. 
 
 The Authors have thought it necessary to treat shortly 
 of the Sea and Navigation thereon, though aware that 
 such a wide field trenches on the domain of International 
 Law ; for all details of this subject they have referred to 
 the standard works on International Law and the Law of 
 Merchant Shipping. They have avoided, as far as possible, 
 the consideration of the Acts relating to Public Health 
 and Sewers, feeling that such a subject hardly comes 
 within the scope of a general work on Water. 
 
 Few suggestions or criticisms have been made on the 
 existing state of the law, and the Authors have confined 
 themselves, as far as possible, to the decisions of the Courts 
 as expressed in the words of learned Judges. They hope 
 that this attempt to unite in one volume the various 
 branches of the Law of Waters may be of some use to the 
 profession, at least as a book of Reference. 
 
 H. J. W. C. 
 U. A. F. 
 
 1, Beick CoiTRT, Temple, 
 May, 1880.
 
 PLAN OF THE WORK. 
 
 CHAPTEE I. 
 
 PAGE 
 
 Of the Sea and Eights therein 1 — 50 
 
 The Higli Seas 1 
 
 Territorial Waters ......... 5 
 
 The Seashore ......... 12 
 
 Ownership) of the Soil and Eights connected therewith . 14 
 
 Protection from Inroads of the Sea .... 24 
 
 Public and Private Rights thereon . . . . ,33 
 
 Ports and Harbours ........ 42 
 
 CHAPTEE 11. 
 
 Of Inland "Watercourses : the Ownership of the Soil 
 
 thereof, and other Matters . . . .51 — 103 
 
 Definition of a Watercourse . . . . . . . 51 
 
 Tidal Na\-igable Rivers ........ 58 
 
 Private Rivers and Streams ....... 92 
 
 Lakes and Pools ......... 98 
 
 Artificial Watercourses 102 
 
 CHAPTEE III. 
 
 Of Natural Eights of Water, and therein of the 
 Duties of Eipaeian Owners . . . 104 — 201 
 
 Riparian Rights generally 104 
 
 The Right to Water in its natural Quantity, and Injuries 
 
 thereto . . . . . . . . . .115 
 
 By Abstraction and Diversion . . . . . 115 
 
 By Obstruction and Overflow . . . . . .128 
 
 The Right to Water in its natural Qualib*', and Injuries thereto 
 
 by Pollution 150 
 
 Surface and Percolating Water 188
 
 Vlll 
 
 PLAN OF THE WORK. 
 
 CHAPTER IV. 
 
 PAGE 
 
 Of acquired Rionis of "Water, and the Easement of 
 Watercourse 202 — 264 
 
 Easements of "Water, how acqmred 
 
 By express Grant .... 
 By implied Grant .... 
 By Prescription .... 
 
 Particular Easements of "Water . 
 
 Abstraction, Diversion and Obstruction 
 
 Pollution 
 
 The Easement of artificial "Watercourse 
 Of Drip 
 
 Extinguisbment of Easements of "Water . 
 
 203 
 204 
 215 
 230 
 239 
 240 
 242 
 247 
 261 
 261 
 
 CHAPTEE V. 
 
 Of Canai^s, Water Supply, and Docks 
 
 265—335 
 
 Canals 273 
 
 Eights connected with the Ownership of the Soil . . 276 
 
 Duties of Proprietors to Owners of adjoining Lands . . 284 
 
 Duties with regard to Navigation ..... 299 
 
 Water Supply . 313 
 
 Companies having Parliamentary Powers . . . 313 
 
 Companies having no Parliamentary Powers . . . 323 
 
 Local Authorities supplying "Water .... 326 
 
 Docks 331 
 
 CHAPTEE VI. 
 
 Of Fishery 336—395 
 
 The various Eights of Fishery 336 
 
 Fishery in the Sea 342 
 
 In Tidal Waters 343 
 
 In Private Streams 360 
 
 In Lakes and Pools 369 
 
 Statutory Eegulations affecting Fishery 374 
 
 As to Season 381 
 
 As to means of taking Fish , 385
 
 PLAN OF THE WORK. 
 
 IX 
 
 CHAPTEE VII. 
 
 Of Navigation, ajvd tiieeei:x of Conservancy 
 
 PAGE 
 
 396—485 
 
 The general Eight : its Nature, Extent, and the Injuries thereto 396 
 
 On the Sea 397 
 
 On Tidal Eivers 413 
 
 On Private Waters 420 
 
 The Conservancy of Navigation, and the Powers and Duties of 
 
 Conservators . . . . . . . . .443 
 
 Generally . . . . . . . . . 443 
 
 In the Eiver Thames 463 
 
 General Statutory Provisions as to Inland Navigation . 474 
 
 CHAPTEE VIII. 
 
 Of Ferries and Bridges . 
 
 Ferries ...... 
 
 Bridges ...... 
 
 Liability of the County to repair 
 Liability to repair ratione tenurce . 
 Liability to repair by Prescription 
 
 486—534 
 
 . 486 
 503 
 
 . 510 
 527 
 
 . 531 
 
 CHAPTEE IX. 
 
 Of Tolls and Eates 
 
 535--648 
 
 ToUs 
 
 535 
 
 ToUs generally 
 
 . 535 
 
 On the Sea, Navigable Eivers, and Ports 
 
 546 
 
 Shore Duties 
 
 . 564 
 
 On Harbours, and Lighthouses 
 
 569 
 
 On Docks and Piers 
 
 . 573 
 
 On Canals ....... 
 
 584 
 
 Eates 
 
 . 593 
 
 On Docks, Harbours and Marine Property . 
 
 595 
 
 On Eivers and Ferries 
 
 . 621 
 
 On Fisheries 
 
 625 
 
 On Canals ........ 
 
 . 626 
 
 On Water Companies ..... 
 
 . 635 
 
 On Bridges ....... 
 
 . 646
 
 Pl-AN OF THK WORK. 
 
 CHAPTEK X. 
 
 I'AGE 
 
 Of the Iyemkdies for the Ixfrixgement of Eights of 
 Water 649—671 
 
 By Act of Party GJO 
 
 By Act of Law 654 
 
 APPENDIX. 
 
 The Bye-Laws regulating the Navigation of the 
 
 Thames 673 
 
 INDEX 693
 
 INDEX TO CASES CITED. 
 
 A. 
 
 PAGE 
 
 Abbot of Combe's case 534 
 
 of Strata Marcella, case of . . 354 
 
 Aberdeen Ai-ctic Co. v. Sutter 342 
 
 V. Menzies 76 
 
 Abraham v. Great Northern Rail- 
 way 54, 413, 437 
 
 Ackroyd v. Smith 203, 215 
 
 Acton V. Blundell.. 52, 55, 105, 189, 191, 
 
 194, 197 
 
 Alcock V. Cooke 38 
 
 Alder v. Savile 24 1 
 
 Alderman of London v. Hastings . . 340 
 
 Alderson, Doe d., v. York 15, 251 
 
 Aldred's case 171, 369, 671 
 
 Allan V. Overseers of Liverpool .... 604 
 Allen V. Donelly 37 
 
 V. Lockham 214 
 
 Allgood V. Gibson 42, 363 
 
 Allnut V. Inglis . . 270, 271, 331, 566, 577 
 
 Alston V. Scales 655 
 
 Anguish v. Ebden 502 
 
 Angus r. Dalton 230, 231, 236, 238 
 
 Annapolis, The 11 
 
 Anonymous case (1 Camp. 516) . .356, 396, 
 
 419 
 
 (6 Mod. 73) 36 
 
 (6 Mod. 149) 38 
 
 Arkwright v. GeU 52, 256, 259, 295 
 
 Arlett V. Ellis 653 
 
 Atkins V. Davis 635 
 
 Atkinsons. Gateshead Water Co. . . 315, 318 
 
 Att.-Gen. v. Basingstoke 172, 677 
 
 V. Birmingham. . . . 112, 151, 158, 
 
 162, 166, 170, 171, 172, 244, 
 263, 369, 661, 666, 667, 668, 
 670, 671 
 
 V. Bradford 167, 287, 662 
 
 V. Bristol 319 
 
 V. Burridge . . 33, 34, 73, 422, 670 
 
 V. Chambers.. 13, 14, 17, 23, 66 
 
 V. Cockermouth . . 166, 170, 172, 
 
 661. 669 
 
 PAGE 
 
 Att.-Gen. v. Colney Hatch. . 158, 165, 166, 
 168, 170, 172, 668, 670 
 
 V. Fumess Railway 477 
 
 V. Gt.EastemRailway. .116,668 
 
 V. Hackney. . 158, 165, 168, 668 
 
 V. Halifax.. 151, 158, 167, 169, 
 
 246, 661, 668, 670 
 
 r. Johnson 37, 73, 421, 661 
 
 V. Jones 14, 17, 19 
 
 V. Kingston. . 166, 168, 170, 245, 
 
 246, 263, 667 
 
 V. Leeds , . 151, 158, 167, 169, 170, 
 
 172, 246, 659, 668, 669, 670 
 
 V. Lonsdale. . 33, 72, 75, 77, 147, 
 
 417, 425, 661, 670 
 
 V. Luton 171, 245, 246, 369, 
 
 670, 671 
 
 V. Mathias 42 
 
 V. Metropolitan Board of 
 
 Works 165, 166 
 
 V. Mid Kent 519 
 
 V. Nicholl 246, 666 
 
 V. Parmeter. . 14, 33, 34, 37, 71, 
 
 72, 73, 418, 421, 422, 670 
 
 V. Richards 15, 33, 73, 421, 
 
 422, 670 
 
 V. Richmond 172 
 
 t'. Sheffield 158, 169, 661, 
 
 665, 666 
 
 ■ V. Terry. . 15, 73, 76, 77, 78, 417, 
 
 423,425,426,427,670 
 
 V. Thames (Conservators of) 89, 
 
 90, 436 
 
 V. Tomline 138 
 
 Aynsley v. Glover 159, 234 
 
 B. 
 
 Badger v. Yorkshire Railway . . 80, 103, 451 
 Bagnalf. London &S.W. Railway 145,453 
 
 Bagot V. Orr 14, 36, 37, 41, 91 
 
 Baird v. Williamson 131, 135
 
 Xll 
 
 INDEX TO CASES CITEU. 
 
 PAGE 
 
 Baker v. Greenhill 504, 527 
 
 Bally. Herbert 79, 415, 420, 552 
 
 Ballacorldsh Miuing Co. v. Harrison . . 196 
 
 Ballard v. Dyson 441 
 
 Balston v. Bensted 194 
 
 Baltimore Wharf case 43, 50 
 
 Bankart v. Houghton 207, 208, 667 
 
 V. Tennant 207 
 
 Banne (Royal Fishery of the) 16 
 
 Barber v. Nottingham Railway .... 318 
 Barclay (case of the Barons of) ... . 18, 19 
 
 Barker v. Nottingham Canal 285 
 
 Barlow v. Rhodes 216 
 
 Barnes v. Loach 216, 242 
 
 Barnsley Canal v. Twibill 280 
 
 Barrett v. Stockton and Darlington 
 
 Railway 571, 574, 584 
 
 , Doe d., V. Kemp 363 
 
 Barry v. Arnaud 39 
 
 Bai-tlett V. Baker 658 
 
 Barton v. Benett 544 
 
 Bateman v. Ashton-under-Lyme .... 321 
 
 Bath River v. Willis 80 
 
 Batishill v. Reed 657 
 
 Batten's case 650 
 
 Baxendale v. McMurray 243, 246 
 
 Baxter v. Tayler 655 
 
 Bealeyt'. Shaw .. 110, 234, 240, 241, 263 
 
 Beaver v. Manchester (Mayor of) 517 
 
 Beaudeley v. Brook 215 
 
 Beaufort v. Patrick 206 
 
 • V. Swansea IS, 19, 354 
 
 Beauman v. Kinsella 362 
 
 Beckett v. Metropolitan Board 89 
 
 Beeston v. Weate .... 122, 125, 127, 230, 
 
 240, 351 
 
 Belfast Dock, In re 17, 18, 19 
 
 Bell V. Midland Railway 655 
 
 V. Quebec (Corporation of) . .61, 413, 
 
 434, 671 
 
 V. Twentyman 133, 153, 665 
 
 Benest v. Pipon 42 
 
 Benjamin v. StoiT 171, 653, 661 
 
 Beswick v. Combdon 134 
 
 Bevins r. Bird 358 
 
 Bickett V. Morris. . 60, 71, 74, 75, 76, 77, 
 95, 147, 148, 360, 660 
 Bidder v. Croydon .... 171, 369, 670, 671 
 Bulks V. South Yorkshire Railway . . 289 
 Bird V. Great Eastern Railway .... 337 
 
 V. Higgenson. . . . 205, 337, 340, 341 
 
 Birnungham Canal f. Dudley. . . .198, 199, 
 
 280 
 
 V. Hawkesford . . 280 
 
 V. SwindeU 199 
 
 Bishop V. Bedford 658 
 
 Black V. Bateman 654 
 
 Blackctcr v. Gillett 490 
 
 PAGE 
 
 Blackett v. Smith 578, 579 
 
 Blackpool Pier r.Fylde Union 9, 14, 23, 597 
 
 Blagrove r. Bristol Waterworks .... 319 
 
 Blakemore v. Glamorgan Canal. .214, 275, 
 
 291, 299, 332 
 
 Blanchard v. Bridges 207, 208, 242 
 
 Bland v. Lii^scombe 42, 337, 346, 363 
 
 Blaudford v. Monison 468 
 
 Blantyre v. Doon 76 
 
 Blatchford r. Pljnnouth 210 
 
 Blewett V. Tregonning 42 
 
 Blisset V. Hart 487 
 
 Bloomiield v. Johnson. .58, 60, 95, 98, 100, 
 
 337, 338, 339, 346, 365, 
 
 367, 370, 443, 671 
 
 Blundell v. Catteral. . 1, 13, 14, 34, 40, 41, 
 
 71, 79, 344 
 
 Blyth t^. Birmingham Water Co. 142,147, 
 
 324 
 Bostock V. Staffordshire Railway 276, 277, 
 
 280 
 Boughton V. Midland and Great Wes- 
 tern Railway 128, 142, 145, 290 
 
 Bower v. Hill 263, 441 
 
 Box V. Jubb 128 
 
 Bradley v. Newcastle-on-Tyne. . 554, 563 
 
 Brain v. Marfell 51, 196, 210, 211 
 
 Brecknock Navigation v. Pritchard. . 528 
 Brecon Markets v. Neath and Brecon 
 
 Railway 540 
 
 Brent v. Haddon 653, 657 
 
 Brett V. Beales 46, 536, 540, 585 
 
 Brew V. Haren 17, 20 
 
 Bridges' ca.se 85, 128, 452 
 
 r. Highton 671 
 
 Bridgland v. Shapter 487 
 
 Bridgwater f. Bootle-ciim-Linacre 13, 67, 
 
 71,596 
 Bright V. Walker .... 231, 232, 237, 262 
 Brine v. Great Western Railway. . 168, 272 
 
 Briscoe v. Drought 52 
 
 Bristol Harbour case 670 
 
 Bristow V. Connican . . 14, 18, 24, 58, 59, 
 
 95,97,98,101,343, 
 
 347, 361, 370 
 
 Britain r. Cromford Canal. .309, 571, 574, 
 
 584 
 British Linen Co. v. Drummond. .408(n.) 
 Plate Manufacturers v. Mere- 
 dith 272 
 
 Broadbent v. Ramsbotham 189, 194 
 
 Broder v. Saillard 133, 153, 655 
 
 Brown v. Best 229, 242, 263 
 
 V. Gregg 89 
 
 V. London (Mayor of ) . . . .463, 545 
 
 V. Mallet 436, 438 
 
 V. Russell 658 
 
 V. Windsor 205
 
 INDEX TO CASES CITED. 
 
 Xlll 
 
 PAGE 
 
 Brownlow v. Metropolitan Board 273, 434, 
 
 437, 454, 459, 
 
 464, 465 
 
 Bruce v. Willis 80, 84, 452, 621 
 
 Brune v. Thompson 50, 555, 564 
 
 Bryan v. Whistler 205 
 
 Buccleuch v. Cowan 151, 657 
 
 V. Metropolitan Board .... 89 
 
 Bullock 2'. Domville 529 
 
 Burling v. Read 653 
 
 Bumis V. Brown 76 
 
 Bvrry v. Pope 231 
 
 Busby V. Chesterfield Water Co. . . 1 16, 320 
 Bush V. Trowbridge 315, 316, 319 
 
 C. 
 
 Calder and Hebble Navigation r. 
 
 PilHng 308 
 
 Cahnady v. Rowe 14, 18, 19, 371 
 
 Campbell v. London Waterworks . . 324 
 
 V. Wilson 231 
 
 Canham v. Fisk 215 
 
 Cardiff (Mayor of) r. Cardiff Water Co. 32 1 
 Carlisle (Mayor of) v. Graham. .62, 73, 91, 
 
 94, 97, 344, 347, 355, 360, 416 
 Carlyont'. Lovering . 230, 232, 238, 239, 242 
 
 Carstairs v. Taylor 133, 142, 14 3 
 
 Carter v. Murcott 36, 37, 58, 91, 93, 
 
 343, 348 
 
 Case V. Midland Railway 308 
 
 Casher v. Holmes 571, 573 
 
 Cator V. Lewisham. . . . 151, 158, 166, 172, 
 
 246, 668 
 
 Cattle V. Stockton 128, 134, 319 
 
 Cawkwellt;. Russell 153, 230, 250, 251, 
 
 263, 651, 652 
 
 Chad V. Tilsed 17, 20 
 
 Chadwick v. Marsden 210, 211 
 
 Chasemoret'. Richards. .52, 55, 56, 86, 106, 
 107, 112,115, 153, 189, 191, 
 192, 196, 197, 200, 235, 236 
 
 Cheetham v. Hampson 658 
 
 Chelsea Water Co. v. Bowley. ... 80, 451 
 
 Chester Mill case 368 
 
 Chichester v. Lethbridge 88, 227, 434 
 
 Child V. Greenhill 338, 671 
 
 Christian Smith's case 658 
 
 Churchman v. Tunstall 490 
 
 Clark V. Chamberlain 39 
 
 V. Cogge 227 
 
 Clavering's case 207 
 
 Claxton V. Claxton 659 
 
 Clayton v. Corby 234 
 
 Cleave v. Mahony 655 
 
 Clothier v. Webster 273, 457 
 
 PAGE 
 
 Clowes V. Staffordshire. . . . 157, 161, 165, 
 
 171, 325, 659, 667, 669 
 
 Cockburn v. Erewash Canal. . 145, 287, 298 
 
 Cocker v. Cowper 204, 205 
 
 Codling r. Johnson 215, 231 
 
 Coe V. Wise 265, 333, 335 
 
 Colchester (Mayor of) r. Brooke . . 34, 36, 
 47,58,61, 72, 73, 91, 356, 396, 
 414, 417, 421, 433, 558 
 
 Collins V. Middlesex 145 
 
 Colton V. Smith 45, 539, 549, 569 
 
 Compton V. Richards 218, 224 
 
 Constable's case 18 
 
 r. Nicholson 42, 232 
 
 Continental, The 407 (n.) 
 
 Cooke V. Chilcote 214 
 
 Cooper V. Phibbs 336, 361 
 
 Corker v. Payne 204, 336 
 
 Cornwall ;;. Saunders 362, 394 
 
 Cory V. Bristowe 67, 80, 450, 614, 621 
 
 V. Greenwich 613, 615 
 
 V. Yarmouth 489 
 
 Cotching r. Bassett 207 
 
 Coulton V. Ambler 588 
 
 Com-tney r. CoUett 649 
 
 Cowan V. Buccleuch 657 (n.) 
 
 Cowlam V. Slack 341 
 
 Cox V. Mathews 110, 122, 218, 224 
 
 Cracknellv. Thetford.. 84, 128, 267, 268, 
 
 269, 436, 453 
 
 Crease v. Saul 251 
 
 Crichton v. Colley 91, 343, 348 
 
 Crispe v. Belwood 536, 539 
 
 Cromford Canal v. Cutts 198, 280, 285 
 
 Crompton v. Lea 28, 136 
 
 Crossley v. Lightowler. .94, 113, 126, 151, 
 157, 171, 216, 221, 225, 242, 
 244, 247, 250, 251, 262, 263, 
 659, 667, 669 
 
 Crump V. Lambert 655 
 
 Cunningham's case 11 
 
 Curling v. Wood 436 
 
 Curriers' Co. v. Corbett 222 
 
 D. 
 
 Daniel v. North 235 
 
 Daniells v. Potter 658 
 
 Dann v. Spurrier 206 
 
 Dartmouth (Lady) v. Roberts 231 
 
 Davies v. Marshall 261 
 
 V. Sear 208, 227 
 
 V. Williams 653 
 
 Dawson v. Paver 169 
 
 De Garteig v. Mersey Docks 582 
 
 De la Vega v. Vianna 408 (n.) 
 
 De Rutzen v. Lloyd 487
 
 XIV 
 
 INDKX TO OASES OITED. 
 
 PAGE 
 
 Dennis v. Tovdl 440 
 
 Dent r. The Auction Mart lo9 
 
 Devonshire v. Eji^lin 207 
 
 r. Hodnctt 350 
 
 Dickens v. Shaw 21, 38, 42 
 
 Dickenson v. Grand Junction Canal . . 52, 
 
 105, 189, 191, 193, 194 
 
 Dimes v. Grand Junction Canal 84, 284,451 
 
 V. Petley 357, 396, 433, 654 
 
 Dobson V. Blackmore 88, 671 
 
 Dodd V. Burchell 218, 229 
 
 Doick V. Phelps 466 
 
 Don V. Lipi^inann 408 (n.) 
 
 Donegal r. Hamilton 369, 671 
 
 Dore r. Gray 449 
 
 Dresser v. Bosanquet 583 
 
 Drewett r. Sheard 53, 232 
 
 Driver r. Simpson 26 
 
 Dudden v. Glutton Union 52, 53, 199 
 
 Dudley Canal v. Grazebrook . . 198, 199, 
 
 280, 281 
 Dunn V. Birmingham Canal . . 146, 198, 
 
 281, 285 
 
 Dunwich (Bailiff of) r. Sterry 39 
 
 Dutton V. Taylor 227 
 
 Dwyer v. Rich 71, 93 
 
 Dyson v. Collick 276, 656 
 
 E. 
 
 Earby's case 594 
 
 Eastman r. Amoskeag 657 
 
 Edgar v. Commissioners of Fisheries 91, 
 336, 338, 339, 350, 352, 364 
 
 Edgemore v. Colne 315, 323 
 
 Edmonds v. Watennen's Company . . 469 
 
 Edwards r. Hall 312 
 
 Egremont v. Putnam 656 
 
 Eldridge r. Nott 231 
 
 Elliot V. North Eastern Railway 168, 199, 
 
 668 
 
 Ellis r. Manchester 222, 242 
 
 EUwell r. Biraiingham Canal 235, 288, 295 
 
 V. Crowther. . . . 117, 168, 659, 668 
 
 Elmore r. Hunter 468 
 
 Embleton v. Brown 13, 39, 67, 394 
 
 Embreyr. Owen.. 57, 107, 111, 115, 117, 
 
 120,121, 151, 159, 160, 
 
 239, 659, 660 
 
 English V. Bumell 341 
 
 Ennor r. Barwell 233, 234 
 
 Exeter (Mayor of) v. Trimlett ...... 551 
 
 V. "Warren. .43, 46, 47, 
 
 400, 542 
 Ewart r. Cochrane 216, 217 
 
 F. 
 
 PAGE 
 
 Falmouth v. George. .46, 47, 50, 543, 556 
 
 r. Penrose 558 
 
 Farquharson v. Farquharson. .74, 76, 149 
 
 Fay V. Prentice 134, 655 
 
 Fennings v. Granville 5, 342 
 
 Fentiman v. Smith 204, 205, 215 
 
 Fenton v. Trent and Mersey 285 
 
 Ferrand v. Bradford 314 
 
 Finch V. Birmingham Canal 282 
 
 Fineux r. Hoveden 238, 671 
 
 Fisher v. Moon 261 
 
 Fitzsimmons <>. Inglis 133 
 
 Fitzwalter's case . . 36, 37, 91, 343, 348, 360 
 
 Fletcher v. Rylands 153, 319, 453 
 
 ■ V. Smith 128, 136 
 
 Flight V. Thomas 243 
 
 Forbes v. Lee Conservancy .... 85, 299, 
 
 452, 458 
 
 Ford V. Lacy 22, 63, 67, 94 
 
 Foreman v. Free Fishers of Whit- 
 stable. .43, 45, 47, 48, 72, 356, 396, 416, 
 418, 553, 560 
 
 Forrest v. Greenwich 80, 611 
 
 Fo.sberry r. Waterford 526 
 
 Foster v. Wright 22, 64, 94, 361 
 
 Eraser ik Swansea Canal 299, 593 
 
 G. 
 
 Gammel v. Woods and Forests .... 9, 11 
 
 Gandy v. Jubber 658 
 
 Gann v. Free Fishers of Whitstable. . 4, 
 9, 14, 15, 33, 34, 42, 46, 47, 48, 
 58, 71, 72, 79, 91, 92, 349, 356, 
 357, 399, 413. 416, 417, 418, 547, 
 553, 558, 561, 670 
 
 Gamett v. Backhouse 391 
 
 Gateward's case 42, 341 
 
 Gaved v. Martyn. .234, 237, 239, 251, 253, 
 
 256, 257 
 Geddis v. Bann Reservoir. .145, 266, 275, 
 
 323, 453 
 
 Gellatly's case 76 
 
 Gifford V. Yarborough 22 
 
 Gildart v. Gladstone 570, 571, 574, 
 
 580, 584 
 
 Giles V. Groves 491 
 
 Gipps V. Woollicot 338, 339, 671 
 
 Goldsmith v. Tunbridge Wells. . 151, 157, 
 158, 168, 171, 172, 243, 
 246, 667, 669 
 
 Good r. Penny 590 
 
 Goodday v. Michel 251 
 
 Gore V. Commissioners of Fisheries . . 390 
 Glannabanta, The 407 (n.)
 
 INDEX TO CASES CITED. 
 
 XV 
 
 PAGE 
 
 Grlave v. Hardiug 218 
 
 Glover r. East London Waterworks. . 318 
 
 Graham v. Ewart 362 
 
 GrandJunctionCanalp. Ashby 97 
 
 I'. Hemel Hemp- 
 stead . . 627, 628 
 v. King's Lang- 
 ley 627 
 
 r. Sliugar..lll, 117, 
 
 197, 668 
 
 Sui-rey Canal r. Hall 308 
 
 Union Canal v. Ashby. .280, 362, 
 
 363 
 
 Grant v. Oxford 80, 611, 614 
 
 Grantham Canal v. Hall 588 
 
 Gray r. Bond 22, 92, 235, 355, 356 
 
 Greasley r. Codling 661 
 
 Greatrex v. HayTs-ard . . 189, 249, 260, 261 
 
 Greenslade v. Halliday 651 
 
 Greenwich r. Maudslay ■ 24, 26 
 
 Grey v. Brown 650 
 
 Grey's case 370 
 
 Griffith's case 31 
 
 Groucott V. Williams 453 
 
 Grove v. West 363 
 
 Gwinnell v. Eamer 658 
 
 H. 
 
 Hadley r. Taylor 658 
 
 Hale r. Olroyd 263 
 
 Halifax v. Soothill 325 
 
 Hall V. Lyme Regis 666 
 
 V. Swift 230, 242, 263 
 
 HaUey, The 408 
 
 Hammersmith v. Brand 145 
 
 Hamilton r. Davis 38 
 
 V. Donegal 344, 359 
 
 V. Eddington 76 
 
 V. Stow 570, 572 
 
 Handcock v. York & Newcastle Rail- 
 way 435 
 
 Harborough r. Shadlow 84, 282, 452 
 
 Hardcastle v. South York Railway . . 324 
 
 Harden v. Smith 577 
 
 Hargreaves t\ Diddams . . 59, 91, 93, 96, 97, 
 338,345, 363,373,394, 451 
 
 Harmond v. Pearson 438 
 
 Haii-is V. Baker 300 
 
 V. Drewe 215 
 
 Hai-rison v. Gt. West. Railway. .141, 324 
 
 V. Parker 205, 529 
 
 Harrop v. Hirst . . 157, 238, 659, 667, 668 
 
 Hart V. Bamett 661 
 
 Harvey v. Lyme Regis 576 
 
 V. Walters 261, 263 
 
 Haspurt v. Wills ... .46, 47, 536, 537, 539 
 
 PAGE 
 
 Hastings v. IvaU 18 
 
 Hayes r. Bridges 336, 339, 352, 366 
 
 Healey v. Thome 19, 20 
 
 Heddy v. Wheelhouse. . 50, 487, 546, 665 
 
 Herbert v. Groves 88 
 
 Herdman». North East. Railway 133, 153 
 
 Hertz V. Union Bank 218 
 
 Hewlinsv.Shippam 202, 204, 205, 206, 209 
 
 HUdreth v. Adamson 315 
 
 Hill r. Cock 264, 652 
 
 V. Smith 46, 536, 540 
 
 V. Tupper 203, 215, 277 
 
 Hinchcliffe v. Kinnoul 229 
 
 Hind V. Mansfield 422 
 
 Hipkinst'. Birmingham 128, 136, 153, 173 
 Hodgkinson v. Ennor 133, 153, 170, 199, 
 
 250 
 
 Hodgson r. Little 391 
 
 V. York, Mayor of 84, 128, 297, 452 
 
 Hogarth r. Jackson 342 
 
 Holcroft r. Keel 231 
 
 Holford'i'. Bailey 97,338, 339, 340, 363,364 
 
 r. George 351, 358, 388 
 
 V. Pritchard 34 0, 341 
 
 Holker i;. Pomt .. 55, 111, 112, 113, 127 
 
 151, 161, 660, 675 
 
 Hollis V. Goldfinch 80, 83, 84, 451 
 
 Holmes v. Seller 215 
 
 Hopkins v. Great Northern Railway . 494 
 
 V. Robinson 342 
 
 Hopwood V. Schofield 655 
 
 Home, Ex parte 313 
 
 HosfcLns V. Robins 205 
 
 Howard v. Wright 240 
 
 Howe V. Stowell 41 
 
 Hubert v. Groves 661, 671 
 
 Huddersfield Canal r. Buckley 312 
 
 Corporation and Jacomb, 
 
 In re 318 
 
 Hudson ('.Macrae 59, 97,346, 363,373, 394 
 
 V. Maddison 657 
 
 V. Tabor . . 24, 27, 444, 445, 449 
 
 Hull, Mayor of v. Homer 231 
 
 and Selby Railway, In re. . 23, 65, 66 
 
 Dock Co. V. Browne . . 670, 571, 574 
 
 577, 584 
 
 V. Huntingdon 581 
 
 V. La Marche 46, 275, 332, 
 
 568 
 
 r. Priestley 577 
 
 Hume V. McKenzie 58 
 
 Humphries v. Cousins 133, 153 
 
 Hungerford Market Company v. City 
 
 Steamboat Company 543, 589 
 
 Huntingdon, Case of the County of . 510 
 Huzzey v. Field. . 436, 490, 492, 493, 497 
 Hyams v. Webster 658
 
 X.V1 
 
 INDEX TO CASES CITED. 
 
 1. 
 
 PAGE 
 
 Imperial Gas Company r. Broadbcut 157, 
 
 66G 
 
 Inman v. Kirkdale C04 
 
 Ipswich V. Bi-own 356, 503 
 
 Dock«^. St. Peter's, Ipswich 595 
 
 Isle of Ely Case 28, 32 
 
 Itchiu V. Southampton 457 
 
 Iveson V. Moore 88 
 
 Ivimey v. Stocker 230, 235, 238, 239, 251 
 
 J. 
 
 Jackson v. Pesked 655 
 
 James v. Haywai-d 653 
 
 V. Johnson 538, 540 
 
 V. Plant 262 
 
 Jehu Jebb's Case 502 
 
 Jenkins v. Cooke 593 
 
 V. Harvey . .46, 47, 231, 542, 555 
 
 556, 564 
 
 Joanna Stoll, Tlie 11 
 
 Johnson v. Wyatt 261 
 
 Johnstone v. Hall 655 
 
 Jolliffe V. Wallasey 437 
 
 Jones V. Bird 272 
 
 V. Chappell 655 
 
 V. Ffestiniog 132, 145 
 
 v. Mersey Dock 606 
 
 V. Phillips 573 
 
 V. Price 234 
 
 r. Williams _. 653,657 
 
 and Eastern Counties Railway, 
 
 in re 312 
 
 Julia, The 410 
 
 K. 
 
 Keams v. Cordwainers' Co. . .89, 436, 464 
 
 Keighley's Case 28, 32 
 
 Kennet and Avon Co. v. Great Wes- 
 tern Railway. . 299 
 V. Withering- 
 ton 286, 304 
 
 Keppel v. Bailey 312 
 
 Keymer v. Summers 231 
 
 Kidgell V. Moor 655 
 
 King's Lynn (Mayor of) v. Pembeiion 288 
 Kinnersley v. Orpe 338, 363 
 
 Ladyman v. Grave 234 
 
 Laird v. Birkenhead 206 
 
 Lamb v. Newbiggen 360, 362 
 
 Lancashire Canal Co., Ex parte 312 
 
 Lancum v. Lovell 544 
 
 Lang V. Kerr 289 
 
 Langridge v. Leys 134 
 
 Laurence v. Hitch 540, 543 
 
 Lawrences. Great Northern Railway 145, 
 
 146 
 
 Lawton v. Ward 653 
 
 Laybui-n v. Crisp 542 
 
 Leader v. Moxon 272 
 
 Leath v. Vine 394 
 
 Leconfield v. Lonsdale. . 344, 359, 368, 369, 
 
 432, 671 
 Lee Conservancy v. Button .... 80, 451 
 
 • v. Milner 285 
 
 V. Brown 20 
 
 Leech v. Schweder 159 
 
 Leeds and Liverpool Canal ». Hustler 276, 
 308, 332, 571, 574, 538, 584 
 Lees V. Manchester and Ashton 
 
 Canal .- 544, 585, 588 
 
 Legge V. Boyd 39 
 
 Leigh V. Bui-ley 1,12 
 
 Letton V. Gooden 487, 491, 495 
 
 Leveridge v. Hoskins 649 
 
 Lifford's Case 356 
 
 Liggms V. Inge 108, 208, 263 
 
 Lingwoodi;. Stowmarket .. 169, 171, 669 
 
 Littledale v. Smith 342 
 
 Liverpool (Mayor of) v. Wavertree. . 642 
 
 Docks V. Gladstone 581 
 
 Llewelyn v. Swansea 303 
 
 Lodie V. Arnold 653 
 
 London (Alderman of) v. Hastings . . 367 
 
 (Mayorof)t'. Hunt..46, 539, 551, 
 
 556 
 
 and Birmingham Railway v. 
 
 Grand Junction Canal . . 275 
 
 and North Western Railway 
 
 V. Skerton 526 
 
 Lord V. Commissioners of Sydney. . 16, 72, 
 94, 100, 101 
 
 Lord Advocate v. Hamilton 58 
 
 Lovett V. Wilson 231 
 
 Lowden v. Hierons 577 
 
 Lowe V. Govett 13, 42 
 
 Lowndes v. Settle 666 
 
 Lumley v. Gye 134 
 
 Luttreil's Case 230, 242, 263, 653 
 
 Lynn (Mayor of) v. Tayler 42 
 
 V. Turner 61, 414 
 
 Lyon V. Fishmongers' Co. . .56, 59, 60,85, 
 
 86, 87, 104, 105, 106, 361, 420, 
 
 421, 434, 437, 463, 659, 671 
 
 M. 
 
 Mace V. Philcox 41 
 
 McCannon r. Sinclair 68, 596, 599
 
 INDEX TO CASES CITED. 
 
 XVll 
 
 Mackinnon v. Penson 662, 663 
 
 Madras Railway v. Zemindar of Car- 
 
 ventenagarum 141, 145 
 
 Magovv. Chadwick .. 127, 154, 200, 201, 
 
 248, 250, 257, 259, 260, 295 
 
 Malcolmson v. O'Dea. .14, 37, 58, 91, 338, 
 
 339, 343, 348, 349 
 
 Manchester and Sheffield Railway v. 
 
 Worksop 153, 167, 171, 172, 670 
 
 Manley v. St. Helen's. .85, 274, 287, 305, 
 
 518, 592 
 
 Manning v. Wasdale 202, 232, 238 
 
 Manser v. North Eastern Counties 
 
 Railway 519 
 
 Marshall v. Ulleswater Co 35, 79, 86, 
 
 90, 95, 97, 99, 101, 339, 361, 
 
 363, 364, 365, 372, 443 
 
 Mason f. Hill .. 107, 108, 112, 114, 116, 
 
 120, 170, 241, 263, 659 
 
 V. Shrewsbury. . 102, 115, 125, 127, 
 
 204, 232, 233, 237, 
 240, 255, 297, 658 
 
 Mathews v. Peach 492 
 
 Matson v. Scobell 571 
 
 Med way Navigation v. Brooks 590 
 
 V. Romney. . 57, 114, 
 
 659 
 Menzies «. Breadalbane . . 54, 74, 76, 128, 
 
 133, 150 
 Mersey Docks v. Cameron. . 545, 606, 644 
 
 V. Gibbs..47, 85, 128, 147, 
 
 165, 265, 271, 288, 299, 
 
 331, 333, 453, 454, 455, 
 
 456, 457, 545, 592 
 
 V. Jones 606, 644 
 
 V. Liverpool 603 
 
 Metropolitan Association v. Petch . . 655 
 Board v. McCarthy . . 89 
 
 V. New River 
 
 Co 315, 320 
 
 Middleton v. Lambert 540 
 
 Miles V. Rose 61, 414 
 
 Millingston V. Griffiths 173 
 
 Miner v. Gilmour . . 56, 86, 106, 115, 116, 
 121, 124, 660 
 Mississippi, Case of the Navigation of 
 
 the 69 
 
 Monk V. Butler 205 
 
 Monmouth Canal v. Hall 275, 280 
 
 V. Kendal 588 
 
 Montreal (Mayor of) v. Drummond . . 89 
 
 Moore v. Webb 170, 243, 244, 246 
 
 Morland v. Cooke 32 
 
 Mott V. Shoolbred 655 
 
 Moulton V. Witby 387 
 
 Moxham (The Maiy) 408 (n.) 
 
 Mulholland v. Killen 20- 
 
 Mumf ord v. Oxford Railway 655 
 
 Murchie v. Black 218 
 
 Murgatroyd v. Robinson 243 
 
 Mui-phy V. Ryan . . 58, 59, 62, 91, 93, 96, 
 
 97, 343, 346, 347, 355, 360, 
 
 363, 369 
 
 Musset «;. Burch.. 59, 91, 93, 96, 97, 338, 
 
 345, 363, 451 
 
 Mussumat Imaum Bendi v. Hergo- 
 
 vind Ghose 22, 23 
 
 N. 
 
 National Manure Co. v. Donald. .233, 235, 
 261,276, 277 
 
 Plate Glass Co. v. Prudential 
 
 Assurance Co 242 
 
 Newcastle v. Clarke 15, 26, 421 
 
 Pilots V. Bradley 563 
 
 V. Hammond 564 
 
 Newport Bridge, in re 504, 525 
 
 New River Co. v. Johnson . . 55, 196, 318 
 
 V. Mather 315, 323 
 
 V. Midland Rail. . . 316, 325 
 
 Newton v. Cubitt 487, 493, 494, 497, 
 
 499, 500 
 Nicholas v. Chamberlain . , 216, 217, 224, 
 
 226, 229 
 
 Nicholl V. Allen 518, 519, 521 
 
 Nichols V. Marsland 30, 128, 138, 143 
 
 Nicholson and the South West. Rail- 
 way, in re 312 
 
 Nield V. London & North West. Rail- 
 way 141, 149, 290 
 
 Nitro-phosphate Co. v. London Docks 29, 
 30, 143, 144 
 
 Norbury v. Kitchin 116, 119 
 
 Northam v. Hurley 210, 211, 213, 659 
 
 North East. Railway v. Elliot .. 316, 325 
 
 North & South Shields v. Barber 488 
 
 Northumberland v. Houghton . . 348, 353 
 
 Norton r. Scholefield 170 
 
 Norwich & Lowestoft v. Theobald . . 312 
 
 Nottingham (Mayor of) v. Lambert. .487, 
 
 537, 541, 547, 559 
 
 Nugent V. Smith 141, 501 
 
 Nuneaton v. General Sewage Co. . . 661 
 
 Nuttalli;. BraceweU.. 112, 113, 119, 121, 
 
 123, 154, 156, 203, 215, 250 
 
 O. 
 
 Oakley v. Kensington 299 
 
 Oldaker v. Hunt.. 165, 171, 369, 670, 671 
 
 Olding V. Wild 391 
 
 O'Neill V. Allen 37 
 
 Only V. Gardiner 234 
 
 Ordeway r. Orme 341 
 
 b
 
 INDEX TO CASES CITED. 
 
 I'AOE 
 
 Original Hartlepool Colliers v. Gibb. . 34, 
 72, 90, 396, 419 
 
 Orr-Ewing' v. Colquhoim. .71, 72, 74, 76, 
 93, 95, 96, 106, 112, 114, 121. 128, 
 147, 148, 347, 361, 396,413,417, 
 423, 425, 442, 660 
 
 Oxford (Mayor of) v. Richardson .... 36 
 
 Oxlade, in re 312 
 
 P. 
 
 Padwick v. Knight 344 
 
 Pain V. Patrick 661 
 
 Paley r. Birch 393 
 
 Palk V. Skinner 234 
 
 Palmer v. Fletcher 218, 224 
 
 V. Rouse 39 
 
 Paradine v. Jane 142 
 
 Parnaby v. Lancaster Canal. . 85, 271, 275, 
 
 288, 299, 454, 457, 545, 592 
 Parrett Navigation v. Robins. ... 85, 128, 
 
 452, 453 
 
 Partheriche v. Mason 360 
 
 Patrick v. Beaiifort 84, 283, 451 
 
 Pauline, The 38, 39 
 
 Payne v. Pai-tridge 487, 496, 501, 503 
 
 Pearson v. Spencer 216, 218, 229 
 
 Peirce v. Fauconberg 79 
 
 Pelham v. Pickersgill 536, 540, 541 
 
 Pendleby v. Greenhalgh 658 
 
 Pennington v. Brinsop Hall . .112, 151, 152, 
 
 157, 158,170,246,659,667, 
 
 668, 669, 670 
 
 V. Galland 227 
 
 PeniTiddock's case 650, 657 
 
 Penryn (Mayor of) v. Holme 14 
 
 Periy v. Fitzhowe 205, 653 
 
 Peter v. Daniel 230 
 
 V. Kendal 487, 490, 502 
 
 Peto V. West Ham 599 
 
 Pickard v. Smith 658 
 
 Pike V. Rossiter 391 
 
 Pim V. Cruel 487, 490 
 
 Pitman v. Woodbuiy 545 
 
 Pitts V. Kingsbridge 42 
 
 Phillips V. Eyre 408 (u.) 
 
 Plata, Case of the Navigation of the 
 
 River 69 
 
 Polden «;. Bastard 216 
 
 Pollock r. Lester 656 
 
 Poole r. Johnson 571 
 
 Poplar Board v. Knight 444 
 
 Popplewell V. Hodgkinson 198 
 
 Portsmouth Harbour- Case 431 
 
 Powell r. Butler 252 
 
 V. Thomas 206 
 
 Preston r. Norfolk Railway 275, 286, 658 
 
 Pretty r. Bickmore 658 
 
 PAGE 
 
 Pretty v. Butler 341 
 
 Prior of Tynemouth's Case 79 
 
 Pumcll V. Wolverhampton 321 
 
 Pye V. Mumford 234 
 
 Tyerv. Carter .. 211, 216, 217, 218, 220 
 222, 224, 225, 226, 227, 228 
 
 R. 
 
 Race V. Ward. .42, 202, 232, 238, 346, 363 
 
 Raikes v. Townshend 650 
 
 Rameshur Pershad t\ Koonj Behari 102, 
 
 248 
 
 Ramsden v. Dyson 206 
 
 Rawstorne v. Backhouse. . . . 352, 358, 388 
 
 Rawstronv. Taylor 53, 188, 194, 212 
 
 Read p. Brookman 231 
 
 Reed v. Ingham 468 
 
 Reeve v. Digby 363 
 
 Regent's Canal v. St. Pancras 628 
 
 Regina v. Adderbury 525, 532, 663 
 
 V. Anderson 3, 397 
 
 V. Baker 31 
 
 V. Bedfordshire 504, 531, 664 
 
 V. Betts. . 15, 61, 63, 414, 416, 423 
 
 451, 670 
 
 V. Blackfriars 648 
 
 r. Bradford 166 
 
 V. Brecon 527 
 
 V. Bristol Dock. .48, 331, 333, 334 
 
 599, 600, 646 
 
 V. Buccleuch 530 
 
 V. Bucknell 527 
 
 V. BuiTow .... 101, 102, 348, 373 
 
 V. Cambrian Railway 488 
 
 V. Cambridge Gas Company . 638 
 
 V. Capel 595 
 
 V. Chart 514 
 
 V. Chorley 263 
 
 V. Coventry Canal 635 
 
 V. Darlington 172 
 
 V. Delamere 275, 285 
 
 V. Derbyshire .... 54, 515 (note) 
 
 V. Dibble 468 
 
 V. Dowlais 627 
 
 V. Downing 352 
 
 V. Durham 627 
 
 ?;. Ely 511, 512, 520 
 
 V. FoiTest 611, 614 
 
 V. Gee 13, 68 
 
 V. Glamorgan Canal 627 
 
 V. Gloucester 506 
 
 V. Godmanchester 445 
 
 V. Grand Jimc. Canal 627,628, 638 
 
 V. Great Northern Railway. . 488 
 
 V. Hammersmith 647 
 
 V. Hull Dock 600,601,602,603,604
 
 INDEX TO CASES CITED. 
 
 XIX 
 
 PAGE 
 
 Regina v. Kentmere 642 
 
 V. Kerrison 511 
 
 • V. Keyn . . 1, 3, 4, 6, 9, 10, 11, 12 
 
 14, 24, 52, 67, 342, 355, 382, 
 397, 399 
 
 V. Kitchener 511, 617 
 
 V. Landulph 93 
 
 V. Leach 422 
 
 V. Lee 14 
 
 V. Leith 609 
 
 V. Lesley 3, 397 
 
 V. Lincoln 523, 525 
 
 V. London, Mayor of 354 
 
 V. ■ Dock 335 
 
 V. and Southwestern 
 
 Railway 638 
 
 V. Longwood 642 
 
 V. Merionethshire 664 
 
 r. Metropolitan Board 52, 89, 195 
 
 649 
 
 v. MiddleLevel Commissioners 519 
 
 521 
 
 V. Mile End 637, 648 
 
 V. Morrison 610 
 
 V. Musson 13, 39, 67, 596 
 
 V. Newport 597 
 
 V. New River Co 641 
 
 V. Sarum 626 
 
 V. North and South Shields. . 624 
 
 V. Peak 394 
 
 ■ V. Petrie 234 
 
 V. Randall.. 15, 96, 416, 423, 426 
 
 v. Saintiff 611,518,663 
 
 V. Salisbury 640, 545, 647 
 
 V. Sattler 3, 397 
 
 V. Southampton 506, 519, 521, 607 
 
 V. Stephens 423 
 
 V. Stimson 343, 349, 352, 394 
 
 • V. Stratford 523 
 
 V. Sutton 531 
 
 V. West Middlesex 635, 639 
 
 V. Wharton 31, 32 
 
 V. Wigg 661 
 
 V. York, Archbishop of 84, 277, 451 
 
 Rex v. Adames 595 
 
 V. Aire and Calder Navigation . . 80, 
 
 451, 586, 621, 629, 631 
 
 V. Baptist Mill 251 
 
 V. Barnes 647 
 
 V. Bath, Mayor of 632, 636 
 
 V. Bilston 636 
 
 ■ V. Bii-d 665 
 
 V. Bridgwater 636 
 
 i>. Bristol 447 
 
 V. Buckingham 613, 662, 663 
 
 • V. Cardington 623, 629, 631, 633 
 
 V. 49 casks of Brandy 37, 38 
 
 V. 2 casks of Tallow 39 
 
 PAGE 
 
 Rex V. Chelmer Navigation 626 
 
 V. Chelsea 635 
 
 V. Clark 15 
 
 V. Coke 619 
 
 V. Collision 623 
 
 V. Crunden 41 
 
 V. Cumberland 623 
 
 V. Derby 506, 522 
 
 V. Devon 506, 513, 522, 523, 525 
 
 V. Dorset 665 
 
 V. Douglas 61 
 
 V. Ecclesfield 531 
 
 V. Ellis 22, 356, 356, 366 
 
 V. Essex 665 
 
 V. Commissioners of Sewers 
 
 for 29 
 
 V. Glamorganshire. . . . 304, 513, 687 
 
 V. Grand Junction Canal . . 626, 627 
 
 V. Grosvenor . . 16, 73, 421, 426, 427 
 
 I'. Hampshire 544 
 
 V. Hayman 527, 530 
 
 V. Hendon 631, 532, 662 
 
 V. Hodges 393 
 
 V. Houldgrave 665 
 
 V. Hull Dock 599, 600, 602, 606, 609 
 
 V. Hunsdon 370 
 
 V. Jones 570, 672, 623 
 
 V. Kent 606, 512, 518, 519 
 
 V. Kerrison 519, 620, 527, 528 
 
 V. liingswinford 638 
 
 V. Lancashire 606, 622, 662 
 
 V. Landuljih 68 
 
 V. Leeds and Liverpool Canal . . 625 
 
 — — • V. Leicestershire Canal 312 
 
 V. Leigh 29, 142 
 
 V. Lincoln 523, 534 
 
 V. Lindall 661 
 
 V. Lindsey 305, 611, 518, 519 
 
 V. Liverpool 607, 623 
 
 V. London (Mayor of) 80 
 
 ■;;. Lower Mitton 634, 635 
 
 V. Macdonald 632, 634, 635 
 
 V. Machynleth 664 
 
 V. Marsden 486 
 
 V. Medley 661 
 
 V. Mersey and L-well 80,84, 461, 621 
 
 V. Middlesex 527, 630 
 
 V. Miller 636 
 
 V. Milton 630 
 
 V. Mirfield 606 
 
 V. Monmouthshire 626 
 
 t;. Montague 61,73,414,416,418,421 
 
 V. Morris 661 
 
 V. Nene Outfall 286 
 
 V. New River Co 638, 641 
 
 V. Nicholson. .274, 621, 622, 631, 633 
 
 V. Northampton 612, 662 
 
 V. North Dufiield 602 
 
 b2
 
 XX 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Rex V. Oswestry 532, 5S4 
 
 V. Oxford Canal 033 
 
 V. Oxfordsliire 51, 54, 511, 514, 
 
 519, 5'27, 530 
 
 V. Page 585, 629, 631 
 
 V, Pagham lievel Commissioners 33, 
 
 147 
 
 V. Palmer 630, 633 
 
 V. Paul 32 
 
 V. Pease 145, 165, 106, 272 
 
 V. Pedley 658 
 
 V. Penegoes 528, 529 
 
 V. Rebowe 617, 620 
 
 V. Regent's Canal 626 
 
 V. Rochdale 635 
 
 V. RusseU . . 34, 396, 426, 427, 428, 
 
 429, 430 
 
 V. St. Austell 251 
 
 V. St. Peter the Great 626 
 
 V. Salop 511, 518 
 
 V. Salter's Sluice 607 
 
 V. Severn and Wye 79 
 
 • V. Smith 58 
 
 V. Somerset 28, 518 
 
 V. Southampton 665 
 
 V. Stamforth 284 
 
 V. Staffordshii-e Canal. .623, 629, 631 
 
 V. Stratford 532, 534 
 
 V. Surrey 524, 532 
 
 V. Sutton 527, 528 
 
 V. Thames and Isis 473 
 
 V. Thomas .... 80, 84, 451, 452, 621 
 
 V. Tindall 73 
 
 V. Trallord 147, 516 
 
 V. Tynemouth 618, 620, 621, 631 
 
 V. "Ward 33, 423, 426, 427, 428, 
 
 429, 661, 670 
 
 V. Watts 436, 438 
 
 V. Whai-ton 55, 93 
 
 V. Whitney 514, 562 
 
 t\ Winstanley 677 
 
 V. Woking 638 
 
 v. Worcester Canal 313 
 
 V. Yarborough 22, 65, 66 
 
 V. Yorkshire (West Riding) 504, 506, 
 
 510, 511, 513, 518, 523, 530, 534 
 
 Reynolds r. Clarke 649 
 
 Rhine, Case of the Navigation of . . 69 
 Ribble Navigation v. Hargreaves . . 575 
 
 Rich V. Bastei-field 658 
 
 V. Kneeland 501 
 
 Richards v. Fry 234 
 
 V. Rose 218, 227, 228 
 
 Richmond and Southwark t?. Richmond 330 
 
 Rickards v. Bennett 540 
 
 Ricket V. Metropolitan Railway .... 661 
 
 Ripon V. Hobart 199, 659, 678 
 
 Riviere v. Bower 218 
 
 PAGE 
 
 Roberts v. Rose 651 
 
 Robbins v. Jones 658 
 
 Robins v. Warwick Canal . . 84, 279, 282, 451 
 
 Robinson v. Addison 312 
 
 V. Byron 117, 666, 668 
 
 V. Dhuleep Singh 366 
 
 Rochdale Canal v. King . . 114, 117, 207, 
 279, 298, 299, 668 
 
 V. Radeliffe . . 53, 230, 235, 
 
 236, 244, 278, 279, 295, 297, 298 
 Rogers v. Allen 336, 338, 339, 352 
 
 V. Brenton 251 
 
 V. Oxford Railway 284 
 
 Rolfe V. Rolfe 134 
 
 Rolle V. Whyte . . 231, 236, 358, 368,392,432 
 
 Rook V. Liverpool 320 
 
 Rooke's Case 28, 32 
 
 Rose V. Groves . . 88, 421, 434, 659, 671 
 
 V. Miles 15, 73, 421, 434, 661 
 
 Ross «'. Fedden 133 
 
 Rossiter v. Pike 391 
 
 RoswcU V. Prior 658 
 
 Rowbotham v. Wilson 215 
 
 Roy r. Boston 549 
 
 Ruck V. WiUiams 273, 457 
 
 Riimsey v. Rawson 205 
 
 Russell V. Devon 662, 663 
 
 V. Harford 222 
 
 V. Shenton 658 
 
 Rutland v. Bowler 109 
 
 Rutter V. Harris 383 
 
 Rylands V.Fletcher. 128, 129, 136, 139, 140 
 Rypon V. Bowles 658 
 
 S. 
 St. Helen's Chemical Works v. St. 
 
 Helen's 172 
 
 V. Tipping.. 151, 152, 153,659 
 
 St. Lawrence, Case of the Navigation 
 
 of the 69 
 
 Salmon v. Bensley 657 
 
 Sampson v. Hoddinot. . 107, 112, 115, 121, 
 122, 202, 237, 239, 243, 659 
 
 V. Savage 655 
 
 Sandwich v. Great Northern Rail- 
 way 116, 119, 120 
 
 Sargent v. Reed 45, 568 
 
 Saunders v. Newman. . 110, 122, 240, 241 
 Saxby v. Manchester Railway . . 653, 658 
 
 Saxonia, The 10, 11, 397, 409 (n.) 
 
 Scotia, The 403 (n.) 
 
 Scratten v. Brown. . 13, 21, 22, 92, 355, 366 
 Seebkristo v. East India Co. . . 22, 23, 58 
 
 Seymour v. Courtenay 338, 340, 362 
 
 ShadweU v. Hutchinson 657 
 
 Shand v. Henderson 284, 290, 299 
 
 Shandrigany v. Sholedam 445 
 
 Sharpe v. Waterhouse 247
 
 INDEX TO CASES CITED. 
 
 XXI 
 
 PAGE 
 
 Shears r. Wood 122 
 
 Sheffield Water Co. v. Bennett 320 
 
 • V. Wilkinson . . 321 
 
 Shoreham v. Lancing 598 
 
 Short V. Tayler 206 
 
 Shroeder v. Smith 577 
 
 Shuttleworth v. Le Fleming 203, 336, 
 
 337, 352, 356 
 
 Sidebottom v. Glossop 320 
 
 Simper v. Foley 262 
 
 Simpson v. Staffordshire Water Co. 84, 
 
 313, 319, 324 
 
 Skinner v. Chapman 342 
 
 Smith V. Brownlow 363 
 
 V. Coudiy 408 (n.) 
 
 • V. Kemp 36, 338 
 
 • v. Kenrick 131, 135, 192 
 
 ■ V. Officers of Scotland 14 
 
 V. Midland Railway 519 
 
 • V. MiUes 649 
 
 V. Shepherd 536, 538, 540 
 
 Smithett v. Blythe 570, 572 
 
 Snape r. Dobbs 280, 374 
 
 Solomon r. Glover 261 
 
 Somerset v. FogweU . . 16, 20, 37, 92, 97, 
 204, 336, 341, 354, 366, 502 
 
 Canal v. Harcourt 84, 206, 
 
 283, 452 
 Southampton and Itchin v. South- 
 ampton 273 
 
 Dock t\ HiU 582 
 
 South Eastern Railway r. Dorling . . 36 
 
 Shields v. Cookson 213, 317 
 
 Spencer's Case 214 
 
 Spokes V. Banbury. . 158, 172, 667, 668, 670 
 
 Stackpoole v. The Queen 39 
 
 Staffordshire Canal v. Birmingham. . 53, 
 
 232, 235, 255, 277, 294 
 
 V. HaUam 303 
 
 ■ V . Trent and Mersey 312 
 
 Stamford v. Paulet 577 
 
 Stanley of Alderley v. Shrewsbury . . 208 
 
 Steggles V. New River Co 324 
 
 Steinson v. Heath 540 
 
 Stephens v. Coster 567 
 
 Stockport t'. Potter .. 112, 133, 119, 123, 
 124, 127, 153, 156, 170, 250 
 Stockton and Darlington Railway v. 
 Barrett. . . . 276, 332, 571, 575, 580, 584 
 
 Stone i\ Teovill 316, 323 
 
 Stourbridge CanaU'. Dudley. .198, 199,281 
 
 V. Wheeley 276, 308, 
 
 332, 584, 585 
 
 Strick V. Swansea Canal 310, 482 
 
 Stm'ges V. Bridgman 238 
 
 Success, The 3, 397 
 
 Suffield V. Brown. .216, 219, 220, 223, 225, 
 
 226, 227 
 
 PAGE 
 
 Sury V. Pigott 218, 262 
 
 Sutcliffe V. Booth. . 107, 127, 154, 200, 248, 
 
 250, 260 
 
 Sutton V. Buck 37, 38 
 
 V. Clark 272 
 
 Pool Case 431 
 
 Swansborough v. Coventry. , 218, 224, 228 
 
 Swatman v. Ambler 545 
 
 Swindon v. Wilts and Berks Canal , . 115, 
 
 116, 117, 120, 123, 157, 169, 
 
 659, 660, 667, 668 
 
 T. 
 
 Talargoch Mining Co. v. St. Asaph . . 636 
 
 Talbot V. Lewis 37, 40 
 
 Tamar Navigation v. Wagstaffe .... 586 
 Tame v. Grand Junction Canal .... 591 
 
 Tapling v. Jones 242, 295 
 
 Taylor v. Bennet 169, 669 
 
 V. St. Helens 51, 102, 210 
 
 V. Waters 205 
 
 Tenant r. Goldwin. . 133, 151, 153, 200,224 
 
 Teniel v. Harslop 341 
 
 Thames Timnel Co. v. Sheldon 312 
 
 Thicknesse v. Lancaster 286 
 
 Thomas v. Jones 390 
 
 V. Thomas 261, 262, 263 
 
 Thompson v. GUbert 658 
 
 Tibbets v. Torke 312 
 
 Tickle V. Brown 232 
 
 Tinam, ex parte 479 
 
 Tirmey v. Fisher 341 
 
 Tipping V. Eckersley. . 170, 171, 668, 670 
 
 Tisdell V. Combe 468 
 
 Todd V. Fhght 658 
 
 Todhunter r. Buckley 467 
 
 Tone (Conservators of) v. Somerset . . 452 
 
 Topsell V. Ferrers 551 
 
 Trafford v. The King 53 
 
 Trinity House v. Clark 570, 572 
 
 V. Sorsbie 571 
 
 r. Staples 570, 572 
 
 Tripp V. Frank 490, 493 
 
 Trotter v. Hai-ris 486, 491 
 
 Truman v. Walgham 536, 640 
 
 Tucker v. Newman 134, 655, 656 
 
 Tyne Commissioners v. Chu-ton .... 609 
 
 Keehnen r. Davidson 582 
 
 r. Elliott 582 
 
 Tyringham's case 215, 218 
 
 Tyson r. Smith 239 
 
 U. 
 
 Umfreville i\ Johnson 656 
 
 Upton V. Dawkins 339, 671
 
 xxn 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Vallego V. Wheeler 570, 572 
 
 Vemou V. Prior 79 
 
 Vice V. Thomas 251 
 
 Vigilantia, The 3, 397 
 
 Vinkensteme v. Ebdcn. . 46, 47, 546, 556, 
 568, 577, 665 
 
 Vooght V. Winch 61, 73, 414, 419 
 
 Vrow Anna Catherina, The 3, 397 
 
 W. 
 
 Walker v. Jackson 
 V. Loe . . . , 
 
 Waller v. Manchester 
 
 Wallis V. Harrison 
 
 Ward V. Cresswell 36, 343, 
 
 V. Gray 
 
 V. Lee 273, 
 
 V. Ward 
 
 V. Wolverhampton 
 
 Wardle v. Brocklehurst 210, 221, 
 
 Warren v. Matthews. . 36, 37, 91, 344, 
 
 ■ V. Prideaux 46, 536, 539, 
 
 Wai-rick v. Queen's College .... 234, 
 
 Watercourse case, 2 Eq. Abr 
 
 Waterford (Mayor of), Case of the . . 
 
 and Limerick Railway v. 
 
 Kearney 
 
 Waterlow v. Bacon 
 
 Watkins v. Gravesend 612, 
 
 V. Milton 80, 
 
 Wattsy.Kelson..210,216,221,226,227, 
 
 V. Lucas 
 
 Weald of Kent Canal v. Robinson . . 
 
 Weale v. West Middlesex 
 
 Wear Kiver Commissioners v. Adam- 
 son 29, 30, 139, 142, 435, 
 
 Webb f. Bird 
 
 V. Paternoster 
 
 Weeks v. Howard 660, 
 
 Weld V. GasUght Co 
 
 V. Hornby 359, 368, 
 
 Weller v. Smeaton 
 
 Westbury v. Powell 
 
 West Cirmberland Iron Co. i'. Kenyon. 
 
 MiddlesexWaterCo.v.Suerki'op 
 
 Weymouth (Mayor of) v. Nugent. . . . 
 Whaley V. Laing..ll2, 123, 155, 157, 
 
 Wheeldon v. Burrows 216, 
 
 Wheland v. Hewson 
 
 White V. Bass 218, 225, 
 
 V. Feast 
 
 V. Phillips 
 
 Whitehead v. Parks 196, 
 
 Whitehouse v. Birmingham .... 145, 
 
 f.rellowes..272,273, 453, 
 
 Wickford r. Bill 
 
 501 
 303 
 319 
 205 
 358 
 517 
 457 
 263 
 325 
 228 
 358 
 550 
 368 
 206 
 555 
 
 526 
 261 
 615 
 614 
 229 
 391 
 312 
 321 
 
 439 
 238 
 205 
 669 
 145 
 671 
 669 
 238 
 135 
 321 
 570 
 250 
 222 
 345 
 226 
 394 
 434 
 213 
 288 
 457 
 650 
 
 PAGE 
 
 Wickham'a Case 623 
 
 V. Hawker 336 
 
 Wiggins V. Boddington 518, 661 
 
 Wightly Canal v. Badley 280 
 
 Wilkes V. Hungerford 88 
 
 V. Kirby 46, 539, .547 
 
 Williams' Case 434 
 
 ■ — — V. Gutch 409 (n.) 
 
 V. Jersey 206 
 
 V. Jones 622 
 
 V. Moreland 108, 110, 120 
 
 V. Wilcox. . 58, 72, 96, 357, 367 
 
 417, 432, 444 
 
 Willoughby v. Horridge 501 
 
 Wilson V. Peto 657 
 
 V. Robertson 575 
 
 V. Townend 666 
 
 V. Townsend 655 
 
 V. Waddell 127, 133, 134 
 
 Winch V. Conservators of the Thames . . 79, 
 
 80, 85, 299, 454, 455 
 
 Wingate v. Waite 31 
 
 Winter v. Brockvvell 205, 209 
 
 Winterbotham r. Derby 653, 661 
 
 AVishart v. Wyllie 71, 360, 362 
 
 Witherley v. Regent's Canal 289 
 
 Withers v. North Kent Railway .... 142 
 
 Wood V. Leadbitter 205, 206 
 
 V. Luke 205 
 
 V. Manley 205 
 
 V. SutclifEe .... 157, 159, 170, 171, 
 
 243, 666, 667, 670 
 
 V. Waud. .53, 107, 127, 151, 1.54, 170, 
 
 189, 200, 242, 248, 249, 258 
 
 Woodhouse v. Etheridge 383 
 
 Woodi-up Sims, The 407 (n.) 
 
 Woodyer v. Haddon 234 
 
 Womersley v. Church 153, 170, 200 
 
 Worcester v. Droitwich 643 
 
 Worthington v. Gimson 216 
 
 Wright f. Brewster 577 
 
 t\ Howard 107,111,116 
 
 r. Williams. . 170, 232, 234, 242, 251 
 
 Wy at Wild's case 215 
 
 Wyatt V. Thompson 420, 567 
 
 T. 
 
 Yard v. Ford 653 
 
 Yarmouth (Mayor of) v. Eaton. . . .46, 47, 
 
 538, 551 
 Yeaw r. Holland 26 (sub nom. Jean • 
 
 V. Holland) 449 
 
 Yorkshire (West Riding) r. the King. 525 
 
 Z. 
 
 Zangers v. Wliiskeard 79 
 
 Zollverein, The 409 (n.)
 
 INDEX TO THE PUBLIC STATUTES CITED. 
 
 PAGE 
 
 Magna Charta (9 Hen. III., 20 Hen. 
 III., 25 Edw. I.) .... 15, 37, 444, 504, 
 
 532, 537 
 
 3 Edw. I. c. 4 (Stat, of West. 1st) . . 38 
 
 c. 31 ,, ,, .. 538 
 
 12 Edw. I. c. 7 444 
 
 13 Edw. I. c. 47 (Stat, of West. 2nd) 443 
 
 5 Edw. III. c. 14 593 
 
 25 Edw. III. c. 4 (Weirs) .... 357, 433, 
 
 444, 449 
 
 45 Edw. III. c. 2 ( ,, ) 357 
 
 46 Edw. III. c. 1 5 38 
 
 7 Rich. II c. 5 (Poor Law) 593 
 
 12 Rich. II. c. 7 ( ,, ) 593 
 
 13 Rich. II. c. 19 443 
 
 15 Rich. II. 0. 3 (Admu-alty Courts) 3, 
 
 397 
 
 c. 6 593 
 
 17 Rich. II. c. 9 (Weirs and Fish) . . 367, 
 
 443, 448, 463 
 
 1 Hen. IV. 0. 12 (Weii-s and Fish) . . 357, 
 
 443, 444 
 0. 16 38 
 
 4 Hen. IV. c. 1 1 (Fish) 359 
 
 1 Hen. V. c. 2 (Weii's) 449 
 
 2 Hen. VI. c. 19 (Fish) 359 
 
 3 Hen. VI. c. 5 449 
 
 6 Hen. VI. c. 5 (Sewers) 24, 445 
 
 12 Edw. IV. c. 7 ( ,, ) . . 357, 359, 368 
 
 11 Hen. VII. c. 2 (Poor Law) 593 
 
 19 Hen. VII. c. 12 ( ,, ) .... 593 
 
 c. 18 (Sewers) 449 
 
 22 Hen. VIII. c. 5 (Bridges) . . 504, 505, 
 
 513, 514, 532, 662 
 c. 12 (Poor Law) 693 
 
 23 Hen. VIII. c. 5 (Sewers) . . 24, 25, 28, 
 
 31, 445, 449 
 
 c. 12 (Sewers) 449 
 
 27 Hen. VIII. c. 25 (Poor Law) 593 
 3 & 4 Edw. VL 0. 16 ( „ ) 593 
 2 (& 3 Phil. & Mary c. 5 ( ,, ) 593 
 1 Eliz. c. 17 (Fish) 443 
 
 5 Eliz. c. 3 (Poor Law) 593 
 
 13 Eliz. c. 9 (Sewers) 24, 445 
 
 PAGE 
 
 18 Eliz. c. 3 (Poor Law) 593 
 
 39 Eliz. c. 3 ( ,, ) 593 
 
 43 Eliz. c. 2 ( „ ) .. 593, 594, 607, 
 622, 624, 686 
 
 7 Jac. I. c. 18 42 
 
 3 Car. I. 0. 4 (Poor Law) 593 
 
 16 & 17 Car. II. c. 12 451, 459 
 
 22 Car. II. c. 11 567 
 
 1 Anne, st. 1, c. 7 (Crown Lands). , 15 
 c. 12 (Bridges) 505 
 
 12 Geo. II. c. 29 (Bridges) 507 
 
 14 Geo. II. 0. 33 ( „ ) 507 
 
 13 Geo. III. 0. 78 ( „ ) 507,664 
 
 34 Geo. IIL c. 59 ( „ ) . . , . 509, 510 
 
 41 Geo. III. c. 23 (Poor Rate) 630 
 
 43 Geo. III. c. 59 (Bridges) 506, 507, 521 
 
 523, 524, 662, 664 
 
 0. 132 (Warehousing) 567 
 
 52 Geo. III. 0. 110 (Bridges) 507 
 
 54 Geo. III. 0. 90 ( ,, ) 507 
 
 c. 158 (Navigation) 474 
 
 c. 170 (Poor Law) 530 
 
 3 Geo. IV. 0. 126 (Turnpikes) 590 
 
 5 Geo. IV. c. 83 (PoHce) 479 
 
 6 Geo. IV. c. 125 (Pilotage) 409 
 
 1 & 2 Wm. IV. 0. 32 (Game) 362 
 
 c. 33 (Improvement of Land) .... 446 
 
 2 & 3 Will. rV. 0. 71 (Prescription 
 
 Act) 232, 252, 256, 259, 296, 
 297, 337, 541 
 
 3 & 4 Will. IV. c. 22 (Sewers) 24, 31, 445 
 
 c. 52 (Customs) 39 
 
 c. 90 (Li^-hting and Watching) . 599 
 
 4 & 5 Will. IV. 0. 36 (Central Cri- 
 
 minal Court) 3, 398 
 
 5 & 6 WiU. IV. c. 50 (Highways and 
 
 Bridges) . .506, 509, 514, 664 
 c. 76 (Municipal Corporations) .. 526 
 
 6 & 7 Will. IV. c. 96 (Poor Rate) . . 594 
 
 2 & 3 Vict. c. 61 (River Shannon) . . 460 
 
 3 & 4 Vict. c. 50 (PoHce) 480 
 
 c. 65 (Admiralty Court) 398 
 
 c. 88 (Constables) 377 
 
 4 & 5 Vict. c. 49 (Bridges) 508
 
 XXIV 
 
 INDEX TO THE PUllLIC STATUTES CITED. 
 
 PAGE 
 
 4 & 5 Vict. c. 57 (nichard Fishery) 385 
 
 5 & 6 Vict. 0. 89 (Improvemcut of 
 
 Laud) 44G 
 
 7 & 8 Vict. c. 61 (County Bridges) . 526 
 
 8 & 9 Vict. c. 16 (Compauies Clauses 
 
 Act) ..313, 310, 481 
 0. 17 (Companies Clauses Act) . . 481 
 c. 18 (Lands Clauses Act) .. 313, 315, 
 316, 325, 326, 328, 488, 495 
 c. 20 (Railway Clauses Act) 488, 495, 
 508, 519, 526 
 c. 28 (Canal Tolls) 310, 311, 480, 482 
 
 c. 42 (Canal Traffic) 310, 480 
 
 0. 118 (Enclosure) 446 
 
 9 & 10 Vict. c. 93 (Death— Represen- 
 
 tatives) 287, 305 
 
 10 & 11 Vict. c. 15 (Gasworks Clauses) 172 
 
 c. 17 (Waterworks Clauses) .... 171, 
 
 313, 315, 318, 319, 320, 
 
 321, 322, 326, 329 
 
 c. 27 (Harbours, Docks, and Piers) 44, 
 
 331, 400, 440, 576 
 
 c. 34 (Towns Clauses Act) 174 
 
 c. 38 (Drainage) 446 
 
 c. 94 (Canal Traffic) 310,481 
 
 11 & 12 Vict. c. 63 (Public Health) . 327, 
 
 444, 446 
 c. 112 (Public Health) 446 
 
 12 & 1? Vict. c. 93 (Drainage) .... 446 
 
 c. 100 ( ,, ) 446 
 
 13 & 14 Vict. c. 64 (Bridges) 508 
 
 14 & 15 Vict. c. 34 (Lodging Houses) 330 
 
 15 & 16 Vict. c. 76 (Common Law 
 
 Procedure) .... 650 
 
 16 & 17 Vict. c. 107 (Customs) 44 
 
 17 & 18 Vict. c. 31 (Railway& Canal 
 
 Traffic).. 310, 481, 482, 483 
 
 17 & 18 Vict. c. 104 (Merchant Ship- 
 
 ping) .. 39, 401, 408, 410 
 
 18 & 19 Vict. c. 3 (Fishery) 343 
 
 c. 91 (Merchant Shipping) 401, 
 
 411, 485 
 
 c. 116 (Public Health) 446 
 
 c. 119 (Passengers) 411 
 
 c. 120 (PubUcHealth) . . 166, 437,445, 
 
 446,464 
 
 c. 121 (Nuisance Removal) .... 14, 68 
 
 c. 122 (Public Health) 326 
 
 19 & 20 Vict. c. 9 (Drainage) 446 
 
 20 & 21 Vict. c. 43 (Justice of Peace) 394, 
 
 613 
 
 21 & 22 Vict. c. 75 (Canal Traffic) . . 481 
 
 c. 97 (Local Government) ..446,669 
 c. 98 ( ,, ,, ) ..327,446 
 
 c. 104 ( ,, ,, ) ..446,464 
 
 0. 109 (Cornwall Duchy) 10 
 
 23 & 24 Vict. c. 77 (Public Health) . . 174 
 c. 106 (Lands Clauses Act) . .316,326 
 
 PAGE 
 
 24 & 25 Vict. c. 10 (Admiralty Court) 398 
 
 c. 45 (Harbours) 45, 400 
 
 0. 47 (Passing Tolls Act) . . . .45, 400 
 c. 61 (Local Government) . . 166, 327, 
 
 669 
 
 c. 70 (Locomotives Act) 517 
 
 c. 96 (Larceny Act) 374, 392 
 
 c. 97 (Malicious Injuries) . . 174, 336, 
 
 394, 475, 508 
 
 c. 109 (Salmon Fisheries) . . 173, 351, 
 
 374, 376, 379—392 
 
 c. 1 33 (Sewers and Drainage) . . 24, 446 
 
 25 & 26 Vict. c. 63 (Merchant Ship- 
 
 ping) 401, 402, 404, 407, 411 
 
 c. 69 (Harbours) 45, 400 
 
 c. 102 (PubUc Health) 165, 446 
 
 26 & 27 Vict. c. 10 (Exportation of 
 
 Salmon) 374 
 
 c. 51 (Passengers) 411 
 
 c. 92 (RailwaysClausesAct). 476,482 
 
 c. 93 (Waterworks Clauses Act) 315, 
 
 326, 329 
 
 c. 1 18 (Companies Clauses Act) . . 316 
 
 27 & 28 Vict. c. 3 (Mutiny) 517 
 
 c. 47 (Penal Servitude) 508 
 
 c. 113 (Thames Conservancy) .. 374, 
 
 463, 464—471 
 
 c. 114 (Improvementof Land). 330, 446 
 
 28 & 29 Vict. c. 75 (Sewage) . . . .174, 446 
 
 c. 121 (Sahnon Fishing) 374,376—391 
 
 29 & 30 Vict. c. 89 (Thames Naviga- 
 
 tion) 374,455,463,478 
 
 c. 90 (PubHc Health) 327 
 
 30 & 31 Vict. c. 113 (Sewage) 446 
 
 c. 124 (Merchant Shipping) 401 
 
 c. 142 (County Com-ts) 654 
 
 31 & 32 Vict. c. 45 (Sea Fisheries) . . 11, 
 
 343, 375, 381, 382, 385 
 
 c. 122 (Poor Law) 13, 68, 597 
 
 c. 129 (Merchant Shipping) 401 
 
 32 & 33 Vict. c. 1 1 (Merchant Shipping) 401 
 
 c. 18 (Lands Clau.ses Act) 316 
 
 c. 48 (Companies Clauses Act) . . 316 
 c. 67 (Valuation) 641 
 
 33 & 34 Vict. c. 70 (Gas and Water) 325, 326 
 
 c. 73 (Bridges) 508, 523 
 
 c. 75 (Education) 485 
 
 c. 95 (Passengers?) 411 
 
 34 & 35 Vict. c. 70 (Local Government) 446 
 
 c. 110 (Merchant Shipping-) 401 
 
 35 & 36 Vict. c. 73 (Merchant Ship- 
 
 ping) 401 
 
 c. 79 (Public Health) 446 
 
 c. 91 (Municipal Corporations).. 330 
 
 36 & 37 Vict. c. 48 (Canal Traffic) . . 310, 
 
 482, 483 
 c. 66 (Judicature Act) . .407, 650, 654 
 c. 71 (Fisheries) ..173, 374, 377— 3P2
 
 INDEX TO THE PUBLIC STATUTES CITED, 
 
 XXV 
 
 PAGE 
 
 36 & 37Vict. c. 85 (Merchant Shipping) 401, 
 
 407 (n.) 
 
 c. 86 (Education) 485 
 
 c. 89 (Qas and Water) 326 
 
 37 & 38 Vict. c. 40 (Ai-bitration) 310, 
 
 483 
 
 0. 54 (Poor Law) 625 
 
 c. 60 (River Shannon) 461 
 
 c. 89 (Public Health) 174, 327 
 
 38 & 39 Vict. c. 17 (Explosives Act) . . 483 
 
 c. 31 (Public Works) 446 
 
 c. 55 (Public Health).. 172, 328, 446, 
 
 509, 661 
 
 c. 77 (Judicature Act) . .650, 654, 656 
 
 c. 86 (Conspiracy) 330 
 
 c. 89 Public Works Loans Act) . . 45, 
 
 400 
 
 PAGE 
 
 39 & 40 Vict. c. 19 (Sahnon Fisheries) 
 
 374—392 
 c. 31 (Public Works LoansAct) .. 446 
 
 c. 34 (Severn Fisheiy) 374 
 
 c. 75 (Rivers Pollution Act) 174—188 
 
 c. 79 (Education) 485 
 
 c. 80 (Merchant Shipping) . .401, 402 
 
 40 & 41 Vict. c. 14 (Bridges) 509 
 
 c. 16 (Wrecks Removal Act) . .45, 400 
 
 c. 31 (Drainage) 330 
 
 c. 60 (Canal Boats) 484 
 
 c. 65 (Fisheries Dynamite Act) . . 385, 
 
 392 
 
 41 & 42 Vict. c. 39 (Freshwater Fisheries) 
 
 374, 378, 380, 383, 384, 385, 392 
 c. 73 (Territorial Waters) . . 8, 11, 397 
 c. 77 (Bridges) 509
 
 ADDENDA ET EERATA. 
 
 Page 1, note (2) — For "per Lord Keuyou, in BlundcU v. Cattcral,'''' read "per Lord 
 Kcnyon, in Bull v. Herbert, cited in Bliuulell v. Catteraiy 
 
 Page 3, line 13— For " stat. 3 Rio. II." read " stat. 15 Ric. 11. c. 3." 
 
 Page 14 — By 29 & 30 Vict. c. 62, s. 7, all rights and interests of the Crown in the 
 shore of the sea, creeks, estuaries and tidal rivers are transferred from the manage- 
 ment of the Commissioners of Woods and Forests to the Board of Trade. 
 
 Page 15, line 25 — For "sea," read "sea shore." 
 
 Page 44, line 22— For "17 & 18 Vict.," read " IG & 17 Vict. ;" and in note (2), for 
 "500" )Yw;"535." 
 
 Page 102, line 8 — For "natural," read " i/atura;.'' 
 
 Page 150, note (5), line 26 — For "continue," read "combine." 
 
 Page 184 — Instead of note (1) read as follows: — 
 
 "The expression ^ other rights or powers' in this section makes it somewhat 
 difficiilt of construction, but if read in connection with the preamble to the Act it 
 would seem to be the intention of the legislature not to interfere with easements 
 of pollution acquired before the passing of the Act, but to prevent the acquisition 
 of such easements for the future." 
 
 Page 426 (side-note) — For "destruction," read " obstraction." 
 
 Page 463, line 6 — For "c. clxvii," read " c. cxlvii." 
 
 Page 473, line 4 — For " c. 113," /vad " c. cxlvii." 
 
 Page 532, note (1)— For " c. 75," read " c. 5." 
 
 Page 662, line 12— For " 22 Hen. III.," read " 22 Hen. VIII."
 
 %h §ato rclatinc) fa Maicr.^. 
 
 CHAPTER I. 
 
 OF THE SEA, AND EIGHTS THEREIN. 
 
 T/ie High Seas. 
 
 The liigli seas include the whole of the seas helow low Definition, 
 water mark and outside the body of a county.^ 
 
 The realm of England only extends to low water mark, 
 and all beyond is the high seas.- 
 
 The reason of the thing, the preponderance of authority, Property in 
 and the practice of nations, have decided that the main 
 ocean, inasmuch as it is the necessary highway of all 
 nations, and is from its nature incapable of being con- 
 tinuously possessed, cannot be the property of any one 
 
 bed. 
 
 ^ As to this see Reg. v. Keyn, 2 
 Ex. Div. 63, see 2)ost; see also 
 Leigh v. Buzleg, Ow. 122, per Lord 
 Coke, C. J. 
 
 - It seems certainly ta have been 
 the general opinion of writers on 
 international law that the terri- 
 tory of a state extends to the dis- 
 tance of three miles or more, or the 
 distance of a cannon shot, seaward 
 from low water mark ; but the case 
 of Meg. V. Keyn, 2 Ex. Div. 63, 
 which will be noticed later, estab- 
 lishes the proposition stated in the 
 text, Cockbrn-n, C. J., remarking 
 that wi'iters on international law, 
 however valuable their labours may 
 be in elucidating and ascertaining 
 the principles and rules of law, can- 
 not make the law. To be binding. 
 
 the law must have received the 
 assent of the nations who are to be 
 bound by it. This assent may be 
 express, as by treaty or the acknow- 
 ledged concurrence of governments, 
 or may be implied from established 
 usage; see p. 201. Cf. per Lord 
 Kenyon in Blundcll v. Catteral, 5 
 B. & A. 268. See also as to this, 
 Selden, Mare Clans., bk. 2 ; Hale 
 de Jure Maris, Harg. Tr. p. 10; 
 Grotius de Jure Belli, lib. ii. c. 2, 
 s. 13; Bynkershoek deDom. Mar. ; 
 Vattel, Droit des Gens, s. 288; 
 Hautefeuille, Droit Maritime, p. 
 197; Ortolan, Diplomatic de la 
 Mer, liv. 2, c. 8; Wheaton's Inter- 
 national Law, by Boyd, p. 237; 
 Phillimore' s International Law, vol. 
 1, cc. vi. and vii. 
 
 B
 
 OF TTIE SEA, AND RIGHTS THEREIN. 
 
 State. It is possible, however, tliat a nation may acquire 
 exclusive right of navigation and fishing of the main 
 ocean as against another nation, hy 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 in- 
 stances of such renunciations both in ancient and modern 
 times.^ It would appear also that a nation may give a 
 tacit consent to the appropriation of certain portions of the 
 sea for fishing and navigation by nan user? 
 
 The free navigation, commerce, and fishery in the high 
 seas is therefore the common right of all mankind ; ^ 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 occupied for a sufficient time 
 by any one nation to give a prescriptive right to that por- 
 tion, by the acquiescence of the other nations. The writers 
 on international law have cpestioned how far that parti- 
 cular 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 
 uninterrupted possession of territory or other property for 
 a certain length of time by a State excludes the claim of 
 every other.^ It would also appear, that when the sea or 
 the bed on which it rests can be physically occupied per- 
 manently — as by the erection of piers, harbours, break- 
 waters or forts — it may be the subject of occupation, the 
 same as an occupied territory, independently of prescrip- 
 tion. In point of fact, such encroachments are generally 
 made for the benefit of the navigation, and are therefore 
 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 
 
 1 Phillimore'slntemationalLaw, ^ ^^Tieaton's International LaTV, 
 
 Tol. 1, pp. 210, 211. by Boyd, p. 251. 
 
 " Vattel, Droit dcs Gens, t. 1, " ^ Ibid. p. 220. 
 c. xxiii.
 
 THE HIGH SEAS. 3 
 
 for complaint as inconsistent vdth. international rights, 
 might, if the case arose, be deserving of serious considera- 
 tion.^ 
 
 The high seas, as has been said, are open to all the Navigation, 
 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.- 
 
 The English Court of the Admii-alty has from the earliest 
 times exercised criminal jurisdiction over English ships on 
 the high seas all over the world.^ By stat. 3 Hic. II., 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 concurrent jurisdic- 
 tion •«'ith 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 (^ 5 Will. IV. c. 36. 
 
 Although the laws of trade and navigation cannot affect Merchant 
 foreigners beyond the territorial jmisdiction of a State so i864^T^527^ ' 
 as to render them criminally liable to those laws, the 
 English legislature has asserted a certain dominion over 
 foreign ships by the 527th section of the Jlerc/iaiit S/iippi/ir/ 
 Act, 17 i^ 18 Vid. c. 104. This section provides that 
 " Whenever any injury has in any part of the world been 
 " caused to any property belonging to her Majesty, or to 
 " any of her Majesty's subjects, by any foreign ship, if 
 " at any time thereafter such ship is found in any port or 
 
 ' Cockbum, C. J., Eeg. v. Kcyn, ^ Foreigners on board English 
 
 2 Ex. Div. p. 198. ships are subject to English law. 
 
 - Reff. V. Keyn, 2 Ex. Div., per See Reg. v. Sattler, Dears. & B., 
 
 Kellv, C. B., p. 217; The Vigi- Cr. C. 525; Reg. v. Anderson, L. 
 
 lantia, 1 C. Rob. 1; The Trow E,., 1 Cr. C. 161; Reg. v. Leslei/, 
 
 Anna Cathcrina, 5 C. Rob. 161 ; Bell, Cr. C. 220. 
 The Sxccess, 1 Dodds, Ad. 131. 
 
 i; 2
 
 4 OF THE SEA, AND RIGHTS THEREIN. 
 
 " river of the United Kingdom, or witliin three miles of 
 " the coast, if it be shown that such injury was probably 
 " caused by misconduct or want of skill of the master or 
 " mariners, it may be detained until satisfaction be made 
 " for the injmy, or security be given to abide the event of 
 " any action or suit." Cockburn, C. J., doubts whether 
 this section would apply to a ship on a foreign voyage, as 
 the authority is to detain and not to mzc, and would seem 
 applicable only to a vessel voluntarily seeking our waters 
 otherwise than for the purpose of passage, and so bringing 
 itself within our jm-isdietion.^ 
 
 Pirates. Pirates, being the common enemies of all mankind, and 
 
 all nations having an equal interest in their apprehension 
 and punishment, they 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.^ 
 
 Tolls. The sea, being the great highway of the world, no tolls 
 
 are 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 con- 
 sideration for a toll, — such as the formation of ports, har- 
 bom^s, and the like, and the maintenance of lights, buoys 
 and beacons.^ "If," says Hale, C. J., "any man will pre- 
 " scribe for a toll upon the sea, he must allege good con- 
 " sideration; because, by Magna Charta and other statutes, 
 " every man has a right to go and come upon the sea 
 " without impediment."^ An Act of Parliament will, of 
 course, be effectual to enforce a toll anywhere within its 
 operation.^ The right of navigation includes the right of 
 anchoring ; and no tolls can be taken for anchorage unless 
 in a port or harbour.^ 
 
 Fishciy. There is no hmit imposed by the common law or by 
 
 1 Reg. V. Kcyn, 2 Ex. Div. p. 218. stable, 11 H. L. 193. 
 
 - Wheaton's International Law, * 1 Mod. 105. 
 
 p. 1G8. As to '■'■Xavigation,^^ see ^ Woolrych on "Waters, p. 299. 
 
 more fully Chap. VII. « Gann v. Free Fishers of Whit- 
 
 ^ Hale de Jure Maris, Harp-. Tr. sfahle, supra. As to tolls, see fur- 
 
 ol ; Gann v. Free F'tslurs of If'/iil- tlier p. 45, j^ost, and Chap. VIII.
 
 THE HIGH SEAS. O 
 
 international 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 jwn user, from participating in this com- 
 mon right at certain places in favour of other nations.^ 
 Where this right is exercised by several nations, the cus- 
 toms of other nations must be respected, even in places 
 which are free to all the world.^ 
 
 Although, as has been stated, the realm of England only Territorial 
 extends to low water mark, and all beyond is high seas, j,^fs^'ction 
 yet the common consent of civilized independent States, of the Crown, 
 which constitutes international law, has undoubtedly ap- 
 propriated a certain poiiion of the high seas washing the 
 shore of each State to that State for the fuller enjoyment 
 and protection of its rights. The distance to which these 
 so-called territorial waters extend appears generally to be 
 fixed at three nautical miles ; but this distance is not abso- 
 lute, and is liable to be altered by the provisions of parti- 
 cular treaties.^ The extravagant doctrine laid down by 
 Sckicii in his Marc clausum, and followed by Hale de Jure 
 Maris, 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 recent case, Reg. v. Keijn, a vexata 
 qucesfio, 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 
 
 ' Phillimore's International Law, Gra)tvUlc, 1 Taimt. 248. As to 
 
 vol. 1, p. 213; Vattel, t. 1, 1. 1, " Fis/icr;/," see further Chap. VI. 
 
 c. xxiii., sec. 286. ^ Phillunore'sIuternatioualLaw, 
 
 - Fcnn'wgs and others v. Lord vol. 1, p. 237.
 
 C OF THE SEA, AND RIGHTS THEREIN. 
 
 riglit, but on tlie acquiescence of other nations, and so 
 limited by sucb acquiescence to the particular purposes for 
 which such dominion has been acquiesced in. 
 rwrj. v. Kojn. In the case of Reg. v. Kcyn^ 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 man- 
 slaughter by English law. The learned judge at the trial, 
 Pollock, B., reserved the question of jurisdiction for the 
 Court for Crown Cases Reserved. The case was twice argued ; 
 the second time before fourteen judges, and the conviction 
 was cj^uashed 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 Coui't. 
 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 
 colHsion occurred was or was not within the British 
 territory. The minority of the Court, Lord Coleridge, 
 C. J., Brett and Amphlett, JJ. A,, Grrove 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 nation, and that every enact- 
 ment, 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. Denmau, J., agreed with the 
 minority on the ground that the act causing death was 
 
 1 2 Ex. Div. 63.
 
 THE HIGH SEAS. ", 
 
 committed on board the English ship, and so constructively jicff. v. Kci/n. 
 on British territory. The majority of the Court, Cock- 
 burn, C. J., Kelly, C. B., Bramwell, J. A., Lush and 
 Field, JJ., Sir E. Phillimore and Pollock, B., held that 
 the Central Criminal Com-t had no jurisdiction, and 
 quashed the conviction. The elaborate judgment of Cock- 
 burn, C. J., with which the majority of the Court substan- 
 tially 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 in- 
 terests, yet such concurrent assent that a portion of what was 
 before treated as the high seas, and, as such, common to 
 tlie 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 R. 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.^ " 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 
 1 2 Ex. Div. 238.
 
 b 01' THE SEA, ANJJ RIGHTS THEIIEIN. 
 
 " aud tlio common consent of nations, wliicli constitute 
 " 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 Grreat Britain, and the same or ecjuivalent phrases are 
 " used in some of our statutes, denoting that this belt of 
 " sea is imder 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 
 " Eichard 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 jm-is- 
 " diction was confined to British ships. Therefore, al- 
 " though as between nation and nation these waters are 
 " British territory, as being under the exclusive dominion 
 " of Grreat Britain, in judicial language they are out of 
 " the realm, and any exercise of criminal jm-isdiction 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 Vict. The Territorial Waters Aet, 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 inter- 
 national law to be within the territorial waters of her
 
 THE HIGH SEAS. 'J 
 
 Majesty, and declariug 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 
 lie is or is not a subject of her Majesty within the terri- 
 torial 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 commits it may be arrested and 
 tried and punished accordingly. 
 
 This statute does not enlarge or declare the law as to Title of the 
 the ownership of the bed of the sea below low water mark, prown to soil 
 
 ■■■ , _ _ ' below low 
 
 and it would appear, according to the decision of Reg. v. water mark as 
 
 Keyn, that as no statute has been passed so appropriating nftions.° 
 
 it, except in the 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 dii-ectly raised apart from the question of 
 
 jurisdiction; and though it woidd aj^pear 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 Gammcll v. Conunissiouers of TToods and Forests,^ 
 
 Lord Wensleydale, 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 GaiDi v. Free Fishers of JF/u'tsfab/e.^ 
 
 That the Crown can acquire a title to mines below low As against a 
 water mark as against a subject, is shown by the dispute '^^^^i*^^*- 
 
 1 As to this see Blachjwol Tier & 32 Vict. c. 122, s. 27. 
 V. Fi/ldc Union, 46 L. J., M. C. 189, ■ 3 McQueen, H. L. 419. 
 
 where the Court of Common Pleas ^ jl C. B., N. S. 387; 11 H. L. 
 
 held that the part of a pier below 192; sec also judgment of Brett, 
 
 lowwatermarkwasout of the realm, J. A., in lie//, v. Kci/u, 2 Ex. Div. 
 
 and so not rateable to the poor as p. 121. 
 an extra parochial place within 31
 
 lu 
 
 OF THE SEA, AND RIGHTS THEREIN, 
 
 Protcctiou of 
 revenue, etc. 
 
 Navio'ation. 
 
 between the (Jrown and the Diicliy of Cornwall, which 
 resulted in the siat. 21 t^ 22 Vict. 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 Eoyal 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 ten-itorial possessions of 
 the Crown. ^ 
 
 Various treaties and statutes for the maintenance of 
 neutral rights during war, and the prevention of breaches 
 of the revenue 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 measui-es as it 
 may deem necessary for the protection of its revenue within 
 a reasonable distance of its shores.- 
 
 The result of the authorities seems to be briefly as 
 follows : — 
 
 1. The realm of England only extends to low water 
 mark ; all bej^ond 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 legislatm-e. 
 
 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.^ According to 
 international law, it is certainly the right incident to each 
 
 ' See remarks of Cockbnm, C. J. , 
 in this case, ■nhich Avas much relied 
 on by the defendant in 7?ry. x. Kcyn. 
 
 216. 
 
 Cockbum, C. J., 2 Ex. D. p. 
 
 The Saxoila, 1 Lush, 410.
 
 THE HIGH SEAS. 11 
 
 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.^ 
 
 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 ; - but a foreign vessel seeking an English 
 port is liable to English law.^ By 41 4' 42 Vicf. c. 73, 41 & 42 Vict, 
 foreigners on board foreign ships, and passing within three ^' ' 
 miles of the English coast, are now made subject to the 
 English criminal law. 
 
 There can be no doubt but that by treaty, or by the Fisheiy. 
 implied 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 her Majesty.'^ 
 
 By 31 4' 32 Vict. c. 45, ih.Q fisheries on the coasts of 
 Prance and England are regulated as between the English 
 and French ; and by Article 1 of the convention between 
 the two countries annexed to the statute, it is provided 
 that British fishermen shall have the exclusive right of 
 fishing within the distance of three miles from low water. 
 The fisheries are regulated by various statutes prescribing 
 the manner in which fish may be taken, and the close 
 seasons, &c., which will be treated fully in another chapter." 
 
 It has been laid down that the territory or realm of Creeks and 
 England is that over which the common law of England ^^™^ ° ^^^' 
 extends, or, in other words, all that is within the body of 
 a county, and that the county extends to low water mark, 
 where the high seas begin.*^ Hence those creeks or arms 
 of the sea which lie within the body of a county will be 
 
 1 Sir E. Fhillimore, 2 Ex. Div. Cunni>ighain''s case, Bell, Cr. C. 72. 
 82. ■! As to this see Gammel v. TFoods 
 
 • The Saxonia, 1 Lush. 410. and Forests, 3 McQ. H. L. 419. 
 
 2 The Amiapolis, 1 Lush. 295 ; * See Chap. VI. 
 
 The Joanna Stall, 1 Lush. 295; ^ iJcy. v. /iryw, 2 Ex. D. 6", 197.
 
 12 OF THE SEA, AND RIGHTS THEREIN. 
 
 governed by the rules of law relating to inland tidal waters, 
 which arc treated of in a succeeding chapter, while those 
 inlets of the sea which do not so lie within the body of a 
 county will form part of the territorial waters of the State, 
 and be governed by the laws relating to such territorial 
 waters which have been stated in the preceding pages. 
 
 The rpiestion as to what portion of the sea is so within the 
 body of a county, is a somewhat difficult one, and is one 
 Avhich, it would appear, must be decided by evidence in 
 each particular case. It is said by Hale that an arm or 
 branch of the sea which lies intra fauces feme, where a 
 man may reasonably discern between shore and shore, is, 
 or at least may be, within the body of a county ; ^ and 
 Lord Coke, in the case of Leigh v. Burlv)j^- observes that 
 the admiral should have no jurisdiction where a man may 
 see from one side to another, to which the other justices 
 agreed. This view is confirmed by Cockburn, C. J., in 
 Mcij. V. Kcyu, and may be taken to be settled law.^ 
 
 The Sea Shore. 
 
 Definition aud The sca shore may be defined as that portion of the 
 land adjacent to the sea which is alternately covered and 
 left dry by the ordinary flux and reflux of the tides. 
 Although, in common parlance, the word shore has often 
 a more extensive meaning — taking in all that extensive 
 belt of waste ground or strand, shingles, and rock liable 
 to the action of every kind of tide, — yet it is now finally 
 settled, that in legal intendment no more of that unclaimed 
 
 ^ De Jure Mari.s, p. 10, Harg. jurisdiction was anything else than 
 
 Tracts. the right of defence before mon- 
 
 - Ow. 122. tioned, "which is admitted to exist 
 
 ^ 2 Ex. Div. pp. 164, 168. It for the protection of peace aud the 
 
 is stated by Aviitcrs on interna- revenue ; see, however, Sir R. 
 
 tional law that the exclusive terri- Philhmoro, lieff. y. Kcyn, 2 Ex. D. 
 
 torial jurisdiction of the British 71 ; see also Wheaton, Int. Law, 
 
 Crown has extended immemorially p. 240 ; Yattcl, Droit des Gens, liv. 
 
 to those bays called the Kn>g''s 1, ch. 22, s. 281 ; rhiUiniorc, Int. 
 
 Climnhcrs — (. c. portions of the sea Law, vol. 1, p. 239 ; Life of Sir L. 
 
 cut off by lines drawn from one Jenkins, vol. ii. pp. 727, 728, 
 
 promontory to another — but it 780. 
 
 would seem doubtful whether this
 
 THE SEA SHORE. 13 
 
 tract is sea sliore than that portion which lies between 
 
 high and low water mark at ordinary tides.^ This point 
 
 has been finally settled by the case of Attorney-General v. 
 
 Chanihers,'^ in which the Lord Chancellor Cranwortli, 
 
 assisted by Manle, J., and Alderson, B., held that the 
 
 sea shore landwards is, in the absence of particular nsage, 
 
 prinul facie limited by the line of the medium high tide 
 
 between the spring tides and the neap tides ; or, in other 
 
 words, that part of the shore which for four days in every 
 
 week, or for the most part of the year, is reached and 
 
 covered by the tides.^ As this line will vary as the sea 
 
 recedes from or encroaches on the land, so the boundaries 
 
 of the shore will vary with the recession or encroachments 
 
 of the sea.^ Land above this line, though overflowed 
 
 by high spring and extraordinary tides, is not shore, but is 
 
 presumed to be land the property of adjoining owners.''' 
 
 The sea shore, as above defined, forms part of the body Forms part of 
 
 of the adjoining county, the justices of which, and not the the adjoinino- 
 
 admiralty, have cognizance of offences committed there, county, but 
 
 whether committed when the shore is or is not covered of the adjoin- 
 
 with water ; ^ it does not, however, in the absence of "^° parish or 
 
 ' , ' manor, 
 
 evidence, form part of the adjoining parish, but is prinul 
 
 facie extra-parochial. It may be in a parish or a manor, 
 
 but there is no presumption of law that it is within either.' 
 
 Now, however, by 31 c^ 32 Vicf. c. 122, s. 27, every 
 
 accretion from the sea, whether natural or artificial, and 
 
 the part of the sea shore to the low water mark, are 
 
 annexed to and incorporated with the parish to which 
 
 they adjoin, in proportion to the extent of the common 
 
 boundary, for all civil parochial purposes ; and are there- 
 
 1 Hall on the Sea Shore, p. 8. " EmUcton v. Brown, 3 E. & E. 
 
 2 4 De Gex, M. k G. 206. 234 ; Reg. v. Musson, 8 E. & El. 
 ^ See also BlundeU v. Catteral, 900. 
 
 5 B. & Aid. 268, per Holroyd, J. ; " Reg. v. Musson, 8 E. & Bl. 
 
 and Loicc v. Govett, 3 B. & A. 813, 900; I), of BriclgeweUcy'x Trustees v. 
 
 per Lord Tenterden, C. J. Bootle-cHm-Lincicre, L. R., 2 Q. B. 
 
 * Scrc/ttcn v. Brown, 4 B. & C. 4 ; see also Reg. v. Gee, 1 E. & E. 
 
 485. 1068. 
 
 5 Lowe V. Govett, 3 B. & A. 813.
 
 14 OF THE SEA, AND RIGHTS THEREIN. 
 
 fore liable to be rated to the poor. This statute has been 
 held not to apply to the part of a pier extending below 
 low water mark, and built on iron piles driven into the sands, 
 so that the water flowed under it, no alteration being 
 made in the line of low water mark — the Court holding 
 that, on the authority of Picg. v. Keyn, this portion of the 
 pier was out of the realm and jurisdiction of England, 
 and that it moreover was not an " accretion " within the 
 words of the act.^ The shore is an extra-parochial place 
 within the Nuisance Eemoval Act, 18 ^' 19 Vict. c. 121, 
 s. 22.2 
 Property in The property in the soil of the shore of the sea, of 
 
 soil of the , . T c ii i i? • i i • 
 
 shore between estuaries and arms ot the sea, and ot navigable rivers 
 high and low hctwceu high and low water mark, is prima facie vested 
 
 water mark m •i-ii-, ■^i^-j 
 
 the Crown. of common right m the Crown , but it may belong to a 
 subject by ancient grant or charter from the Crown, or by 
 prescription.^ 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 public rights of 
 navigation and fishery. 
 But subject to The ownership of the Crown in the sea shore is com- 
 pu iciigi s. pj^j.g^-]^ T^y Lord Hale to the ownership of lords of manors 
 in the common and waste lands of the manor. The 
 soil and freehold of the waste belong to the lord, but 
 subject to certain rights of manorial tenants ; so the 
 king is lord of the great waste of the sea, subject to cer- 
 tain, beneficial rights and privileges of fishing, navigation, 
 &c., immemorially enjoyed by his subjects therein by 
 the custom of the realm, which is the common law.' 
 The grantee of the Crown takes subject to this public 
 
 1 Blackpool Fier v. Fi/lde rnion, De G., M. k G. 206; Bagot v. 
 
 46 L. J., M. C. 129. On; 2 Bos. & Pull. 472; see also 
 
 '- Reg. V. Lee, 1 E. & E. 1068. Bristow v. Cormican, 3 App. C. 641; 
 
 3 Mayor of Fenryn v. Holme, 2 Malcolmson v. WLea, 10 H. L. 593. 
 
 Ex. Div. 328 ; Gaim v. Free Fishers ^ Calmady v. Mou-e, 6 C. B. 861 ; 
 
 ofWhitdahle, 11 H. L. 192 ; A.-G. A.-G. v. Jones, 33 L. J., Ex. 249 ; 
 
 V. Parmeter, 10 Price, 378 ; Smith see also cases at p. 15 of Hall on 
 
 V. OJficcrs of State of Scotland, 13 the Sea Shore. 
 
 Jut. 713 ; Blundvll v. Catteral, 5 B. * De Jure Maris, c. iv. ; Hall on 
 
 & Aid. 268 ; A.-G. v. Chambers, 4 the Sea Shore, p. 4.
 
 THE SEA SHORE. 15 
 
 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 en- 
 joyment of the public right. ^ 
 
 Any interference with the public rights is a nuisance Nuisances. 
 and the subject of indictment or information, and of an 
 action on proof of special damage.- 
 
 Any unauthorized intrusion or encroachment on the Purprestures. 
 soil of the shore, such as the building of quays, piers, 
 moles, &c., is termed a purpresfure, and may be abated by 
 the Crown or the owner of the shore,'^ or restrained by 
 injunction at suit of Attorney- Greneral, whether they 
 create a nuisance or not.^ Such piirpresfures may or may 
 not be nuisances to the navigation ; whether they are so or 
 not is a question of fact.^ 
 
 The right to take wreck and royal fish, and the right Wreck, roy.il 
 before Magna Charta to create a several fishery to the geve^-af 
 exclusion of the public, belong to the Crown as a part of fisheiy. 
 the royal prerogative distinct from the ownership of the 
 shore, and may, as such, be communicated to the subject 
 by grant or charter.*" 
 
 There is no doubt but that a subject may be owner of a Title by ex- 
 portion of the sea shore by express grant from the Crown." ^he^Ciwn to 
 The alienation of Crown lands is now, however, prohibited ^ s^ibject. 
 by statute law f and so much therefore of the sea as has 
 not actually been aliened still remains vested in the 
 Crown, incapable of alienation except by Act of -Par- 
 liament. 
 
 The ownership of the Crown in the sea shore being, as 
 has been said, for the public benefit, grants of portions of 
 
 1 Gann v. Free Fishers of Whit- * ^eepost, as to Remedies, Chap. 
 
 stable, 11 H. L. 192. IX. 
 
 • R. V. Grosveiior, 2 Stark. 511 ; ^ Reff. v. Bitts, 16 Q. B. 1022; 
 
 Duke of Xeic castle v. Clark, Moo. Jt.\.Ra7idall,CsiV. k'^Li-'dQ; A.-G. 
 
 Rep. 666; li. v. Clark, 12 Moo. y. Terry, L. R., 9 Ch. 423. 
 61o ; A.-G. V. Richards, 6 Anstr. '' See post, p. 37. 
 
 613 ; Rose v. Miles, 4 M. & G. 161. ' Hall, pp. 6, 15. 
 
 ^ 4 Blackstone's Comm. 271, ^ 1 Anne, c. 7, s. 5 ; Doe d. R. 
 
 note ; Augellon Tide Waters, 198. y. York, 14 Q. B. SI.
 
 16 OF THE SEA, AND RIGHTS THEREIN. 
 
 it to an individual subject are, as it were, an encroachment 
 on the public right and against good policy ; and, there- 
 fore, the Courts are inclined to construe such grants strictly 
 in favour of the Crown pro bono piihlico and against the 
 grantees.^ The same rules, liowever, 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 — it being always a question of 
 intention to be collected from the language used with 
 reference to the surrounding circumstances.- 
 Ey pro- In absence of express grant of the shore, the question 
 
 scup ion. arises whether a title to it as against the Crown can be 
 acquired by a subject by user and prescription, giving rise 
 to the presumption of a grant. 
 
 Hall, in his essay on the Sea S/iore,^ 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 prescrip- 
 tion 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 re- 
 lating to Crown lauds — viz. sixty years. He further 
 argues that the evidence capable of supporting such ad- 
 verse possession must be similar to that which will support 
 a claim by adverse possession to inland estates — viz. evi- 
 dence of occupation and actual possession ; and that, there- 
 fore, 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 sup- 
 port a claim to absolute ownership of the soil.^ 
 
 Phear, in his Iligltts of Water, takes a view more favom'- 
 able to claimants against the Crown. " Almost all beneficial 
 
 1 See Royal Fishen/ of tlie - Zordv.ComDiissioiicrsof Si/chiej/, 
 
 Banne, Davies' E,. 157 ; B. of 12 Moo. P. C. 473. 
 
 Somerset v. FoywcU, 5 B. & C. 875 ; 3 Hall, pp. IG— 40. 
 Hall on the Sea Shore, p. 17.
 
 THE SEA SHORE. 17 
 
 " enjoyment of land," lie 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 latter the sea shore especially 
 " is, by its very nature, so little capable of exclusive pos- 
 " session, that the most undoubted owner of it finds it very 
 " difficult to support his title by user. In some sense, owner- 
 " ship may be said to be an aggregate of exclusive ease- 
 " ments ; 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 suiTOund them, to have been done 
 " anhno hahendl, possidendi ct approi^rlandi!''' ^ 
 
 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 
 Avould be in dispute, cannot be said to be as yet determined, 
 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,^ and even as forming parcel 
 of lands adjacent to the sea, where the manor is not ex- 
 pressly granted,^ 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. In actions against mere trespassers, a sufficient 
 
 1 Phear on the Eights of Water, 128 ; A.-G. v. Chambers, 4 De G. 
 p. 88. & J. 55. 
 
 2 A.-G. V. Jones, 2 H. & C. 347 ; » c^«^ y. Tilsed, 5 Moo. 185 ; 
 In re Belfast Dock, Ir. R., 1 Eq. Brewv. Earen,lv.Il.,U C. L. 198. 
 
 C. C
 
 18 
 
 OF THE SEA, AND RIGHTS THEREIN. 
 
 Foreshore 
 may form 
 parcel of a 
 manor. 
 
 Effect of 
 g'rant of sea- 
 coast manors. 
 
 Acts of 
 ownership 
 admissible to 
 prove extent 
 of arrant. 
 
 possessory title can be established by persons claiming 
 foreshore, without producing evidence sufficient to dis- 
 place the title of the Crown.^ 
 
 There is no doubt that the foreshore may form parcel of 
 a manor ;^ and in fact claims to foreshore by a subject 
 are almost invariably made by lords of sea-side manors. 
 
 Where the grant of the manor is express and unambi- 
 guous, 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 sfn'cto jure in 
 favour of the Crown and against the grantee.^ 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 hne ; but if it is expressed to be down to low 
 water mark, this will be tantamount to a grant of the 
 shore.^ 
 
 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 include the foreshore, though it may do so.^ 
 
 Where the owner of an adjoining manor, whose title 
 to the manor from the Crown is not disputed, claims a 
 portion of the sea shore as forming parcel of that manor, 
 the question is really one of boundary, and not of title ; 
 and in such cases it has been decided that acts of con- 
 tinuous ownership, including under this head such rights 
 as those of taking wreck and royal fish, digging stones and 
 
 ' Cormratlon of Hastingsx. Ivall, 
 L. R.,'l9 Eq. 558. "Actual pos- 
 " session of the locus in quo would 
 " have been not merely evidence 
 " of title, but actually a title 
 ' ' against wrongdoers. ' ' Per Lord 
 Blackburn, in Bristow v. Cormican, 
 3 App. C. 660. 
 
 2 Calmachj v. Eoice, 6 C. B. 861 ; 
 Dulce of Beaufort v. Swansea, 3 Ex. 
 413; Sir II. ConstahWs case, 5 Rep. 
 107 ; Hale de Jure Maris, Harg. 
 Tracts, 27 ; Case of Barons of Bar- 
 clay, Harg. Tracts, 34. 
 
 2 But see ante, p. 16. 
 
 ■* In Corporation of Hastings v. 
 Ivall, L. E,., 19 Eq. 558, where 
 there was a grant bj^ Queen Eliza • 
 both of all that her parcel of land 
 called the ' ' Stone Beache, ' ' 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 against a 
 person not claiming ang title himself, 
 must be presumed to include the 
 whole foreshore ; see also In re 
 Belfast Bocl; Ir. R., 1 Eq. 128. 
 
 ^ Hale de Jure Maris, p. 18.
 
 THE SEA SHORE. 19 
 
 sand, and cutting seaweed, and tlie enjoyment of an 
 exclusive fisliery 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.^ 
 
 Thus it has been held, that where the Crown granted all 
 the regions, countries, or territories of C, and the boundary 
 sea-ward was the bank of the bay of K., as the description 
 did- not necessarily exclude from the grant the shore of the 
 bay between high and low water mark, continuous acts of 
 ownership were admissible against the Crown to prove 
 that the foreshore was included in the grant.- 
 
 So in A.-G. V. Jones,^ on the trial of an information of 
 intrusion, the question being as to the title of the defen- 
 dant as against the Crown to the sea shore between high 
 and low water mark, the defendant gave in e^ddence 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 defendant had acquired a title as against the Crown ; 
 but the Cornet of Exchequer held this a misdirection, and 
 that the proper question for the jury was, whether the 
 evidence of user, couphd with the grant, satisfied the jury 
 that the defendant had such title. 
 
 In The Duke of Beaufort v. Swansea,^ 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 
 
 1 A.-G. V. Jones, 2 H. & C. 347 ; ^2 H. & C. 347 ; see also Cal- 
 
 Case of the Parous of Barclai/jHai-g. mady v. Roice, 6 C. B. 861; and 
 
 Tracts, 34 ; Culmadi/ y. Howe, 6 C. In re Belfast Loclc, Ir. E., 1 Eq. 
 
 B. 861. 128 ; Healy v. Thome, Ir. E., 4 C. 
 
 - In re Belfast BocJc, Ir. E., 1 Eq. L. 495. 
 
 128. * 3 Exch. 413. 
 
 C 2
 
 20 OF THE SEA, AND RIGHTS THEREIN. 
 
 a grant of tlie Terra or Seigitonj de Goicer was equivalent 
 to the grant of a manor. 
 
 In the case of Brew v. liar en, ^ the Irish Court of 
 Exchequer Chamber have held, that where lands specifi- 
 cally 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 MuUioIland v. Killen,- 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. Tilscd,^ where there was a grant of WTCck 
 from Hen. II. to the Abbey of Cerna, by all their lands 
 upon the sea, confirmed by insjyeximus of Hen. YIII., and 
 a subsequent grant of the island of B. and its shores, be- 
 longing 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 an exclusive right to the shore and destroy the 
 
 1 Ir. R., 11 C. L. 198; Ir. R., 9 - Ir. R., 9 Eq. 471; Ileahj v. 
 
 C. L. 41 ; see Lee v. Brown, 2 Thome, Ir. R., 4 C. L. 495. 
 
 Mod. 69; PoUexfen, 410, sub ^ 5 jjoorp^ 185. 
 nomine Lea v. Broicne.
 
 THE SEA SHORE. ^ 21 
 
 rights of tlie public, yet it was evidence from wliicli prior 
 usage to the same effect might be presumed, and which, 
 coupled with the general words of the grant, served to 
 establish such right. 
 
 From these cases it is clear that certain acts of owner- What acts of 
 ship are admissible to prove that the foreshore is within y^fficient^to 
 the boundaries of a grant of land on the sea shore ; what establish a 
 acts of ownership, however, are sufficient to establish such a shore, 
 claim, it is not so easy to say. 
 
 The chief proprietory acts for which the sea and sea 
 shore seem to afford scope, appear to be : — 
 
 1. Taking wreck. 
 
 2. Taking royal fish. 
 
 3. The various incidents of a port. 
 
 4. Fishing. 
 
 5. Mining, digging, and taking sand, seaweed, &c. 
 
 6. Taking salvage for grounding of ships. 
 
 7. Embanking and inclosing. 
 
 8. Punishing purprestures or intrusions, /. e. trespasses. 
 
 The first three of these are not incidents to the possession 
 of the soil, but exist independently as franchises or pre- 
 rogative rights of the Crown, and cannot, according to 
 Phear,^ be adduced as evidence of title to the shore ; this 
 statement, however, would appear to require some modifi- 
 cation, as in the case of Dichens v. S/iair,- though it was 
 held that the right of the lord of a manor to take wreck 
 was not sufficient alone to confer a title on him by pre- 
 sumption of law to the ownership of the soil, yet the Court 
 was clearly of opinion that it might be evidence of such 
 ownership, particularly if coupled with other acts of en- 
 joyment. 
 
 With regard to the ownership of a several or exclusive 
 right of fishery, as giving a right to the soil of the sea 
 shore, in the case of T/ie Duke of Somerset v. Focjwell^ the 
 
 ^ Page 89. pendix, 45. 
 
 " Hall ou the Sea Shore, Ap- ^ 5 B. & C. 375 ; see also Scrattcn
 
 22 OF THE SEA, AND EIGHTS THEREIN. 
 
 Court seemed to be of oj^inion, that tliougli the owner of a 
 several fishery in tidal waters may, in an ordinary case, be 
 presumed to be the owner of the soil, as in the case of 
 non-tidal water, yet that a grant of such a fishery does 
 not necessarily import the ownership of the soil. The 
 ownership of such a fishery would, therefore, seem to be 
 some evidence, though not conclusive evidence, of the 
 ownership of the shore. 
 
 The remaining acts, when exercised exclusively, no 
 doubt all tend to show ownership of the soil, but it appears 
 doubtful whether any of them, except perhaps the last, 
 would, singly, be sufficient to support a claim to it. The 
 strength of the claim wiU, in all cases, depend on the 
 number of exclusive acts exercised by the claimant.^ 
 
 Propci-ty m Land formed by all avion, or gradual and imperceptible 
 
 by alluvion accrctiou from the sea, and land gained by derelict ion, or 
 the gradual and imperceptible retreat of the sea, belongs 
 to the owner of the adjoining terra fir ma. Where the 
 increase is sudden or perceptible, the land gained belongs 
 to the Crown.- This question has been carefully con- 
 sidered in the case of Rex v. Lord YarhorougJi ; and the 
 judgment of the Court of King's Bench, delivered by 
 Lord Tenterden, C, J., establishes the propositions above 
 stated, and further defines the word "imperceptible" as 
 meaning imperceptible in progress, and not in result, — 
 that is to say, where the increase cannot be observed as 
 actually going on, though a visible increase is observable 
 every year.^ The law thus stated would appear to hold 
 good, whether the accretion is caused by natural or arti- 
 
 V. JBroivn, 4 B. & C. 485 ; E. v. Scebkristo v. East Ind. Company, 
 
 Ellis, 1 M. & S. 652; Gray v. IQlsloo.V.CA'iQ; MussiimatlmaHm 
 
 Bond, Moo. 527 ; Hale de Jure Bcndi v. Ilcryovind GJwse, 4 Moo. 
 
 Maris, Hai-g. Tracts, 34. Indian App. 405. 
 
 ' Phear, p. 89. 3 licx v. Lord Yarborough, 2 
 
 - Ecx V. Lord Yarborough, 2 Bligh, N. C. 162 ; Gifford v. Lord 
 
 Bligh, N. C. 162 ; 2 Blackstone's Yarborough, 5 Bligh, 163. See also 
 
 Com. 261 ; CaUis on Sewers, 482 ; Ford v. Lacy, 7 H. & N. 151, and 
 
 EoU. Ab._170; Dy. 326; Hale de Foster y. Wright, 4 C. P. D. 438, 
 
 Jure Maris, eh. iy. s. 2; HaU, p. as to rivers, and post, p. 62 ct scq. 
 108; Woolrycli on Waters, p. 34 ; 
 
 and derclic 
 tion.
 
 THE SEA SHORE, 23 
 
 ficial causes, provided it does not arise from acts done with 
 a view to the acquisition of the shore. ^ 
 
 Where the sea, or an arm of the sea, by gradual and Land last by 
 
 ,•11 1 Jiiii" ^ ' J. encroachment 
 
 imperceptible progress encroaches on the land oi a subject, of the sea. 
 the land thereby covered belongs to the Crown ;'- but where 
 land is suddenly overflowed, and any marks remain by 
 which its limit can be recognized, it remains to the original 
 owner, and may be regained by art or industry ; or if the 
 sea retire again it is his as before.^ It is very doubtful 
 whether any length of time during which lands are sub- 
 merged will bar the owner's right to them when the waters 
 have again retired."^ 
 
 With regard to islands, where the island is formed by Islands. 
 being, as it were, torn from the mainland and surrounded 
 by the sea, the land so surrounded continues to be the 
 property of the former owner.^ Islands arising in the sea 
 are said by Hale to belong of common right and prinid 
 facie to the Crown ; but where they arise in a part of the 
 sea, or in an arm of the sea, or creek, or haven, which is 
 the property of a subject, the islands which happen within 
 the precincts of such private property of a subject will 
 belong to the subject according to the limits and extent of 
 such property.^ 
 
 The rule by which the right to lands gained gradually , 
 
 from the sea belong to the adjoining owner are thought 
 by Lord Chelmsford' not to depend on the principle "De 
 minimis non curat kx," but to be those stated in the case 
 of T/ie Hull and Selhy Rail. Co.^— 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 
 
 ^ A.-G. T. Chambers, 4 De G. & * Mnssumat Iinaum BchcUy. Her- 
 
 3. 00. 4-S to this see ScebJcristo x. govind Ghosc, 4 Moo. Ind. App. 405. 
 
 East Ind. Co., 10 Moo. P. C. ^ Hale, part 1, oh. vi. ; Fleta, 
 
 159 ; Blaclipool Pier v. Fylde Union, lib. 3, c. 2, s. 6 ; see Angell, Tide 
 
 46 L. J., M. C. 189. Waters, 268; Woolrych, 36. 
 
 ^ In re Hull and Selby Mail. Co., b ^ Hale, srq}ra. 
 
 M. & W. 327. 'A.-G. V. Chambers, 4:'De(^. & J. 
 
 ^ Blackstone's Com. 262 ; Hale, 68. See further as to this qiies- 
 
 c. iv. ; Dyer, 326 ; Vin. Abr. Pre- tion, the elaborate judgment of 
 
 rogative, B. a 2 ; Comyn's Dig. Lindley, J., in Foster v. Wright, 4 
 
 Prerog. D. 62; Callis, 51 : sec Hall C. P. D. 438, and. post, p. 65. 
 
 on the Sea Shore, 108—134. ** 5 M. & W. 327.
 
 24 OF THE SEA, AND RIGHTS THEREIN. 
 
 rule of law for the permaiient protection and adjustment 
 of property ; for it must be borne in mind tbat 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. 
 
 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.^ 
 
 Protection The king has probably from the very earliest times had 
 
 of°the sea?*^ ^ a right as part of the prerogative to defend the realm 
 against the waste of the sea, and to order the construction 
 of defences at the expense severally of those who are to be 
 benefitted by them.- 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 
 
 Prerogative of emanate from the prerogative of the Crown for the general 
 ^ ^*^""^- safety of the public; and no doubt the ordinary rights of 
 property must give way to that which is done for the pro- 
 tection 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 ^^ublic at large. ^ 
 
 Commissions We therefore find in the very earliest records that com- 
 sewcrs. missions of sewers were issued by the king for this purpose. 
 The various statutes of sewers, beginning with 6 Hen. 
 VI. c. 5,^ 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 
 
 1 See Hale, pp. 17, 36 ; CaUis, Woolrych on Sewers, pt. 1, p. 42; 
 44; 2 Blackstone, 251. But, as Callis on Sewers, p. 80; see also 
 Callis says, such islands are not per Lord Coke, 10 Coke, 143 ; 
 ■within a county, and so without see also per Lord Holt, 12 Mod. 
 the realm; Reg. v. Keijn, 2 Ex. 321; Holt's Cases, 643. 
 
 Div. 63. The king is not universal ^ Grcenicich Board of Works v. 
 
 occupant of unclaimed dry land; Maudslay, L. R., 5 Q. B. 397. 
 
 Bristoive v. Conn lean, 3 App. C. * The most important are — 23 
 
 641, per Lord Blackbiim. Hen. VIII. c. 6 ; 13 Eliz. c. 9 ; 3 & 
 
 2 Per Coleridge, C. J., in Hudson 4 Will. IV. c. 22 ; 24 & 25 Vict. c. 
 V. Tabor, 2 Q. B. D. 290; see 133. See also jsosi', Ch. VIL
 
 THE SEA SHORE. 25 
 
 forms have been from time to time varied. In early- 
 times, probably, tlie king ordered the construction of sucli 
 sea walls as lie 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,^ 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 4' 
 25 Vict. c. 133, a commission of sewers once issued shall 
 be deemed to continue until such time as it shall be 
 superseded by her Majesty, who may from time to time 
 fill up any vacancies therein under her sign manual. 
 
 The Commissioners of Sewers were required by 23 Hen. Po^ycl•s aud 
 VIII., in the first place, to make a survey of the various Commis- 
 
 defences ao'ainst the sea, and obstructions to navigation or sioners of 
 
 *= , ' . ° . Sewers, 
 
 the flow of rivers, and to hear and determine concerning 
 
 the same, through whose default such defences were out of 
 repaii', or such obstruction caused, and to ascertain the 
 names of the owners of the various lands where offences 
 have occurred, and also of such as have suffered incon- 
 venience. They were empowered to assess the lands of all 
 individuals in their district, whether damaged or not, for 
 repairs which they are directed to execute, and to take 
 laboiu'ers, carriages, tunber, 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 authority with which they are in- 
 vested they may sit in judgment upon their own orders, 
 subject, however, to the correction of the higher Courts. 
 They may issue writs and precej^ts to the sheriffs, bailiffs, 
 and others, and may punish by distress, fine, and, in some 
 cases, by imprisonment, anyone showing negligence or 
 disobeying their orders.- Their powers are confined to 
 
 ^ See Wooliych on Sewers, pp. 8, 9. ^ lb. pp. 54 — 62.
 
 26 
 
 OF THE SEA, AND RIGHTS THEREIN, 
 
 Property in 
 embankments 
 or ■walls 
 erected not 
 vested in 
 them . 
 
 Tlieir powers 
 limited to 
 parts of the 
 coast not 
 vested in 
 any conser- 
 vators or har- 
 bour trustees. 
 
 Liability to 
 rcpau- not 
 enforceable 
 
 the sea, and to navigable rivers, and to public sewers, and 
 to things which interfere with the public convenience.^ 
 
 The authority to be exercised by the Commissioners of 
 Sewers on the behalf of the public, does not, hov/ever, vest 
 in them such a property in the embankments or walls 
 which they have erected, as will enable them to maintain 
 an action of trespass against a trespasser for breaking 
 them down, — the remedy must be by indictment in the 
 name of the king.^ 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 neighbouring 
 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 
 w^as 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 xvny must yield to the larger and more impor- 
 tant purpose for which the powers of the Commissioners of 
 Sewers were given.^ 
 
 The navigable rivers, ports, harbours and docks of the 
 kingdom are now almost universally vested in corporate 
 bodies of conservators, who have all the powers of per- 
 mament Commissioners of Sewers, unless there is stij)ula- 
 tion to the contrary in their particular act.^ The powers, 
 therefore, of Commissioners of Sewers at the present day 
 are restricted to those parts of the coast not under the 
 regidation 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 
 
 ^ Woolrych on Sewers, -p. 68; 
 per Bullcr, J., in Jean v. Holland, 
 2 T. R. 365. 
 
 - Bitkc of Kciccasile v. Clark, 1 
 Moore, R. 666 ; sec Driver v. 
 
 Simpson, lb. note on p. 682. 
 
 ^ Grecnvieh Board of Works v, 
 Maudshnj, L. R., .5 Q. B. 397. 
 
 * "Woolrych on Sewers, p. 49.
 
 THE SEA SHORE. 27 
 
 the sea from being overflowed by the sea, there is no against the 
 liability in this respect which can be enforced against the comnion' law 
 king, and no mode of enforcing it.^ There is also no against a 
 liability at common law apart from prescription upon a '° ' 
 
 frontager to maintain a sea-wall for the protection of his 
 neighboiu-s ; 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 neigh- 
 bour's land, sufScient evidence to establish a prescriptive 
 liability on a frontager to maintain the wall for the 
 protection of the adjoining landowners.- 
 
 But there exists in the Crown a prerogative right and a Biit the 
 duty to protect the lands of the realm from the inroads of 3r*vent"de^ 
 the sea for the benefit of the commonwealth ; and such struction of 
 
 ,. -1/ 1 1 L • 1 • T 1 • p natural bar- 
 
 prerogative right and duty import a right m an owner oi i-jerg, 
 
 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. ToinUne,^ the plaintiff J-.-G. v. 
 
 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 
 
 Ijdng 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 defendant from removing any shingle so as to 
 
 endanger the plaintiff's land. Fry, J., granted the iiijunc- 
 
 1 Iliubon V. Tabor, 2 Q. B. D. - lb. 
 
 290. 2 40 L. T., N. S. 775.
 
 28 OF THE SEA, AND RIGHTS THEREIN. 
 
 tion prayed, and based his judgment on tlie ground 
 of the duty of the Crown to protect the land of the 
 subject, and on the absurdity which would residt if the 
 subject was allowed to destroy what the Crown is bound 
 to maintain ; and, remarking on the case of Hudson v. 
 Tahor, 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.^ 
 Liability to By prescription, however, the liability to repair a sea- 
 
 i^^osecTby ^ ^^"^^ ^'^^ to defray all the expenses may be imposed upon an 
 prescription, individual owner. If the injury to a sea-wall is occasioned 
 by the default of 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.^ 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 benefitted 
 by the repair, according to the quantity of their lands.^ 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. 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.'* 
 
 ^ His lordship rather doubts dation from a river, ■vrould seem to 
 
 ■whether an action would have lain apply a fortiori to ths sea. As to 
 
 for the acts complained of other- this, see also jMOiY, Ch. III. 
 ■wise than at the suit of the At- - KcighUy^s case, 10 Coke, 139. 
 
 torney- General by virtue of the ^ R. v. Commissioners of Sellers 
 
 royal prerogative, but the decision for Somerset, 8 T. E. 312; Keigh- 
 
 of Hall, V.-C, in Crompton v. Lee Icifs case, 10 Coke, 139. 
 (31 L. T., N. S. 469), with regard ^ Isle of Ely case, 10 Coke, 140; 
 
 to excavations endangering inun- Jloo/ic's case, 5 Coke, 99.
 
 THE SEA SHORE. 29 
 
 The landowners of a level cannot, however, be called Even -when 
 upon to contribute to the repairs of a sea-wall, although ca^ed by 
 it has been injiu"ed by an extraordinarily high tide and extraordinary 
 tempest, unless the damage has been sustained without the 
 default of the party generally bound to repaii*.^ A land- 
 owner may, moreover, be bound by prescription to rejiair 
 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.- 
 
 "Where an obligation is imposed on a frontager, either at Negligence, 
 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 extra- 
 ordinarily high tide. Thus, in TJie Hifro-P/iosp/iafe Co. v. Xifro-FJtos- 
 London i)or/.-.s-,^ the defendants, the owners of a dock on the ^London Ih'cks. 
 river Thames, were, prior to 1875, required by the Dagen- 
 ham 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 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 f om" feet five inches above Trinity high water mark, 
 overflowed the defendants' bank and damaged the plain- 
 tiffs, adjoining landowners. The tide had never been 
 known to rise so high before. In an action for damages 
 
 ^ R. V. Commissioners of Scivers Wear Commissioners v. Adamson, 2 
 
 for Essex, 1 B. k C. 477. App. C. 750. 
 
 2 E. V. Leigh, 10 A. & E. 398 ; ^ 9 ch. Div. 503 ; 37 L. T., 
 
 and see per Cairns, L. C, in River N. S. 330.
 
 00 OF THE SEA, AND RIGHTS THEREIN. 
 
 the defendants urged that they were not liable, as the 
 extraordinarily hig-h tide was the act of Grod, 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 theii' 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 uj)on the act of 
 Grod 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.^ 
 
 On appeal- 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 neghgence 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 occasioned by their negligence could be ascertained 
 and apportioned.^ 
 
 ^ Nitro-Phosjjhate Co. v. London River Wear Commissioners v. Adam- 
 
 Doclcs, 87 L. T., N. S. 330. son, L. E., 2 App. C. 7S0; Kicholls 
 
 ~ 9 Ch. D. 921. V. Marsland, 2 Ex. Div. 1 ; andijosi;, 
 
 3 As to the "act of God," see Ch. III.
 
 THE SEA SHORE. 31 
 
 If a tenant for life suffer a sea-wall to be out of repair, Liability of 
 so that by his fault the land is drowned, it is waste in him ; iffe^'^and*"'^^ 
 but if the land be drowned by the rage and extraordinary mortgagees, 
 violence of the sea, it is not waste.^ 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 3 c^ 4 Will. IV. c. 22, s. 15, as the 
 power given by the old statute 23 Hen. VIII. to assess 
 and impose fines and pecuniary impositions still exists, 
 although the statute 3 c^' 4 Will. IV. c. 22, s. 15, enacts that 
 after notice given the commissioners may in default re- 
 pair themselves at the defaulter's expense.^ 
 
 According to the terms of the commission set out in Presentment 
 23 Hen. VIII. e. 5, s. 3, before an order can be made upon necessary. 
 a person to repair 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.^ Stat. 3 (^ 4 Will. IV. c. 22, to a 
 certain extent modifies that enactment, because, whereas 
 under the old statute it was necessary that the jmy 
 should find on each occasion who was liable to do repairs, 
 the later statute enacts that it shall no longer be neces- 
 sary 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 origi- 
 nally presented. It was held, therefore, that an order on 
 
 ^ Grljith's case, Moore, Eep. 62. ' Wlngate v. Waite, 6 M. & W. 
 
 - Reg. V. Baker, L. K., 2 Q. B. 739; Beg. v. Wharton, 2 B. & S. 
 C21. 719.
 
 82 
 
 OF THE SEA, AND RIGHTS THEREIN. 
 
 In absence of 
 prescription 
 all owners 
 and occupiers 
 benefitted 
 liable to be 
 rated for 
 repairs. 
 
 Necessary 
 defences may 
 be erected 
 though in- 
 jurious to 
 adjoining' 
 owners. 
 
 an owner to wliom tlie land had been transferred since tlie 
 presentment was bad.^ 
 
 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 measurement and by conference with com- 
 petent persons, whom they may call in, or by view 
 and survey combined, or possibly on the report of a sur- 
 veyor appointed for the purpose ; but the information of 
 a marsh bailiff and the expenditor and another seems not 
 sufficient to justify an order to repair.^ 
 
 In the absence of any prescriptive liability on any 
 individual, all the owners and occupiers benefitted by the 
 wall, and they alone, are liable to be rated to its repair.^ 
 Where five owners of lands below the sea level covenanted 
 with each other that a certain 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.* 
 
 All owners of land exposed to the inroads of the sea, or 
 commissioners of sewers acting for a number of landowners, 
 have a right to erect such works as are necessary for their 
 own protection, even although they may be prejudicial to 
 
 1 Reg. V. Wharton, 2 B. & S. 719. 
 
 2 lb., per Cockbum, C. J., and 
 Crompton, J.; Callis, p. 107. 
 
 3 Keiglilcif s case, 10 Coke, 130; 
 Isle of Ely case, 10 Coke, 140 ; 
 Sooke's case, 5 Coke, 99. In Hex 
 V. Inhabitants of Fan!, 2 Moo. & 
 Rob. 307, it was held, at nisi 
 pritis by MavJe, J., that a i)arish 
 
 cannot be indicted for not rebuild- 
 ing a sea-wall over which an alleged 
 highway used to pass ; for it could 
 not be said to have been at the 
 time of the default a highway 
 which tlie public wore prevented 
 from using for want of reparation. 
 ^ Morlandy. Cooke, L. R., 6 Eq. 
 252.
 
 THE SEA SHORE. 33 
 
 otliers, and they will not be liable to pay compensation for 
 injmy to lands not within the level in the absence of 
 negligence or malice.^ 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 purp7'esture ; this right would seem confined 
 to the soil above high water mark, which is prima facie his 
 own. The question did not arise in the case, as the works 
 were executed by 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 Public right 
 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 detri- 
 mental 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.^ All such 
 nuisances may be abated on information.^ The right of 
 navigation extends over every part of a navigable river, 
 and a fortiori of the sea,^ and includes the right to anchor 
 without paying toll as a necessary part of the right which 
 is essential for its full enjoyment.^ 
 
 This right of passage has been said not to extend to the Eight of pas- 
 right of crossing the shore at low water, for the purpose of shore. ^ 
 landing goods, or fishing, where the shore is the property 
 of a subject, in the absence of necessity or of a prescrip- 
 tive right to do so ; '^ but it seems improbable that such a 
 
 ' S. Y. Commissioneys of Sneers of Whltstalk, 11 H. L. 192; A.-G. 
 
 Pagham Level, 2 B. & C. 355. This v. Burridge, 10 Price, 350. 
 
 would not seem to hold good in ^ A.-G. \. Richards, 1 Aja.iii.Q>QZ. 
 
 tidal rivers ; see A.-G. v. Lonsdale, ■* R. v. Ward, 4 Atk. 384. 
 
 L. R., 7 Eq. 387. ^ Gann v. Free Fishers of TVhit- 
 
 2 A.-G. V. Parmeter, 10 Price, stable, 11 H. L. 208. 
 
 378,412; Gann v. Free Fishers of '^ PhindellY.Catteral,bB.&Ad..268, 
 
 C. D
 
 34 OF THE SEA, AND RIGHTS THEREIN. 
 
 doctrine would now be supported by the Courts, and, in 
 fact, decisions have been given in modern cases wbicli 
 virtually override this dictum. 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,^ but of the rights of trade and commerce ; '^ and 
 that the private property of the Crown and its grantees is 
 in every way subservient to this public right.^ In the 
 Mayor of Col- casG of The Mayor of Colchester v. Broohe,^ it was held that 
 '^BwoL ^ ^^ 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, remains 
 aground till the tide serves. Lord Denman, C. J., de- 
 livering the judgment of the Court of Queen's Bench, 
 says, " Now if, in such rivers (/. e. navigable tidal 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 diu'ing 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 particidars 
 " 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 vrithin it 
 " all such rights upon the waterway as, mth relation to 
 " the circumstances, are necessary for the full and con- 
 " venient passage of vessels and boats along the channel. 
 
 ' Gann v. Free Fishers of Whit- ^ Gann v. Free Fishers of Whit- 
 stable, II H. L. 192; 3Iayor of dalle, II H. L. 192; A.-G. v. 
 Colchester v. Brooke, 7 Q. B. 339. Farmeter, 10 Price, 378 ; A.-G. v. 
 
 " Hex V. Russell, 6 B. & C. 666 ; Burridge, 10 Price, 350; A.-G. v. 
 
 Orif/inal Hartlepool Colliers v. Gihh, Johnson, 2 Wils. 87. 
 
 I Ch. D. 713. M Q. B. 373.
 
 THE SEA SHORE. 35 
 
 " . . . The right of soil in arms of the sea and public 
 " navigable rivers, which the Crown i^rimd facie has, 
 " independently of any ownership in the adjoining lands, 
 " must be, in all cases, considered as subject to the public 
 " right of passage, however acquired ; and any grantee of 
 " the Cro^vTi must of course take subject to such right." 
 
 In the case of MarsJiaJl v. UUesicafcr Compamj,^ it was Marshall y. 
 held that persons having a right to navigate on a non- compmy!. 
 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 wrongfully erected by a third party, but 
 was maintained by the plaintiff, and which prevented 
 persons having a right of access from coming doT\Ti to 
 the brink of the lake, for the purposes of going on it 
 to exercise the public right of navigation. In deliver- 
 ing 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 roads to the 
 " public at large has no right to complain that a parti- 
 " cular individual has come upon it at one spot, rather 
 " than at another; consequently every person in the vicinity 
 " of Ulleswater, where 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 incidents 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 should find some spot where the water is so deep 
 " that the barge can float up to the bank close enough to en- 
 " able him to step ashore, but that he has the reasonable and 
 " usual modes of disembarking incidental to the navigation 
 1 L. K., 7 Q. E. 166. 
 D 2
 
 36 OF THE SEA, AND RIGHTS THEREIN. 
 
 " of vessels ; if tlie water were a few feet in depth lie 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 per- 
 " inits 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."^ Though this, strictly speaking, would only 
 apply to the sea shore and tidal rivers when the tide was 
 high, it is submitted that as the principle of the decision 
 is rested on the necessity of the right of passage over the 
 soil of another for the full enjoyment of the right of navi- 
 gation ; and as the right of navigation exists at all times 
 and states of the tide,^ it would be absurd to draw a dis- 
 tinction and limit the right of passage over the shore to 
 the period when it was covered with water, and hold such 
 passage illegal (in the absence of a prescriptive right) when 
 the shore was dry.^ 
 
 Public right The right of fishing in the sea and upon the shore 
 o sieiy. "between high and low water mark is prima facie vested in 
 all the subjects of the realm as a common right.^ 
 
 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.^ It seems doubtful whether it includes the taking 
 of shells.^ It may be carried on by the use of lawful 
 
 1 L. R., 9 Q. B. 172. Anonymous, 6 Mod. 73; Warren v. 
 
 • Mayor of Colchester \. BrooJce, 7 Mathews, 1 Salk. 357; 6 Mod. 73; 
 Q. B. 889. Smith v. Xewp, 2 Salk. 637 ; JFard 
 
 2 See also South Eastern Sail. Co. v. Cressicell, Willes, 265 ; Bayot v. 
 V. Borling, 5 C. B., N. S. 821 ; Orr, 2 Bos. & Pul. 472 ; Carter v. 
 A. -G.\. Conservators of the Thames, Murcott, 4 Burr. 21G3 ; Mayor of 
 1 Hem. & M. p. 32, i^er Wood, Oxford v. Richardson, 4 T. E. 437. 
 V.C. 5 Bayot v. Orr, 2 Bos. & Pul. 
 
 * FitzwaUer^s case, 1 Mod. 105 ; 472.
 
 THE SEA SHORE. 37 
 
 nets.^ This right is subservient to the right of naviga- 
 tion.2 
 
 Prior to Magna Charta the Crown had power to exclude 
 the public fi'om 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? 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 o'^Tiership. A grant, therefore, of the 
 shore alone will not pass the fishery, which will remain in 
 the public f nor, it seems, will a grant of a several fishery 
 pass the soil,^ though it may be evidence, coupled with the 
 grant of a manor, that the soil was intended to pass.*^ 
 
 By general law all goods found afloat and derelict Wreck, 
 belong to the king in his ofiice of Lord High Admiral.^ 
 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 prerogative.^ The right to 
 take wreck on the shore maybe 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 eases it 
 is still prescribed for on the ground of immemorial usage 
 or proved by express grant.^ 
 
 A grant of the shore alone does not, therefore, pass the 
 right of wreck, nor does a grant of wreck alone pass the 
 
 1 Warren v. Mathews, 6 Mod. 73; case, 1 Mod. lO-S. 
 
 1 Salk. 357. ^ Buke of Somerset v. Fogwell, 5 
 
 ■ A.-G. V. Farmetir, 10 Price, B. & C. 875. 
 
 378; A.-G. v. Johnson, 2 Wils. 87. ® For a full account of the right 
 
 2 Carter v. Murcott, 4 Burr. 2163 ; of fishery and the incidents thereto, 
 Hale, ch. 5 ; Warren v. 3faf thews, 1 see jjosf, Ch. VI. 
 
 Salk. 357 ; Malcolmson v. O'Dea, 10 ' Rex v. 49 Casks of Brandy, 3 
 
 H. L. 593; Allen v. Bonelhj, 5 Ir. Hagg. 270. 
 
 C. L. R. 292; O'XcUl y. Allen, 9 * HaU on Sea Shore, p. 44; 
 
 Ir. C. L. R. 132; Kent's Com. Bracton, 2; Vent. 188; 5 Coke, 
 
 489 ; Hall, 46 ; Woolrych on 108 ; Sntton v. Buck, 2 Taunt. 355. 
 
 Waters, c. 5, p. 75. » ^QeTalboty.Lewis,Q,C.k~B.mQ. 
 1 Per Hale, C. J., Fitzwalter's
 
 38 OF THE SEA, AND RIGHTS THEREIN. 
 
 shore, tliough it may be called in as evidence in support of 
 a claim to the shore.^ The right to wi'eck will not pass by 
 the general words of a grant. ^ The right to take wreck 
 implies a right of crossing the shore for the purpose of 
 taking it.^ 
 What is By the stat. of West. I. c. 4, it is provided that no ship 
 
 or anything in it shall be adjudged wreck where any man 
 or domestic animal escape alive.^ In such cases the goods 
 are to be saved and kept by the coroner, sheriff, or king's 
 bailiff : the owner may claim them Tvithin a year and a 
 day : if he does not so claim them, they are to be delivered 
 to the officers of the Crown.*^ Where goods are perishable, 
 they may be sold sooner, to prevent loss.*' Where wreck 
 belongs to another than the king, he is to have them in the 
 same way. Flotsam^' jetsam,^ and Ugcui^ 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.^'^ 
 
 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^^ touching the ground,^- though they need 
 not have been left dry.^^ 
 
 A log of wood floating in the sea near the shore, and 
 dra\\Ta 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 Admii'alty, and not to belong 
 
 ^ As to this, see i>iV7iW«v.<S7;ffM', float, (o Coke, 106.) 
 
 Hall on Sea Shore, Appendix, 45. ^ Where the goods are thrown 
 
 2 Alcocl; \. Cooke, 2 M. & P. 625. overboard to hghten the ship and 
 
 3 6 Mod. 149, Anon. the ship perishes. (lb.) 
 
 * See Hamilton v. Davis, 5 Biut. •' Heavy goods cast in the sea 
 
 2732. and buoyed up by corks. (lb.) 
 
 5 Woolrych, 12; Phear, 99 ; see '" 46 Edw.III. c. 15. 
 
 Sutton V. Buck, 2 Taunt. 302. " Rex v. 49 Casks of Brandy, 3 
 
 c 2 Inst. 168. Ha gg. 257 ; 1 Hen. IV. c. 16. 
 
 ' When the shii^ sinks and goods ^'- The Faulinc, 2 Eob. Adm. 358.
 
 THE SEA SHORE. 39 
 
 to the grantee of wreck on the coast. ^ The grantee of 
 ■wreck has, however, a special property in all goods 
 stranded in his liberty, and may maintain trespass against 
 a -RTongdoer 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.- 
 
 To constitute wreck under the Jlerc/iaiit S/n'pping Act, 
 17 4' 18 Vict. c. 10-1, 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 mthin the Act.^ They must also 
 have been wrecked — i. c. east on the shore, for goods landed 
 from a ship which was abandoned and driven on shore are 
 not -^Teck within 3 4" -1 Win. IV. c. 52, s. 50, so as to be 
 liable to pay under that statute.'* 
 
 It has been held that between high and low water mark Jurisdiction 
 when the tide is high the Court of Admiralty has jurisdic- Adniiralty* 
 tion over "WTeck, and when it is low the Courts of Common a"<i 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 imjjerium ; when the 
 " tide covers this space it is sea, when it recedes again it 
 " is land, and within the jiu-isdiction of the manor." ^ 
 
 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." 
 
 ' Stachpooh V. The Quecti, Ir. R., v. Arnaud, 10 A. & E. 646. 
 9Eq. 119. ^ R. V. Two Casks of Tallow, 2 
 
 - I^ailif of Dunwich v. Sterri/, Hagg. 29-1 ; T/te FauUnc, 2 Eob.Ad. 
 
 1 B. & A. 831. 3i58; seehov^GYev Eyiihlcton \. Brown, 
 
 3 Palmer v. Bouse, 3 H. &N. 505. 3 E. & E. 234 ; and Berj. x.M/issoii, 
 
 * leffffc V. Bo!/d, 1 C. B. 92 ; see 3 E. & B. 800, as to ciimiual juris- 
 
 Clarlc V. Chamberlain, 2 M. & W. diction, and 31 k 32 Vict. c. 122. 
 78. As to customs dnty, seeBarnj ^ Talbot v. lewis, 6 C. & P. 630.
 
 40 OF THE SEA, AND RIGHTS THEREIN. 
 
 Koyal fish. Rojal fisli — /. e. wliale, sturgeon and porpoise, — whether 
 
 thrown 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. ^ 
 
 Bathing. Bathing in the open sea and in tidal rivers has been 
 
 held by the Court of King's Bench, by a divided opinion, 
 not to be a common 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 pui*- 
 pose.- 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 tlie cus- 
 tom for people to pass on foot for the pui'pose 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 defendant'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 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 trespass.^ 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 
 
 1 Hall on the Sea Shore, 80; ^ SlundeU \. Catteral, o B. &: AH. 
 
 Stephen's Blackstone, vol. ii. p. 268. 
 
 640, 7th ed. See Paterson's Fishery ^ See Angell on Tidal "Waters, 
 
 Laws, 24, 165 ; Woolrych on 28. 
 Waters, 83.
 
 THE SEA SHOKE. 41 
 
 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. ^ 
 
 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 
 the habitations of civilized man.- Hence it has been held 
 that it is an indictable offence for a man to undi'ess him- 
 self 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."^ 
 
 It has been held in a later case that where the shore is 
 held by lease from the 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 of bathing.' 
 
 Sand, shells, and seaweed, being natural products of the Eights to 
 
 shore, belong, it would seem, prima facie to the Crown or ^^^^' shells 
 ° , ' and seaweed. 
 
 its grantees;^ and there is no general right in the public to 
 enter the shore and take them.'' 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.' A lord of a manor cannot claim an exclusive 
 
 ' Hall, 156 — 186; Angell on & Nap. 356, and note at p. 357; 
 
 Tidal Waters, 28. AngeU on Tidal "Waters, 260. 
 
 - Angell, 34. « Hone v. Siowcll, 1 Al. & Nap. 
 
 3 Hex V. Crunden, 2 Camp. 89. 356 ; Bagot v. Orr, 2 Bos. & Pul. 472. 
 
 * Ilace V. I'hikox, 15 C. B., N. " Per Best, J., in Dickens v. 
 S. 600. Shaw, Hall on the Sea Shore, App. 
 
 * See per Best, J., in Blundcll 68. 
 V. Cattcral ; Howe v. Utowell, 1 Al.
 
 42 
 
 or THE SEA, AND RIGHTS THEREIN, 
 
 By prescrij)- 
 tion. 
 
 right to cut seaweed helow low icatcr mark except by grant 
 or prescription from the Crown.^ Seaweed thrown on the 
 land by extraordinary tides belongs to the owner of the 
 property on which it is thrown ;- so does sand drifted by 
 the wind.^ 
 
 A right to take sand and shingle may exist and be 
 claimed by prescription. As such a claim is, however, the 
 claim to a profit a prendre in the soil of another, it cannot 
 be supported by proof of a custoin 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. 
 Nor could it be claimed by such inhabitants by prescrip- 
 tion, 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.'^ Where, however, the 
 custom was for the good of the navigation, a custom for 
 the freemen of an ancient borough and the proprietors of 
 shij)s to dig gravel was held good.^ 
 
 A claim of this kind may, however, be supported by 
 prescription by an individual through his ancestors, or in 
 the name of a corporation and its predecessors, or as appur- 
 tenant to some estate holden by the claimant.^ 
 
 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 con- 
 firmation of a prior custom so to do seems doubtful." 
 
 Ports and Harbours. 
 Definition. A harbour or haven is a place natiu^ally or artificially 
 
 made for the safe riding of ships.^ A port is a haven. 
 
 1 £enesty.Fipon, lKnapp,P.C.60. 
 
 2 lotve V. Govetf, 3 B. & Ad. 863; 
 Bairdy. Fortune, 7 Jvu-., N. S. 92G, 
 per Lord Campbell, C. J. 
 
 3 Blewett \.Trcgonninri, 3 A. &;E. 
 554. 
 
 * Constable V. Nicholson, 14 C. B., 
 N. S. 230 ; ruts V. Eingshridge, 19 
 W. R. 884 ; see also Bland v. 
 L'qjscomhe, 24 L. J., Q. B. 155, n.; 
 Race V. IFard, ib.; Allgood v. Gib- 
 
 son, 34 L. T., N. S. 883; A.-G. v. 
 Mat/lias, 27 L. J., Ch. 761 ; Gatc- 
 tcairVs case, Cro. Jac. 152. 
 
 ^ Mayor of Lynn v. Tayler, 3 Lev. 
 160. 
 
 '• Angcll on Tidal Waters, 273 ; 
 Constable v. Nicholson, 14 C. B., 
 N. S. 230. 
 
 "' See Hall on the Sea Shore, 
 95 ; Hale de Jiu-e Maris, c. 6. 
 
 ** Hale dc Portibus Maris, c. 2.
 
 PORTS AND HARBOURS. 43 
 
 and something more ; it is a harbour where customs 
 officers are established, and where goods are either im- 
 ported or exported to foreign countries.^ All ports com- 
 prehend a city or borough called c(q)ut portiis, with a 
 market and accommodation for sailors.- 
 
 The privilege of erecting ports at which customable Privilege of 
 goods may be landed, and of taking dues and tolls as part^S^prero- 
 incident thereto, is part of the royal prerogative, and can gative of the 
 only belong to a subject as a franchise by grant or 
 prescription from the Crown, or by Act of Parliament.^ 
 No subject has therefore a right to land customable goods 
 on his o^\Ti land, or elsewhere, than at a public port. 
 There is no restriction in the landing of goods not custom- 
 able at private wharfs, even in pubHc ports, on the taking 
 of such tolls for landing, &c. as may be agreed upon 
 between the parties ; ^ but no general toll can be taken at 
 such wharfs, a right to a toll depending in all cases on 
 grant, prescription, or Act of Parliament. 
 
 The Crown may grant to a subject the right to erect a Maybe 
 port on his own land, or on the land of another, provided, fubj^ect. 
 in the latter case, no vested interests are interfered with.^ 
 
 The ownership of the soil of all jjorts, as well as of the Ownership of 
 sea shore between high and low water mark, is vested ^° ° ^^^ ^' 
 prima 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." "Where a subject has, by grant or prescrip- 
 tion, 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.'' A port may, it would seem, pass as parcel 
 of a manor.^ 
 
 ^ Houck's Navigable Rivers, 175. Baltiniore Wharf case, 3 Bland 
 
 2 Hale de Port. Maris, c. 11. Rep. 383 (American). 
 
 3 Hale dc Port. Maris, c. 2 ; ^ Ma.i/or of Exeter v. Warren, 5 
 Houck, 176 ; 2 Stephen's Black- Q. B. 773. 
 
 stone, 7th ed. 499 ; Foreman v. " See ante, pp. 15, 21. 
 
 Free Fishers of Whitstable, L. R., 4 " See ante, p. 21. 
 
 H. L. 266. 8 See Hale de Port. Maris, 57 ; 
 
 * Hale de Port. Maris, c. 6 ; Foreman v. Free Fishers of Whit- 
 
 Houck ou Navigable Rivers, 184; stable, L. R., 3 C. P. 584.
 
 44 
 
 OF THE SEA, AND RIGHTS THEREIN. 
 
 Ports now 
 generally- 
 vested in 
 trustees. 
 
 Conservancy 
 of i)orts. 
 
 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. 
 
 The Crown, in virtue of its prerogative, and of its office 
 of Lord High Admii-al, is conservator of all ports, havens, 
 creeks, and arms of the sea, and protector of the naviga- 
 tion thereof.^ 
 
 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 dis- 
 charge his merchandize in any part of the haven, whereby 
 the revenue of customs was much imjDaired and diminished 
 by fraudulent landing in obscure corners. This abuse 
 caused statutes to be passed, enabling the Crown to ascer- 
 tain 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, is now confided, by 17 4" 
 18 Vict. c. 107, .s. 9, to the Commissioners of her Majesty's 
 Treasury.^ By 10 8f 11 Vicf. c. 27,^ the provisions ordi- 
 narily inserted in local Acts of Parliament, passed for the 
 construction and improvement of particular harbours, docks, 
 and piers, are consolidated into a 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 exj)ense a 
 
 1 See Hale de Jure Maris, Harg. 
 Tr. 23. 
 
 2 2 Stephen's Blackstone's Com. 
 p. 500, 7th edit. 
 
 2 The Harhour, Docks and Piers 
 Clauses Act, 1847, extends to such 
 harbours, docks or piers as shall be 
 authorized by Acts hereafter to be 
 passed ■which shall declare that this 
 Act shall be incorporated therewith 
 (sect. 1). The Lands Clauses Con- 
 
 solidation Acts, 1845, are to ajjply 
 as to the purchase of lands, and 
 the Railways Clauses Consolidation 
 Acts, 1845, with respect to recovery 
 of damages. Plans are to be de- 
 posited with clerks of the peace, 
 and approved by the Admii-alty 
 and Commissioners of Woods and 
 Forests. Powers are also given to 
 the undertakers to make and en- 
 force bye-laws.
 
 PORTS AND HARBOURS. 45 
 
 special local Act for such construction, the Board of Trade 
 is now enabled, by 24 8f 25 Vicf. c. 45, to make provisional 
 orders authorizing the construction of any pier, harbour, 
 quay, wharf, jetty, or excavation by private undertakers, 
 upon application made to the board, but such orders are of 
 no validity or force until confirmed by Act of Parliament.^ 
 By 25 8f 26 Vict. c. 69, various powers and duties relative 
 to harbours and navigation 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, 
 " 13, 16, 18, 19." Under sect. 9 and sched. I. of the 
 Public Works Loans Act,^ 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 Com- 
 missioners are authorized to lend by 24 8f 25 Vicf. c. 47.^ 
 By 40 L^- 41 Vicf. c. 16, the Wrecks Eemoval Act, 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. 
 
 The most important incident to the ownership of a port Tolls and 
 is the 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,^ and wharfage dues which 
 arise generally from the ownership of the adjoining lands.^ 
 
 1 2 Stephen's Blackstone, p. 501. stable, L. R., 4 H. L. 281. 
 
 2 38 & 39 Vict. c. 89. ^ Hale de Port. Maris, c. 6 
 ^ Harbours and Passing Tolls Woolrych on Waters, p. 301 
 
 Act, 1861. see Sargent v. Heed, 1 WUs. 91 
 
 * Hale de Port. Maris, c. 6 ; Co/ton v. Smith, 1 Cowp. 47- 
 Foreman v. Free Fishers of Trhit-
 
 46 
 
 OF THE SEA, AND RIGHTS THEREIN, 
 
 can only be 
 taken by 
 Act of Parlia- 
 ment or by 
 express or im- 
 plied grant 
 from the 
 Crown. 
 
 Consideration 
 necessary to 
 support a 
 claim to toll. 
 
 The right to take dues for the use of a port exists only by 
 Act of Parliament, by express grant from the Crown, or 
 by immemorial usage which presupposes such a grant, and 
 from which, if uncontradicted, a grant must be presumed.^ 
 Thus, where by Act of Parliament the plaintiffs were 
 authorized to make a dock, and all goods which should be 
 landed or diseliarged upon any of the quays should bo 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.^ 
 
 In no case can a claim for dues and tolls 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, for the creation 
 of a toll is only a mode of paying for a public service.^ 
 It has, however, been held that the making of a port is 
 of itself a sufficient consideration for such a claim,'^ even 
 when the soil is in another.^ So is the right to bring ships 
 into a port for safety, and the liberty to unload goods 
 there.*^ 
 
 The maintaining a wharf and keeping a measure for 
 measuring 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, 
 
 1 See Jenkins v. Earvci/, 1 C. 
 M. & E. 877. 
 
 - Kingston -on -Hull Docks v. La 
 Marche, 8 B. & C. 42 ; I Mod. 105, 
 per Hale, C. J. 
 
 •■^ Falmouth v. George, 5 Bing-. 
 286 ; Gann v. Free Fishers of Whit- 
 stable,l\ H. L.192; Brett -v.Bealcs, 
 10 B. & C. 508 ; Eill v. Smith, 4 
 Taunt. 520 ; Wurrcn v. Frideaux, 1 
 Mood. 104; Ilaspitrt v. Wills, 1 
 
 Mod. 47 ; Vinhenstern v. Ehdcn, 1 
 Ld. Eaym. 384 ; 1 Salk. 248. 
 
 * Ma>/or of Yarmouth v. Eaton, 3 
 Burr. 1402. 
 
 '•> Maiior of Exeter v. Warren, 5 
 Q. B. 773. 
 
 " Mayor of London v. Hunt, 2 
 Lev. 37 ; Wilkes v. Kirhg, 2 Lutw. 
 1519 ; "Woolrych on "Waters, p. 
 300.
 
 PORTS AND HARBOURS. 
 
 " 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." ^ 
 
 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 owner- 
 ship of the soil of the sea beyond the limits of a port, can- 
 not be sustained,^ 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.^ 
 Where any actual benefit can be shown to the naviga- 
 tion, such as the keeping of a capstern 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 capstern or not, the existence of the capstern being 
 necessary for the safety of the navigation in bad weather,"^ 
 and it not being necessary that the benefit conferred should 
 be precisely that in respect of which the toll is claimed.'^ 
 
 The right to take dues and tolls implies a corresponding Duty to re- 
 duty on the owner of the port to keep it in repair,*^ 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.^ 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 con- 
 sideration for such dues not being the actual repair, but 
 the fact of the owner being bound by custom so to repair,^ 
 and it being possible that the port may never need repairs.^ 
 
 1 Saspurt V. Wills, 1 Mod. 47. R. 877; Mayor of Exetery. Warren, 
 
 - Gann v. Free Fishers of Whit- 5 Q. B. 773. 
 
 stable, 11 H. L. 192. ' " 3rcrseij Bock Co. v. Gibb, L.R., 
 
 3 Mayor of Colchester v. Brooke, 7 1 H. L. 93 ; and see post, Ch. VII. 
 
 Q. B. 339. 8 Yinkenstern v. Ebclen, I Salk. 
 
 * Falmouth v. George, 5 Bing. 2i8 ; 1 Ld. Rayra. 384. 
 
 286. 3 Mayor of Yarmouth v. Eaton, 
 
 * See Foreman v. Free Fishers 3 BuiT. 1402. As to liability of a 
 of Whitstable, L. R., 4 H. L. 285. dock company for negligence of its 
 
 ^ Jenkins Y, Harvey, 1 C, M. & servants, sec 3/f;wy i>of A- Co.Y.Gibb,
 
 48 OF THE SEA, AND RIGHTS THEREIN. 
 
 Foreman v. It lias further "been decided in a late case that anchorage 
 
 '^wmstabi7. ""^ ^^®^ "^^J ^® claimed in a port which is a natural roadstead 
 and not artificially formed, although there be no obligation 
 to repair it and keep it accessible, so as to form a considera- 
 tion for the toll.^ 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 Whitstahle, lords of the 
 manor of Whitstable, brought an action against one Fore- 
 man 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 the 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 Cro's\Ti as owner of a manor, or by a subject 
 to whom such ownership had been transferred.^ In the 
 present case the toll was claimed generally by the respon- 
 dents 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 tlie Court, that the soil and fishery of 
 the locus 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 ■uTCck and toll for merchan- 
 dize landed within the manor; and that they had immemo- 
 rially 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 
 
 L. R., 1 H. L. 93 ; and for liability ^ Foreman Y.Free Fishers of TFhit- 
 
 to repair under statutorvprovisions, stable, L. R., 4 H. L. 266. 
 
 Eeff. V. Bristol Dock 'C'o., 2 Rail. ^ Qann v. Free Fishers of TFhit- 
 
 Cas. 599; ib. 1 Rail. Cas. 548; and stable, 11 H. L. 192. 
 
 post, Ch. VII.
 
 THE SEA SHORE. 49 
 
 anchorage and the benefit of the public therefrom, was Foreman v. 
 sufficient consideration to support the claim for anchorage -jrlritstabk. 
 dues.^ On appeal, the Court of Exchequer Chamber — 
 Bramwell and Martin, BB., diss. — affirmed this judgment; 
 Kellj, 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 con- 
 " sented 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 keej) 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 pre- 
 " sumption. "2 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 owner- 
 ship of 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 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 natui-al 
 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 
 
 1 L. E., 2 C. P. 688. 2 L_ -p.., 3 C. P. 586. 
 
 C. " E
 
 reasonable. 
 
 50 01' THE SEA, AND RIGHTS THEREIN. 
 
 a necessary consideration for sucli a tolU Lord Chelms- 
 ford, in his judgment, went even farther 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.^ 
 Tolls must be No general toll can, as has been said, be taken in any 
 public ports, or at any wharves which have been dedicated 
 to the public, and at which customable goods are neces- 
 sarily landed, except by grant, prescription, or Act of 
 Parliament, founded on some corresponding benefit to the 
 public as a quid pro quo. In addition to this the toll 
 taken must be reasonable in amount, and must not be 
 unreasonably enhanced.^ This, of course, does not refer 
 to private wharves where the rates charged in each par- 
 ticular case are a matter of l)argain between the parties.^ 
 
 ' L. R., 4 H. L. 266. seen\soasiotolls,ne Baltimore case, 
 
 - L. E.., 4 H. L. 286. 3 Bland, 383 (American) ; Brwie 
 
 3 Hcddij V. Whcclhousc, Cro. Eliz. v. Thompson, 4 Q. B. 543. 
 
 558 ; Faliiioitth v. Gcorr/c, 5 Binsy. ■* As to tolls generally see post, 
 
 28C; Hale de Port. Mar., Harg. Tr. Ch. VIII., and as to uavir/atioii, 
 
 78; Chitty on Prerogative, 195; Ch. VII. 
 
 Coniyn's Dig. Market ; Inst. 220 ;
 
 ( 51 ) 
 
 a water - 
 
 coiu'se. 
 
 CHAPTEE II. 
 
 OF INLAND WATERCOURSES ; THE OWNERSHIP OF THE 
 SOIL THEREOF, AND OTHER MATTERS. 
 
 A WATEKCOURSE may be defined as a body of water Defmition of 
 
 issuing c.r Jtire nafiorc from the earth, and by the same 
 
 law pursuing a certain direction in a defined channel, till 
 
 it forms a confluence with the sea.^ " A spring of water, 
 
 ' both in law and in ordinary language, is, as I under- 
 
 ' stand it," says Jessel, M. R.,^ " 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 under- 
 
 ' ground." " A spring," says Brett, L. J.,^ " 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, flumen re/ cursus aqiice, has been defined 
 by Lord Tenterden, C. J., as water flowing in a channel 
 between banks more or less defined.^ 
 
 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.^ This definition includes, 
 therefore, all natural streams, however small, which have 
 a definite and permanent course, and excludes all bodies 
 
 ' Angell on Watercoiirses, 2 ; ^ Hex v. Inhabitants of O.rford- 
 
 Woolrych on Waters, 40; Wool- shire, 1 B. & A. 301 ; 'CaUis on 
 
 rych on Sewers, 5 1 ; Phear, Rights Sewers, 77. 
 of Water, 31. ^ Wooli-ych on Waters, 40 ; 
 
 - Taijler v. St. Helen'' s, 6 Ch. Callis on Sewers, 77 ; Houck on 
 
 Div. 264 (C. A.). Navigable Rivers, 1 ; Phear on 
 
 3 Bnd7i V. MarfeU, 41 L. T., N. Rights of Water, 31. 
 
 457. 
 
 E 2
 
 52 
 
 OF INLAND WATERCOURSES, 
 
 Subterranean 
 streams. 
 
 Surface and 
 percolating 
 water. 
 
 Limits of a 
 watercourse. 
 
 of water, however large, wliicli are of a temporary cliarac- 
 ter, i. e. which are dependent on the will or convenience of 
 individuals for their volume or duration.^ 
 
 A subterranean stream may flow in such a known and 
 defined channel as to give rise to similar rights as would 
 exist above ground. " 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 re- 
 " cover, if the stream had been wholly above ground."- 
 
 The principles which regulate the rights to water flow- 
 ing in 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.^ 
 
 A stream begins at the point where the water palpably 
 rises to the surface and forms a channel,^ and extends till 
 it mingles with the sea outside the body of a county.^ 
 
 In a late 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 si:)ring was cut off 
 at its source, and the Avater 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 
 
 ' Briscoe -v. Drought, Ir. R., 11 C. 
 L. 264; Arku-right v. Gell, 5 M. & 
 W. 203. 
 
 ^ Dickenson v. Grand Junction 
 Canal, 7 Ex. 300 ; Chasenwre v. 
 Richards, 7 H. L. 374, per Lord 
 Chelmsford ; Dudden v. Clntton 
 U)iion, 11 Ex. C27 ; 2G L. J., Ex. 
 
 14G. 
 
 ^ Acton V. BhauMl, 7 M. & W. 
 324. 
 
 * Dudden v. Clutton Union, 26 
 L. J., Ex. 146, 11 Ex. 627 ; Phear, 
 33. 
 
 5 See i?'y. v. Kcyn, 2 Ex. Div. 
 62.
 
 OF INLAND WATERCOURSES. 
 
 53 
 
 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 watercom-se 
 " 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 natm-al channel, it cannot 
 " be lawfully diverted by anyone 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 som-ce 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." 1 
 
 It is not, however, necessary to constitute a watercourse A watcrcoiu-se 
 that the water should flow continually, as a channel may a regular 
 be occasionally dry,- but it must appear that the water channel, but 
 
 y "^ ' -'■J- may be 
 
 flows usually in a regular channel, and has a well defined occasionally 
 and substantial existence,^ 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."* 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.^ " The water 
 
 1 Dudden v. Clutton Vnlon, 11 204. 
 
 Ex. 627; Raicstron v. Tayler, 11 ^ Ajigell on Watercoui'ses, 5. 
 
 Ex. 369; Wood \. Waud, 3 Ex. ^ Ihidi.; see^lao JDrcivett v. Sheard, 
 
 7-18, 779 ; AngeU on Watercourses, 7 Car. & P. 465. 
 
 5, 6 ; see also Reg. v. Metropolitan * Stafordshire Canal v. Blrming- 
 
 Board of Works, 3 E. & S. 710. ham Canal, L. R., 1 H. L. 254, 
 
 ^ See Drcivett v. Sheard, 7 Car. 272; Rochdale Canal \. Radcliffe, 18 
 
 & P. 465 ; Trafford v. Reg., 8 Bing. Q. B. 287. See also Ch. V.
 
 OF INLAND WATERCOUESES. 
 
 " 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 considered. 
 " The water in this canal is not flomng vv^ater. 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 econoinize, and use in a par- 
 " ticular manner for the convenience of the public. It 
 " never flows. It is let down artificially, for the con- 
 " venience 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 natm-al 
 " or artificial streams is applicable." 
 
 Every watercom\se, says Mr. Angell,^ consists of — 1. The 
 bed ; 2. The bank or shore ; 3. The water. The bed is 
 covered by the water, and is the space subjacent to the 
 water through which it flows, and is that which contains 
 the water at its fullest when 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.^ " The bed of a river is the alccus, as distinguished 
 " from the shore, and from places where flood waters occa- 
 " sionally collect."^ The bank is the outermost part of the 
 bed in which the river natm-ally flows. The shore or beach 
 may be defined as that part of the river-bed lying between 
 the top of the bank and that part of the bed where the river 
 actually flows, and which, as the water rises or falls, is 
 laud or river. The bed and the water may be said to be 
 correlative terms, as one cannot be owned without touching 
 the other.'^ 
 
 ^ AngcU ou "Watercoiu-ses, 30 ; 
 Grotius de Jur. BeUi, 2, 8, 9. 
 
 ^ As to this, sec Moizics x.Brcadal- 
 hanc, 3 Wils. & Shaw, 243. 
 
 3 Per Lord Campbell, C. J., in 
 
 Abraham v. Great IVortliern Bail., 
 16 Q. B. 592. See li. v. Oxford- 
 shire, 1 B. & A. 289 ; Bcff. v. Der- 
 bi/shirc, 2 Q. B. 745, 755. 
 
 * Angell on Watercourses, 30.
 
 OF INLAND WATERCOURSES. 00 
 
 It is generally laid down in the text-books and in the The right to 
 earlier reported cases that the right of private property in -^yater of'a 
 a watercourse is derived as a corporeal right and heredita- -watercourse 
 ment from or is embraced in the ownership of the soil from the 
 over which it naturally passes, according to the well-kno-^Ti o^i^ersliip of 
 maxim, cujus est sohtm, ejus est usque ad ccehim} " A water- thereof. 
 " course," says Woolrych,- " 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 coehiin." "An 
 " action cannot," says Blackstone,^ " 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 
 cany all the timber and water standing and being there- 
 upon.'* 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 com'se on the land of a 
 single ovvTier, for in such cases the water is the absolute 
 property of such owner, and no one is entitled to share the 
 use of it with him ;^ but with regard to natural streams 
 flowing thi'ough adjoining lands, the enjoyment of v>'hich 
 is only usufructuary and not absolute, the right to use the 
 water has been held in modern cases not to arise from the 
 
 * Angell on Watercoiu'ses, 8 ; * iVngell on Watercourses, 9 ; 
 
 "Woolrych on Waters, 146 ; Phear 1 Greenleaf's ed. Cniise's Dig. 37. 
 
 onWaters, p. 22; 1 Stephen's Black. ^ See Holker v. I'orrit, L. R., 10 
 
 7th ed., pp. 659, 693; Co. Litt. 4; Ex. 59; Chasemore v. Itichards, 7 
 
 Bex V. Wharton, Holt, 499. H. L. 349 ; Acton v. BlundcU, 12 
 
 - Page 146. M. & W. 324 ; Xew River Co. v. 
 
 3 2 Comm. 18. Johnson, 2 E. & E. 435 ; and j^osf, 
 
 Ch. III.
 
 56 
 
 OF I^ILAND WATERCOURSES, 
 
 ownership of the soil on the stream, but from the right of 
 But from the access to it which landowners on its banks have by the law 
 thereto.' of nature.^ " "With respect to the ownership of the bed of 
 
 " the river," says Lord Selborne in Lyon v. Fishmongers' 
 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 presumption of law. The 
 " title to the soil constituting the bed of a river does not 
 " carry wdth 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 naturce as 
 " vertical ; 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,^ state 
 " the doctrine in terms which point to lateral rather than 
 " vertical. It is true that the banks 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 natm-e, which is an 
 " amply sufficient foundation for a natural riparian right." 
 Lord Cairns, L. C, says, in the same case,^ " I cannot 
 " admit that the right of a riparian owner to the use 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. Biehards,^ 'The subject 
 
 ' Zi/on V. Fishinonf/ers' Co., I ^ 7 H. L. 349. 
 
 App. Cas. 6G2. * Pag-e 673. 
 
 - 12 Moo. P. C. 131. 5 7 H. L. 382.
 
 OF INLAND AVATERCOURSES. 57 
 
 ' 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 nafitrcp, 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 jirinciple as he is entitled to the support 
 ' of his neighbour's soil for his own in its natui'al state. 
 ' His right in no way depends on prescription or the 
 ' presumed grant of his neighbour.' " In the case of 
 Emhrcy v. Otvcn,^ 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 jyubtici Juris, not in the 
 sense that it is honum racaiis, to which the first occu- 
 pant may acquire an exclusive right, but that it is 
 public and common in this sense only, that all may 
 reasonably use it who have a right of access to it, that 
 none can have any property in the water- itself except 
 in the particular portion which he may choose to abstract 
 from the stream and take into his possession, and that 
 during his possession only : see 5 B. ^ A. 24. But 
 each proprietor of the adjacent land has the right to the 
 usufruct of the stream which flows through it."'' 
 It would appear, therefore, that the ownership of the 
 bed of a watercourse, not being the natm-al foundation of 
 the right to the use of the water, the grantee of lands 
 through which there was a watercourse, would have the 
 
 1 6 Ex. 369. ' See also judgment of Leach, 
 
 - Except by statute ; see Jtfcd- V. C. in Wright v. Hou-ard, 1 S. & 
 
 xray Co. V. Earl of Lonuicij, 9 C. B., St. 190 ; and Vinson v. HUl, 5 B. k 
 
 N. S. 575. See};oA<, Ch. III. A. 1.
 
 58 OF INLAND WATERCOUESES. 
 
 full use of the water therein, although the bed of the 
 watercourse were reserved to the grantor. 
 
 The natural and acquii-ed rights to the use of water are 
 fully treated of in subsequent chapters.^ It is proposed in 
 the present chapter to consider the rights of property in 
 the bed of watercourses, apart from the use of the water. 
 The subject will be best treated of under the following 
 heads : — 
 
 1. Tidal Navigable Ivivers ; 
 
 2. Private Eivers and Streams ; 
 
 3. Lakes and Pools ; 
 
 4. Artificial Watercourses. 
 
 Tidal Navigahle Hirers. 
 
 Definition. A public navigable river is a river which is actually 
 
 navigable, 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. - 
 
 Ownership of The bed of all navigable rivers where the tide flows and 
 reflows,^ and of all estuaries and arms of the sea is by law 
 vested priiinl 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,^ or the right of fishery, which is prima facie 
 common to all.' 
 
 ^ See Chaps. III. and IV. ^.''o.s-;'. Smith, 2 Doug. 441; Hiimc v. 
 
 - The word navigable in a legal M^Kenzie, 6 CI. k. F. 628. 
 
 sen.se, as applied to a river in which ^ Mayor of Colchester v. Broolc, 
 
 the soil 2)rimd facie belongs to the 7 Q. B. 339 ; WiUiams v. Wilcox, 8 
 
 Crown and the fishing to the A. & E. 337 ; Carter v. Murcott, 4 
 
 public, imports that the river is Burr. 2163; Gann v. Free FisJiers 
 
 one in which the tide ebbs and of Wliitstable, 11 H. L. 192; ILal- 
 
 flows; J/»)7J/;yv. i?//ff«, Ir. R., 4C. coliiison v. O'Dea, 10 H. L. 593; 
 
 L. 14 3 ; see also Bloonifcld v.. John- Lord Advocate v. Hamilton, 1 Mac- 
 
 *o«, Ir. R., 8 C. L. 63; and per queen, H. L. 47 ; Sccbh-ristov. East 
 
 Whiteside, C. J., in Bristowe v. India Co., 10 Moo. P. C. 140; see 
 
 Cormicau, Ir. R., 10 Ch. 434. Hale de Jure Maris, p. 1. 
 
 •^ The word tide is not confined ^ Malcolmson v. 0''I)ca, 10 H. L. 
 
 to salt water, but includes the 593. 
 fresh water ponded back ; R. v.
 
 TIDAL NAVIGABLE RIVERS. 59 
 
 Mucli discussion has arisen both in this coimtiy and Rights of the 
 in America, whether or not this ownership of the fined to^tl.dal 
 Crown and the public rights above stated are confined ^vatcrs. 
 to tidal rivers, or whether they may also exist in non- 
 tidal rivers which are in fact navigable, 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.^ In this country a series of modern decisions 
 seems at last to have settled the law, and to have con- 
 fined the rights of the Crown and of the public to tidal 
 waters. 
 
 In the case of Murphy v. Bijan^- in which an action was 
 brought for trespass to a fishery in the 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 was vested 
 prima 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 Hargreavcs Y.Diddams,^ and Mussct v. Bnrc/i,^ the Court 
 of Queen's Bench have 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 propei4y attach ; and that, 
 therefore, a claim by one of the public to fish there cannot 
 exist in law. 
 
 1 See Houck, p. 26 ; Augell on App. C. 662. 
 Watercoiirscs, c. 13,andperiDo-\vse, - Ir. R., 2 C. L. 143. 
 
 B., in Bristou-e v. Cormuriii, Ir. R., 3 i,_ r_^ ^q Q. B. 527. 
 
 10 C. L. 68; and per Lord Hather- * 35 L. T., N. S. 486 ; see also 
 
 ley in Li/on v. I'ishinoiifferx'' Co., 1 Hudson v. Mcltac, 4 B. & S. 585.
 
 GO 
 
 OF INLAND WATERCOURSES. 
 
 What is 
 evidence that 
 a river is 
 naviirable. 
 
 In Bridoicc v. Coruiicaii,^ the House of Lords lield 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 the tide ebbs and flows, is prima 
 
 ' 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."^ Again, in Orr 
 
 Eiring 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.^ 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 pri/)/d 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.'* 
 
 Though the flux and reflux of the tide is prima 
 facie evidence that a river is navigable, it does not neces- 
 sarily follow, that because the tide flows and reflows in 
 any particular place, it is therefore a public navigation. 
 
 1 3 App. C. 641. 
 
 2 3 App. C. C66. 
 
 3 2 App. C. 839 ; see also per 
 Lord Selborne in Lyon v. Fishmon- 
 
 gers'' Co., 1 App. C. 682; and. Bloom- 
 fields. Johnson, Ir. R., 8 C. L. 68. 
 * See Bichett v. Morris, L. R., 1 
 Se. App. 47.
 
 TIDAL NAVIGABLE RIVERS. Gl 
 
 althougli of sufficient size. The strengtli 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 
 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.^ 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 -^-ith relation to the 
 circumstances of each river are necessary for the full and 
 convenient passage of vessels and boats along the channel.^ 
 The actual user of a tidal river, for the purposes of naviga- 
 tion, is of course the strongest evidence of its navigability.^ 
 From this it follows that, whenever a river ceases to be 
 na^dgable 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 ^uTit ad quod dcnnnun), 
 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.* 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 ; 
 
 1 Bex V. Montague, 4 B. & C. gable" and "boatable." 
 
 598 ; see also Mayor of I.ynn v. - Mayor of Colchester v. Brooke, 
 
 Turner, 1 Cowp. 36 ; Bose v. Miles, 7 Q. B. 339. 
 
 5 Taunt. 70o. For definition of a ^ Miks v. Bose, 5 Taunt. 705 ; 
 
 navigable river according to the see per Bayley, J., in Vougitt v. 
 
 French law existing in Canada, 7?^'««fA, 2 B.'& Aid. 662. 
 
 see Bell v. Corporation of Quebec, 41 ^ B. v. Montague, 4 B. & C. 598. 
 
 L. T., N. S. 451 (P. C.) ; accord- See also B. v. Douglas, 2 Lord 
 
 ing to American law, see Angell Keny. 499, and Woolrych on 
 
 ou "Watercourses, ch. 13; and as Waters, p. 237. 
 
 to the distinction between "navi- ^ Vooght v. iriuch,Z B.& Ald.G62.
 
 62 OF IXLAKD WATERCOURSES. 
 
 it was held that the new cut was a piihlic navigable river, 
 the obstruction of which was an indictable nuisance ; and 
 that the public had the same rights over it as over the 
 original stream.^ 
 Limits of the The right of the Crown to the alveus of navigable rivers 
 Crown. is 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 ovs^ners.- 
 This line is clearly liable from natural causes to a shifting 
 of position from time to time : if the alteration take place 
 by imperceptible degrees, the boundary, as between the 
 Cro"s^^l 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.^ 
 "\\niere a river Following this principle, it would appear that where a 
 tidal river gradually and imperceptibly changes its course, 
 the Crown will remain the owner of the bed ; but where 
 the change is sudden and perceptible, or where by the irrup- 
 tion 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 ease of The Mayor of 
 Carlisle v. Graham,^ 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 Mnrphii v. Ryaii,^ tliat the right of the Crown to 
 
 1 Iteg. V. Betts, 16 Q. B. 1022. ^ L. R., 4 Ex. 361. 
 
 ■ See ante, p. 12, 13. ^ i^,^ r^ q C. L. 68. 
 
 3 Phcar, p. 43. 
 
 clianges its 
 coirrsc.
 
 TIDAL NAVIGABLE RIVERS. 
 
 grant a several fishery in a tidal river depends on its pro- 
 prietorship of the bed, and that the bed in this case re- 
 mained, as before, the property of the former ov\'ner. 
 Kelly, C.B., delivering the judgment of the Coui't, 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 pro- 
 " perty of the o's\Tier, free from all rights whatsoever in 
 " the Crown or in the public." ^ 
 
 In the case of Ford v. Lacy - 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 navi- 
 gable, 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 
 Avas the boundary of the two counties Middlesex 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 ex- 
 ercised rights of ownership over the land claimed since 
 1814. Yicarial 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 Inclosiu'e Act, 
 1804, by which all the land up to the river was allotted to 
 his landlord. The learned judge at the trial asked the 
 
 1 See also Hale de Jure Maris, Betts, 16 Q. B. 1022. 
 pp. 5, 6, 11, 13, 16, 37, and licfj. v. - 7 H. & N. 151.
 
 64 OF INLA.ND WATERCOURSES. 
 
 jury, — 1st. Whether the pieces of land iu question were 
 in Esses ; 2nd. "Whether they were in the parish of 
 Waltham ; 3rd. Whether they were in -possession of 
 plaintiff ; 4th. Whether they were the property of de- 
 fendant'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,^ that if the change was 
 sudden and perceptible, and if the former marks remained, 
 and the extent could reasonably be ascertained, the soil 
 remains in the former owner ; and Pollock, C. B., re- 
 marking 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. Wrigld- the question as to 
 the ownership of the bed of a river which had gradually 
 and imperceptibly 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 be- 
 came 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, 
 dm-ing 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 plaintift' against the defendant for fishing on this 
 strip of land covered with water. The Court held that 
 
 ^ See x^. 63, note 1. '- 4 C. P. D. 438.
 
 TIDAL NAVIGABLE RIVERS. 65 
 
 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 pro- 
 perty in the bed was not lost by the gradual and imper- 
 ceptible change of the bed, although the former boundaries 
 coidd be ascertained, LintUey, 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 fishing ex- 
 " tends over so much of the water as flows over land which 
 *' can be identified as formerly paii of tlie 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 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 owmer of the land gradually added to : 
 " Rex V. Yarhorough ; ^ and, conversely, land gradually 
 " incroached upon by water ceases to belong to the former 
 " owner : In re Hull and Selhij Rail. Co? The law on 
 " this subject is based upon the impossibility of identifying 
 " from day to day small additions to or substractions from 
 " land caused by the constant action of running water. 
 " The history of the law shows this to be the case. Oiu- 
 
 1 3 B. & C. 91 ; 5 Bing. 1C3. 2 5 jf, & -^y, 307. 
 
 c. r
 
 GG 
 
 OF IIS LAND WATERCOURSES. 
 
 own law may be traced back throiigli BJackstone,^ Ilale^ 
 Britton,^ Flcia^^ and B r acton, ^ , to tbe Institutes of Jus- 
 tinian,^ from -which Bracton evidently took his exposition 
 of the snbject. Indeed, the general doctrine, and its 
 application to non-tidal and non-navigable rivers in cases 
 where the old boundaries are not kno-uoi, was scarcely 
 contested by the coimsel for the defendant, and is well 
 settled : see the authorities above cited : but it was con- 
 tended that the doctrine does not apply to such rivers 
 where the boundaries are not lost; and passages in 
 Britton,^ in the Year Books,*^ and in Hale de Jure 
 Maris,^ were referred to in support of this view. Ford 
 V. Lac// ^° was also relied upon in support of this distinc- 
 tion. Brilton lays down as a general rule that gradual 
 incroachments 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, uhi 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 Re Hull 
 and Selhy Bail. 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 observa- 
 tions in Rex v. YarhorougJi ^" are also in accordance with 
 this view ; and, although Lord Chelmsford in Attorney- 
 General V. CJtambers ^^ 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 Selhy Rail. Co.,^^ which decided the point so 
 far as incroachments by the sea are concerned. 
 
 1 Vol. ii. c. 16, pp. 261, 262. 
 ^ De Jure Maris, cc. 1, 6. 
 3 Book ii. c. 2. 
 
 * Book ui. c. 2, ss. 6, &c. 
 
 * Book ii. c. 2 . 
 
 « Inst. ii. 1, 20. 
 
 " Ubi supra. 
 
 ^ 22 Ass. p. lOG, iil. 93. 
 
 93 
 
 ^ Book i. c. 1, citing 22 Ass. pi. 
 
 '"7H. &N. 1.51. 
 " 5M. & W. 327. 
 '2 SB. &C. 106. 
 13 4 De G. & J. 69—71 
 '* 5 M. & W. 327.
 
 TIDAL NAVIGABLE RIVERS. 67 
 
 " Upon such a question as this, I am wholly unable to 
 " see any difference between tidal and non-tidal or navig- 
 " able 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 Claris, 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^ 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 thro'^ing any real light on the 
 " question I am considering." 
 
 A public navigable river, intra fauces terrw, where a Bod of a 
 man may reasonably discern between shore and shore, it rable^rrver^is 
 has been said by Lord Hale, is or may be within the body presumably 
 of a county f and will thus be subject to the jurisdiction county, 
 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,^ and now the 
 Central Criminal Court, has a concurrent jurisdiction with 
 the Courts of Common Law.^ 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.^ 
 
 The bed and shore of a public navigable river does not, Not presum- 
 
 in the absence of evidence, form part of the adioinina; ^^^ within 
 
 ' ^ . the parish. 
 
 parish, but is jyriind facie extra-parochial.'' Evidence may 
 be given to show that it is within the parish.^ Now, 
 
 1 7 H. & N. L51. 5 Embleton v. Brown, 3 E. & E. 
 
 2 DeJure Maris, Harg. Tracts, p. 22i ; Reg. v. Micsson, 8 E. & B. 
 10; Ow. 122; see also Cockburn, 900. 
 
 C. J., in Jieff. V. Keijn, 2 Ex. D. '' R:g. v. Mitsson, supra; Duke 
 
 164. of Bridgivater v. Bootlc-cum-Lin- 
 
 a Stat. Ric. II. c. 3. acre, L. R., 2 Q. B. 4. 
 
 ■* 4 &: 5 Will. IV. c. 36 ; Beg. v. ' Beg. v. M/isson, supra; Corg v. 
 
 Keyn, supra. Brlstow, 2 App. C. H. L. 262 ; 
 
 E 2
 
 G8 
 
 OF INLAND WATERCOURSES. 
 
 liowever, by 31 Sf 32 Vicf. c. 122, s. 27, every accretion of 
 tlie sea, whether natural or artificial, and the part of the 
 sea shore to the low vrater 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 shore between high and low 
 water mark of a tidal river is also an extra-parochial 
 place within the Nuisances Removal Act , 1855, 18 0(* 19 Vict. 
 c. 121.1 
 
 It may, therefore, be presumed that where a tidal river 
 forms the boimdary 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.- 
 
 M^ Cannon v. Sinclair, 2 E. & E. 
 53 ; i?. V, Zandulj)h, 1 Moo. & Rob. 
 393. 
 ^^ licff. V. Gee, 1 Ell. & Ell. 1068. 
 ' The subject of the rights of 
 difPerent nations "vyhose territories 
 are washed by the same river, is 
 International oiie connected "wdth international 
 rights on la,w, and does not, therefore, pro- 
 
 rivers foi-m- perly fall -within the scope of this 
 ing boundary "^ork. It may, however, be of 
 between two interest to the reader to note some 
 States. j)oints with regard to it. 
 
 The territory of a State includes 
 the lakes, seas, and rivers enth'ely 
 inclosed within its hmits. . . 
 "Where a navigable river f onns the 
 boundary of continous States, the 
 middle of the channel or thalweg is 
 generally taken as the line of 
 separation between the two States, 
 the presirmption 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-undis- 
 tiu-bed possession giving to one of 
 the riparian proprietors the exclu- 
 sive title to the entire river. 
 
 (Wlieaton, Elements of Inter- 
 national Law, p. 346 ; "SVlieaton, 
 Law of Nations, pp. 577 — 583.) 
 
 Things of which the use is inex- 
 haustible, such as the sea and run- 
 ning water, cannot be so aj^pro- 
 priated as to exclude others from 
 using these elements in any man- 
 ner 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 possessed by one na- 
 tion 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 communications. 
 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 pur- 
 poses a river which flows through 
 the territories of different States, 
 is common to all nations inhabit-
 
 TIDAL NAVIGABLE RIVERS. 
 
 69 
 
 The property of tlie Crown in the soil of navigable Property of 
 rivers may be communicated to a subject in the same way 
 
 Crown in the 
 
 ing the different parts of its banks ; 
 but tliis right of innocent passage, 
 being what text writers call an 
 imperfect right, its exercise is 
 necessai-ily modified by the safety 
 and convenience of the State af- 
 fected by it, and can only be 
 effectually secured by mutual con- 
 vention regulating the mode of its 
 exercise. (Grotius de Jur. Bel. ac 
 Tac. lib. ii. cap. 2, ^^ 12, 14; 
 Vattel, Droit des Gens, liv. ii. ch. 
 9, 6s. 12G— 130; ch. 10, ss. 132— 
 13i ; Putfendorf de Jui'. Naturae ct 
 Gentium, lib. iii. cap. 3, ss. 3 — 6 ; 
 Wheaton, Elements of Inter- 
 national Law, pp. 34G, 347.) 
 
 It seems this right draws after 
 it the incidental right of using all 
 the means which are necessarj' to 
 the secure enjoyment of the prin- 
 cij)al right itseK — c^., according 
 to Roman law, right to use of 
 shore to moor, to lade and luilade, 
 incident to right to navigate; and 
 public jurists apply this prin- 
 ciple to the same case, between 
 nations. 
 
 These rights are imperfect, and 
 can be modified by compact. Of. 
 the case of the navigation of the 
 Scheldt, and of the rivers whose 
 navigation was regulated by the 
 Treaty of Vienna, 181.), Neckar, 
 Mayne, iS:c. ("WTieaton's Elements 
 of International Law, pp. 347, 348.) 
 
 By Treaty of Vienna, 1815, the 
 commercial navigation of rivers 
 which separate different States, or 
 flow through their respective terri- 
 tories, 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 na^agation should bo 
 observed, which regulations were 
 to be uniform, and as favourable 
 as possible to the commerce of all 
 nations, (^'"hcaton's Elements of 
 International Law, p. 348, n., ct 
 scq.) Cf. aL?o the case of thenaW- 
 gation of the Rhine, p. 350, the case 
 of the navigation of the Mississipi, 
 p. 352 et seq., the case of the navi- 
 
 gation of the St. Lawrence, p. 356 
 ct seq., the case of the navigation of 
 the Plata and Parana rivers, p. 360, 
 n. 1; and see the discussion as to 
 the freedom of navigation of the 
 Amazon, which took place between 
 the L'nited States and Brazil, and 
 the arguments thereon. (lb.) 
 
 Teeatt of Viexxa, 1815, June 9th 
 (extracted from Hcrtslett's Col- 
 lection of Treaties, vol. i. jip. 3, 
 5, 15, 16.) 
 
 General Treaty signed in Con- 
 gress at Vienna, 9th June, 
 1815, and since acceded to 
 by all the other powers of 
 Europe. 
 
 Art. 108. — Tlie powers whose 
 States are separated or crossed by 
 the same navigable river, engaged 
 to regulate, by common consent, 
 all that regards its navigation. 
 For this purpose they will name 
 commissioners, who shall assemble, 
 at latest, witliin six months after 
 the termination of the congress, 
 and who shall adopt, as the basis 
 of their proceedings, the principles 
 established by thefollowingarticles. 
 
 Art. 109. — The navigation of the 
 rivers along their whole course, re- 
 ferred 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 
 understood that the regulations 
 established with regard to the 
 police of this navigation shall be 
 respected; as they will be framed 
 alike for all, and as favourable as 
 possible to the commerce of all 
 nations. 
 
 These articles provided, besides, 
 for the liberty of navigation, a 
 uniform system for the collection 
 of duties, and for the maintenance 
 of police, as w"ell as for regulations 
 as to tariff, the establishment of 
 offices for the collection of duties, 
 custom houses, and the repair-, &c. 
 of towing paths. Harbour duties
 
 70 
 
 bed may be 
 granted to a 
 subject. 
 
 OF IIS LAND WATERCOUESES. 
 
 as may the property in the sea shore, and may be claimed 
 by a subject either in gross or as parcel of an adjoining 
 
 were prohibited, and such as existed 
 were to be preserved for such time 
 only as was necessary for naviga- 
 tion. Eveything 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 bordeiing on the rivers 
 shall be at the expense of keep- 
 ing in good I'epair those passing 
 through its territory, and of main- 
 taining the necessary works through 
 the same extent in the bed of the 
 river, in order that no obstacle 
 may be experienced in the naviga- 
 tion. 
 
 The intended regulation was to 
 determine the manner in which 
 States bordering on rivers were to 
 participate in these latter works, 
 where opposite banks belonged to 
 different Governments. 
 
 The principles laid down in this 
 treaty were those suggested in a 
 memoir by Baron Von Humboldt, 
 plenipotentiary of Prussia, and 
 presented on the 3rd Februarj', 
 1815. Inter alia, he states that, 
 ' ' In order to conciliate the inte- 
 " rests of commerce with those of 
 " the riparian State, it would be 
 " necessarj', on the one hand, that 
 ' ' every regulation indisiDensable to 
 ' ' the freedom of na'V'igatiou from the 
 " point where a river becomes navi- 
 " gable, to its mouth, should be 
 " adopted by common consent, in 
 " a convention subject to be altered 
 " only by the luianimous consent 
 ' ' of the parties ; and on the other 
 " hand, that no riparian State 
 " should be disturbed in the exer- 
 " cise of its rights of sovereignty 
 " in respect to commerce and navi- 
 ' ' gation bej^ond the stijiulations of 
 " tliis convention, and at the same 
 " time should bo entitled to its 
 " share of the net revenues col- 
 " lected 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 prin- 
 " ciples so general that the diffe- 
 
 " rence in localities should only 
 " require modifications in their de- 
 " tailed application. (Wheaton, 
 History of the Law of Nations, 
 p. 499.) 
 
 These principles have been ap- 
 plied by detailed convention to re- 
 gulate the navigation of the Rhine, 
 Scheldt, Meuse, Moselle, Elbe, Oder, 
 Weser, and the Po, and theii- con- 
 fluent rivers. (lb. p. oOl.) 
 
 The principles established by the 
 Congress of Vienna, and applied to 
 the navigation of the great Euro- 
 pean rivers, had been long before 
 asserted by the Government of the 
 United States, in respect to the 
 navigation of the Mississipi, at the 
 time when both banks of that river 
 for a considerable distance above 
 its mouth were in possession of 
 Spain. Since 1783, the right of 
 navigating the Mississipi is now 
 vested exclusively in the United 
 States and their citizens. (lb. 506 
 et seq.) 
 
 ' ' The right of the United States 
 ' ' to participate with Spain in the 
 " navigation of the River Missis- 
 " sipi previously to the cession of 
 " Louisiana, was rested by the 
 " American government on the 
 " sentiment wiitten in deep cha- 
 " racters on the heart of man, that 
 " the ocean is free to all men, and 
 " its rivers to all riparian inhabi- 
 " tauts. This natural right was 
 " found to be aclaiowledged 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. "WTien these rivers 
 " enter the limits of another so- 
 " ciety, 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 con- 
 ' ' demned by the judgment of man- 
 " kind." (lb. p. 508.) 
 
 Of. the account of discussion be- 
 tween American and British go- 
 vernments as to the navigation of 
 the St. Lawrence. (lb. 511 ct seq.)
 
 TIDAL NAVIGABLE RIVERS. / 1 
 
 inauor. The grantees of the Cro-wTi, of course, take subject 
 to all the public rights, and any grant of the Crown 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. ^ 
 Such grants of the soil can now only be made by Act of 
 Parliament. 
 
 It has been sho\\Ti- that the shore of the sea between Limits of 
 high and low water mark may form parcel of the adjoin- ciwu on ^ 
 ing manor, and may so pass by grant from the Crown to p^bjic navi- 
 a subject. There would appear to be no distinction as to 
 this between the shore of the sea and of tidal rivers.^ But 
 as the sail of the bed of tidal rivers hcloiv low icatcr mark 
 is vested prima facie in the Crown, independently of any 
 ownership in the adjoining land, and as this ownership of 
 the soil below low water mark may be granted to a sub- 
 ject, questions might arise as to the boimdaries 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 fihim aquce ; ^ and this, independently of 
 the breadth of the stream. ■' A 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 aquce, 
 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 con- 
 struction of a deed, whether the subject-matter of con- 
 struction be a grant from the Crown or from a subject, 
 
 1 A.-G. V. Parmeter, 10 Price, Blundell v. Catteral, 5 B. & Aid. 
 
 378, 412, H. L. ; Gann v. Free 268. 
 
 Fishers of Whitstable,l\'H..'L. 1^2 \ * See On- Ewing v. ColquJioiui, 
 
 8ee ante, p. 14. As to implied 2 App. 839 ; Bkkett v. Morris, 
 
 grants, &c., see ante, p. 16 et scq. L. R., 1 H. L. Sc. 47 ; Wishart v. 
 
 - Ante, p. 13. WyUic, 1 M'Q., H. L. 839. 
 
 ^ SeeDu/ceofJiridffwaterv. Booth- ^ Dui/er v. Bic/i, Ir. K., 4 C. L. 
 
 cum-Linacre, L. R., 2 Q. B. 4 ; 414.
 
 72 OF INLAND WATERCOURSES. 
 
 and it being always a question of intention to be collected 
 from the language used with reference to the surrounding 
 circumstances.^ 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 prima 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. 
 A navigable A navigable river is a public highway navigable by all 
 public hi "-h- ^^^r Majcsty's subjects in a reasonable way and for a reason- 
 '^"'^J- able purpose.- The public right of free passage extends 
 
 to the whole of the navigable channel,^ which it appears 
 may be used as a highway by the public whenever it suits 
 their convenience, whether such navigation be valuable or 
 not.'* It includes all such rights as, with relation to the 
 circumstances of each river, are necessary for the con- 
 venient passage of vessels,^ — such as the right of stopping 
 for a reasonable time to unload,'' and of grounding and 
 anchoring free of toll." The right of navigation is para- 
 mount 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 ; ^ 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.^ The 
 public right can only be abridged by Act of Parliament, by 
 
 ^ Lord V. Commissioners of Sijcl- ^ Mayor of Colchester v. Brooke, 
 
 ney, 12 Moo. P. C. 473. 7 Q. B. 339. 
 
 ^ Oriffiiicil Hartlepool Colliers v. " Original Hartlepool Colliers v. 
 
 Gihb, 1 Ch. D. 713. Gibb, 1 Ch. D. 713. 
 
 3 A.-G. V. Terry, L. R., 9 Ch. "> Gann v. Free Fishers of JFhit- 
 
 423 ; Orr Euing v. Colqnhoun, 2 stable, 11 PI. L. 192. 
 App. C. 839; Williams v. Wilcox, ^ lb.; Foreman v. Free Fishers of 
 
 S A. & E. 314. Whitstciblc, L. E., 4 H. L. 266. 
 
 * A.-G. V. Zoiisclalc, L. E.., 7 " A.-G. v. Farmetcr, 10 Price, 
 
 Eq. 377. 412.
 
 TIDAL NAVIGABLE RIVERS. 73 
 
 writ ad quod damnum, followed by an inquisition, or by 
 natural causes, — sucb as tbe recess of the sea, or the accu- 
 mulation of soil or mud ; ^ in which case the river ceases to 
 be navigable, at least until such causes are by some means 
 counteracted.^ 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.^ 
 An artificial obstruction to a navigable river, though of Obstructions 
 more than twenty years' duration, will not operate as a ° "^^^'^s^ ^°"- 
 bar to the public right. ^ 
 
 Any erection on the bed of a navigable river ob- Eights of the 
 structing the navigation, even if erected by the authority ^^aMeos^*^ ^*^ 
 of the Crown, is illegal, and is a public nuisance,^ and the in the bed. 
 subject of an indictment *" and information," and of an ac- 
 tion on proof of special damage.^ Any unauthorized erec- 
 tion on the bed of a navigable river by any person other 
 than the owner of the soil is a purp rest arc, and is, per sc, 
 illegal, even though it cause no actual obstruction to the 
 navigation ; though there may bo cases of so trifling a 
 nature, that the Courts will not interfere by injunction to 
 restrain or abate them.^ The c[uestion whether the owner 
 of 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 con- 
 flicting decisions ; but it woidd now seem settled that such 
 erections are not illegal in themselves, if they cause no 
 
 ^ licff. V. Montague, i B. k C. ^ A.-G. v. Parmder, 10 PricG, 
 
 598. 412; A.-G. v. Burruhje, 10 Price, 
 
 - Maijor of Colchester v. Brooke, 350; A.-G. v. Johnson, 1 Wils. 
 
 7Q. B.^SSO. Ch. C. 87. 
 
 ' Maijor of Carlisle v. Graham, ^ It. v. Grosvcnor, 2 Stark. 511. 
 
 L. E,., 4 Ex. 366 ; Hale de Jure ~ A.-G. v. Richards, 6 Anstr. 
 
 Mar. pt. 1, c. 6, p. 34 ; RoUe, Abr. 603. 
 
 390; Eoscoe, Grim. Ev. p. 535. 8 j^gg^ ^ JHUcs, 4 M. & S. 101. 
 
 ^ Vooffht V. Wmch, 3 B. & Aid. » A.-G. v. Terr!/, L. E., 9 Ch. 
 
 662. As to navigation, see further 423 ; i?. v. Tindall, A. & E. 143. 
 post, Ch. YII.
 
 74 OF INLAND WATERCOURSES. 
 
 actual or probable injmy either to the public rights or to 
 the adjoining riparian proprietors. The cases of Bicl<ett 
 V. Morris, and Orr Eicing v. CoIquJioun, 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 mil 
 apply, '))ndati>i mutandis, to the Cro^\'n and its grantees, as 
 owners of the bed of tidal navigable rivers. 
 2[enziesj. jj^ ^|^g ^^^^^ q£ Mcnzics V. Breadcdbcuic^ an embankment 
 
 Brcaaalbane. , . ' , 
 
 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 a river, but to 
 prevent the old coiu'se from being altered, and so en- 
 croaching on his lands, there being also evidence to show 
 that at least part of the mound was erected on old founda- 
 tions, and that it was the custom of the country for 
 proprietors so to embank, the House of Lords held that 
 the erection was legal.^ 
 
 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 en- 
 croachment was not of a slight and trivial, but of a 
 substantial, description, it must always involve some risk 
 of injury. " 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 ri- 
 " parian proprietor ; and therefore, the act being prima 
 ^^ facie an encroachment, the onus seems properly to be 
 
 1 3 Wils. & Shaw, 235. I>a7ie, supra. 
 
 - Farquhamon'' s case, Jiine 2.5, ^ Menzies v. Brcadalbanc, supra, 
 
 1741 ; cited iu MciKics v. Brcadal-
 
 TIDAL NAVIGABLE HIVERS. 
 
 " cast upon the pai-ty doing it, to sliow that it is not an 
 " injurious obstruction." 
 
 In Bickctt V. Morris, ^ an application was made by a Hicfceft v. 
 riparian owner on the banks of a non-navigable stream 
 to the Court of 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 
 alreus 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 Com't 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 alrcus from his own 
 side to the medium filum Jiuminia, 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 regidar course, but that 
 anything done i)i altro, which produces no sensible effect 
 on the stream, is allowable ; and f lu'ther, that even though 
 immediate damage cannot be described, nor actual loss 
 predicated, jet, if an obstruction be made to the cmTent of 
 a stream, that obstruction is one which constitutes an 
 injury which the Courts will take notice of as an in- 
 croachment which the adjacent proprietors have a right 
 to have removed. In A.-G. v. Lonsdale,' Malins, V.-C, ^^--o'- v. 
 held that a riparian owner, who was also owner of the soil 
 of a public navigable river, had no greater rights to use 
 the alveus of a tidal river than of a non-tidal river, and 
 that, therefore, he was not authorized to erect a jetty 
 reaching across one-third of the width of tlie river ; for, 
 although the damage proved by the plaintiff, an opposite 
 riparian owner, was not sufficient to call for the inter- 
 ference of the Coui't, yet the erection of the jetty, which 
 was a solid pier extending fifty-three yards across the 
 
 » L. E., 1 H. L.Sc. 47. 2 l. E., 7 Eq. 377.
 
 76 
 
 OF INLAND WATERCOURSES. 
 
 river, was such an injmy 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.^ 
 an-Euuig\. jj^ the caso of Orr Eicing v. Colquhoun^- the appellants, 
 the owners of the bed of a non-tidal river over which 
 the public had 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 naviga- 
 tion 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 Black- 
 biu-n, in commenting on the case of Bickett v. Morris,^ and 
 the Scotch cases therein affirmed,'* thus explains the law : — 
 *'I think and submit to your Lordships, that the prin- 
 " ciple on which they were really decided was, that where 
 " any unauthorized erection is a sensible injury to the 
 " proprietory 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; but where there is an injury to the 
 " proprietory rights in running streams, the present injury 
 " now producing no damage may hereafter produce much. 
 
 ' See also Jessel, M.S., iu^.-G. MoiT. Diet. 12, 787; Mantyrev. 
 
 V. r«ry, L. E,., 9 Ch. 425. Boon, 10 Dimlop, 542; BamUton 
 
 - 2 App. Cas. 839. v. Mdinr/ton, 'Mow. Diet. 12, 826 ; 
 
 ^ L. li., 1 H. L. Se. 47. i?«?'«is v. i?ro!r«,Hiune's Diet. 504; 
 
 ■* Menzics v. Breadalbcnic, 3 Wils. Gdlatly, 1 Macphers. 592 ; Far- 
 
 & Sh. 2^^; Aberdeen v. Menzies, ^w/iffm;;, Morr. Diet. 12, 787.
 
 TIDAL NAVIGABLE RIVERS. 77 
 
 " And I understand the principle of Biclceft v. Mor)'iii^ to 
 " be, that where an erection is a present sensible injuria to 
 " the proprietory right of the owner of the other part of 
 " the alreiis, or of the opposite bank of a running stream, 
 " he may have it removed on the ground that there is a 
 " present injmy to the right of the property, if it is impos- 
 " sible to predicate that it may not produce serious damage 
 " in future, though the complaining party is not yet in a 
 " position to qualify present damage. And I think the 
 " same principle will apply where the complaining party 
 " is not a proprietor cj:" ad verso of the spot where the 
 " erection is made, but is a proprietor of land on the 
 " banks of the stream below the spot, but so near to it that 
 " the erection in alvco alters the natm-al flow of the water 
 " on the complaining parties' land ; but I do not think it 
 " was intended to be decided, and I do not think it is the 
 " law, that an erection in alvco of a natural stream is illegal 
 " per so, if all who have property on the banks of the 
 " stream consent to the erection ; nor do I think it was 
 " meant to be decided, nor do I think it law, that a 
 " riparian proprietor on the water of Kilmarnock, or on 
 " the water of Irvine, into which it flows, ten miles below 
 " the town, on whose land the flow of water would be in 
 " no way affected, could have maintained the action against 
 " Bickett for altering the line of his building in the town 
 " on the water side, which Morris, the proprietor of the 
 " houses and building ground immediately opposite, did 
 " maintain ; for I think there would be no injury to the 
 " proprietory right of the party complaining in respect 
 " of such land, no injuria to him." At page 861, the 
 learned Lord continues, "In the case of A.-G. v. Lonsdale 
 " the obstruction was in a tidal river, but it occupied one- 
 " third of the bed of the river. In A.-G. v. Terrf/ 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 
 
 1 L. E., 1 H. L. Sc. 47.
 
 78 
 
 OF INLAND WATERCOURSES. 
 
 Ownership of 
 river banks 
 and right of 
 landing and 
 towing there- 
 on. 
 
 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 a 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 (in- 
 cluding the Crown), whose property is injured, or of the 
 Crown in respect of an injmy 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 specu- 
 lation that some change might occur that would render 
 that piece of laud, though not now part of the waterway, 
 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 accident ; and that the defenders are as much at 
 liberty to build on the bed of the 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." 
 
 Erom these cases it would seem, that the owner of the 
 bed of a public navigable river may exercise all the rights 
 of property in the soil of its bed, though covered with 
 water, provided that he does not in any way interfere with 
 the rights of the public or of the riparian owners. It must, 
 however, be kept in mind, that as in a public river the 
 right of navigation extends to the whole of the navigable 
 channel, any erection in it which might become from time 
 to time an actual obstruction would become a nuisance 
 and illegal.^ 
 
 The right of navigation is a simple right of way, similar 
 to the right which the public have to passage along a 
 public road, and involves no right of property in the bed 
 or banks.^ The banks of a tidal river above high water 
 
 1 See post, Ch. VII. ; see also 
 Jessel, M.R., A.-G. v. Terry, L. 
 il.,9Ch. 425. 
 
 - See Orr Ewlng v. ColquJionn, 2 
 Ai")p. C. 839, and nee post , p. 90.
 
 TIDAL NAVIGABLE RIVERS. 79 
 
 mcark remain private property, and are not "piiblici Jio'is,''^ 
 so as to give the public navigating the river a right, in the 
 absence of prescription, to land themselves or their goods, 
 or to moor their vessels thereon.^ It would seem, however, 
 that the right of passing over the foreshore of a tidal river 
 at low water mark, being a necessary incident to the right 
 of navigation, is involved in it ; and that where a person 
 having a riglit to land on the banks has come to shore, he 
 may disembark in a usual or reasonable way, as by wading 
 or by means of a plank placed on the bed of the river.- 
 
 The banks of navigable rivers, not being publicl Juri)^, Eight of 
 but remaining private property, the public are not entitled *<^^^°^- 
 at common law to tow on the banks/' The right of 
 passage over the banks of a navigable river for the purpose 
 of towing vessels is an easement or right of way only, 
 similar in all respects to ordinary rights of way. A 
 towing path may be a highway to be used only for towing 
 barges or vessels.^ The right of towing, therefore, depends 
 on usage or custom. 
 
 " That there is such a custom," says Lord Kenyon, C. J., 
 '' on most navigable rivers no person doubts, but still the 
 " right is founded solely on the custom." . . " If navigation 
 " has been carried on for a series of years, and this right 
 " of towage constantly exercised, there would be abundant 
 " usage on which it might be supported."^ . . " Perhaps 
 " small evidence of usage before a jury would establish a 
 " right by custom, on the ground of public convenience."" 
 Thus, with regard to the river Thames, it appears, that 
 previous to the early statutes for the improvement of the 
 
 ' Ball V. Herbert, 3 T. R. 262 ; 202 ; Vernon v. Prior, cited in Ball 
 
 Bliindellx. Catteral, 5 B. & A. 268, v. Herbert, supra ; Prior of Ti/ne- 
 
 per Bayley, J. See Hale de For- month's case, Harg. Tr. 79 ; see 
 
 tibus Mar. p. 84; Bracton, lib. 1, Zaugersv. Whiskeard,^'&'EMz,.C'Q. 
 
 0. 12, s. 6; Callis on Sewers, p. 73. 'Ssl.S'ii.,citeCiinBallY. Herbert, ■p.'lQl. 
 
 - Marshall v. Ullcsicater Co., L. •* See irinch v. Conservators of 
 
 R.,7Q. B. 172; Blundell v. Catteral, Thames, L. R., 7 C. P. 471; Pe'x 
 
 5 B. & A. 268, per Best, J. See v. Severn and Wye, 2 B. & A. 648. 
 
 also Gann v. Free Fishers of fFhit- ^ Ball v. Herbert, supra, p. 261. 
 
 stable, 11 H. L. 192, and ««<<>, p. 33. " See also per Bovill, C. J., in 
 
 •' Ball V. Herbert, 3 T. R. 2;>3 ; Winch v. Conservators of Thames, 
 
 Ptirce V. Lord Fanronbcn/, Biilst. L. R., 7 C. P. 471.
 
 80 
 
 OF INLAND WATERCOURSES. 
 
 Conservancy 
 of navigable 
 rivers. 
 
 Ownership of 
 bed and banks 
 not generally 
 vested in con- 
 servators. 
 
 river, there were originally towing paths along the river 
 banks, the owners of which took tolls from the public for 
 the use of them.^ 
 
 The regulation and protection of the rights of naviga- 
 tion in all the principal rivers of the kingdom is now 
 vested in Boards of Conservators, who are made the 
 guardians, as it were, of the navigation, and the protectors 
 of the bed and soil for the purposes of navigation.- 
 
 It may be here noted, that in the river Thames, which 
 by its size and position is the most important of our rivers, 
 the ownership of the soil of the bed up to high water 
 mark, which had long been a subject of contention 
 between the Crown and the Corporation of the City of 
 London, is by the Thames Conservancy Act vested in the 
 Corporation of the City of London, who in their turn 
 convey all their interest and title to the conservators 
 under the Act.^ 
 
 Where, however, a river or navigation has been vested 
 by Act of Parliament in a Board of Conservators for the 
 purjooses of navigation, if the words of the Act are appli- 
 cable 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 pur- 
 poses 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.^ 
 
 In The Lee Conservancy Board v. Button,^ the plaintiffs, 
 
 ^ Winch Y.Conscn'cdoys of Tlu/mes, 
 L. K, 9 C. P. 378 ; L. E., 7 C. P. 
 471. See Bath lilver v. Willis, 2 
 Rail. C. 7; 19 Hen. IV. c. 18. 
 
 2 Cory V. Bristow, 2 App. C. 262. 
 As to conservanci/, see fui-ther 
 Ch. VII. 
 
 3 20 & 21 Vict. c. 147. See Cory 
 V. Bristow, 2 App. C. 262; Wcdlcins 
 V. Milton, L. it., 3 Q. B. 3.50; 
 Forrest v. Grcemvivh, 8 E. & B. 390. 
 As to the Thames at Oxford, see 
 Grant v. Oxford, L. R., 4 Q. B. 9. 
 
 See also Rex v. Mayor of London, 4 
 T. R. 21. 
 
 * Badger v. Yorkshire Rail. Co., 
 5 Jur., N. S. 409 ; Hollls v. Gold- 
 finch, 1 B. & C. 205. See also 
 R. V. A.ire and Calder Navigation, 
 9 B. & C. 820 ; R. v. Mersey and 
 Irwell Navigation, 9 B. & C. 95 ; 
 R. V. Thomas, 9 B. & C. 114; Chel- 
 sea Water Co. v. Boiclei/, 17 Q. B. 
 358 ; Bruce v. Willis, 11 A. & E. 
 463. 
 
 5 12 Ch. Div. 383.
 
 TIDAL NAVIGABLE RIVERS. 81 
 
 Conservators of tlie Eiver Lee, brought an action to re- Lee Conser- 
 strain the defendant, who was the owner of property y///fo« ""' ^ 
 adjoining a towing-path, from nsing the towing-path for 
 the passage of horses and carts, and the carriage of goods 
 and merchandize, or in any manner inconsistent with the 
 free and convenient navigation of the river. The Biver 
 Lee Navigation was originally formed in 1570, under an 
 Act of Parliament in the 13th year of Queen Elizabeth ; 
 and it was provided therein that the trustees and their 
 successors should have the ground therein set out along 
 the whole length of the navigation for such composition 
 as they should make with the owners and occupiers of the 
 soil and ground. Several other Acts were passed pre^aous 
 to the 7fh Geo. III. c. 51. By that Act trustees were 
 empowered to extend, improve and maintain the naviga- 
 tion, and, amongst other things, to set out and make 
 towing-paths, making compensation for any messuages, &c. 
 which the trustees should adjudge necessary, convenient 
 or proper to become seised or possessed of for the purposes 
 of the Act. The navigation and use of the towing-paths 
 was to be free to the public on payment of tolls ; and any 
 person who wilfully damaged or destroyed any banks or 
 other works erected or made for the purposes of the navi- 
 gation was liable to certain penalties. In 17G7, the 
 trustees made a new cut, altering the course of the river, 
 and adapted the towing-path to the alteration. Under 
 powers of the Act 31 ^- 32 Vict. c. 154, the trustees made 
 bye-laws, providing that no person should allow any horse 
 or cattle to trespass on the towing-paths. The defendant 
 bought his property in 1871, and the to\\dng-paths had 
 never been used by his predecessor for horses, carts or 
 carriages; but defendant used the towing-path on the new 
 cut for carting bricks, the effect of which was to cut up 
 and destroy the towing-path, and materially to interfere 
 with the navigation. The defendant alleged that he and 
 his predecessors had always had the soil of the towing- 
 path vested in them, and he did not admit that the plain-
 
 82 OF INLAND WATERCOURSES. 
 
 tiffs had any easement over it ; but even if they had such 
 an easement, they were not entitled to the exclusive use 
 thereof, and had no authority to prevent the towing-path 
 from being used for all lawful purposes, — such as carting 
 lawful goods and merchandize. Malins, V.-C, held that 
 the plaintiffs were entitled by their Acts of Parliament to 
 the freehold of the towing-path, and granted an injunction 
 to restrain the defendant as prayed. On appeal, the Lords 
 Justices varied this decree, holding that by the various 
 Acts of Parliament the plaintiffs did not acquire the free- 
 hold of the land forming the towing-path, which remained 
 in the original owners, nor any easement over it, but only 
 the right and the duty to keep it in a fit state for the 
 public to use as a towing-path ; but that, by reason of this 
 right and duty, the plaintiffs were entitled to an injunc- 
 tion to restrain the defendant from so using the towing- 
 path as to interfere with its use by the public for the 
 purposes of navigation. 
 
 James, L. J., says : " Now, priind facie, one would 
 " suppose that it was not intended that they should have 
 " any different property in the new cut than that which' 
 " they might have had in the rest of the river Lee. The 
 " new cut was only a straightening of the bed of the 
 " river Lee. Prinid facie, one would suppose that the 
 " straightened Lee from one end to the other was to be 
 " exactly what the unstraightened Lee was; that is to say, 
 " a river subject to all the rights of property of the 
 " riparian proprietors. Then they were to make satisfac- 
 " tion for damages. It is true that there is another clause 
 " giving power to them, in case it should become neces- 
 " sary for them to become seised of property, to acquire 
 " the property — that is only when it is necessary for 
 " them to do so. One would have supposed that it was 
 '• not necessary for them to acquire the soil and freehold 
 " of the piece of ground, which was either required for 
 " the canal or for the towing-path, which would be, in 
 " fact, making an impassable bar between one man's
 
 TIDAL NAVIGABLE EIVEKS. 83 
 
 property and another part, which was not at all wanted 
 for the purposes of the navigation. All that was 
 wanted for the purposes of the navigation was, that 
 there should be a good water-highway for the barges, 
 and a good horse-way and foot-path for the horses and 
 men towing the barges. It was not requisite, and it 
 would not be reasonable, that they should acquire any- 
 thing more than that which has been called an ease- 
 ment ; that is to say, that right which Parliament gave 
 to them for the purposes of giving the public the right 
 of way." 
 
 Brett, L. J". : " The Act of Parliament gives them no 
 easement, the Act of Parliament gives them no pos- 
 session, but it gives them a mere legal right of entry 
 without possession, and it imposes upon them the duty, 
 as long as they take tolls, to keep the toA\dng-paths in 
 such a state that the navigation of the canal, and the 
 use of the towing-path by the public, may not be 
 impeded. Apply that to the case of the towing-path 
 opposite to the defendant's land, and it leaves him the 
 owner of that land. It is not properly a towing-path 
 opposite his land, but it is a towing-path on his land, 
 and the plaintiffs' only right being to use that towing- 
 path, and to keep it in a fit state for the public to use it. 
 He has every right over that land which is his ovm, 
 other than a right to impede the navigation. The only 
 prohibition against him by viiiue of the Act is, that the 
 plaintiffs have a right — a duty to see that there is a 
 free towing-path over his land." 
 
 In the case of Ilol/is v. Goldfinch,^ which was an action HoUhv. Gold- 
 of trespass by the conservators of the Piver Itchen "'^'' 
 against the defendant, the owner of land adjoining, for 
 cutting trees on the bank of a channel made under their 
 Act (16 *^- 17 Car. 11.) , the Couii held that the defendant 
 was not liable to an action : for that, fij.'st, by the pro- 
 visions of the Act, the proprietors of the navigation did not 
 1 1 B. & C. 205. 
 
 G 2
 
 84 
 
 OF INLAND AVATERCOURSES. 
 
 necessarily acquire such an interest in the soil in a bank 
 adjoining to and formed of earth excavated out of the 
 new channel, as to enable them to maintain trespass ; and, 
 secondly, that as the purchase of the soil was not ne- 
 cessary for any of the purposes of the Act, it was to be 
 inferred that no such purchase had been made; and, 
 thirdly, that acts of ownership by the proprietors of the 
 navigation upon different parts of the bank contiguous to 
 the new channels, were not admissible in evidence to show 
 that the soil of the bank in question belonged to the pro- 
 prietors of the navigation. 
 Brwe V. In the case of Bruce v. Willis,^ a canal company were 
 
 enabled by Act of Parliament to purchase lands, paying 
 full satisfaction ; and commissioners were appointed to 
 settle the amount of satisfaction payable in each case, and 
 in certain cases to summon juries to assess damages. Judg- 
 ments of the commissioners and verdicts of the juries were 
 to be transmitted to the clerk of the peace, and to be 
 deemed records of sessions. By an inquisition, a jury 
 assessed damages at thirty years' purchase for certain lands 
 necessary for making a cut, &e., part of the navigation, and 
 an annual payment was awarded for certain land required 
 for a towing-path. The canal company made a lock, 
 canal, and towing-path on the land aforementioned, but 
 no conveyance was ever executed. The Court held that 
 the Act of Parliament vested the soil used for these works 
 in the canal company without a conveyance. 
 No duty at There is no common law liability on the owner of the 
 
 to deanso'^^ ^®^ °^ ^ navigable river or navigation to cleanse it or 
 rivers. Jj^eep it free of obstructions, or to compensate adjoining 
 
 owners for damage done by overflow of the water, even in 
 cases where tolls are taken for navigating thereon.^ It 
 
 1 11 A. & E. 463; E. v. Mersei/ 2 Bing. N. C. 483; llarborough v. 
 
 and Iricell Navigation, 9 B. & C. 95 ; Shadlow, 7 M. & W. 37 ; Dimes v. 
 
 R. V. Thomas, 9 B. & C. 114. See Grand Junction Canal, 3 H. L. 794 ; 
 
 Somerset Canal v. IIarcoitrt,2 De G. Simpson v. Stajfordshire Water Co., 
 
 & J. 596 ; Reg. v. Arc/ibisJwp of 4 De G., J. & S. 679. 
 
 York, 14 Q. B. 81; Patrick v. Beau- • Hodgson v. Maijor of York, 28 
 
 fort, 6 Ex. 498; Eohins v. Warivick, L. T., N. S. 83G ; Cracknell v. Thet-
 
 TIDAL NAVIGABLE RIVERS. 85 
 
 would seem, moreover, that at common law neither the 
 owners of the bed of a navigable river or navigation, nor 
 a board of conservators, are bound to keep the navigation 
 open or in a proper state of repair ; but that so long as they 
 choose to keep the navigation open and to take tolls for 
 its use, even where those tolls are not for their own profit, 
 but for the maintenance of the na^^gation, they are under 
 an obligation to take reasonable care that persons using it 
 are exposed to no imdue danger ; ^ where no tolls are taken, it 
 has been held that there is no liability to repair or remove 
 obstructions.- 
 
 Riparian owners on the banks of tidal navigable rivers, Rights of 
 have similar rights and natm'al casements to those which ownera? 
 belong to a riparian proprietor above the flow of the 
 tide, underlying and controlled, but not extinguished by, 
 the public right of navigation.'* These rights do not 
 depend on the ownership of the soil of the stream, but, so 
 far as they relate to a natural stream, exist jure iiatio-w, 
 because the land has by nature the advantage of being 
 washed by the stream. 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 naturce as 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 the stream, 
 but it is in such contact for a great part of every day in 
 the ordinary and regular course of nature, which is amply 
 sufficient foundation for a natural riparian right.'* 
 
 The various rights of riparian owners will be treated of 
 fully in another chapter,^ and it may suffice to say that the 
 owner of the bed of a natural stream has the right to have 
 the water of the stream come to him in its natural state, 
 
 ford, L. E., 4 C. p. 629 ; Parrett 3fanb>/ v. 6'^ Ilckns, 2 H. & N. 
 
 Xavifjation v. Mobins, 10 M. & W. 840. 
 
 693 ; Bridge's case, 10 Rep. 33. - Forbes v. Zee Conservancij, 4 Ex. 
 
 ' Mcrsoj Docks v. Gibb, L. R., Div. 116. 
 
 1 H. L. 93; Farnabi/ y. Lancaster ^ Lyo)i\. Fishmongers' Co., \ A.])^, 
 
 Canal, 11 A. & E. 223; Winck v. C. 662. 
 
 Conservators of Thames, L. E.., 9 * Sec post, Ch. III. 
 C. P. 378; ii. 11., 7 C. P. 456;
 
 access. 
 
 86 OF INLAND WATERCOURSES. 
 
 in flow, quantity and quality, and go from him -without 
 obstruction, as a right incident to his property, which in 
 no way depends on prescription or the presumed grant of 
 his neighbours.^ He is entitled to have the water flow to 
 him in its natural state, so far as that is a benefit to him, 
 and is bound to submit to receive it, so far as it is a 
 nuisance to him.^ He is entitled, by having a right of 
 access to it, to the reasonable use of the water for his 
 domestic purposes, and for his cattle ; and also he may 
 dam it up for a mill or divert it for irrigation, provided 
 he does not interfere with the rights of other riparian pro- 
 prietors, either above or below him.^ 
 Eight of The most important right, however, belonging to an 
 
 owner on the banks of a navigable river is the right of 
 access from his land to the river, for the purposes of exer- 
 cising the public right of navigation ; and it may be well 
 here to consider this right more fully. 
 
 A public navigable river is a public highway ; and 
 where there is a public highway, the owners of land 
 bounded by it have a right to go on the highway from 
 any spot on their own land."* " Unquestionably," says 
 Lord Cairns, " the o^vTier 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 where the 
 " right of navigation is connected with an exclusive right 
 " of access to and from a particular wharf, it assimies 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 
 
 1 C'hascmorc v. Richards, 7 H. L. ^ Miner v. GUmour, 12 Moo. P. 
 
 382, cited by Cairns, L.C., in Li/on C. 131. 
 
 V. Fishnwiif/cys' Co., post. * Blackbiim, J., in Mnrshall v. 
 
 - Per Blackburn, J., in Mason v. I'/lcswater, L. K., 7 Q. B. 116, see 
 
 ShrcKshunj liaihray, L. R., 6 Q. B. ante, p. 35. 
 582,
 
 TIDAL NAVIGABLE lUVERS. 87 
 
 " connection with the land, the disturbance of which may 
 " be vindicated in damages or restrained by an injimc- 
 " tion."i 
 
 In the above case of Lyon v. Fishmongers Co., a suit 
 was brought by the appellant, the owner of a wharf on the 
 Thames. The river bounded this wharf on the south, and 
 a creek of the river on the west. The defendants owned 
 a wharf at the bottom of this creek. The plaintiffs had 
 from time immemorial a right of access to their wharf 
 from both the main river and the creek. In 1857, the 
 Thames Conservancy Act enabled the Conservators of the 
 Thames to grant to owners and occupiers of land fronting 
 the Thames a right to make quays, embankments, &c., in 
 front of their land on payment of fair consideration. The 
 respondents obtained in 1872 a licence to make an em- 
 bankment in front of their wharf, which had the effect of 
 entirely displacing the water from the above-mentioned 
 creek, and so put an end to the use which had always been 
 made by the occupants of appellant's premises. The 
 appellant filed a bill to restrain the respondents from 
 constructing these works, or obstructing appellant's right 
 of access. Malins, V.-C, granted the injunction prayed 
 for, but the Lords Justices reversed this decree ; on appeal, 
 the House of Lords reversed the judgment of the Lords 
 Justices, and confirmed the decree of Malins, V.-C, holding 
 that though the licence of the conservators might be a 
 justification so far as the public right of navigation was 
 concerned, it would not authorize a licensee, being a 
 riparian owner, to embank in front of his land, so as to 
 injmiously affect the land of another riparian owner by 
 interfering with his right of access to and from it. " The 
 " taking away of river frontage of a wharf, or the raising 
 "of an impediment along the frontage, interrupting the 
 " access between the wharf and the river, may," says Lord 
 Cairns, L. C, " be an injury to the public right of naviga- 
 
 ' Per Lord Cairus, L. C, iu Lijoii v. Flshiiioiiffcyb^ Co., 1 Apix C. 
 C62.
 
 OF INLAND WATERCOURSES. 
 
 Interference 
 with, action- 
 able without 
 proof of 
 special 
 damaore. 
 
 " tion, but it is not the less an injury to the owner of the 
 " wharf, which, in the absence of any parliamentary 
 " authority, would be compensated by damages, or 
 " altogether prevented." 
 
 The right of access to a navigable river is, therefore, 
 a right of property distinct from the public right of 
 navigation, an injury to which is actionable without proof 
 of special damage. Thus, in Rose v. Grorcs,^ where the 
 plaintiff, a riparian owner, had a public-house on the 
 Thames, and complained that the access to and from 
 the river was obstructed by the defendant wrongfully and 
 maliciously placing and keeping timber in the river, so 
 as to drift opposite the plaintiff's house ; the Court held, 
 that, as this was an injury to a private right, no proof 
 of special damage, such as loss of custom, was necessary 
 to support the action ; and that it was not a question for 
 the jury, whether the plaintiff had sustained special 
 damage, for the injury complained of was not a public 
 one to the navigation, but a private one to the right of 
 access. 
 
 A count by owner of a messuage abutting on a navigable 
 river, stating that defendant fixed barges, planks, &c. near 
 the messuage, and hindered the plaintiff in the free use of 
 the river, is good, as sufficiently showing a particular 
 injury ; for even if the jury negative actual damage, 
 plaintiff must have judgment. But a count stating plain- 
 tiff to be reversioner is bad, while it does not show a 
 permanent injury to the reversion.- 
 
 In a late case in the Privy Council, on appeal from the 
 Courts in Canada, it was urged that, on the authority of 
 Li/oii V. Fishmoiujo's' Co., every riparian proprietor as such 
 has, beyond his right as one of the public, a right to use 
 a navigable river in a free and uninterrupted manner, so 
 
 15 M. & G. 613; iJohtson v. 
 £ lack more, 9 Q. B. 901. See al.so 
 Wilkes V. JTio/fferford, 2 New Cases, 
 281 ; 2 Scott, 440; Ivcson v. Moore, 
 cited in Chichester v. Lethbridge, 
 
 ^^"11108,74; Herbert v. Groves, 1 Esp. 
 N. P. C. 148; Fimux v. Hoveden, 
 Cro. Eliz. 664. 
 
 - Dobson V. Blackmore, 9 Q. B. 
 991.
 
 TIDAL NAVIGABLE RIVERS. 89 
 
 that any obstruction placed in it would be an invasion 
 of a private right for which an action would lie without 
 proof of special damage. Their Lordships, however, were 
 of opinion that this decision could not be pressed to such 
 an extent ; but that it would be a question of fact to be 
 determined by the circumstances of each case, whether an 
 obstruction amounts to an interference mth the right 
 of access to the river frontage.^ 
 
 The right of access is, moreover, a portion of the Compensation 
 valuable enjoyment of land on the banks, and any uudeTsVo 
 works which take it away have been held to be an "in- Vict. c. 18. 
 *' juriously affecting of the land," so as to give a right to 
 compensation under the Lands Clauses Consolidation Act. 
 In the case of Duke of Buccleuch v. MctrojwUtan Board 
 of Works,- compensation was given for the loss of the use 
 of a causeway over the bed of the Thames, giving access 
 to the river at low water from appellant's garden ; and in 
 The Metropolitan Board of Works v. McCarthy^ appellant 
 was held entitled to compensation for loss of access from 
 his house to a dock which was open to the public. The 
 claim in these cases was founded on an injury to an 
 interest in land, whereby the land was rendered less 
 valuable ; and, therefore, where an occuj)ier of premises 
 had been used to draw water from the river and to use 
 a public drawdock merely as public rights, and not 
 as rights connected with his premises, it was held that ho 
 could not recover for an interference with such rights.^ 
 
 In the case of A.-G. v. Conservators of the Thames,^ the 
 obstruction was held to be, if an obstruction at all, an 
 obstruction to the navigation, and not to the public right 
 of access. In a late case the Master of the Rolls has held 
 
 ' See f lu-ther as to law of Canada, * Ecg. v. Metropolitan Board of 
 
 Mmjor of Montreal v. Drt/mmond, 1 IVorls, L. E., 4 Q. B. 3-58. See 
 
 App. C. 38i; 35L. T., N. S. 106; Beckett v. Metropolitan Board of 
 
 Bronn v. Gregg, 2 Moo. P. C. 341 ; Works, L. R., 3 C. P. 82; 17 L. T., 
 
 10 L. T., N. S. 45. N. S. 499. 
 
 - L. R., H. L. 418. 5 iHem. &1M. 1. See also Xrarws 
 
 ' L. R., 7 H. L. 243. v. Cordwainers' Co., 6 C. B., N. S. 
 
 388.
 
 90 OF INLAND WATERCOURSES. 
 
 tliat a riparian owner has a right to moor a vessel of 
 ordinary size alongside his wharf for the purposes of 
 loading and unloading at reasonable times, and for a 
 reasonable time ; and that the Court will restrain by in- 
 junction the owner of adjoining premises from interfering 
 with the access of such vessel, even though the vessel may 
 overlap his premises ; but that such vessel would not be 
 allowed to interfere with the proper right of access to the 
 neighbouring premises, if used as a wharf, nor to the free 
 entrance to or exit from such premises, if used as a dock 
 by other vessels.^ 
 Right to land It Avould appear that, as a necessary incident to the 
 kioie as inci- right of access, there must be the right of landing and 
 "^•^'tVf *^.^^ of passing over the shore at low water for that purpose, 
 
 I'l^IlL 01 9.CCGSS. t -1 • • a 
 
 even when such shore is private property.- 
 
 In the case of Marsltall v. UUesicater Co.,^ it was held 
 that persons having a right to navigate on a navigable 
 lake were entitled to pass over a pier belonging to plaintiff, 
 the owner of the soil of the bed of the lake, which had 
 been wrongfully erected on the soil of the lake by a third 
 party, but was maintained by 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. Though this decision 
 would, strictly speaking, only apply to a tidal river when 
 the tide was high ; it is submitted that, as the principle 
 of the decision is rested in the necessity of the right 
 of passage over the property of another as incident to the 
 
 ^ Original Hartlepool Colliers v. " "vvhen an attempt is made to de- 
 
 Gibb, 8 Ch. Dir. 713. " fine the private as distinguished 
 
 - " Independently of authorities, "from the public right, or to ex- 
 
 ' it appears to me quite clear that " plain hoTv the one could be in- 
 
 ' the right of a man to step from ' ' fringed without at the same time 
 
 ' his own land on to a highway is " interfering with the other, this 
 
 ' something quite different from " does not alter the character of 
 
 ' the public right of using the " the right." Per Wood, V.-C, 
 
 ' highway. The public have no in A.-G. v. Conservators of Thames, 
 
 ' right to step on to the land of a 1 Hem. & M. 1 . As to this see more 
 
 ' private proprietor adjoining the fully ante, p. 33. 
 
 ' road. And though it is easy to ^ L. E,., 7 Q. B. 166. 
 ' suggest metaphysical difficulties
 
 TIDAL NAVIGABLE RIVERS. 91 
 
 public right of navigation, and as the public right of 
 na-\-igation exists at all times and states of the tide/ and 
 is paramount to all private rights of property in the bed 
 of the river,- it would be absurd to limit the right of 
 passage to the period when the shore was covered with 
 water, and hold such passage illegal when the shore is dry. 
 
 The right of fishery in estuaries and arms of the sea, and Public right 
 in navigable tidal rivers, so far as the tide flows and ° ^ ®^J- 
 reflows, is prima facie common to all the subjects of the 
 realm.^ It seems somewhat doubtful whether this right 
 is to be considered as belonging to the public of common 
 right, or whether they derive it from the Crown as owner 
 of the bed and soil of tidal waters.^ This public right 
 cannot exist at law in non-tidal waters, even though 
 navigable, the right of navigation giving no right to fish/ 
 The right of fishing includes the right to take shell fish,'' 
 and may be carried on by lawful nets.' 
 
 Though the right of fishing in tidal waters is prima facie Several 
 in the public, yet the right to exclude the public therefrom * ^^ ' 
 and to create a several and exclusive fishery existed in the 
 Crown, and might lawfully have been exercised by the 
 Cro^vTi before Magna Charta.^ The Crown cannot now 
 exclude the public or create a several fishery,^ and there- 
 fore 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.^*' 
 
 ' Mayor of Colchester v. BrooJce, ° 3fi<rj)Ii)/v. Ryan, supra; Musstt 
 
 7 Q. B. 339. V. Burch, So L. T., N. S. 486 ; 
 
 - Gann v. Free Fishers of Whit- Harqrcavcs v. Liddams, L. R., 10 
 
 stable, 11 H. L. 192. Q. B. 587. 
 
 •'' Maleolmson v. O'Dea, 10 H. L. ^' Bagot v. Orr, 2 Bos. & Pull. 
 
 593; Crichton v. Colley, 19 W. R. 472. 
 
 167 ; Carter v. Murcott, 4 Burr. ^ Warren v. Mathews, 6 Mod. 73. 
 
 2163; Fitzicalter's case, 1 Mod. 106. « Malcolmson v. O'Bca, 10 H. L. 
 
 * See Woolrych on Waters, p. 593. 
 
 76 ; Mayor of Carlisle v. Graham, ' Warren v. Mathews, supra. 
 
 L. R., 4 Ex. 361; Murphy v. '" Edgar \. Commissioners of Fish - 
 
 Ryan, L. R., 2 C. L. 143. cries, 28 L. T., N. S. 732.
 
 92 
 
 OF INLAND WATERCOURSES. 
 
 A several fislieiy 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. ^ 
 
 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 fonnerly a part of the royal pre- 
 rogative ; 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.^ 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 ;^ 
 and fiu-ther that the grant of a several fishery in a tidal 
 river will not of itself pass a right to the soil, though it 
 may, if coupled with sufficient words or accompanied by 
 acts of ownership, be evidence that the soil was intended to 
 be passed.^ 
 
 Private Rivers and Streams. 
 
 Defiuition. All rivcrs and streams above the flow and reflow of the 
 
 tide are priind facie private, though many have become 
 by immemorial 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 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 
 
 1 Garni V. Free Fishers of Whit- 485 ; H. v. Fills, 1 IL k S. 652 ; 
 
 stable, 11 H. L. 192. Grai/ v. Boticl, 5 Moo. 527. 
 
 - I)ifl-e of Somerset v. For/ivcll, 5 * F)i<ke of Somerset v. Fogwell, 
 
 B. tfc C. 884. supra. As to Fishery, see 2^ost, 
 
 3 Scratton v. Broivn, 4 B. & C. Ch. VI.
 
 PRIVATE RIVERS AND STREAMS. 93 
 
 the tide can properly attacli.^ The right of navigation 
 gives no right of property,- nor of fishing.^ 
 
 When the lands of two conterminous proprietors are Ownership of 
 separated from each other hy a running non-tidal stream 
 of water, each proprietor is 2^rimd facio owner of the soil 
 of the alreus, or bed of the river, ad medium filum aqucp. 
 The soil of the alreus 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 alveus, each of them up to what was the 
 medium filum aqucp, in the same way as they were entitled 
 to the adjoining land."* Where the same person is the 
 proprietor of the ground on both sides of the stream, he is 
 prima faeic the proprietor of the whole of the channel.^ 
 This presumption is liable to be rebutted, but if not 
 rebutted it is the legal presumption. 
 
 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.'' 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 aquw, as the description of the boundaries 
 
 ^ Murphi/ V. lii/an, li-.R., 2 C. App. 47; Wishart v. Wylli^, 1 
 
 L. 148; Mussel y. Btirch, 35 L. T., McQ., H. L. 389 ; Carter v. 3£ur- 
 
 K. S. 486 ; Hargreares v. Dlchlams, cott, 4 Burr. 2162; Reg. v. Inhabi- 
 
 L. E., 10 Q. B. 582. tants of Landulph, 1 Moo. & R. 393; 
 
 - Orr Ew'mg\.Colqiihoun,2 A.-^-^. E.\. Wharton, 12 Mod. 510. 
 C. 839. ° See Orr Ewing v. Colquhoun, 
 
 3 JIargrcares v. Biddams, L. R., 2 App. C. 856. 
 10 Q. B. 582. « Dwger v. Rich, Ir. R., 4 C. L. 
 
 * Bickett V. Morris, L. R., 1 Sc. 424.
 
 94 OF INLAND WATERCOURSES. 
 
 in tlie grant did not exclude from it that portion of tlie 
 creek whicli by the general presumption of the law would 
 go along with the ownership of the land on the banks of 
 it.^ 
 When a river When a stream changes its course by slow and im- 
 com-se. perceptible steps, the riparian owners are obliged to accept 
 
 the consequent alteration in their boundaries ; but when 
 the shifting is sudden and well-marked, the original 
 medium fihon continues to be the border line, and the 
 stream so far passes entirely within the land of the one 
 proprietor.- Land, therefore, gained gradually and im- 
 perceptibly 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.^ 
 
 Where, however, a river suddenly changes its course, 
 the property remains as before according to the former 
 bounds.^ 
 
 Where a river had formerly flowed wholly within the 
 lands of one proprietor, and by gradual and impercep- 
 tible 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 pro- 
 prietor 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 (defen- 
 dant's) property.^ 
 Islands. Where a river is bisected into two courses by an island 
 
 in its middle, the medium filum for boundary piu-poses is 
 that which bisects the island ; but if the island be nearer 
 to one side than the other, it appears that, in America at 
 
 ^ Lord V. Commissioners of Si/d- R., 4 Ex. 361; Ford\. Lacy, 7 H. 
 
 7iei/, 12 Moo. P. C. 473. See also & N. 151. 
 
 Crossleij x.Lightoivler, L. E.., 3 Eq. ^ See a)ite, p. 62 et seq. 
 
 279. * Ford v. Lacy, 7 H. & N. 151. 
 
 - Phear, Rights of Water, 12 ; '' Foster v. TFriy/d, 4 C. P. D. 
 
 Mayor of Car/isle v. Graham, L. 438.
 
 PRIVATE RIVERS AND STREAMS. 95 
 
 least, where sucli cases have been much considered, no 
 account is taken of the smaller branch — the other alone 
 represents the river, and its medium filium' constitutes the 
 prima facie line of division.^ 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.^ 
 
 Though the owner of land on the banks of a non-tidal 
 river is prima facie the owner of lialf the bed, yet this is 
 but a presumption, and may be rebutted f 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.^ 
 
 Though the soil of the alceus of non-tidal rivers is the Rights of 
 property prima facie of the respective owners on the vp^|^*^^'^ 
 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 na\'igation which has been 
 acquired by the public.^ Subject to this restriction they 
 are entitled to protect theu* property from the invasion of 
 the water, by building a bulwark, ripxe mnnienclK 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.'' 
 
 Though rivers above the flux and reflux of the tide are Eight of 
 prima facie private rivers, yet the public may acquire a ^^^'^ option, 
 right or easement to navigate such waters by express 
 
 1 Phear, p. 11 ; Angell, Tide App. C. 668. 
 
 Waters, 42. ^ Orr £uhiff v. Colquhoui), 2 Apj). 
 
 - lb.; Angell, Tide Waters, 43. C. 839; Bickett v. Morris, L. E., 
 
 •* Bloomjickl Y . Johnson, L. E., 8 1 So. App. 47. 
 
 C. L. 104. *" Bhkett Y.Mon'is,su2}.,'peT'LiOTdi 
 
 * Marshall v. Ul/cstcafcr, 3 B. & Chelmsford. See ante, p. 73 et 
 
 S. 732; see Brisfoice Y. Cormlcan, 3 scq., andjjost, Ch. III.
 
 96 
 
 or INLAND WATERCOURSES. 
 
 Obstruction 
 of, a public 
 nuisance. 
 
 Fishery. 
 
 grant, or dedication by immemorial user, wliicli presumes a 
 grant, or by Act of Parliament. Where such right has 
 been acquired, the obstruction of it is a public nuisance 
 and indictable in the same way as it is in tidal rivers. 
 
 This right of navigation is simply a right of way, 
 similar to the right the public have to passage along a 
 public road or footpatli — 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.^ 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 ;'- in 
 tlie former, the right would seem to be limited to the 
 extent of the grant or user proved. 
 
 The public who have acquired the right to navigate on 
 an inland water have no right of property in the bed.^ 
 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-ticlal river has been navigated from time im- 
 memorial,^ nor in the case where a river has been made 
 navigable by Act of Parliament,^ 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 reform and punish nuisances in all rivers, whether fresh 
 or salt, that are a common passage not only for ships and 
 great vessels, but also for smaller, as barges and boats, to 
 reform the obstruction or annoyance that are therein to 
 such common passage." 
 
 The right of fishery being a right of property, the pre- 
 
 ^ Orr Euing wCoIquhoun, 2 App. 
 C 839 
 
 - li.v.Tunidan,CaT.8c M. 496, per 
 Wightman, J. 
 
 ^ Orr Eiving v. Colqiihoun, supra. 
 
 ■> Murphy v. Hi/an, Ir. E,.,2 C. L. 
 68. 
 
 ^ ILargreaves v. Biddams, L. R., 
 10 Q. B. 582 ; Musset v. Burch, 35 
 L. T.,N. S. 486. 
 
 •^ Hale de Jure Maris, c. 2 ; 
 Williams V. Wilcox, 8 A. & E. 333, 
 per Lord Denman, C. J.
 
 PRIVATE RIVERS AND STREAMS. 97 
 
 sumption is that each owner of land abutting on a non-tidal 
 stream has the right of fishing in front of his land^ nsque 
 ad medium filum aqim ; 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 com- 
 " mon law," says 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 pos- 
 " sessed have an exclusive right to the fishery in the 
 " water which flows above their respective territories,"- 
 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.^ 
 
 If the lord of a manor would intrude his claim, he must 
 make 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.* 
 
 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 wliich case it woidd be called a free fishery. In both 
 cases the fishery is an incorporeal hereditament, and can 
 only pass by deed\ A valid licence to fish exclusively for 
 a time certain, even for an hour, must be by deed." 
 Where a man has a several fishery, the presumption is 
 that he has also the soil.^ 
 
 1 Lamb Y.Kcwhiggcn, 1 Car. & K. 4 B. & S. 58o. 
 
 549; Hale do Jure Maris, 1. ■* Lamb v. Neicbiggen, 1 Car. & 
 
 - Min-phg V. El/an, Ir. R., 2 Ch. K. 549. See also Grand Junction 
 
 148. See also Mayor of Carlisle v. Canal v. Ashbij, 7 H. & N. 403. 
 
 Graham, L. E,., 4 Ex. 361, and ^ Duke of Somerset v. Fogivell, 5 
 
 Bristoive y.Cormican, L. R., 3 App. B. & C. 875. 
 
 C. 641. s Holford v. Bailey, 18 Q. B. 
 
 ^ Hargreares v. Didehims, L. R., 426. 
 
 10 Q. B. 587 ; Musset v. Burck, 35 ' See post, Marshall v. Ulles- 
 
 L.T., N. S. 486; Hudson v. McCrae, water Co., 3 B. & S. 732; Btoom- 
 
 C. H
 
 98 
 
 OF INLAND WATERCOURSES. 
 
 Lakes and Pooh. 
 
 Defiuitiou. A pool is defined bj CalUs as, " a mere standing water, 
 
 " witli no current at all ; " and is distinguished from a 
 pond as being a work of nature, and not of art.^ 
 
 " 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 distinctive character, because there is a current 
 " in it for a certain distance tending towards its outlet."^ 
 
 O^vnersliip of It does not appear that by the English law there is any 
 difference 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 
 aquce, 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 ex- 
 pressly to have some other direction.^ 
 
 lu large With regard to the large inland lakes in this country, 
 
 lak^s^^ the law seems less settled, though several modern cases 
 
 have removed much of the doubt hitherto felt with regard 
 to them. In the case of Bridow v. Cormican,^ the House 
 of Lords have 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 ^Qi\\\.^ prima facie 
 connect the soil or fishing with the Crown, or disconnect 
 them from the private ownership either of riparian pro- 
 prietors or others. So far the case is clear, but it is left in 
 
 Jield V. Johnson, Ir. R., 8 C. L. ^ Phear, Rights of Water, p. 1. 
 
 105. As to Fishery, see jMst, Ch. See "Woohych, p. 121. 
 
 VI. ^ SA^jp. C. 641. As to American 
 
 1 Callis on Sewers, p. 82 ; Wool- law, see Angell's Watercourses, 
 
 rych on Sewers, p. 80. § 41. 
 
 - Angell on Watercoxu'ses, p. 8.
 
 LAKES AND POOLS. 
 
 doubt whether the presumption of ownership ad medium 
 
 filum aquw, 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 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 2)n'md 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 loid 
 
 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 Blarshall v. TJw UUcsu-atc)' Steam Navlgatiori 
 
 Co.,^ 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, 
 
 ^ prima facie belongs to the owners of the land or of the 
 
 ' manors on either side ad medium filum aquw, or whether 
 
 ' it belongs prima facie to the king in right of his preroga- 
 
 ' tive,^ 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 
 
 1 Ibid. p. 665. - Com. Dig. Prerogative (D. 50) ; 
 
 Hale de Jure Maris, c. 19. 
 
 H 2
 
 OF INLAND WATERCOURSES. 
 
 " the passage in Comyns, nor tliat in Hale do Jure Maris, 
 " 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 adjoining proprietor, where there are several, 
 " is entitled n^que ad mediiini filmn aquce should apply to a 
 " lake, is a different question. It does not seem con- 
 " venient that each proprietor of 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 importance 
 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 terri- 
 torial and natural, than in a legal point of view.^ In this 
 country there are but few cases on the subject. In the 
 case of Lord v. Commissioners of Sydneij, cited before, it 
 was held that a grant by the Crown of lands bounded by 
 a non-navigable creek passed the soil usque ad inedium 
 filum aqua;} 
 
 In Bloomfield v. Johnson,^ the Irish Court of Exchequer 
 Chamber, reversing the judgment of the Court of Com- 
 mon 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, 
 
 1 See per Dowse, B.,in the same Angell on Tide Waters, p. 76. 
 
 case in the Irish Court of Exche- 2 12 Moo. P. C. 473. See ante, 
 
 quer, Ir. R., 10 C. L. 412, and pp. 71, 72. 
 
 per Wliiteside, C. J., in Bloomfield = Ir. R., 8 C. L. 89. 
 V. Johnson, Ir. R., 8 C. L. 89;
 
 LAKES AND POOLS. 101 
 
 watercoiu'ses, fisheries, &c. witliin tlie same, did not pass tlie 
 soil of the lake, distingiiishiug the case from that of Lord v. 
 Commissioners of Sydney, on account of the size and naviga- 
 bility 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 mediuiji filum aquiv, 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 Jihim aqua\ In Marshall y. Ullesicater, the plain- 
 tiff, 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 prima facie to the 
 adjoining owners or to the Crown. ^ 
 
 There seems no doubt but that the public may acquire Navigation. 
 a right of navigation in a non-tidal lake in the same way 
 as on a non-tidal river.'- 
 
 In pools and small non-navigable lakes, the right of FisluDg. 
 fishing of course belongs ^jy/w^d/rtc^'e to the riparian owners 
 ad medium filum aqua\ It seems somewhat doubtful, how- 
 ever, whether this presumption extends to large navigable 
 lakes, or whether a public right of fishery may not exist 
 in such waters. The Irish Coui't of Exchequer Chamber 
 have held, in the case of Bloomfield v. Johntion^ that the 
 public right of fishery cannot exist in non-tidal navigable 
 lakes ; and in the subsequent case of Bristoic v. Cormican,^ 
 the Irish Court of Exchequer held that they were bound 
 by this decision ; but the judges in this case, both in 
 
 ^ 3 B. «S: S. 732. See also Ecg. Cormican, 3 App. C. 641 ; Marshall 
 
 V. Barrow, 34 Justice of Peace, v. Ullesicater Co., L. R., 7 Q. B. 
 
 p. 53. 582 ; and jJost, Ch. VII. 
 
 * See Marshall v. Ulleswater Co., ^ Ir. K., 8 Ch. 68. 
 
 3 B. & S. 732 ; BloomfieU v. John- ^ Ir. E., 10 C. L. 398, 412. 
 son, Ir. E., 8 C. L. 68 ; Bristow v.
 
 102 
 
 OF INLAND WATERCOUKSES. 
 
 the Court of Exchequer and in the Comi of Exchequer 
 Chamber, strongly dissented from this view of the law, 
 though without overruling it. The case went to the 
 House of Lords on another ground ; and their lordships, 
 though not deciding the point, seem doubtful as to whether 
 the decision in Blooinfield v. Johnson could be supported.^ 
 
 Ownership of 
 soil of. 
 
 Artificial Watercourses. 
 
 We have spoken hitherto exclusively of natural bodies 
 of water flowing ex jure natural from the earth; but it is 
 necessary to add a few words with regard to watercourses 
 which owe their existence to artificial means. Where an 
 artificial watercourse is made by a man on his own land, 
 of course no question as to the ownership of the soil of 
 it, or the rights over it, can arise; but the case will be 
 different where such a watercourse is made on the land of 
 another. In such a case the right to the watercourse can 
 only be created by grant or by long continued enjoyment, 
 from which the existence of a former grant may be reason- 
 ably presumed,- or by Act of Parliament.^ " A grant of 
 ' a watercourse in law may," says Jessel, M. E., " mean 
 ' one of three things, especially when coupled with other 
 ' words. It may mean the easement, or the right to the 
 ' running of water ; and 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 con- 
 ' text, I apprehend that it would not mean anything but 
 ' the easement or right to the flow of the water. "^ The 
 right, therefore, to the ownership of the bed of such 
 watercourses depends entirely on the words of the instru- 
 ment which creates them, interpreted according to the 
 
 1 3 App. Gas. 641. See also 
 Hcg. V. Barrow, 34 Just, of Peace, 
 53 ; and post, Ch. VI. 
 
 - See Bamcshur iSlii//h v. KooiiJ 
 Behari Pattuck, 4 App. Gas. 121. 
 
 ^ See Mason v. Shreicsburi/ Rail- 
 u-ay, L. R., 6 Q. B. 586, per 
 Gockbiu-n, C. J. 
 
 4 Taylor v. St. Helens, 6 Gh. D. 
 (G. A.) 264.
 
 ARTIFICIAL WATERCOURSES. 103 
 
 usual rules of construction.^ The most important of these 
 artificial watercourses — viz. canals, sewers, and waterworks 
 — are wholly the creatures of statute ; and the rights of 
 property in them of course depend on, and are regulated 
 in each case hy, the individual statute to which it owes its 
 origin, and by those statutes which apply to such works 
 generally. The full consideration of such artificial water- 
 courses ^\ill be given in a later chapter.- 
 
 ' Badijcr v. Yorkuhire Rail. Co., 5 rights iu artificial Avatercoiirses, see 
 Jul-., N. S. 459. Ch. IV. 
 
 - See postj Ch. V. ; and as to
 
 ( 104 ) 
 
 CHAPTER III. 
 
 OF NATURAL EIGHTS OF WATER, AND THEREIN OF THE 
 DUTIES OF RIPARIAN OWNERS. 
 
 Riparian 
 rights gene- 
 rally. 
 
 Fonnded on 
 the right of 
 access to the 
 stream. 
 
 Natural RigJds and Duties of Riparian Owners. 
 
 Hitherto we liave treated almost exclusively of the 
 ownersliip of the soil over which water flows, and of those 
 rights incident to and arising out of the ownership of such 
 soil. In the present Chapter wo purpose to consider what 
 are usually termed riparian rights, or rights of proprietors 
 of land on the banks of streams, arising, strictly speaking, 
 not from the ownership of the bed over which the water 
 flows, but from the right of access which such proprietors 
 have to the water. In the case of non-tidal waters, where 
 the owner of land on the banks is prima facie owner of 
 half the bed, this may appear a fine-drawn distinction ; 
 but on the banks of tidal waters, where the ownership of 
 the bed is prima facie in the Crown, the distinction will be 
 manifest, — as the origin of such rights cannot be referred 
 to ownership of the bed. 
 
 " With respect to the ownership of the bed of the 
 " river," says Lord Selborne in Lijon v. Fishmongers^ 
 Company} " this cannot be the natural foundation of 
 ' riparian rights properly so called, because the word 
 ' ' riparian ' is relative to the bank, and not to the bed, of 
 ' the stream ; and the connection, when it exists, of 
 ' property on the bank with property in the bed of the 
 ' stream depi^uds not upon nature, but on grant or 
 ' presumption of law. In some tidal navigable rivers (as 
 
 1 1 App. Gas. 683.
 
 NATURAL RIGHTS AND DUTIES OF RIPARIAN OWNERS. 105 
 
 " the Severn), parts of tlie bed of the tidal stream belong 
 " to riparian owners ; and it appears from Mr. Angell's 
 " book (often quoted in our Courts), that in Pennsylvania 
 " and Alabama, States whose jurisprudence is founded 
 " generally on English law, the whole property in the 
 " beds of large non-tidal navigable rivers is in the State. 
 " The title to the soil constituting the bed of a river does 
 " not cany 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 everyone having a right of access 
 " to it." 
 
 The principles of law to be hereafter stated apply to all Only exist as 
 
 .to waters 
 
 watercoiu-ses flowing in a certain and definite channel, flowing in a 
 whether above or below ffroimd ; for if the course of a <iefined 
 
 ^ ' , . , channel. 
 
 subterranean stream be well known, the rights with 
 regard to it will be the same as if it had been wholly 
 above ground. But waters, whether above or below 
 ground, having no certain course or defined limits, such as 
 those merely percolating through the strata of the earth, 
 and those diffused over its surface, are not watercourses, 
 nor are they subject to the law of watercourses.^ The law 
 relating to percolating water, and water without a defined 
 com'se, will be considered at the end of this Chapter. 
 
 It is manifest that the property of riparian owners may Rights on 
 exist on the banks of tidal navigable rivers as well as on °on!.navi- '^^ 
 non-navigable streams. Eiparian owners on the fonner gable rivers 
 have similar rights and natural easements to those belong- where con-' 
 ing to riparian proprietors above the flow of the tide, ^^l^^^^^j^i 
 underlying and controlled, though not extinguished, by of navigation, 
 the public right of navigation.- This latter right the 
 proprietor on a navigable river enjoys, " superadded to 
 " his riparian rights." His riparian rights are subor- 
 dinated to the public right " in this respect, that whereas 
 
 ^ Chasemore v. Richards, 7 H. L. tion of a "Watercourse," see ante, 
 
 349; Acton v. Blundell, 12 M. & p. 31. 
 
 W. 324 ; BicJcenson v. Grand June- - Lyon v. Fishmongers^ Company, 
 
 tion Canal, 7 Ex. 282. For defini- 1 App. Cas. 662.
 
 106 
 
 OF NATURAL RIGHTS OF WATER. 
 
 Coutact ucces- 
 sary. 
 
 lu tidal rivei> 
 
 Natural right 
 to water not 
 iiu easement. 
 
 Artificial 
 ■watercourses. 
 
 " iu a non-navigable river all the riparian owners miglit 
 " combine to divert or pollute or diminisb tlie stream ; in a 
 " navigable river, the public rigbt of navigation would 
 " intervene and prevent this being done." ^ 
 
 "It is of course," says Lord Selborne,- " necessary to 
 " tlie existence of such riparian rights that the land 
 " should be in contact with the flow of the stream, but 
 " lateral contact is as good jure natune. as vertical, and not 
 " only the word 'riparian,' but the best authorities, such as 
 " Miner v. GUmour,^ and Lord "Wensleydale in Chasemore 
 " V. Bic/iards,^ state the doctrine in terms which point to 
 " lateral contact 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 
 " the 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 sufiicient foundation for a natural 
 " riparian right." 
 
 A watercourse may be either natural or artificial, and 
 the rights of the riparian proprietors on the banks thereof 
 are in the one case a corporeal, and in the other an 
 incorporeal right. The right to the use of the flow of the 
 water in its natural course, and to the momentum of its 
 fall on the land of the proprietor, is not what is called an 
 easement, because it is inseparably connected with and 
 inherent in the property in the land : it is parcel of the 
 inheritance, and passes with it.' 
 
 Where a stream is artificial, that is, does not arise 
 e.c Jure natiore from the soil, or flows in channel cut by 
 artificial means through the lands of adjoining proprietors, 
 the rights of such proprietors are not j^riind facie the same 
 as those of proprietors on the banks of natural streams. 
 
 ^ Lyon V. Fishmongers' Company, 
 1 App. Cas. 662, per Lord Cairns, 
 L. C. Compare Orr Facukj v. Colqu- 
 houn, 2 App. Cas. 656. 
 
 - Lyon V. Flshmonfjcrs'' Comjxin)/, 
 1 App. Cas. 683. 
 
 3 12 Moo. P. C. 131. 
 
 * 7 H. L. C. 349. 
 
 ^ Angcll on Watercourses, pp. 
 96, 98; Wooliych on Waters,* p. 
 146.
 
 NATURAL RIGHTS AND DUTIES OF RIPARIAN OWNERS. 107 
 
 The mutual rights of the parties iu such cases are not 
 natural, but acquired rights, and are dependent for their 
 existence entirely on the words of the grants by which 
 they have been acquired, or on the nature of the user, 
 which can be proved if the claim is by prescription.^ A 
 watercourse, however, though an artificial one, may have 
 been made under such circumstances as to confer all such 
 rights as a riparian owner would have had in the case , 
 of a natural stream.^ Moreover, the natural rights to 4^<l"^^^^ 
 water are liable to be abridged, enlarged or modified in ° 
 many ways by grant or prescription. Thus, a right may 
 be acquired to throw back upon the land of the proprietor 
 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 
 rather injured in quality, or with a degree of force greater 
 or less than the natural current.'^ All such acquired rights 
 are termed easements. It is purposed in the present 
 chapter to consider the natural rights of water only, 
 leaving to a subsequent chapter all acquired rights."* 
 
 " The subject of right to streams of water flowing on Eig-hts iu ua- 
 " the sm'face," says Lord Wensleydale,*^ " has been of late *^^^''^^ streams, 
 " years fully discussed, and, by a series of carefully con- 
 " sidered judgments, placed upon a clear and satisfactory 
 " footing. It has been settled that the right to the enjoy- not founded 
 " ment of a natural stream of water on the surface ex Jure °°' °°^"P'^"''J'- 
 " naturcB 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 advantages belonging to the land of which he is 
 
 ^ Phear, Rights of "Water, p. meuts, p. 53. 
 
 39. 1 Fost, Ch. IV. ,/ 
 
 - See2}ost, JFoodv. TFatid, 3 Ex. ^ Chasemore y. Richards, 7 H. L. 
 
 748 ; Sutcliffe v. Booth, 4 Jur., N. 382. See also Emhrey v. Owen, G 
 
 S. 1057. Ex. 353; Sampson v. Hoddinot, 1 
 
 3 Saiiijjson V. Hoddinot, 1 C. B., C. B., N. S. 590; Mason v. Ilill, 5 
 
 N. S. p. 611. See G-ale on Ease- B. & A. 1; JFriffht v. Howard, S. 
 
 ments, p. 270 ; Goddard on Ease- & St. 190.
 
 108 
 
 OF NATURAL RIGHTS OF WATER. 
 
 " 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 ohstruction, upon the same prin- 
 " ciple that he is entitled to the support of his neighbour's 
 " soil for his own in its natural state. .His right no way 
 " depends on prescription or the presumed grant of his 
 " neighbour." 
 
 It was at one time contended that a title to the use 
 of running water was not a right of property ; but that 
 water w\as pnhVtci Juris, and, as such, the right to use it 
 could only be acquired by occupancy. This view seems 
 to have been favoured by Blackstone,^ and there are dicta 
 in some of the earlier cases- to the effect that by the law 
 of England the possessor who first appropriates any part 
 of water flowing through his land to his own use, has 
 a right to use so much as he has appropriated as against 
 the world. The cases of Mason v. Hill and Einhrcy v. 
 Owen have now, however, finally negatived this conten- 
 tion. 
 Mason v. UiU. lu Mcison V. Hill,^ Lord Denman, delivering the judg- 
 ment of the Court of King's Bench, says, " The proposi- 
 " tion for which the plaintiffs contend is that the possessor 
 " of land, through which a natural stream runs, has a 
 " right to the advantage of that stream flowing in its 
 " natm-al course, and to use it when he pleases for any 
 " purpose of his own, not inconsistent with a similar right 
 " in the proprietors of the land above and below ; that 
 " neither can any proprietor above diminish the quantity 
 " or injure the quality of water which would otherwise 
 " descend, nor can any proprietor below throw back the 
 " water without his licence or grant ; and that whether the 
 " loss by diversion of the general benefit of such stream be 
 " or be not such an injury in point of law as to sustain 
 " an action without some special damage, yet as soon as 
 
 1 2 Black. Com. 402. 
 
 - iniliams V. Morckoid, 2 B. k 
 
 C. 913; Ziffffinsv.I/iffc, 7 Bing-. G92. 
 3 5 B. & A. 1.
 
 NATURAL RIGHTS AND DUTIES OF RIPARIAN OWNERS. 109 
 
 " the proprietor of land has applied it to some purposes of 
 " utility, or is prevented from so doing by the diversion, 
 " he has a right of action against the person diverting. 
 " The proposition of the defendant is, that the right to 
 " flowing water is 2^nhHci jurii^, and that the first person 
 " who can get possession of the stream and apply it to a 
 " useful purpose, has a good title to it against all the 
 " world, including the proprietor of the land below, who 
 " has no right of action against him unless such proprietor 
 " has already applied the stream to some useful pm-pose 
 " also, with which the diversion interferes; and in default 
 " of his having done so, may altogether deprive him of the 
 " benefit of the water. The position that the first occupant 
 " of running water for a beneficial purjiose, has a good 
 " title to it, is perfectly true in this sense, that neither the 
 " owner of the land below can pen back the water, nor the 
 " owner of the land above divert it to his prejudice. In 
 " this, as in other cases of injuries to real property, pos- 
 " session is a good title against a wrongdoer, and the 
 " owner of the land who applies the stream that runs 
 " through it to the use of a mill newly erected, or other 
 " purposes, if the stream is diverted or obstructed, may 
 " recover for the consequential injury to the mill; The 
 " Earl of llutland v. Bowler} But it is a very different 
 " question whether he can take away from the owner of 
 " the land below, one of its natural advantages, which is 
 " capable of being applied to profitable purposes, and 
 " generally increases the fertility of the soil even when 
 " unapplied, and deprive him of it altogether by antici- 
 " pating him in its application to a useful pm-pose. If 
 " this be so, a considerable part of the value of an estate, 
 " which, in manufacturing districts particularly, is much 
 " enhanced by the existence of an unappropriated stream 
 " of water with a fall, within its limits, might at any time 
 " be taken away ; and by parity of reasoning, a valuable 
 
 1 Palmer, 290.
 
 110 
 
 or NATURAL RIGHTS OF WATER. 
 
 ' mineral or brine spring miglit be abstracted from the 
 
 ' proprietor in whose land it arises, and converted to the 
 
 ' profit of another. We think that this proposition has 
 
 ' originated in a mistaken view of the principles laid 
 
 ' down in the decided cases of Bcaley v. Sliaic,^ Satiiidcrs 
 
 ' V. Neicman,'^ WiUiams v. Morelaiid.^ It appears to ns 
 
 ' also that the doctrine of Blackstone and the dicta of 
 
 ' learned judges, both in some of those and in the case 
 
 ' of Cox V. Maflieus,'^ have been misconceived." The 
 
 learned judge proceeds to discuss the above cases, and the 
 
 passage in Blackstone,-^ and the Roman lav/*^ on the 
 
 subject, and then continues, at p. 24 : " From these 
 
 authorities, it seems, that the Roman law considered 
 
 running water, not as honuni racans, in which any 
 
 one might acquire a property, but as public or common, 
 
 in this sense on I//, that all might drink of it, or apply it 
 
 to the necessary purposes of supporting life ; and that 
 
 no one had any property in the water itself, except in 
 
 that particular portion which he might have abstracted 
 
 from the stream, and of which he has the possession ; 
 
 and during the time of such possession only. "We 
 
 think that no other interpretation ought to be put 
 
 upon the passage in Blackstone, and that the dicta of the 
 
 learned judges above referred to, in which water is said 
 
 to he puhlici j'iin's, are not to be understood in any other 
 
 than this sense ; and it appears to us that there is no 
 
 authority in oiu' law, nor, as far as we know, in the 
 
 Roman law (which, however, is no authority in ours), 
 
 that the first occupant (though he may be the proprietor 
 
 of the land above) has any right, by diverting the 
 
 stream, to deprive the owner of the land below of the 
 
 special benefit and advantage of the natural flow of the 
 
 water therein." 
 
 1 6 East, 208. 
 
 2 1 B. & A. 258. 
 
 3 2B. &C. 913. 
 * 1 Ventr. 137. 
 
 5 Commentaries, vol. ii. p. 14, 
 18. 
 
 c 2 Inst. tit. 1, s. 1; Dig., bk. 
 43, tit. 13.
 
 NATURAL RIGHTS AND DUTIES OF RIPARIAN OWNERS. Ill 
 
 " The right," says Parke, B.,^ "to have a stream flow in 
 " its natiu-al state, withoiit diminution or alteration, is an 
 " incident of property in the land tlu-ough which it passes; 
 " but flowing water is piiblici Juris, not in the sense that it 
 " is honum means, 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, and that none can have any 
 " property in the water itself, except in the particular 
 " portion which he may choose to abstract from the 
 " stream and take into his possession, and that during the 
 " time of his possession only. But each proprietor has 
 " the right to the usufruct of the stream which flows 
 " through his land." 
 
 The right to the flow of running water, without di- Obstruction of 
 minution or alteration, being common to all those through ^]^ '^ action- 
 whose land it flows, any unauthorized interference with or 
 use of the water, to the prejudice of one entitled to its 
 use, is the subject of an action for damage,^ and may be 
 restrained by injunction. 
 
 This right, however, is not an absolute and exclusive 
 right to the flow of all the water, but only subject to the 
 right of other riparian owners to the reasonable enjoy- 
 ment of it, and consequently it is only for an unreason- 
 able and unauthorized use of this common benefit that an 
 action will lie, though where there is an injury to a right, 
 actual perceptible damage is not necessary to maintain it."'^ 
 
 The rights of riparian owners existing, as has been said, Not linuted 
 ex jure naturce, and not depending on any presumed grant ^ypi^esenten- 
 from the other riparian owners, are not limited by the 
 present mode of enjoyment, and a new mode of enjoy- 
 ment gives a right at once to sue for an injury done in 
 respect of such new uses."* 
 
 1 Embrcy v. Oiven, 6 Ex. 353. Shugar, L. E., 6 Ch. 483. 
 
 See 3 Kent's Comm., sect. 52, " Embrey v. Owen, 6 Ex. 353. 
 
 p. 439; see also Wright v. Howard, See also 3 Kent's Comm., sect. 52, 
 
 1 Sim. & S. 190. p. 430. 
 
 - See Grand Junction Canal v. ^ HoUccr v. Porrit, L. R., 10 Ex.
 
 112 OF NATURAL RIGHTS OF WATER. 
 
 "All persons," says Cresswell, J., " having lands on tlie 
 " margin of a flowing stream, have, by nature, certain 
 " rights to use the water of that stream, whether they 
 " exercise those rights or not ; and they may begin to 
 " exercise them when they will." ^ 
 
 Thus, in BLuon v. /////,- cited above, the proprietor of a 
 mill having appropriated the water of a stream to the use 
 of a mill newly erected, was held entitled to recover from 
 a proprietor higher up the stream damages for the injury 
 to his mill occasioned by the wrongful diversion of the 
 stream, although before the mill was built the wrongdoer 
 could only have been liable to nominal damages. " It is 
 " the necessary effect of every appropriation of running 
 " water to a new and more beneficial use, that a wrongful 
 " diversion or abstraction entails a larger measure of 
 " liability." 3 
 Limited only It would seem that the rights of a riparian proprietor, 
 persons in° "^ith respcct to a stream, are limited only by those of 
 similar posi- persous iu a similar or analogous position with himself.^ 
 Thus, where the same person is proprietor of the ground 
 on both sides of a non-navigable stream, he can change 
 the channel as he pleases, provided he restores it to the 
 old channel before it leaves his ground, and provided that 
 it flows out of his ground into the lands below as it was 
 wont to do, neither increased nor diminished in quantity, 
 quality, or direction.^ In the case of Whalcij v. Lang,^ it 
 was held that the mere possession or taking of water by a 
 person not a riparian owner is not sufficient to enable the 
 possessor to maintain an action for polluting it. In the 
 
 59; Mason v. JHU, h B. & A. 1; in Holler v. Torrit, L. R., 10 Ex. 
 
 Fennbigton v. Brinsop Hall Co., 1 59. 
 
 Ch.'Diy.lQi'd; Chasemo7-eY. Richards, * Per Channel!, B., in Nuttal 
 
 7 H. L. 382: A.-G. v. Birmingham, v. Braccivell, L. R., 2 Ex. 13. 
 
 4 De G. & J. 528. = Per Lord Blackbiu'n, Orr Eio- 
 
 1 Sampson v. Hoddinot, 1 C. B., ing v. Colquhoun, 2 App. Cas. 839. 
 N. S. 590. 6 3 H. & K 675; Ex. Ch., 2 
 
 2 5 B. & A. 1. H. & N. 476. See per Bramwell, 
 ^ Per Lush, J., delivering judg- B., in Stockport v. Batter, 3 H. & 
 
 ment of the Exchequer Chamber C. 300.
 
 NATURAL EIGHTS AND DUTIES OF RIPARIAN OWNERS, 113 
 
 case of The StocJcjmi WafcncorJcs Co. v. Potter,^ where fhe 
 plaintiffs, a water company, wlio had by grant a right to 
 take water from the Mersey, for supplying the inhabitants 
 of Stockport with water, brought an action against defen- 
 dants for polluting such water ; it was held by Pollock, 
 C. B., and Channel, B., — Bramwell, B., diss., — that the 
 rights which a riparian owner has with respect to the 
 water are entirely derived from his possession of land 
 abutting on the stream, and that if by a deed which 
 conveys only land not abutting on the stream he affects 
 to grant water rights, such grant, though valid against 
 the grantor, can create no rights for an interruption of 
 which the grantee can sue a thii'd part3^ In the sub- 
 sequent case of Nuftal v. Braceu-ell,' this view is confirmed 
 by the majority of the Court of Exchequer. 
 
 In certain exceptional cases there may exist an absolute Sole right to 
 right to the whole of the water of a stream, so as to entitle ^^^*^'^- 
 a man to sue for the diversion of any part of it.^ Thus, 
 in Holker v. Porrif,^ where a natural stream had been 
 divided immemorially, and one branch ran into a farm- 
 yard where it supplied a trough, and the overflow from 
 the trough was formerly diffused and discharged itself 
 by percolation, and the owner connected the trough with 
 reservou's, and used the surplus water for a mill ; it was 
 held that his grantee could maintain an action against 
 an upper riparian proprietor on the stream above the 
 diversion for obstructing the flow of the water. Lush, J., 
 delivering the judgment of the Court, said, " The water 
 " which came down to him at the farm was his own, to 
 " use it as he pleased. There was no one entitled to share 
 " with him in its use, and no one who could call him 
 " to account for any use he chose to make of it. In 
 " this respect his position was different from that of a 
 *' riparian owner, who only shares the use of the water 
 
 1 3 H. & C. 300. 2 As by Act of Parliament. 
 
 2 L. R, 2 Ex. 1. See also See p. 114. 
 
 Crosslaj v. Lightoulvr, L. E., 3 Ch. * L. R., 10 Ex. 59 (Ex. Ch.) ; L. 
 
 478. R., 8 Ex. 107. 
 
 C. I . '.
 
 114 
 
 OF NATIIRAL RIGHTS OF WATER. 
 
 Special statu- 
 tory property 
 in water. 
 
 " "witli other riparian owners. In collecting tlie overflow 
 " at the trough and conveying it to the mill he clearly 
 " did nothing in derogation of the rights of any other 
 " person, or which he was not entitled to do in the lawful 
 " use and enjoyment of his own property ; nor did he 
 " thereby lose any right which he then before had. While 
 " the water overflowed the trough and ran to waste, he 
 " had a right to complain of any undue diversion or 
 " obstruction of the stream which diminished the accus- 
 " tomed supply to the trough, and he acquired no greater 
 " right by conveying it to the mill. No doubt the con- 
 " sequences to a wrongdoer became more serious after 
 " the drain was made than they were before, because the 
 " wrongful act was more injurious, and larger damages 
 " would have been paid for it ; but it is a fallacy to say 
 " that a man's rights are abridged, if, wlien he abuses 
 " them, he has to make larger compensation."^ 
 
 In the case of Mechvay Co. v. Earl of Romney^- the plain- 
 tiffs were incorporated by Act of Parliament for the purpose 
 of making the Medway navigable; and "the said river and 
 " streams so to be made navigable, and all lands, &c. to be 
 " used for the benefit of the navigation were vested in the 
 " company for ever." The defendants constructed works on 
 the river, and raised water from the river to supply a county 
 lunatic asylum and gaol not on riparian lands. On action 
 brought for this diversion, the Court held that the action 
 would lie. Mr. Justice Willes says, delivering the judg- 
 ment of the Court: "Looking to the objects which were 
 " contemplated by the Acts of Parliament, to which our 
 " attention has been directed, we cannot construe the 
 " statute 13 Qco. II. c. 26, .s. 2, as giving the plaintiffs 
 " any such a limited right in the river as a private grant 
 " of the 'said river and stream' might have conveyed, but 
 " as creating a new species of statutory property and in- 
 " terest in the water, which, in our opinion, was interfered 
 " with by the abstraction of it for the purposes to which 
 
 1 Holker v. Ponit, L. R., 10 Ex. 
 59; and see Mason v. Hill, 5 B. & 
 A. 1 ; Orr Uiciiifj v. Colquhow), 2 
 
 App. Cas. 584. 
 
 ■•* 9 C. B., N. S. 575. See Roch- 
 dale Canal \. Ki»r/, 14 Q. B. 122.
 
 NATURAL RIGHTS AND DITTIES OF RIPARIAN OWNERS. 115 
 
 " it was applied by tlie defendant ; wliicli purposes were 
 " more extensive than those for wliicli a riparian pro- 
 " prietor, as such, could insist upon appropriating the 
 " stream as it i)assed by his land. In our view of the 
 " true construction of the Act of Parliament, it is not 
 " necessary that there should be an actual damage to the 
 " navigation ; because we think that the legislature in- 
 " tended to give the company such an interest in all the 
 " water of the river for the purposes of the navigation as 
 " is interfered with by the abstraction of any part thereof. 
 " "Whether or not the riparian proprietors can exercise, for 
 " the benefit of their land adjoining the river, the rights 
 " which ordinarily belong to such proprietors, it is un- 
 " necessary to express an opinion." 
 
 It is proposed now to consider the natural rights of Natural right 
 riparian owners to the flow of water through or past ^ateT' 
 their lands, and the injiuies which may be sustained by 
 them by a wrongful interference with such flow so as to 
 injiuiously affect — 1st. The natural quantity of the water, 
 — as by diversion and obstruction ; and 2ndly. The natural 
 quality of the water, — as by pollution.^ 
 
 The Right to Water in its Natural Quantity. 
 A riparian owner in a natural stream is entitled to have 
 the water flow to him in its natural state, so far as that 
 may be a benefit to him, — as, for instance, to tiu-n his mill 
 and water his cattle ; and he is bound to submit to receive 
 the water, so far as it is a nuisance by its tendency to flood 
 his lands.^ " By the general law aj^plicable to running 
 " streams," says Lord Kingsdown,^ " every riparian pro- 
 
 ' The right of access which a C. 131; Swindon Water Co. v. TTUts 
 
 riparian owner has on a navigable Canal Co., L. E., 7 H. L. 697- L. 
 
 river, from his land to the river, for E,., 9 Ch. 451; Embrey y. Oiccn, Q 
 
 the purpose of exercising the public Ex. 353; Chasemore v. Richards 7 
 
 right of navigation, is treated of in H. L. 349; Sampson v. Hoddinot, 1 
 
 Chapter II. p. 86. C. B., N. S. 590; Mason v. ITill, 5 
 
 - Per Blackburn, J., in Mason v. B. & A. 1 ; IFright v. Howard, S. & 
 
 Shrewsbitrij Mailwaij, L. K., 6 Q. S. 190; Earl of Xorbury y. Kitcliin 
 
 B. 582. 3 F. & F. 292 ; 9 Jur., N. S. 132. 
 
 ^ Miner v. Gilmonr, 12 Moo. P. 
 
 I 2
 
 116 
 
 OF NATURAL RIGHTS OF "WATER. 
 
 Ordinary use. " prietor has a riglit to what may be called tlie ordinary 
 " use of the water flowing past liis land, — for instance, to 
 " the reasonable use of the water for his domestic purposes 
 " and for his cattle ; and this without regard to the effect 
 " which such use may have in case of a deficiency upon 
 " proprietors lower down the stream." 
 Domestic With regard to what is meant by " domestic purposes," 
 
 purposes. -^^^^^ Romilly, M. R., says, in A.-G. v. Great Eastern Rail- 
 way,^ that the term " unquestionably would extend to 
 " culinary pm^poses; to the purposes of cleansing and 
 " washing, feeding and supplying the ordinary quantity 
 " of cattle, and so on ;" but he held that a railway 
 company, as riparian owners, were not entitled to take 
 water for the purpose of watering their engines so as to 
 injuriously affect the navigation of a stream, such use not 
 being a " domestic use," and, moreover, that the fact that 
 the railway company did not require the water for domestic 
 uses did not entitle them to take it for other purposes of a 
 different character.^ The washing of carriages has been 
 held to be a domestic use under a local Act of Parliament 
 regulating a water company.^ "Brewing" would also 
 appear to be a domestic use.^ 
 
 " But every riparian proprietor has also a further right 
 " to the use of the water for any purpose, or what may be 
 " deemed the extraordinary use of it, provided he does not 
 " interfere thereby with the rights of other proprietors 
 " either above or below. Subject to this condition he may 
 " dam it up for the purpose of a mill, or divert the water 
 " for the purpose of irrigation. But he has no right to 
 " interrupt the regular flow of the stream, if he thereby 
 " interferes with the lawful use of the water by other pro- 
 " prietors, and inflicts upon them a sensible injury."^ 
 
 Extraordi- 
 nary use — 
 mills, irriga- 
 tion; 
 
 1 23 L. T., N. S. 344. 
 
 - See Earl of iSandwich v. Great 
 Northern Rccilwaij, 10 Ch. D. 707, 
 andjyoi/, p. 119. 
 
 3 Biisbif^. Chesterfield Water Co., 
 E. B. & E. 176. 
 
 * Per James, L. J., in Wilts cj- 
 Berls Canal v. Swindon Water Co., 
 L. R., 9 Ch. 457. 
 
 ^ Miner v. Gihnoitr, 12 Moore, 
 P. C. C. 131. See also Chasemore 
 V. Eichards, 7 H. L. 349 ; Embreij 
 V. Owen, G Ex. 353 ; 3 Kent's 
 Comm. Sect. 52, pp. 439—445, 
 cited in ^/«^/Y'^ T. Owen, sup., at p. 
 369 ; and 2'i/ler v. Wilkinson, 4 
 Mason's U. S. Kep. 400, jier 
 Story, J.
 
 THE RIGHT TO WATER IX ITS NATURAL QUANTITY. 117 
 
 Such "extraordinary use," in order to be justifiable, mustberea- 
 liowever, must be a reasonable use, and one for which a 
 riparian proprietor is entitled to take the water from its 
 natural com^se ; ^ for where an unreasonable use is made of 
 the water by one riparian proprietor, the others are en- 
 titled to have it restrained, even though they prove no 
 actual damage, on the ground that it is an interference 
 with a right which unless restraiued would in the course 
 of twenty years confer on the claimant a right by pre- 
 scription in derogation of the prior right.- The law on 
 this point is very clearly stated by Caii'ns, L. C, in the 
 case of The Swindon Water Co. v. Wilts and Berks CanaL^ Sa-buion 
 In this case the directors of a waterworks company pui'- -fj^iK^ ^„j 
 chased a mill on the upper part of a stream, and so became ^^^'^'^ Canal, 
 riparian owners. They not only used the water for the 
 purposes and in the manner allowed by the law to every 
 riparian owner, but collected it into a permanent reservoir 
 for the supply of an adjacent town, and claimed, as their 
 legal right, such user of it. The House of Lords held that 
 the use of the water was not a reasonable use such as could 
 justifiably be made by an upper riparian owner, and that 
 a canal company, who were riparian owners below, were 
 entitled to an injunction to restrain this use of the water. 
 " Undoubtedly," says Lord Cairns, " the lower riparian 
 " owner is entitled to the accustomed flow of the water for 
 " the ordinary piu'poses for which he can use it; that is 
 " quite consistent with the right of the upper owners also 
 " to use the water for all ordinary purposes, viz. as has 
 " been said, ad lavandum et ad potandum, whatever portion 
 " of the water may be thereby exhausted and may cease to 
 " come down by means of that use. But further, there are 
 '' uses, no doubt, to which the water may be put by the 
 
 ' Per James, L. J., in Wilts and Junction Canal v. Shugar, L. E,., 
 
 Berks Canal v. Swindon Water Co., 6 Ch. 577; Emlrey v. Owen, 6 Ex. 
 
 L. R., 9 Ch. 457. 353, per Parke, B. ; Elwell\. Crow- 
 
 • L. E., 7 H. L. 697. titer, 31 Beav. 163; Rob in son y. Lord 
 
 2 Swindon Wafer Co. v. Wilts Byron, 1 Bro. C. C. 588; Rochdale 
 
 Canal, L. E., 7 H. L. 697; Grand Canal Y.King, 2 Sim., N. S. 79.
 
 118 OF NATURAL RIGHTS OF WATER. 
 
 andcouuec- " upper owiier, e.g. uses connected with the tenement of that 
 
 ted with teue- ,, -tt t < • • i i 
 
 ment of the upper owner. Under certain cn'cumstanees, and pro- 
 
 upper owner. <« vided no material injury is done, the water may be used 
 " and may be diverted for a time by the upper owner for 
 " the purpose of irrigation. This may well be done, and 
 *' the exhaustion of the water which may thereby take 
 " place may be so inconsiderable as not to form a subject 
 " of complaint by the lower owner; and the water may be 
 " restored, after the object of irrigation is answered, in a 
 " volume substantially equal to that in which it passed 
 " before. Again, it may well be, that there may be a use of 
 " the water by the upper owner for, I will say, manufac- 
 " turing purposes, so reasonable that no just complaint 
 " can be made on the subject by the lower owner. 
 " Whether such a use in any particular case could be made 
 " for manufacturing purposes, connected with the upper 
 " tenement, would, I apprehend, depend upon whether the 
 " use was a reasonable use. Whether it was a reasonable 
 " use would depend, at all events, in some degree, on the 
 " magnitude of the stream from which the deduction was 
 " made for this pui'pose over and above the ordinary use of 
 " the water. But my lords and your lordships will find 
 " that in the present case you have no difficulty in saying 
 " whether the use which has been made of the water by 
 " the upper owner comes under the range of these autho- 
 " rities, which deal with cases such as I have supposed, — 
 " cases of irrigation and cases of manufacture. Those 
 " were cases where the use made of the stream by the 
 " upper owner has been for purposes connected with the 
 " tenement of the upper owner. But the use which here 
 " has been made by the appellants, and the use which they 
 " claim the right to make of it, is not for the purpose of 
 " their tenements at all, but is a use which virtually 
 " amounts to a complete diversion of the stream — as great 
 " a diversion as if they had changed the watershed of the 
 " country, and in place of allowing a stream to flow towards 
 " the south, had altered it near its source so as to make it
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 119 
 
 " flow towards the north. My lords, that is not a user of An imreason- 
 
 " the stream that could he called a reasonable user hy the aSounTs to a 
 
 " upper owner ; it is a confiscation of the rights of the confiscation of 
 
 " lower owner ; it is an annihilation, so far as he is con- lower'^owner.' 
 
 " cerned, of that portion of the stream which is used for 
 
 " those purposes, and is done not for the sake of the tene- 
 
 " ment of the upper owner, but that the upper owner may 
 
 " make gains by alienating the water to other parties who 
 
 " have no connection with any part of the stream. It is 
 
 " a matter quite immaterial whether, as riparian oAvner of 
 
 " Wayte's tenement, any injury has now been sustained, 
 
 " or has not been sustained, by the respondents. If the 
 
 " appellants are right, they would at the end of twenty 
 
 " years, by the exercise of this claim of diversion, entirely 
 
 " defeat the incident of the property — the riparian right of 
 
 " Wayte's tenement. That is a consequence which the 
 
 *' owner of Wayte's tenement has a right to come into the 
 
 " Court of Chancery to get restrained at once by injunc- 
 
 " tion or declaration, as the case may be." 
 
 From this case it would seem that an " extraordinary 
 use," as well as being reasonable, must be for the use of 
 the riparian tenement.^ This point does not appear to 
 have been pressed in the case of Earl of N'orhury v. lufc/un,^ 
 where it was held that a riparian owner had a right by 
 means of water-wheels and machinery to pump water 
 from a stream flowing past his land to a reservoir, and to 
 convey it thence to his dwelling-house on another estate, 
 and there to apply it to his domestic use and other pur- 
 poses of utility, provided he took only a reasonable 
 quantity with reference to the si^e of the stream — but that 
 he had no right to take by means of machinery more 
 water than he would have a right to otherwise. 
 
 In Earlof Samhcich v. Great Northern Rail. Co.^ Bacon, 
 Y.-C, held that a railway company, as riparian owners, 
 
 1 As to this see Isuttal v. Brace- ^ 3 p_ & p_ 292 ; 9 Jur., N. S. 
 
 u-cll, L. R., 2 Ex. 1; Stocliport 132. 
 
 Water Co. v. Totter, 3 H. & C. 300, » 10 Ch. Div. 707. 
 and ante, p. 112.
 
 120 OF NATURAL RIGHTS OF WATER. 
 
 were entitled to take a reasonable quantity of water for 
 supplying their engines, and for tlie several purposes of 
 their station, returning what they did not want to the 
 stream, and dismissed a bill by a mill-owner lower down 
 the stream, who failed to prove any damage to his mill by 
 the abstraction. 
 
 A riparian owner is therefore at liberty to pen back and 
 divert temporarily the waters of a stream flowing through 
 his lands in a reasonable way, and for reasonable pur- 
 poses connected with his tenement, provided he does not 
 thereby injure his neighbours, and no action will lie for 
 such obstruction unless the complainant can prove actual 
 damage.^ Where, however, the pui'pose for which the 
 Avater is taken is not reasonable, or not a use connected 
 with the riparian tenement, the taking it is an invasion of 
 a right of property ; and whenever an injury is done to a 
 right, actual perceptible damage is not indispensable as 
 the foundation of an action, but it is sufficient to show the 
 violation of the right, and the law will presume damage.^ 
 Irrigatiou. "Whether a riparian proprietor may use the water of a 
 
 stream for the purposes of irrigation, if he again return it 
 to the stream with no other diminution than that caused 
 by the evaporation and absorption attendant on irrigation, 
 appears to dejjend on the circumstances of each particular 
 case. Thus in Enibrey v. Owen^ where it was proved that 
 the diversion was not continuous, and that it caused no 
 diminution cognizant to the senses, the Court held that 
 this was not under the circumstances such an imreasonable 
 use as to be prohibited by law. Where the defendant 
 diverted water from a river for the purposes of irrigation, 
 and the amount of water was not thereby diminished, but 
 the water arrived so late at the plaintiff's land below that 
 he could not use it fully for irrigation purposes, it was 
 held that this detention of the water by the defendant was 
 
 1 Williams v. Morland, 2 B. & C. TFafer Co. v. IFiHs and Berks Canal, 
 
 910; Mason v. Bill, 5 B. & A. 1. L. R., 7 H. L. 697. 
 
 '- Embrcy v. Owen, G Ex. 353, 3 g j;x. 353. 
 
 per Parke, B., at p. 363; Sivindon
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 121 
 
 a use of it "wHcli was in its character necessarily injurious 
 to the natural rights of the plaintiff as a riparian owner, 
 and therefore a ground of action.^ 
 
 The owner of a mill on the banks of a running stream Mills. 
 may, as has been stated, divert and use the water for the 
 purposes of his mill, provided he does not thereby in- 
 terfere with the rights of other riparian owners above or 
 below him. He cannot, however, unless he has gained a 
 prescriptive right to do so, interfere, by his user of the 
 water, with the rights of other riparian owners.^ 
 
 " The owner on the banks of a non-navigable river," 
 says Lord Blackburn,^ " has an interest in having the 
 " water above him flow down to him, and in having the 
 " water below him flow away from him as it has been 
 " wont to do, yet I apprehend that a proprietor may, 
 " without any illegality, build a mill-dam across the 
 *' stream within his own property, and divert the water 
 " into a mill lade without asking leave of the proprietors 
 " above him ; provided he builds it at a place so much 
 " below the lands of those proprietors as not to obstruct 
 " the water from flowing away as freely as it was wont, 
 " and without asking leave of the proprietors below him, 
 " if he takes care to restore the water to its natural course 
 " before it enters their land." 
 
 So where a riparian owner has so appropriated in a 
 reasonable manner the water of a stream to a beneficial 
 use, he may at once maintain an action for any infringe- I 
 ment of this new use by other riparian owners, above or 1 
 below him. He cannot, however, unless he has gained a 
 prescriptive right so to do, interfere by his user of the 
 water with the rights of other riparian owners. 
 
 The occupier of a mill may maintain an action for in- 
 fringing his water-right, though he has not enjoyed it for 
 twenty years in precisely the same state ; and it is no 
 
 ^ Samjjson v. Hodd'mot, 1 C. B., ^w*!', Ch. IV. 
 
 N. S. 590. 3 Qrr Ewing v. Colquhoun, 2 Apjj. 
 
 - See per Martin, B., in Nuttal Cas. 856; cf. Miner v. Gilmour, 12 
 
 V. Braceivdl, L. E., 2 Ex. 1. See Moore, P. C. C. 131.
 
 122 
 
 OF NATURAL RIGHTS OF WATER. 
 
 Plea of 
 
 supported. 
 
 defence tliat the occupier had within a few years erected 
 on his mill a wheel of different dimensions, hut requiring 
 less water. Bayley, J., said — " The plaintiff proved that 
 " he was possessed of a mill, that the water had flowed 
 " from time immemorial in a particular channel, and that 
 " the defendant had ohstructed it. If a person stop a stream 
 " which has immemorially flowed in a given direction, 
 " and therehy prejudices another, he subjects himself to 
 " an action."^ 
 
 In an action for diverting a stream, it was alleged that 
 Mirmm-tefi ^^^ defendant placed a dam across the stream, and therehy 
 diverted the water from its usual course. Held, that 
 such allegation was supported by proof that in conse- 
 quence of the dam the water was prevented from being 
 regularly supplied to the mill, though the stream was not 
 diverted and returned to its course before it reached the 
 mill, and there was no waste of water.- But a count for 
 diverting and tm'ning a stream is not supported by proof 
 of penning back and checking it, whereby water was made 
 to overflow plaintiff's land.^ 
 
 A riparian owner on a natural stream, who has, without 
 infringing the rights of the other riparian owners, diverted 
 for the piu"poses of his mill a portion of the water by 
 means of an artificial conduit or goit, does not from the 
 fact that the goit is artificial lose his natiu-al rights with 
 regard to the Avater so supplied, but may maintam an 
 action for diversion or pollution of the stream, whereby 
 his rights with regard to the water in the goit are in- 
 fringed. Where the conduit or goit is on the land of the 
 mill-owner himself, there seems to be no doubt that the 
 law is as above stated f but where the artificial channel 
 has been constructed by license across the land of another, 
 
 Diversion of 
 natural 
 stream by 
 artificial 
 means. 
 
 1 Saunders v. Neivman, 1 B. & 
 Aid. 258 ; Cox v. Matheivs, I Ventr. 
 137. 
 
 - Shears v. TFood, 7 Moore, 34-5. 
 See Sampson v. SoddUwt, 1 C. B., 
 N. S. 690. 
 
 ^ Griffiths V. Ma)in, 6 Price, 1. 
 
 ^ See per Lord Campbell, C. J., 
 in Beeston v. Weate, 5 E. & B. 986; 
 and per Kelly, C. B., in Jlolker v. 
 Forrit, L. K., 8 Ex. 114.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 123 
 
 some difference of opinion lias arisen as to whether a 
 riparian owner lias sufficient interest in siioli artificial 
 cliannel to enable him to maintain an action for an inter- 
 ference with the water therein. 
 
 It has been decided in the case of The Stockport Water 
 Co. V. Potter,^ by the majority of the Court of Exchequer — 
 Bramwell, B., dissentiente — that if a riparian owner grants 
 to a non-riparian owner lands not abutting on the stream, 
 this grant, though valid as against the grantor, can create 
 no right for an interruption of which the grantee can sue 
 a third party ; and that, therefore, the Stockport Water 
 Company, who had bought from a riparian owner certain 
 waterworks not on riparian lands, and also the use of 
 certain tunnels and conduits running through the riparian 
 lands from a natural stream to the waterworks, could not 
 sue a higher riparian owner for polluting the stream.^ 
 Bramwell, B., dissented from this view of the law, and 
 held that the grantees could recover, on the general prin- 
 ciple that where a man has property he may grant to 
 others estates in and enjoyment of it. 
 
 In Niittal V. Braceicell,^ the plaintiff owned a mill situate Nnttai v. 
 on riparian lands, which was supplied with water by an 
 open goit, made in 1804 by agreement in writing with 
 the adjoining higher riparian owner, Mr. Bagshaw, divert- 
 ing water from the stream on which the mill was situate, 
 by means of a weir at a point called Tom Milner's Ing 
 on that upper owner's land. The water was again re- 
 turned to the stream below the mill. The action was 
 brought by the plaintiff against a higher riparian owner 
 for diverting water from the stream above the weir. A 
 verdict was given for the plaintiff; but a rule was obtained 
 
 1 3 H. & C. 300. See Whaley of it; and, therefore, it would 
 
 V. Zauir/, 3 H. & N. 675, 901; 27 appear that no action would have 
 
 L. J., Ex. 422. lain for an interference with it, by 
 
 * The water in this case was the g-rantor himself, or by the 
 
 diverted for the piu'pose of supijly- grantee in his name. See Swindon 
 
 ing the town of Stockport with TFatencorks v. JFilts and Bei'ks 
 
 water, which was an unreasonable Canal, L. R., 7H. L. 697. 
 
 use for a riparian owner to make •' L. R., 2 Ex. 1. 
 
 BracewcU.
 
 124 or NATURAL RIGHTS OF WATER. 
 
 for a new trial, on tlie ground that tlie plaintiff was a mere 
 licensee, and not a riparian owner, and could not, there- 
 fore, on the authority of Sfockpoii Watenvovlis v. Potter^ 
 recover for the diversion. The Court gave judgment for 
 the plaintiff, and discharged the rule. 
 
 Martin, B., says : " The application and use of flowing 
 " water to work machinery is as old as the law. Corn 
 " mills have existed from time immemorial, and it appears 
 " from old legal authorities that fulling and other mills 
 " worked by water for the purpose of manufacture are of 
 " a very ancient date. Until the last century, steam as a 
 " power was, if known, not much in use ; and until it 
 " was introduced, water power was very generally used ; 
 " and it is still the cheapest one available. The mill 
 " is sometimes situated upon the bank of the natural 
 " stream, but more usually at some little distance from it ; 
 " the water is conveyed to it by a goit or artificial cut, 
 " leading from the stream, and then, after turning the 
 " wheel of the mill, flows away in what is commonly called 
 *' the tail goit. So also, water was and is very frequently 
 " conveyed from the natural stream in the same manner, 
 " for purposes of irrigation. And it is not too much to 
 " say, that the value of actual or supposed water rights of 
 " this character throughout England may be estimated by 
 " hundreds of thousands, if not millions." His Lordship 
 then cites Lord Kingsdown's exposition of the law relating 
 to riparian rights, in Miner v. Gilnwur,^ and continues : 
 " According to the law so enunciated, and which no doubt 
 " is the law, it would be competent for Mr. Bagshaw, or 
 " his successor in the ownership of Tom Milner's Ing, to 
 " erect a mill upon it, and take the water from the stream to 
 " work it, provided he neither penned back the water upon 
 " his neighbour above, nor injuriously affected the volume 
 " and flow of the water of the stream to his neighbour 
 " below. And the law favours the exercise of such a 
 " right ; it is at once beneficial to the owner and to the 
 1 12 Moo. P. 0. 156. See ante, p. 116.
 
 THE EIGHT TO WATER IN ITS NATURAL QUANTITY. 125 
 
 " commonwealth. And if tliis be so, why may not the 
 " OAvners of two adjoining closes agree together for their 
 " mutual benefit to take water through a goit from the 
 " close of the one into the close of the other, returning the 
 " water to the stream in the close of the latter, and 
 " thereby doing no injury to any one. In point of fact, 
 " very many goits pass through the land of different land- 
 " owners, between the place where the water is taken from 
 " the stream and the mill where it works the machinery." 
 The learned Baron went on to say, that as the right to 
 the flow of water in a goit was a well-known easement,^ he 
 was of opinion that although such an easement could be 
 only binding as against the grantor if by deed, that the 
 actual possession of the goit by the plaintiff gave him a 
 right of action against defendant, a wrongdoer. 
 
 Pollock, C. B., and Channell, B., arrived at the same 
 conclusion, but upon diiferent grounds, holding that the 
 diversion of the stream by means of the goit was lawful, 
 and amounted to a division of the stream into two 
 channels ; and that the plaintiff, as a riparian o"v\Tier on 
 the goit, had all the rights which a riparian owner would 
 have had on a natm-al stream. "The Stochport case,^' says 
 Channell, B., delivering the joint judgment of the Lord 
 Chief Baron and himself, " in effect decided that a riparian 
 " proprietor cannot grant away his water rights apart from 
 " his estate, so as to place the grantee in the same position 
 " with respect to the other riparian proprietors as he 
 
 " occupied himself If, however, two adjoining 
 
 " riparian proprietors agree to divert the stream so that it 
 " shall run in two channels instead of one, the water 
 " passing again into the old stream below their land, and 
 " flowing down to the lower proprietors as before, the case 
 " is, I think, different. What is done is apparent to all, 
 " and any use that may be made of the new stream, as to 
 
 1 Astothisseej!?06^, Ch. IV.; and and per Lord Campbell, C. J., in 
 per Cockburn, C. J., in Ilason v. Bve&ton v. TFcafe, 5 E. & B. 986. 
 Shrewsbury, L. K., 6 Q. B. 586;
 
 126 OF NATURAL RIGHTS OF WATER. 
 
 " turn a mill for instance, is as apparent as if the mill 
 " were upon the old stream. What is done by the two 
 " proprietors may be supposed to be a more convenient 
 " way of using the flow of the water, while it in no way 
 " diminishes or affects the rights of the other proprietors." 
 This distinction is alluded to in the judgment of the 
 majority in Sfoclqwrl Watcrivorhs v. Potter, where it is 
 said : " The case where a riparian proprietor makes two 
 " streams instead of one, and grants land on the new 
 " stream, seems analogous to a grant of a portion of the 
 " river bank, but not analogous to a grant of a portion of 
 " the riparian estate not abutting on the river. In the 
 " case of a grant of land on a new stream, the grantee 
 " obtains a right of access to the river, and it is by virtue 
 " of that right of access that he obtains his water rights." 
 Bramwell, B., also gave judgment for the plaintiffs on 
 the same ground as in the Stocliport case. 
 Crossiey-T. In Crosskij v. IjUjhtoider the plaintiffs, owners of mills 
 
 ig t ou a . ^^ ^1^^ river Hebble, by agreement with a higher riparian 
 owner named Pilling, laid down a pipe in that higher 
 riparian owner's land, for the purpose of obtaining a 
 supply of pure water from the river above Filling's dye 
 works. A suit was brought to restrain the defendant, a 
 higher riparian owner, from polluting the river to the 
 plaintiff's injmy, and an injunction granted by "Wood, 
 Y.-C. ;^ but on appeal so much of the decree as related to 
 fouling of the water received through the pipe on Filling's 
 land was reversed by Lord Chelmsford, L. C.^ " From 
 " what has been already said," says the learned lord, " it 
 " may be collected that, in my opinion, if the plaintiffs 
 " had proved the pollution of the Hebble opposite to their 
 " miUs by the defendants, they would have had good 
 " groimd for an injunction, although they were not 
 " actually using the water for their business. But, 
 " although the plaintiffs by their bill assert their rights 
 " as riparian proprietors, the case which they prove is of 
 » L. R., 3 E(i. 279. 2 L Ti_^3Q^_ 4-3_
 
 THE RIGHT TO "WATER IN ITS NATURAL QUANTITY. 127 
 
 " an entii'ely different description. Wlietlier the agree- 
 " ment with Messrs. Pilling, however binding upon them, 
 " would enable the plaintiffs to assert the right acquired 
 " under it in their own names against any person fouling 
 " the waters thus artificially obtained is, perhaps, doubt- 
 " ful : but the plaintiffs do not claim as the grantees of 
 " Pilling, but in their character as riparian proprietors, 
 " and the fouling which they prove is not of the water 
 " which flows between the banks at Dean Clough (/. 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." 
 
 It is remarkable that the Lord Chancellor in his judg- 
 ment does not refer to the case of Nuttal v. BmccH-ell, 
 which was cited in argument, and which is only dis- 
 tinguishable in the fact that the goit in that case was 
 open and apparent to all, whereas in the case of Crossic// v. 
 LigJif Older the water was conveyed by a covered dizain. 
 Lord Chelmsford, however, does not rest his decision on 
 this point, and the cases must be taken as undoubtedly 
 conflicting. The preponderance of authority would cer- 
 tainly seem in favour of the view of the Court in JS'uttal 
 V. BrnccKeU and The Stockj^ort Waiencorhs v. Potter} 
 
 A riparian owner is not only entitled to have the waters Liability to 
 of a stream passing through his lands flow to him in its ^^^f^^® ^'^°*^ 
 natui'al state 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.- Unless, therefore, 
 the flow of the stream is increased or diverted to his 
 prejudice by some unauthorized act, either of the pro- 
 prietors 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 adjoin- 
 
 1 See Holkcr v. Fory'it, L. R., 3 1037; Woodx. Waitch 3 Ex. 748. 
 
 Ex. 107; BcestoHY. Wcatc, per Lord - Per Blackburn, J., inMnson v. 
 
 Campbell, C. J., 5 E. & B. 986; Shrcwshunj Enil. Co., L. R., 6 Q. 
 
 Mngor v. Chadwick, II A. & E. B. 582. See also /JI/.soh v. JFaddcN, 
 
 571 ; SiitcUffe v. Booth, 9 Jur., N. S. 2 App. Cas. 95.
 
 128 OF NATURAL EIGHTS OF WATER. 
 
 ing land, there is no common law liability on the owner to 
 clear the channel or to compensate the adjoining land- 
 owners who may be damaged thereby.^ 
 
 The principles of law regulating the duties and liabilities 
 liability for of the owncrs of land with regard to the escape and over- 
 overflow'of A'^w of water, and the rights they have of protecting their 
 water. ijj^j^(j from such overflow, have been discussed of late in a 
 
 series of important cases, and seem now to be settled on a 
 satisfactory 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 negligence, uses his 
 land in the ordinary manner of its use,- though mischief 
 thereby accrues to his neighbour', he will not be liable for 
 damages ; but where for his own convenience he diverts or 
 interferes Avith the com^se of a stream, or where he brings 
 upon Iiis 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,'*^ 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 ris major or the act of God, in the sense 
 that it is practically, if not physically, impossible to resist 
 it.^ His liability, moreover, in no way depends on his 
 knowledge of the existence of the nuisance.^ 
 
 ' Hodgson v. Mayor of York, 28 channel, so as to throw the waters 
 
 L. T., N. S. 836. See also Crack- in the times of ordinary flood on 
 
 01 ell Y. Thetford,lj. E,., 4 C. P. 629; the groimds of another proprietor 
 
 Farrett Navigation Co. v. Ilohlns, 10 to his injury. Orr lowing v. Col- 
 
 M. & W. 593; Bridge's case, 10 quhoun, 2 App. C. 839; Menzies v. 
 
 Eep. 33. Breadalbanc, 3 Bli., N. S. 414. See 
 
 - With regard to natural streams, ante, Ch. II. p. 73 et seq. 
 it is the undoubted right of the ^ Cattle v. Stockton Water Co., L. 
 
 owner of the banks and bed to E., 10 Q. B. 4.53. 
 build on the bed or banks in the * Etjlands v. Fletcher, L. E.., 3 H. 
 
 same way as he may on any part L. 330; L. R., 1 Ex. 265; Fletcher 
 
 of his land not covered with v. Smith, 2 App. C. 781 ; Box v. 
 
 water ; provided that he does not Jiibb, 4 Ex. I). 76 ; Kicolls v. 
 
 interfere with either the rights Marsland, L. E., 10 Ex. 255; 
 
 of na%'igation or of the other Boitghton v. Mid. ^ G. W. Bail. Co., 
 
 riparian owners above or below Ir. E., 7 C. L. 169. 
 him ; he cannot, however, ob- ^ See Mersey F)ocks v. Gibb, L. 
 
 struct the course of a stream by E., 1 H. L. 93; Hipkins v. Bir- 
 
 building on the ordinary or flood viingham Gas Co., 6 H. & N. 250.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 129 
 
 The principles of law above stated have been held to The same as 
 apply equally to water upon the surface and underground, undeJiro^d*^ 
 and in fact most of the most important decisions have arisen water, 
 with regard to the effects of mining operations. A series 
 of cases have of late fully settled the law on this most 
 imjDortant subject. 
 
 These principles are established in a series of cases, of T^yiands v. 
 which Rylands y. Fletcher'^ is the first. The facts of the case 
 and the principles of law are thus stated by Lord Cairns, 
 L. 0. : " 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 imder- 
 " neath the close, and had come into contact with the old 
 " and disused works underneath the close of the defcn- 
 " dants. 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 
 " contractor. Personally, the defendants appear to have 
 " taken no part in the works, or to have been aware of 
 
 ' L. R., 3 H. L. 330. 
 C. K
 
 130 or NATURAL RIGHTS OF WATER. 
 
 " any want of security connected with tliem. As regards 
 " the engineer and the contractor, 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 defen- 
 " dants it passed on into the workings under the close of 
 " the plaintiif and flooded his mine, causing considerable 
 " 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 
 " Coui't of Exchequer Chamber, before which an appeal 
 " from this judgment 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 v/hich 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
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 131 
 
 '' 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, 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^ 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 piu'pose 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 de- 
 " fendants 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 plain- 
 " tiff 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 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. Wil- 
 " liamson,^ 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 
 ' 7 C. E. 515. - 15 C. B., N. S. 376. 
 
 K 2
 
 OF NATURAL RIGHTS OF "WATER. 
 
 ' ' tMnk that tlie 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, i^ 2'^rimd facie answerable for all the damage which is 
 " ' the natural consequence of its escape.^ He can excuse 
 " ' himself by showing that the escape was owing to the 
 " ' plaintiff's default ; or, perhaps, that the escape was the 
 " ' consequence of rh majo)\ 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 reason- 
 " ' able and just that the neighbour who has brought some- 
 " 'thing 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 neighbom-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 acciTie, or answer for the 
 " ' natural and anticipated consequence. And upon autho- 
 " ' rity 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 en- 
 " tu-ely concur. Therefore I move yom' lordships that the 
 " judgment of the Court of Exchequer Chamber be affirmed, 
 " and the present aj)peal be dismissed with costs." 
 
 1 As to this see Jones v. Ffestiniog Rail. Co., L. R., 3 Q. B. 733.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 133 
 
 Following this decision, the Court of Appeal have held Liability for 
 that, if anyone, by artificially raising the surface of his own -^y^^l^^ thT' 
 land, causes water, even though arising from natural rain- lands of au- 
 fall, to pass to his neighbour's land, and thus substantially means of arti- 
 to interfere with his enjoyment, he will be liable to an ^cial erection, 
 action at the suit of him who is injured. This liability is 
 limited to liability for allowing things, in themselves 
 offensive, to pass to a neighbour's property, and for 
 causing, by artificial means, things, in themselves in- 
 offensive, to pass to a neighbom''s property, to the pre- 
 judice of his enjoyment thereof.^ 
 
 So, where water and sewage came on the defendant's Sewage, 
 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.^ It has also been held 
 that the occupier of a house is liable to 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.^ Such liability 
 does not exist between persons occupying two floors of the 
 same house, and 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 
 injm-ed.'* 
 
 So the discharging of rain-water from the roof of a Drip, 
 house, either by means of a spout, or by drip, on the 
 
 ' See Berdmon v. N. E. Rail. Co., D. 239 ; Fletcher v. Rylands, L. R., 
 
 3 C. P. D. 168 (C.A.) ; Fitzsim- 3 H. L. 330. 
 
 mons V. Inglis, 5 Taunt. 534. This ^ Brodcr v. Saillard, 2 Ch. Div. 
 
 is not at variance -with Wilson v. 692, M. E. ; see also Hodgkinson v. 
 
 lVaddell{2A.-^yi.C.2b,post,i;).lU), Ennor, 4 B. & S. 229; Bell v. 
 
 as there the excavation of minerals Ticentijman, 1 Q. B. 766 ; Tenant 
 
 is a natirral use of the land. (Here, v. Goldwin, 2 Lord Kaymond, 
 
 semblc, raising the surface is not a 1089. 
 
 natiu-aluse.) Ci. Menziesv. Bredal- * Ross v. Fedden, L. R., 7 Q. B. 
 
 bane, 31 Bli., N. S. 414 (H. L.). 661 ; Carstairs v. Taylor, L. R., 6 
 
 - Sumj)hries v. Cousins, 2 C. P. Ex. 217.
 
 134 OF NATURAL RIGHTS OF WATER. 
 
 premises of a neighbour, is a nuisance, and actionable, in 
 
 tbe absence of a prescriptive right to such discliarge.^ 
 
 Liability only In the case of Cattle V. Stoclion Waterworks,^ it was 
 
 proximate and decided that the liability for tlie escape of water only 
 
 direct conse- extends to the proximate and direct consequences of the 
 
 quences. •■- ■■• 
 
 escape, and that where 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 defen- 
 dant's pipes, even assuming that the landowner could 
 recover, which point the Court did not decide, the con- 
 tractor had no right of action for any loss which he might 
 have sustained through being delayed in, or prevented 
 from, completing his contract. 
 Right to work In Wilsou V. Waddell,^ the pursuer and defender were 
 exercised be- lossccs of coal mines under one landlord. The seam of 
 gets no QQQ^ Y^^ q1^ r^ high inclination, and cropped out at the 
 
 responsibility. ''^ " _ ' ^ ••- 
 
 surface in defender's 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 gravi- 
 tation, descend to the pursuer's holding, unless stopped by 
 the minerals or soil from doing so. The siu-face 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, and that the defender having worked out 
 all his coal, and so caused a subsidence of the surface, and 
 a flow of rainfall into the pm'suer's lower coal field, was 
 not liable for any damage thereby caused, the injuries 
 being entirely owing to gravitation and percolation. 
 
 I TmlcerY. Xewman,\l A.. k.'E. -Li. R., 10 Q. B. 453; sec 
 
 40; Fay v. Frotticc, 14 L. J., C. Lumlu v. Gye, 2 E. & B. 252; 22 
 
 P. 298; Rolfe v. Rolf,', cited in Ij. 3 ., d.'BATd ; Langridge v. Leys, 
 
 Bcswick V. Combdon, Moo. 353 ; 5 2 M. & W. 519 ; 4 M. & W. 337. 
 Rep. 101. 3 2 App. Cas. 95.
 
 THE RIGHT TO WATER IX ITS NATURAL QUANTITY. 135 
 
 In West Cumherland Iron Co. v. Keiujou, the defen- 
 dants, owners of mining property, sunk a sliaft, by which 
 they tapped water which had formerly found its way into 
 certain old workings 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 defendants' 
 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 AppeaP 
 held, reversing the decision of Fry, J.,- that the defen- 
 dants had not, by making the shaft, so appropriated the 
 water, as to lay themselves 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 plain- 
 tiffs' case failed. So in Smith v. Kenriclc, 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 percolating into the upper mine flowed into the 
 lower mine and obstructed the owner in getting his coal, 
 it Avas held that the o^oier of the lower mine had no 
 groimd of complaint.^ 
 
 But where the owner of an upper mine did not merely l^iability for 
 suffer the water to flow through his mine, but pmnped up a mine water 
 quantities of water which passed into plaintiff's mine, in '"^luch would 
 
 . T not naturally 
 
 addition to that which would have naturally reached it, have come 
 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.* Thus, too, in the case of Cromp- 
 
 1 11 Ch. D. 782. 3 7 c. B. 564. 
 
 - 6 Ch. D. 773. * Baird v. WiUiamson, 15 C. B.,
 
 136 
 
 OF NATURAL RIGHTS OF WATER. 
 
 Liability for 
 escape of 
 water where 
 an artificial is 
 substituted 
 for a natiu'al 
 chaunel. 
 
 Exceptional 
 rainfall. 
 
 toil V. Lea,'^ an injunction was granted to restrain the 
 owner of a mine on a higher level from working his mines 
 so near a river flowing over it, as to cause the waters of 
 that river to flow into plaintiff's mine on a lower level ; 
 Hall, V.-C, in the course of his judgment, remarking, " I 
 " do not see why a mine owner who is lower down should 
 " be in a worse position, or less entitled to complain of an 
 " injury occurring to him from such an act, such as throw- 
 " ing down of the water upon him, than a riparian pro- 
 " prietor, or one who is not immediately a riparian pro- 
 " prietor, or one considerably inland. If any injury 
 " should accrue in consequence of the interference with 
 " the flow of a river in that way, I do not see why any 
 " person who sustains an injury in consequence of that 
 " which must be a wrong to somebody, is in a worse 
 " position than other persons who would have an un- 
 " doubted remedy." 
 
 This case was followed by Fletcher v. Smith? In this 
 case the defendants' mine was on a higher level than the 
 plaintiff's, and on the sm-face of defendants' land were 
 certain hollows or openings partly caused by, and partly 
 made to facilitate, the defendants' workings. Across the 
 surface of their land ran a watercourse which, in the year 
 1865, the defendants diverted into a new channel. In 
 1871 the banks of this watercourse, which were sufficient 
 for all ordinary occasions, burst, owing to excej^tionally 
 heavy rains, and the 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, 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 
 
 N. S. 376; and see i)er Lord Cran- 
 worth in Rylands v. Fletcher, L. 
 R., 3 H. L. 341 ; see HipMns v. 
 Birmingham and Stafford Gas Co., 
 
 6 H. & N. 2.50. 
 
 1 L. E., 19 Eq. 115. 
 
 2 2 App. Cas. 731.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 137 
 
 directed a verdict for tlie plaintiff. This ruling was up- 
 held by the Court of Exchequer ; ^ but the Court of Ex- 
 chequer Chamber directed a new trial, on the ground that 
 the case was not beyond all question governed by Fletcher 
 V. El/lands, and that if evidence had been received there 
 might have been questions for the jury.- On the second 
 trial, Pollock, B., left five questions to the jury: — 1st. 
 Was the mine flooded from natm-al causes, or from any- 
 thing 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 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 ovei-flow 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 over- 
 flow, and so do more damage to the plaintiff. 3rd. Was 
 the flooding occasioned by the failure of the diverted 
 channel, or other means, to intercept the surface water on 
 the broken ground? Answer: Yes. 4th. Was the flood- 
 ing caused not by the insufficiency of the channel, but by 
 the result of the exceptional rainfall? Answer : The rain- 
 fall was exceptional, but the new channel was insufficient. 
 5th. Was what was done by the defendants in the ordi- 
 nary, reasonable, and proper working of their mine? 
 Answer : Yes, if the 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.^ Their lordships were of oj^inion that as the jmy 
 had found the new channel not to be so efficient as the old 
 one, and, therefore, not sufficient to carry off rainfall, not 
 
 1 L. R., 7 Ex. 315. 3 2 App. Cas. 781. 
 
 • L. R., 9 Ex. 64.
 
 138 
 
 OF NATURAL RIGHTS OF WATER. 
 
 Extraor- 
 dinary rain- 
 fall ; ris mfijor 
 or the act of 
 God, liow far 
 an excuse at 
 common law. 
 
 exceptional, the defendants were responsible at all events. 
 With regard to the duty imposed uj)on persons so alter- 
 ing a natural channel, Lord Penzance, in whose opinion 
 the remainder of the House concurred, thus expresses 
 himself. " In diverting it, what were these obligations ? 
 Was it enough to make the new and artificial water- 
 courses 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 
 responsibility, be produced in the new one ? or, secondly, 
 were they bound (as they, for their own convenience, 
 were making a new and ai-tificial 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 reasonably be anticipated to 
 happen in that locality ? or, thirdly, were they bound to 
 make provisions for any such C[uantities of water as 
 might possibly be discharged into it from any mere 
 rainfall, however heavy, however unusual, and however 
 contrary to all previous experience ? For my own part, 
 I incline to think that the second proposition defines the 
 true measure of the defendants' obligations, but I desire 
 to express no positive opinion to that effect."^ 
 In the case of JVicIioIs v. Marsland,'^ where the defendant 
 formed artificial ornamental pools by damming up a natural 
 stream, and an extraordinary rainfall bui'st the dams and 
 injured the plaintiff's property, and the jury found that 
 there was no negligence in the maintenance and construc- 
 tion of the pools, and 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 pre- 
 vented; 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 Grod, or vis major, 
 and that the defendant was not liable. Mellish, L. J., 
 
 1 See A.-G. v. Tomlitie, 40 L. 
 T., N. S. 775, -where this and the 
 preceding cases are discussed by 
 
 Fry, J. 
 
 - 2 Ex. Div. 1 (C. A.) ; L. R., 
 10 Ex. 2.55.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 139 
 
 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 show- 
 " ing 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 was 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 per- 
 " forming it without any default of his own — by the act 
 " of Grod 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.^ 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 
 " Avas a wrongful act in itself, it might be right to hold 
 " that a person could not escape from the consequences 
 " of his own wrongful act. But it seems to us absurd 
 " to hold that the making or the keef)ing a reservoir is a 
 " wrongful act in itself. The wrongful act is not the 
 " making or keeping the reservoir, but the allowing or 
 " causing the water to escape. If, indeed, the damages 
 " were occasioned by the act of the X3arty "v\T.thout more — - 
 " as where a man accumulates 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 Rijlands v. Fletcher establishes that he must be 
 
 ^ See River Wear Commissioners at a time when the master and crew 
 
 V. Adamson, 2 App. Cas. 743, had been compelled to leave the 
 
 where it was held that nnder the vessel, and had, consequently, no 
 
 Pier and Harbour Act, 10 Vict. c. control over her, the owners were 
 
 27, where damage had been occa- not liable. See 2^ost, p. 142, and 
 
 sioned to a pier by a vessel through Ch. VII. 
 the violence of the wind and waves.
 
 140 OF NATURAL RIGHTS OF WATER. 
 
 " held liable. The accumulation of water in a reservoir 
 " is not in itself wrongful ; but the making it and suffer- 
 " ing the water to escape, if damage ensue, constitute a 
 " wrong. But the present case is distinguishable from 
 " that of Rijlands 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, super- 
 " added to the water in the reservoir (which would of 
 " itself have been innocuous), causes the disaster. A de- 
 " fendant cannot, in our opinion, be properly said to have 
 " caused or allowed the water to escape, if the act of Grod 
 " 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 
 " cjueen's enemies destroyed it in conducting some war- 
 " like 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 Grod. The remaining Cj[ues- 
 " tion is, did the defendant make out that the escaj)e of 
 " water was owing to the act of God ? Now the jury 
 " have distinctly found, not only that there was no negli- 
 " gence in the construction or the maintenance of the 
 " reservoirs, but that the flood was so 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 Grod. However 
 " great the flood had been, if it had not been greater than 
 " floods that had happened before, and might be expected 
 " to occm' again, the defendant might not have made out 
 " that she was free from fault; but we think she ought
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 141 
 
 " not to be held liable because she did not prevent the 
 " effect of an extraordinary act of nature which she could 
 " not anticipate. In the late case of Nugent v. Smith,^ we 
 " held that a carrier might be protected from liability for 
 " a loss occasioned by the act of Grod, if the loss by no 
 " reasonable precaution could be prevented, although it 
 " was not absolutely impossible to prevent it.- 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 extraordi- 
 " nary 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."^ 
 
 In the case of Nield v. London and North Western liail- 
 icaij it was held, that where water causing damage was 
 not brought there by the owner of an artificial water- 
 course, but was the result of circumstances over which he 
 had no control — such as the sudden overflow of an adjoin- 
 ing stream — he was not liable for the damage.^ 
 
 In Harrison v. Great Western RaUicay,^ where the de- 
 fendants 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, 
 
 M C. P. Div. 423. James, L. held that, where it is the duty of 
 
 J., there defmes the act of God as the zemindar to maintain the 
 
 ' ' Any accident due to natural tanks on his zemindary which are 
 
 causes dii-ectly and exclusively part of the national system of irri- 
 
 without human intervention, such gation recognized by the laws of 
 
 as could not have been prevented India, and the banks of the tank are 
 
 by any amount of foresight and washed away by an extraordinary 
 
 pains and care reasonably to have flood without negligence on his 
 
 been expected." part, the zemindar is not liable for 
 
 - See per BramweH, B., in this damage caused by the escajDe of the 
 
 case in the Coui't of Exchequer, water. 
 
 L. R., 10 Ex. 255, where he de- * L. R , 10 Ex. 4. 
 
 fines the act of God as " A state ^ Harrison v. G. IF. Sail. Co., 11 
 
 of cii'cumstances practically, if not Jur., N. S. 992; see also Forward v. 
 
 physically, impossible to prevent." Fittard, per Lord Mansfield, C. J.; 
 
 ^ See Madras Rail. Co. v. Ze- 1 T. E. 33; Bell's Diet. & Dig. of 
 
 mindar of Carventenagar}tm,'L.'R., Sc. Law, p. 11; Broom's Legal 
 
 1 Ind. Ai^p. 364, where it was Maxims, 5th ed. p. 530.
 
 142 or NATURAL RIGHTS OF WATER. 
 
 says, " There was nothing in the weather of so extra- 
 '' ordinary a character, that the defendants were not 
 " bound to anticipate it. The storm, though unusual and 
 " extraordinary 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 frost, such as no reasonable 
 man could have provided against, a water company were 
 held not liable for the damage caused.^ So where defen- 
 dant, the landlord of a house, let the lower floor to plain- 
 tiff, and without any default in defendant, a rat eat a hole 
 in a cistern, and plaintiif's goods were damaged by the 
 water, he was held not liable ; Kelly, 0. B., being of 
 opinion that the damage was caused by ris major.' In 
 Box V. Jiibh,^ the owner of a reservoir was held not re- 
 sponsible for damage done by the overflow of his reser- 
 voir, caused by the emptying of a reservoir belonging to a 
 third person, and by an obstruction in a drain not under 
 his control. 
 Wliere liabi- From the above cases there is no doubt but that where 
 bV^cra"racTor ^ duty is cast on an individual by common law, he may 
 Act of Paiiia- excuse himself by showing that the performance of this 
 duty was prevented by circumstances over which he had 
 no control, amounting to ris 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 ex- 
 pressly or impliedly except the act of Grod, the Courts 
 cannot introduce that exception by intendment of law.^ 
 "If," says Cairns, L. C, in The River Wear Co)nmissioners 
 V. Adamson, " a duty is cast on an individual by common 
 " law, the act of Grod will excuse him from the perform- 
 " ance of that duty. No man is compelled to do that 
 
 1 £hjth\.Birmiugham Water Co., Hid. S,- G. W. Rail. Co., Ir. E., 7 
 
 11 Ex. 781; see Withers v. North C. L. 168. 
 
 Kent liaiL Co., 27 L. J., :Ex. m. ^ Per Lord BlackbiuTi in likrr 
 
 - Carstairs v. Taylor, L. R., G Wear Commissioners v. Adamson, 2 
 
 Ex. 217; see also JBoiighto)i v. App. Cas. 771; Paradlne v. Jane, 
 
 Mid. ^- Cr. W. Rail. Co., Ir. R., 7 Aleyn, 26; E. v. Lciqh, 10 A. & E. 
 
 C. L. 169. 398 ; 2 App. Cas. 750. 
 
 ' 4 Ex. Div. 76 ; Boughton v.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 143 
 
 " wliicli is impossible. If, however, a man contracts tliat 
 " he will be liable for the damage occasioned by a par- 
 " ticular 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 G-od." ^ 
 
 "It is quite true," says Lord Blackburn in the same 
 case, " that where a duty is imposed by law, if the per- 
 " formance of the duty is rendered impossible by the act 
 " of Grod or the king's enemies, the non-performance of 
 *' the duty is excused. Paradlne v. Ja)ie,- which is the 
 " case generally cited for that position, is one in which 
 " the point did not arise. Prince Eupert and his 
 " cavaliers, if they were to be considered the king's 
 " enemies, by driving away the defendant's cattle and 
 " burning his crops, may have reduced the defendant to 
 " poverty, but did not render the payment of his rent to 
 " his landlord impossible in any other sense than they ren- 
 " dered the payment of any other debt to any other cre- 
 " ditor impossible ; nor in the present case is there any im- 
 " possibility in the owner making good the damage caused 
 " by the act of Grod, any more than if caused otherwise. 
 " The case of Paradine v. Janc'^-' was one in which it was 
 " attempted to argue that the duty imposed by the 
 " contract to pay rent was subject to a condition that the 
 " tenant should not be evicted by the act of Grod or vis 
 " major, and the really important part of the decision is that 
 " where a contract is made which does not either expressly 
 " or impliedly except the act of God, the Courts could not 
 
 ^ River Wear Commissioners v. Birmingham Water Co., 11 Ex. 
 
 Adamson, 2 App. Cas. 750 ; cf. 781 ; Xitro-Fhosphate Co. v. London 
 
 Carstairs v. Taylor, L. R., 6 Ex. Locks, 37 L. T., N. S. 320 ; 9 Ch. 
 
 217 ; Nichols V. Marsland, L. R., 10 D. 103. 
 
 Ex. 255 ; Harrison v. G. W. Rail. • Aleyn, 26. 
 Co., 10 Jur., N. S. 992; £li/th v.
 
 144 OF NATURAL RIGHTS OF WATER. 
 
 " introduce tliat exception by intendment of law ; and 
 " that makes strongly against tlie supposition that in 
 " construing a statute, where the legislatui-e might have 
 " expressed, but did not express, such an exception, the 
 " Court should introduce it." 
 The act of In the case of T/ic Nifi'o-P//osjj/iafc Co. v. London Dochs,^ 
 
 in cams^i^^^ ^^ defendants were rec[uired by Commissioners of Sewers 
 negligence. and by Act by Parliament to keep the wall of their dock 
 at a certain height. They failed to do this, and an extra- 
 ordinarily high tide overflowed their wall and caused 
 damage to the plaintiffs. The plaintiffs contended that 
 defendants were bound at common law to keep their wall 
 at a reasonable 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 Grod. They 
 also contended that if they were liable to 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 Grod, he would have had great 
 diflicidty 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 
 1 37 L. T., N. S. 330.
 
 THE RIGHT TO "WATER IX ITS NATURAL QUANTITY. 145 
 
 act of Grod, did not excuse them from tlieir liability ; but 
 that they ought to have an opportunity of sho^^dng that the 
 damage done by the act of Grod and the damage caused by 
 their negligence could be ascertained and apportioned.^ 
 
 "Where the bringing or storing up of water is autho- Liability 
 rized by Act of Parliament, there is no Uability on the JreluthoHzed 
 persons so authorized for damage done in the due exercise ^J act of Par- 
 of their statutory powers, in the absence of negligence ; 
 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 negli- 
 gence as follows : - "I think that if, by a reasonable exer- 
 " cise of the powers, either given by statute to the pro- 
 " moters, 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." 
 
 In the case of Gcddis v. Baiui Reservoir,^ 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 neg- 
 lected to keep the channel in question 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 
 obstruction in a public sewer not under the control of the 
 defendants, they were held not responsible.^ A canal was 
 
 1 9 Ch. D. 403 ; see ante, Ch. I. B. 733 ; BagnallY. L. ^- X. W. Hail. 
 
 p. 29. Co., 1 H. & C. 544 ; Whltehouse v. 
 
 - Geddls V. Bann Ecserroir, 3 Blrmmr/ham Canal, 27 L. J., Ex. 
 
 App. C. 430; Hammersmith Rail. 25; Coclcburn y. Ereicash Canal, 11 
 
 Co. V. Brand, L. R., 4 H. L. 171 ; W. R. 34 ; Madras Rail. Co. v. 
 
 Lawrence v. G. 2s. Rail. Co., 16 Zemindar of Carrentenagarum, 22 
 
 Q. B. 643 ; Weld v. Gaslight Co., W. E. 865. 
 
 1 Stark. 189. See also Collins v. ^ 3 ^pp. C. 430. 
 
 Middlesex Level, L. R., 4 C. P. 279; * Boughton v. Mid. if- G. IF. Rail. 
 
 R. V. Fease, 4 B. & A. 30 ; Jones Co., Ir. E.., 7 C. L. 169. 
 V. Ffestiniog Rail. Co., L. R., 3 Q. 
 
 C. L
 
 OF NATURAL RIGHTS OF WATER. 
 
 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, 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 negli- 
 gence, 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 plaintiff's mines. The Court held that no 
 action would lie for the damage so caused, for that, 
 striking out the charge of negligence, v/hich was nega- 
 tived, the canal company were charged with nothing, but 
 that they brought water into the canal near the plaintiff's 
 mines, and that they had full powers under their Act to 
 bring the water there.^ 
 
 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.^ 
 
 ' Dunn V. JjirmbigJiam Canal, L. -water companies, see Ch. V., post. 
 E., 8 Q. B. 42. For fiu-ther cases - Lawrence v. G. iV. Rail. Co., 16 
 
 as to the liability of caual and Q. B. 043.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 147 
 
 Negligence is defined by Alderson, B./ as follows : — Negligence 
 " Negligence is tlie omission to do something whicti 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." 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". 
 
 A riparian owner on inland waters has, it would seem, Bight of ripa- 
 an ordinary right prima facie to protect his land from the p^.otect his 
 inroads of flood water, provided he can do so without I'^n^l from 
 injury to others.^ It has been already stated with regard 
 to the sea, that every landowner 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 bona fide, 
 he is not liable for any damage thereby occasioned to his 
 neighbours, who must protect themselves.'^ The law does 
 not appear, — except, perhaps, in the case of extraordinary 
 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 ripce muniendce causa; 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." " Mere apprehension, however," 
 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 themselves, and only became unlawful in their 
 
 1 Blyth V. Birmingham Water Commissioners of FagJtam Level, ^'B. 
 
 Co., 11 Ex. 734. & C. 355. 
 
 - Mersey Docks v. Gibb, L. E., 1 ^ Bickett v. Morris, L. E,., 1 Sc. 
 
 H. L. 93. App. 47 ; Orr Eieincj v. Colquhoun, 
 
 3 R. V. Traford, 8 Bing. 204; 2 App. C. 839. ^ee A.-G. \. Lous- 
 
 1 B. & A. 874. dale, L. E., 7 Eq. 377. 
 
 * See einte, Ch. I. p. 32 ; B. v. 
 
 L 2
 
 148 
 
 OF NATURAL RIGHTS OF WATER. 
 
 No right to 
 throw the 
 water on to 
 the opposite 
 proprietors 
 in times of 
 ordinary 
 flood. 
 
 Bulwarks 
 
 rijxe mu»i- 
 endcv causa. 
 
 " consequences, upon tlie principle of sic ntere tuo ut 
 " aUenum non hedas. But any operation extending into 
 " tlie stream itself is an interference with tlie common 
 " interest of tlie opposite riparian proprietor ; and, there- 
 " fore, the act being 2))'imd facie an encroachment, the 
 " 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,^ " 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. I 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 opjoosite 
 " ' ground, it is lawful for him to build a bulwark " ripce 
 " ' mnniendce 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 (Eoman) aj)pearing to have 
 
 1 Bli., N. S. 414 (H. L.) ; On- BicMt v. Morris, L. K., 1 So. 47, 
 Eu-lnr/ V. Cvlqulioiin, 2 App. C. 839 ; ante, p. 73 ct seq.
 
 THE RIGHT TO WATER IN ITS NATURAL QUANTITY. 149 
 
 " a contrary tendency, but I tliink they may all be 
 " reconciled ; and I consider tbe 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 
 " consecjuence. Farquharson v. Farquharson is distin- 
 " guishable in every particular. 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, and of 
 " a custom of the county for opposite proprietors to 
 " embank under these circumstances, the Court gave their 
 " opinion in favour of Invercauld." 
 
 With regard to such extraordinary floods as would Extraordi- 
 come within the definition of extraordinary casualties, it ^'^^'' °° '^^ 
 would seem from the opinion of Lord Lyndhui'st in the 
 case just cited, 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 Nicid v. L. 8^' N. IF. Fail. Co.,^ where a 
 flood occurred in a canal from the bursting of the banks 
 of an adjoining river, and the defendants, the canal com- 
 pany, 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 The flood is a 
 " which every man has a right to defend himself, and enemy. 
 " 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 
 1 L. R., 10 Ex. 4.
 
 150 
 
 OF NATURAL RIGHTS OF WATER. 
 
 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 Jlciizics v. Uarl of 
 Brcadalhaiie is an authority for this, and the rule so laid 
 down is quite consistent with what one would under- 
 stand to be the natural rule. Where, indeed, there is a 
 natui'al 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 the water which 
 does the mischief comes into the watercourse, — T say with 
 some qualification, because it may be that even in the 
 case of a natural watercourse, the riparian owner is 
 entitled to protect himself against extraordinary floods 
 by keeping off extraordinary water." 
 
 At common 
 law iucident 
 to the land 
 through 
 which itfiows. 
 
 The Eight to Water in its Natural Qualiti/. 
 
 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 natiu-al stream has a right to 
 the flow of the stream through or by his land in its natm-al 
 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
 
 THE RIGHT TO ^^'ATER IN ITS NATURAL QUALITY. 151 
 
 long enjoyment or grant.^ A right to pollute a stream Pollution 
 
 IT • J ^ L' SI L'\^ actionable 
 
 can only be acqurred by a continuance oi a perceptible without proof 
 
 amount of pollution for the full period of twenty years.^ 9* actual in- 
 
 A riparian proprietor can therefore maintain a suit to 
 
 restrain the fouling of the water without showing, that the 
 
 fouhng is actually injmious to him, and the fact that the 
 
 stream is also fouled by others is no defence.^ The rights 
 
 of a riparian proprietor are, moreover, not restricted to the 
 
 present modes of enjoyment of the water, and a ne^v mode 
 
 of enjoyment gives a right at once to sue for an injury 
 
 done in respect of such new uses.'* 
 
 In the case of Crossley v. Lightowler,^ the plaintiffs, who 
 owned a carpet manufactory near the river Hebble, pur- 
 chased 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 manu- 
 factory and with respect to the piece of land. The plain- 
 tiffs failed to prove pollution opposite to the carpet manu- 
 
 ^ Wood V. TTatid, 3 Ex. 748 ; proprietor is not entitled to throw 
 
 Emhrey v. Ouri), 6 Ex. 153 ; Tenant impmities, and especially artificial 
 
 V. Goldwin, 2 Lord Eaymond, iniiiurities, into a stream so as to 
 
 1039. pollute the water as it passes 
 
 - A.-G. V. Halifax, 39 L. J., through the estate of a lower pro- 
 
 Ch. 129; Golds»iith v. Tunhrldgc prietor ; that the lower proimetor 
 
 Wells, L. R., 1 Ch. 349 ; Cater v. is entitled to complain of suchpol- 
 
 Leicisham, 11 Jur., N. S. 340; and lution as renders the water unfit 
 
 post, Ch. rV. for primary purposes ; but that it 
 
 ^ Crossley v. LigJitoidcr, L. E., 2 will be a good defence against 
 
 Ch. 478 ; 3 Eq. 279 ; St. Helens v. such a complaint that the stream 
 
 Tipping, 11 H. L. 642; A.-G. v. has been from time immemorial 
 
 Leeds, L. E.., 5 Ch. 583 ; Penning- devoted to secondary piirposes, 
 
 ^OH T.iJriHiOj'jiZflW Co., 5 Ch.D. 769. such as manufactories, so as to 
 
 * Fennington v. Brinsop, 5 Ch. D. supersede and abrogate the primary 
 
 769 ; Holker v. Forrit, L. E,., 10 pm-poses. See L. E., 2 App. C. 
 
 Ex. 59 ; A.-G. t. Birmingham, 4 344, where the judgment was 
 
 De G. & J. 528. afiirmed, and it was held that by 
 
 5 L. E., 2 Ch. 478 ; L. E., 3 the law of Scotland, in the case of 
 
 Eq. 279. In the case of Fuke of the pollution of a stream, the 
 
 BuecleucliY. Cohtth (Court of Session several sufferers may continue and 
 
 Cases (Scotch), 3rd series, Vol. 5, bring a joint action against the 
 
 p. 214), it was held that "an upper several aiithors of the nuisance.
 
 152 
 
 OF NATURAL RIGHTS OF WATER. 
 
 No dcfcuco 
 tliat the 
 water was 
 poUutt'il by 
 others. 
 
 factory, but as tlioy proved pollution opposite the piece of 
 laud higher up the stream, Wood, V.-C, and Lord Chelms- 
 ford, L. C, on appeal, both held that they were entitled to 
 an injunction, although they proved no actual injuiy. It 
 was held, moreover, in the same ease, following the case of 
 The St. Helens Smelt in// Co, y. Tipping,'^ that it was no defence 
 that the water was also fouled by other manufacturers. 
 " Where there are many existing nuisances," says Chelms- 
 ford, L. C, " either to air or water, it maybe 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 by their works, the de- 
 " fendants 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 can- 
 " ' not 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.'"^ 
 With regard to this last point. Fry, J., observes in a 
 late case,^ " 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 pollution of a stream already 
 " made foul, unless by other pollutions, is an injury with- 
 " out damage, which would, however, at once become both 
 " injury and damage on the cessation of the other pollu- 
 " tions." On the same principle that the right to the flow 
 of pui'e water is a natural right of property, it is no 
 defence to an action for polluting a stream to show that 
 
 1 11 II. L. C. 642. 
 
 - L. 11., 2 Ch. Ap. 482. 
 
 ^ renningtoji v. Brinsoj) Hall Co., 
 5 Ch. D. 7G9.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 153 
 
 the trade causing the nuisance was carried on in a proper 
 and lawful manner.^ 
 
 The pollution of water then is, in itself, an unlawful Pollution in 
 act and a nuisance, and in this differs from the diversion lawful act, 
 or obstruction of a stream, which when done in a reasonable ^nd differs m 
 manner and on a man's own land is a lawful use of pro- from diversion 
 perty.2 It is established law, that if filth is created on any tf„^.°^'*'''"'" 
 man's land, then he whose it is must keep it, that it may 
 not trespass;^ and that, therefore, where a man, by an 
 artificial channel or otherwise, discharges dii'ectly on to his 
 neighbour's premises polluted water to his injury, he is 
 liable to an action for nuisance.'^ 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.^ It Pollution of 
 has been further decided that there is no difference with percolating 
 regard to the natural right to purity of water between the ^y^^'^ action- 
 cases of water fiowing openly on the surface of land in a 
 defined channel, and water trickling over the ground with- 
 out any defined course, or water percolating thi'ough the 
 soil in unknown or undefined channels.^ This is established 
 by the case of Hoclgkinson v. Ennor,' where it was urged 
 that the principles of law relating to the diversion or 
 obstruction of percolating water established in Chasemore 
 V. Richarch^ 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 wash- 
 ing lead on his land in the ordinary way. The Court, 
 however, held, that though the person polluting the water 
 
 1 Stoclqm-t V. Potter, 7 H. & N. v. Saillard, 2 Ch. D. 692 ; Bell v. 
 
 160 ; see Hiplcins v. Biymingham, Twentyman, 1 Q. B. 768. 
 
 6 H. & N. 250 ; 5 H. & N. 74 ; St. ^ See CaivJcwell v. Rimcll, 26 L. 
 
 Helens v. Tipping, II H. L. 642. J., Ch. 34. 
 
 ^ See ante, p. 115 ct seq. ^ See Goddard on Easements, p. 
 
 ^ Tenant v. Goldwin, 2 Ld. 64. 
 
 Raym. 10S9 ; Salk. 21, 360 ; Mod. ' 4 B. & S. 229 ; 32 L. J., Q. B. 
 
 311 ; Holt, 500 ; Hod/jlinson v. 231 ; Womerslcij v. Church, 17 L. 
 
 Ennor, 4 B. & S. 229 ; Fletcher v. T., N. S. 190 ; see also Manchester 
 
 Eijlands, L. R., 3 H. L. 330. and Sheffield Rail. Co. v. Worksop, 
 
 * Herdman v. X. E. Rail. Co., 3 23 Beav. 198. 
 
 C. P. D. 168 (C. A.) ; Humphries 8 7 h. L. 349 ; 29 L. J., Ex, 
 
 V. Cousins, 2 C. P. D. 239 ; Broder 81 ; ma post, p. 199.
 
 154 
 
 OF NATUKAL RIGHTS OF WATER. 
 
 Pollutlou of 
 
 artificial 
 
 watercoiu'scs. 
 
 Tf'ood V. 
 Wand. 
 
 might have a right to use it for load- washing, yet accord- 
 ing to the maxim, sic utcre tiio ut aUemim non Iceclas, he 
 conld not so use it as to injure and cause a nuisance to his 
 neighbour. 
 
 It has been before stated,^ that where a riparian owner 
 diverts for the purpose of his tenement the waters of a 
 natural stream by artificial means, he has the same riglits 
 on the new artificial channel cut through his riparian 
 lands as he had on the original stream. A considera- 
 tion of the above cases, and of those cited below, will show 
 that some difference of opinion exists as to the liability 
 of persons who discharge foul water without a prescriptive 
 right not directly upon their neighbours' premises, or into 
 a natural stream to the injuiy of riparian owners, but into 
 a stream which reaches and is appropriated by the party 
 complaining, owner of a non-riparian tenement, by means 
 of an artificial channel on which he has, in the absence of 
 prescription, no natural rights.^ 
 
 In the case of Wood v. Waud,^ which was the case of 
 an 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 o^Mier 
 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."^ 
 
 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 
 
 ^ Ante, p. 122 ct seq. ; and 
 see Nuttal v. BraccivcU, L. R., 2 
 Ex. 1. 
 
 ' Seea/i^c,p. 10G,anaj;w/,Cli.IV. 
 
 3 3 Ex. 748. 
 
 * See also Magor v. Chad iclcl; , 1 1 
 A. & E. 571 ; SidcUffc v. Booth, 9 
 Jiu-.,N.S.1037; 32 L..J.,Q.B. 136.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 155 
 
 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 pol- 
 lution of the water in a stream can only be complained of 
 by those entitled to the water as of right. In the case of 
 Whalcy V. Laing^ it appeared that a canal had been formed Wkaicy v. 
 though 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. Chemi- 
 cal works were afterwards erected by the defendants, and 
 they commenced pouring muriatic acid into the canal, 
 which mixed Avith 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 defen- 
 dants for the damage. The declaration stated that the 
 plaintiff s used and had and enjoyed the benefit of the water, 
 which water had been used, and then ought to have run 
 and flowed Avithout pollution. The Court of Exchequer ^ 
 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 jjlaintiff, 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 judgment on the 
 ground that the defendant caused foid 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 defendant had no 
 right to foul the water. On appeal the Court of Exchequer 
 Chamber^ 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 
 
 1 2 H. & N. 476 ; 3 H. & N. - 2 H. & N. 476. 
 
 G7o, Ex. Chamb. 3 3 h. & N. 675.
 
 156 OF NATURAL RIGHTS OF WATER. 
 
 possession of the water, and the defendant was a wrong- 
 doer. 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, 2^oisoned 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 judgment should be arrested ; 
 but that the plaintiff was entitled to the verdict. Wight- 
 man, J., thought the defendants were entitled to judg- 
 ment, 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.^ 
 stoclqm-t V. In the case of StoclqwH v. Potter,^ the majority of the 
 
 Court of Exchequer, Pollock, C. B., Channell and Wilde, 
 BB., held,' that where a landowner on a natm-al 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. Bram- 
 well, 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, 
 
 1 3 H. & C. 901. - 3 H. & C. 300 ; see KHtlal v. 
 
 Brace iccU, L. R., 2 Ex. 1. 
 
 Potter.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 157 
 
 liowever, " the plaintiffs cannot rely on their mere posses- 
 " sion of the water they take, or perhaps, I ought to say, 
 " on their mere taking of it. For whatever Whalcij 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." 
 
 In CrossJcy v. LigJitowlcr,^ cited above. Lord Chelms- CrossUyy. 
 ford, L. C, held that the pollution of the water of a ^'^ohtoxoier. 
 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. 
 
 Where an action for damages by a riparian owner lies Injunction 
 for pollution of a stream, the Courts will interfere by pXtion^ 
 injunction to restrain the nuisance, even where no actual 
 damage is proved, to prevent the inconvenience of re- 
 peated actions for damages f 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.^ 
 
 When the right and its violation are clearly established, 
 a man is, in general, entitled as of course to a perpetual 
 injunction to prevent the recurrence of the injury ; ^ and 
 in the case of an injury to riparian rights by pollution, 
 the Coiu"ts will not, except in special cases, award damages 
 in lieu of an injunction.^ Where the mischief complained 
 of is an injmy to a private right, the balance of con- 
 venience and inconvenience cannot be considered, the 
 
 ' L. R., 2 Ch. 476, ante, p. 126. owler, L. R., 2 Ch. 478; JIarrop 
 
 - Clowes V. Staffordshire Water v. Hirst, L. R., 4 Ex. 43. 
 Co., L. E., 8 Ch. 125, 143; Pen- * Wood v. Sutcliffe, 2 Sim., N. 
 
 nington v. Brinsop Hall Co., 5 Ch. S. 166; Imperial Gas Co. v. Brond- 
 
 Div. 769; see also 24 & 25 Vict. bent, 7 H. L. 612; see Kerr on 
 
 c. 42. Injunctions, p. 44 ; and 2Jost, Ch. 
 
 3 Swindon Water Co. v. Wilts X. 
 and Berks Canal, L. R., 7 H. L. » Penninfjton Y. Brinsop Hctll Co , 
 
 705; Goldsmith v. Tunbridge Wells, 5 Ch. D. 769. 
 L. R., 1 Ch. 349 ; Crossleyy. Light-
 
 158 OF NATUllAL lUGIlTS OF AVATKR. 
 
 question being simply, whether sueh private rights exist, 
 and, if so, whether the Court, in the exercise of its judicial 
 discretion, can interfere to protect them.^ 
 
 "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 injimction at once, unless the removal of the 
 cause of injury is phj^sically impossible ; and the de- 
 fendant must find liis way out of the difficulty, whatever 
 the inconvenience and expense may be.^ Where the 
 difficulty of removing the injury is great, the Court will 
 suspend the injunction for a time, to render its removal 
 possible.^ Where an injunction was granted to restrain 
 defendant from poming sewage into a river, and execution 
 of the order w\as 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 wilfid contempt of Court, 
 and sequestration was ordered to issue.'* 
 
 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 
 Tombifjton v. their works.^ In the case of Pennington v. JBn'nsop Hall 
 Brmsop Hall, q^^^ ^^ plaintiffs, as riparian owners, sought a perpetual 
 
 1 A.-G. V. Birmingham, 4 Kay sop Hall Co., 6 Ch. D. 769 ; A.-G. 
 & J. 520. v. Birmbujham, 4 K. & J. 328. 
 
 2 Gohhmlthx.TunhndgeWclls,!!. * Splhr v. Banbur>/, L. K., 1 
 R, 1 Ch. 1G3; 1 Eq. 349; A.-G.\. Eq. 42. 
 
 Birmingham, 4 K. & J. 528 ; A.-G. * Goldsmith v. Tunlridqc Wdls, L. 
 
 V. Sheffield, 3 D., M. & G. 304 ; A.-G. R., 1 Ch. 163 ; 1 Eq. 349 ; A.-G. v. 
 
 V. Leeds, L. E,., 5 Ch. 583; A.-G. Birmingham, 4 K. & J. 528; 19 W. 
 
 V. Halifax, 39 L. J., Ch. 129; 17 R. 561; J'cmiingfon v. Brinsop Hall 
 
 W. R. 1088; Cater v. Leicisham, Co., 5 Ch. D. 769; A.-G. v. 
 
 11 Jur., N. S. 340; A.-G. v. 7/r//(/ffj-, 17 W. R. 1088 ; 39 L. J., 
 
 Haehiey, L. R., 20 Eq. 631. Ch. 129; A.-G. v. Leeds, L. R., 
 
 ^ A.-G. V. Colneg Hateh, L. R., 5 Ch. 583; A.-G. v. Colneij Hateh, 
 
 4 Ch. 146; A.-G. v. Llalifa.i; 29 L. R., 4 Ch. 146. 
 
 L. J., Ch. 129; rcnnington'x.Brin- « 5 Ch. D. 7C9.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 159 
 
 injunction to restrain defendants, tlie 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 fiuiher, 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 tlieir col- 
 liery, and that the water would still find its way into the 
 stream by natural causes; and that the closing of the col- 
 liery would cause a loss of 190,000/. and the ruin of their 
 company. They further urged that in lieu of an injunc- 
 tion damages ought to be awarded.^ Fry, J., however, 
 held, that the plaintiffs had a good cause of action, though 
 the injury to their riparian rights was unaccompanied by 
 damage, and awarded a perpetual injunction. In deliver- 
 ing judgment he says, " The plaintiffs claim both as ripa- 
 " rian 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 defen- 
 " dants. The plaintiffs allege that the defendants pollute 
 " the stream so to create an injury to the plaintiff s' rights ; 
 " and they say, first, that this injury is accompanied by 
 " damage ; and, secondly, that if it be unaccompanied by 
 " damage, they have nevertheless a good cause of action. 
 " This second proposition of the plaintiffs is, in my judg- 
 " ment, 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 plaintiff's? 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 injmy and damage, 
 " whilst the pollution of a stream already made foul 
 
 1 AatoihiSySeeAt/nslei/v. Glover, 163, IGo ; Dent y. Auction Mart, L*. 
 
 L. R., 18 Eq. 544 ; L. R., 10 Ch. R., 2 Eq. 238 ; Leech v. Schiceder, 
 
 283 ; Embrey v. Owen, 6 Ex. 353, L. E., 9 Cli. 463. 
 368; Wood v.SiitcUfe, 2 Sim., N. S.
 
 160 OF NATURAL RIGHTS OF WATER. 
 
 " and useless by otlier pollutions is an injury without 
 " damage, which would, however, at once become both 
 " injury and damage on the cessation of the other poUu- 
 " tions." (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 con- 
 tinued) : — " 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 Embreyv.Oicen ^ 
 " 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 Com-t has frequently granted 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 oj)inion 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 structm\al 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 measui'e of damages in the two cases. In the case 
 " of an obstruction to light and aii', the damages would 
 " represent the depreciation in value of the injured pro- 
 " J)erty, 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 repre- 
 " sent 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 
 
 > G Ex. 353.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 161 
 
 " was determined in Holker v. Porritt,^ 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 he a 
 " compensation for the injury which the continued pollu- 
 " tion 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 
 " Watencorlis Co.^ the point was considered by Lord 
 *' Justice Mellish ; and although he was of opinion that 
 " in that case the plaintiff could only have recovered 
 " nominal damages, he nevertheless held that an in- 
 " junction ought to issue, upon tlie ground of the 
 " inconvenience of leaving the parties to repeated and 
 " successive actions for damages. If, therefore, in the 
 " present case, 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 inconsiderable. It has been 
 " suggested that there are no known modes of puiifying the 
 " defendants' water ; and that obedience to the injimction 
 " 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 incon- 
 " venience 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 
 1 Law Eep., 10 Ex. 59. - Law Kep., 8 Ch. 125. 
 
 C. M
 
 OF NATURAL KIGIITS OF WATER. 
 
 " tlieir 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 commencement 
 " 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. BmningJtam,'^ an injunction 
 was granted to restrain the defendants from carrying out 
 their drainage operations, so as drive away fish and pre- 
 vent cattle from drinking the water of a river seven miles 
 below the town, v/here it belonged to the plaintiff. "Wood, 
 V.-C, v,'as of opinion that the defendants were not justified 
 in causing a nuisance by their local Act of Parliament, 
 which incorporated the Toinis Iiiqjrovemciit Act, 1847,- 
 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 Yice-Chancellor says, " It has been 
 urged upon me, more than once, dm^ing the argument 
 by the counsel for the defendants, that there are 250,000 
 inhabitants in the town of Birmingham, and that this cir- 
 cumstance 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 
 
 1 4 K. & J. 528 ; see also A.-G. 
 V. Birm'uigliam, 19 W. R. 5G1. 
 
 10 & 11 Vict. c. 34.
 
 THE RIGHT TO WATER IX ITS NATURAL QUALITY. 
 
 " tliose other members of the community on whose behalf 
 " the information is exhibited, because, as regards the 
 " Latter, there may be circumstances to be taken into con- 
 " sideration 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 cj[uestion arises between 
 " two portions of the community, the convenience of one 
 " may be counterbalanced by the inconvenience 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, looldng to 
 " the precedents by which it must be governed in the exer- 
 " cise of its judicial discretion, can interfere to protect them. 
 "Now, with regard to the question of the plaintiff's 
 " right to an injunction, it appeal's 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 manu- 
 " factory for his own benefit. The rights of the plaintiff 
 " must be measured precisely as they are left by the legis- 
 " lature. Now the plaintiff's rights are these : — He has 
 " a clear right to enjoy the river, which, before the defen- 
 " dants' 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 cattle may drink of it 
 " without injury, and fish, which were accustomed to 
 " frecjuent 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 anive at the measure of the rights of the 
 
 M 2
 
 OF NATURAL RIGHTS OF WATER. 
 
 " parties. As regards the discretion the Court should 
 " exercise where such rights exist, if the plaintiff finds 
 " the river so polluted as to he a continuous injury to 
 " him, — if, in order to assert his right, he would he ohliged 
 " 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 dis- 
 " cretion which the Court should exercise in a case like 
 " the present may very properly be addressed to it, — 
 " yiz. that before granting an injunction and compelling 
 " the sudden stoppage of works like these, inasmuch as 
 " such an injunction might produce a considerable injury, 
 " the Court, by way of indulgence, would afford the de- 
 " fendants 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 alternative 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 accordingly ; and the plaintiff 
 " will protect himself as best he may."
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 1G5 
 
 The Courts will also interfere by injunction to prevent Injunctions to 
 bodies possessing parliamentary powers from exceeding or possessino- 
 abusing those powers to the prejudice of riparian owners, Parliamen- 
 it being a principle of law that persons interfering with from abusing 
 the property of others by an Act of Parliament are strictly *^^°^- 
 tied down to the limits of the powers granted by the 
 Act/ — 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.^ Thus in Clowes v. 
 Staffordshire Potteries Water Co.^ 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 reser- 
 voir which had the effect of making the water of the river 
 more muddy than it was before, and unfit for dyeing pur- 
 poses ; 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 Watcr- 
 iL-orl:s 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 Mellish, 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 Westminster 
 " 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 public bodies who obtain authorities under 
 " Acts of Parliament do not abuse their powers."^ 
 
 So it was held in A.-G. v. Hackney Local Board, that 
 the provisions of the Metropolitan Management Act, 25 8^ 
 
 1 Oldaker v. Eunt, 19 Bear. 425. Colncij Hatch, L. R, 4 Ch. 146 ; 
 
 - A.-G. V. Metropolitan Board of Rex v. Pease, 4 B. & A. 30. 
 Worlcs, 11 W. R. 820; see also ■' L. R., 8 Ch. 125. 
 
 Blackbui-n, J., in Mersei/ Docls v. * lb. 143. 
 
 Gibb, L. R., 1 H. L. 93; A.-G. v.
 
 166 OF NATURAL RIGHTS OF WATER. 
 
 26 Vict. e. 102, s. 6, requiring a month's notice to be 
 served before commencing proceedings against the Metro- 
 politan 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 incorporated under the 
 act, to a summary relief by injunction, as the nuisance 
 was not an exercise of their parliamentary powers.^ 
 Similarly it has been held that the Metropolitan Board of 
 "Works are not authorized by sect. 13-j of 18 <^ 19 Vict, 
 c. 120, to tm-n into a navigable river the whole sewage of 
 a district, not previously drained into it, so as to create a 
 nuisance.- So a district board under the Iletrojjolitan 
 Management Act, 18 (^ 19 Vict., are not empowered by 
 their Act to pollute water beyond the district over which 
 the board has authority.^ So in A.-G. v. Cockcrnioufh, 
 Jessel, M, R., granted an injunction to restrain a local 
 board under the Local Government Act, 1861 (24 8^ 25 
 Vict. c. 61), from discharging sewage by an outfall out 
 of their district into a river so as to affect or dete- 
 riorate the water at the point of discharge, though 
 such pollution was imperceptible at a town six miles 
 lower down the river."^ Moreover, when statutory powers 
 are conferred under circumstances in which they may be 
 exercised with a result not causing any nuisance, and new 
 and unforeseen circumstances arise which render the exer- 
 cise 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 legislatm-e did 
 not contemplate their taking it in a polluted state.'^ The 
 
 1 L. R., 20 Eq. 626. 528 ; see A.-G. v. Kingston, 13 W. 
 
 " A.-G. V. Mc(rojjol(t(in Board of R. 888. 
 
 Works, 11 W. R. 820; A.-G. y. =* CatorY.Lctvisham,oB.Sc^.\\b. 
 
 Colncy Hatch, L. R, 4 Ch. 110; ^ L. E., 18 Eq. 172. 
 
 A.-G, V. liirminr/ham, 4 K. & J. ° Meg. v. Bradford, 6 B. & S.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 167 
 
 Court of Chaucery in 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.^ 
 
 In the case of A.-G. v. Leeds Corjwratioji,'^ an injunction Acqiucsccnce. 
 was granted at suit of two landowners to restrain pollution 
 by a sewer, although the sewer had existed sixteen years 
 before bill filed. Lord Ilatherley, 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 injiu-ed 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 any- 
 " thing unlawful."^ 
 
 The Courts, moreover, will not interfere by injunction Future nui- 
 in the case of merely prospective injury ; the nuisance 
 must be actual and existing, and not future, however 
 
 631 ; Hex V. Pease distinguislied, ^ A.-G. v. Bradford, L. R., 2 
 
 as in that case the nuisance was Eq. 71 ; see also Manchester and 
 
 the very thing contemplated by Sheffield Eaihcay v. WorJcsoj), 23 
 
 the legislatiu'e, and, therefore, the Beav. 198. 
 
 leffislntm-e had sanctioned it ; 4 B. - L. R., 5 Ch. 583. 
 
 k'X. 30. 3 See ^Iso A.-O. v. llaUfax, 39 
 
 L. J., Ch. 129 ; 17 "VV. R. 1088.
 
 168 OF NATURAL RIGHTS OF WATER. 
 
 strongly the appreliension of injmy may be supported by 
 scientific evidence. In The Attorneij-General v. Kingston^ 
 the corporation of that town, under the Tonus Improve- 
 ment 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 least twice as much sewage would be thus discharged 
 into the river, as under the old system ; and two scientific 
 witnesses ^ were of ojoinion 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 defendants 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 inter- 
 ference by injunction ; ^ but that nothing like such a case 
 was shown by the evidence, and that the information 
 should be dismissed. 
 Increasmg If^ however, some degree of present nuisance exists, the 
 
 Court will take into account its probable continuance and 
 increase.'^ Thus, where the sewage of a town had for 
 many years drained into a stream passing through plain- 
 tiif's land, without perceptibly polluting it, but, for some 
 years before filing the bill, in consequence of the increase 
 of the town, the stream became perceptibly polluted, and 
 continued to increase in impurity, the Court of Chancery 
 
 ' 13 W. R 888. 3 See A.-G. v. Hackney, L. R., 
 
 - As to value of scientific evi- 20 Eq. 631 ; Elliot y . North Eastern 
 
 dence in cases of nuisance, see Rail. Co., 10 H. L. 333; 1 J. & H. 
 
 A.-G. V. Colneij Hatch, L. R., 4 156 ; 2 D., F. & J. 423 ; EhvcU v, 
 
 Ch. 156; Goldsmid v. Tunbridye Croirthcr, 31 Beav. 169. 
 
 Wclh, L. R , 1 Ch. 349. ^ Goldsmid v. Tunbridgc JFclls, 
 
 L. R.. 1 Ch. 349.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 169 
 
 granted an injunction restraining the draining of tlie 
 sewage into the stream.^ 
 
 Although, as has been said, it is not necessary for a What is 
 riparian owner to prove actual damage to enable him to 
 sue for the interference 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. " It is not," says Mr. Angell,- " under all 
 " circumstances, an unreasonable or unlawful use of a 
 " stream, to throw or discharge into it waste or impure 
 V matter : whether such an act would be reasonable or not, 
 " in any given case, would be a question for the jury 
 " upon its cu-cumstances. 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." ^ 
 
 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.'^ So by the 20th sect, 
 of the Rivers Pollution Acf,^ it is provided that the word 
 pollution shall not include, for the purposes of the Act, 
 innocuous discoloration. In the case of Lingicood v. 
 Stoic marlcet,^ "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 the interference of the 
 Couii, and to prevent its authority being invoked for 
 
 ^ lb.; see also A.-G. v. Sheffield, Water Co. v. Wilts and Berks Canal, 
 
 3 D. ir. & G. 304 ; A.-G. v. Leeds L. E., 7 H. L. 697. 
 
 Corporation, L. E., 5 Ch. 583 ; ■» Taylor v. Bennet, 7 C. & P. 
 
 A.-G. V. Halifax, 39 L. J., Ch. 329. 
 
 129. 5 39 & 40 Vict. c. 75, imst, p. 174. 
 
 - AngellonWatercoiu'ses, p.240. '^ L. R., 1 Eq. 77; sec Laivson 
 
 ^ See per Lord Cairns in Swindon v. Favcr, 5 Ha. 422.
 
 irO OF NATURAL RIGHTS OF WATER. 
 
 trivial purposes. So in A.-G. v. Cochcrnionth^ Jessel, 
 M. R., refused to grant an injunction at tlie 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. An in- 
 junction was, however, granted at suit of the Attorney- 
 General on the ground that the defendants had infringed 
 the 4th section of the LocdJ Government Act, 1861. "Now 
 " as I understood the law," says the learned judge, "it is 
 " not necessary to prove any injuiy at all. The legislature 
 "is of opinion that certain acts will produce injmy, and 
 " that is enough. The legislature is of opinion that it is 
 " desu-able to preserve our natural streams, at least, in 
 " their present state of pmity, 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 legis- 
 " lature for good and sufficient cause." 
 
 Various sources of pollution have been held by om' 
 Coui'ts 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 f so erecting a cesspool so near a well as to 
 contaminate it f so the letting off of water made noxious 
 by precipitation of minerals ;^ or dye wares, or licjuors, 
 or madder, or indigo, or potash,^ or sulphmic'' or muriatic^ 
 acid ; or discharging heated water into a stream in- 
 juriously,^ or sewage,^ or rendering water unfit for 
 
 1 L. K., IS Eq. 172. D. 769. 
 
 2 Year Book, Hen. II. b. G ; see ' Hiochport v. Totter, 7 H. & N. 
 Moore V. Wchh, 1 C. B., N. S. C73. 160. 
 
 3 Xorton V. Scholcfield, 9 M. & « Mason v. HUl, 2 B. & A. 304 ; 
 W. 565; H'omasly v. Church, 17 ]}'ood \. ll'aud, 3 Ex. 748; Tquylny 
 L. T., N. S. 190. v. Eckersktj, 2 K. & J. 264. 
 
 « Hodfjkimon v. Ennor, 4 B. & S. ^ A.-G. v. Cockermouth, L. R., 18 
 
 229; Wright v. IVilliams, 1 M. & Eq. 172; A.-G. v. Leeds, L. R., 
 
 W. 77. 5 Ch. 533 ; A.-G. v. Colneij Hatch, 
 
 * Wood V. Sutcliffe, 16 Jur., N. S. L. R., 4 Ch. 146 ; A.-G. v. Birmbig- 
 
 75. ham, 4 K. & J. 528; A.-G. v. 
 
 •^ Tciin'uigto/i v. JJrimoj), 5 Cli. K'uigsto)!, 13 "VY. R. 888.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 171 
 
 domestic or culinary purposes ;^ or rendering it unfit for 
 cattle to drink of,^ or fish to live in,^ or for manufacturing 
 purposes.^ 
 
 Where the pollution of a stream amounts to a public Public uui- 
 nuisance, the party causing it may be prosecuted by in- 
 dictment, or proceeded against by information at the suit 
 of the Attorney-Greneral.'^ An action will also lie for a 
 public nuisance on proof of special damage.^ 
 
 The statutory provisions restricting the pollution of Statutory 
 water are numerous, but with the exception of the Rivers pou^tion"'* ^^ 
 Pollution Act of 1876,^ they are either local, or deal with 
 the pollution of water used for special piu'poses. 
 
 Thus sect. 1 of The Watencorks Clauses Act, 1847,8 
 subjects to a penalty not exceeding 5/. 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 20.s. per diem for every day that such offence 
 shall be committed. 
 
 The Public Health Acts and other Acts empowering 
 local authorities (the place of which enactments has been 
 taken by the Public Health Act, 1875) do not authorize 
 local authorities to send sewage into a river to the preju- 
 dice of parties having established interests in the water.'' 
 
 ' Goldsmidv. Ttinbridgc Wells, L. L. R., 2 Ch. 478 ; Lingicood v. 
 
 E., 1 Ch. 349. Stoic market, L. E., 1 Eq. 77; Tij]- 
 
 - A.-G. V. Birmingham, 4 K. & j!;i«(7 v. Eckersleij, 2 K. & J. 264; 
 
 J. 528 ; Manchester Railway v. Wood Y.SntcUffe, 2 Sim., N. S. 103. 
 
 Worksop, 23 Eeav. 198 ; A.-G. v. ^ See post, Ch. X. 
 
 ZhIoii, 2 Jiu-., N. S. 181 ; Oldaker ^ Benjamin v. Stow, L. E., 9 C. 
 
 V. Ilnnt, 6 D. M. & G-. 37G. P. 430 ; and see post, Ch. X. 
 
 3 Bidder v. Croydon. 6 L. T., '39 & 40 Vict. c. 75. 
 
 N. S. 778 ; A.-G. v. Birmingham, « 10 & 11 Vict. c. 17. Sect. 2 of 
 
 4 K. & J. 528 ; A.-G. v. Luton, 2 this Act defines streams to include 
 
 Jm\, N. S. 181 ; Oldaker v. Hunt, "springs, brooks, rivers, and other 
 
 6 D. M. & G. 376; Aldred^s case, running waters." 
 
 9 Eep. 59 a. '^ See Oldaker Y.Eunt,Q, De G. M. 
 
 * Cloiccs V. Staffordshire, L. E., & G. 376 ; Bidder v. Crogdon, 6 L. 
 
 8 Ch. 142; Crosslcg \. Lightowler, T., N. S. 778; A.-G. v. Luton
 
 172 OF NATUKAL RIGHTS OF WATER. 
 
 Public Health By the Public Health Act, 1875,i sect. 332, it is pro- 
 vided, that "Nothing in this Act shall be construed to 
 " authorize any local authority to injuriously affect any 
 " reservoir, canal, river, or stream, or the feeders thereof, or 
 " the supply, quality, or fall of water contained in any 
 " reservoii', canal, river, or stream, or in the feeders thereof , 
 ** in cases where any hody 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 aforesaid." This provision comes in 
 place of sect. 70 of the Local Government Act, 1858, and 
 sect. 45 of the Nuisances Removal Act, 1855, both re^^ealed 
 (the latter except as to the metropolis) by the Act of 
 1875.^ By sect. 69, local authorities, with sanction of the 
 Attorney-Greneral, may take proceedings by indictment, 
 bill in chancery, action or otherwise, for the purpose 
 of restraining pollution. 
 
 By sect. 21 of the Gas/corks Clauses Act, 1847, 10 Vict. 
 c. 15, and by sect. 68 of the Public Health Act, 1875, any 
 person engaged in the manufacture of gas who shall 
 cause or suffer to be brought, or to flow into any stream, 
 reservoir, aqueduct, pond, or place for water, or into any 
 drain or pipe communicating therewith, any washing or 
 other substance produced in making or supplying gas, or 
 wilfully does any act connected with the making or 
 suppljdng of gas, whereby the water of such stream, &c. 
 is fouled, shall forfeit for each offence 200/., and a further 
 
 Board of Health, 2 Jm-., N. S. 180 ; L. E., 18 Eq. 172; A.-G. v. Rich- 
 Manchester Railway v. TForksop, 23 inoncl, L. R., 2 Eq. 306 ; A.-G. v. 
 Beav. 198; -S/;oAY«v.i?««^?^?7/,L. K, Colney Hatch, L. E., 4 Ch. 14G. 
 1 Eq. 42; A.-G. v. Birmingham, 4 See also A.-G. v. Basingstoke, 45 
 K. & J. 428 ; Cater v. Leivisham, 5 L. J., Ch. D. 726 ; St. Helens 
 B. & S. 115 ; R. V. Darlington, 5 Chemical Works y. St. Helens, 1 Ex. 
 B. & S. 515; Goldsmidv. Tunbridge D. 196. 
 Wells, 35 L. J., Ch. 88 ; L. E., 1 i 38 & 39 Vict. c. 55. 
 Ch. 349; A.-G. v. Leeds, L. E., 2 Michael and Will's Law of 
 5 Ch. 583; A.-G. v. Cockermouth, Gas aud Water, p. 212.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 173. 
 
 sum of 20/. per diem for every day during whicli the 
 offence is committed.^ The same penalty for wilfully 
 corrupting water by gas washings is imposed by the 
 Nuisances Removal Act, 1855. By sect. 25, where any 
 water shall be fouled by gas (other than wilfully), the 
 manufacturer is to forfeit 20/. for each offence, and 10/. 
 per diem during continuance of offence. 
 
 By the TJiames Conservancy Act, 1866,- sect. 63,, any Thames Con- 
 person causing any offensive or injurious matter to pass ^g^s^^*^^ 
 into the Thames between Cricklade and the western 
 boundary of the metropolis, or any tributary within three, 
 now by 33 Sf 34 Vict. c. 149, s. 7 [Local), five, miles of the 
 Thames, measured in a direct line, is liable to a penalty 
 not exceeding 100/., and to a further penalty not exceed- 
 ing 50/. for every day during which the offence is con- 
 tinued after the day on which the penalty is incurred. 
 By sect. 64, the conservators are to give notice requuing 
 the person passing the offensive matter into the stream to 
 discontinue passing such matter ; and, upon failing to 
 comply with such notice, the person will be guilty of a 
 misdemeanor. 
 
 Similar provisions exist in the Lee Conservancy Act, 
 1868. 
 
 So also by the Salmon Fisheries Act, 1861,^ s. 5, any per- Salmon 
 son putting into any water containing salmon, or into any Ad;s^^^*^^ 
 tributary thereof, any liquid or solid matter to such an 
 extent as to cause the water to poison or kill fish, shall 
 incur penalties of 5/. for the first; 10/. and 21. a day for 
 the second ; and 20/. a day for the third offence. If, how- 
 ever, he has used all means to render such matter harmless 
 
 ^ Under a private act of parlia- mines under his, the defendant's, 
 
 ment, with similar clauses, a manu- land, and so caused a subsidence, 
 
 f acturer was held liable for damage which cracked the bottom of the 
 
 for escape of gas washings into a tank ; HipJihis v. Birmbujham Gas 
 
 well, although the site of his tank Co., 6 H. & N. 250 ; see also Mill- 
 
 was selected by a competent higston v. Griffiths, 30 L. T., N. S. 
 
 engineer ; and although the escape 65. 
 
 was caused by the wrongful act ^ 29 & 30 Vict. c. 89. 
 
 of a thii-d party who had worked ^ 24 & 25 Vict. c. 109.
 
 174 
 
 OF NATURAL RIGHTS OF WATER. 
 
 The Eivcrs 
 Pollution Act. 
 
 lio v.ill not be so liable, and nofhhuj is to prevent any per- 
 son from acquiring a legal right in cases wbere lie would 
 liave acquired it if the Act had not passed. By sect. 13 
 of the Salmon Fi^licrics Act, 1873,^ the provisions of the 
 32nd section of 24 S^ 25 Vict. c. 97 (the 3IaUcions Injuries 
 to Propcrtg Act), so far as they relate to poisoning any 
 water with intent to kill or destroy fish, shall be extended 
 and apply to salmon rivers, as if the words "or in any 
 salmon river" were inserted in the said section in lieu of 
 the words "private right of fishing," after the words 
 "noxious material in any such pond."^ 
 
 The most important Act, however, relating to the pollu- 
 tion of streams is the Eivers Pollution Act of 1876, 39 ^'■ 
 40 Vict. c. 75, and as it is of universal application, and as 
 
 by sect. 3 to be the mayor and bur- 
 gesses, or lightmg commissioners, 
 or vestry, or town council, or police 
 commissioners, or parochial board) 
 to proceed by bill, indictment or 
 action for protection against pol- 
 lution with leave of the Attorney- 
 General. By sect. 11, nothing in 
 the act is to authorize any sewer 
 to di'ain direct into any stream. 
 
 37 # 38 J'ict. c. 89 (An Act 
 to amend the Sanitary Laws, 1874), 
 s. 50, provides that, " If it shall be 
 represented to any nuisance autho- 
 rity in the metropolis, or to any 
 sanitary authoiity, that within 
 their district the water in any 
 well, tank or cistern, public or 
 private, or supplied from any pub- 
 lic piimp, and used, or likely to be 
 used for domestic purposes, is pol- 
 luted so as to be injurious to health, 
 such authority may apply to any 
 justice having jui-isdiction within 
 their district in petty sessions as- 
 sembled for an order to remedy 
 the same," &c. Sect. 12 provides 
 for the representation of riparian 
 authorities at meetings of port 
 sanitary authorities in case of ports 
 containing more than one sanitaiy 
 authority. 
 
 Cf. the Towns Improvement 
 Clauses Act, 1847 (10 & 11 Vict, 
 c. 34), ss. 99 and 121. 
 
 1 36 & 37 Vict. c. 71. 
 
 - Sect. 32 of 24 & 25 Vict. c. 97 
 (18G1), "An Act to consolidate and 
 amend the statute law of England 
 and Ireland relating to Malicioiis 
 Injiu-ies to Property," provides 
 that, whosoever shall unlawfully 
 or maliciously put any lime or 
 other noxious material into any 
 iish pond or any water which shall 
 be private property, or in which 
 there shall be any private right of 
 fisheiy, with intent to destroy any 
 of the fish, shall be guilty of a mis- 
 demeanor, and, being convicted 
 thereof, shall be liable at the dis- 
 cretion of the Court to be kept in 
 penal servitude for any term not 
 exceeding seven yeai'S, and not less 
 than f/ircc years, or be imprisoned 
 for any term not exceeding ttco 
 years, with or without hard laboiu', 
 and without solitary confinement ; 
 and, if a malicious offence, with or 
 witliout whipping. 
 
 Among other acts the following 
 deal with pollution : — 
 
 23 tt 24 ^■V^ c. 77, s. 8, lays a 
 penalty not exceeding 51. on those 
 fouling water of any well, fountain, 
 or pump ; and a further sum not 
 exceeding twenty shillings per 
 diem for every day during which 
 the offence is continued. 
 
 28 ij- 29 Vict. c. 75, s. 10, em- 
 powers sewers authorities (defined
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 175 
 
 there have as yet been no decisions upon it in the Superior 
 Courts, it is thought advisable to set it out at length. 
 
 " Whereas it is expedient to make further provision for Preamble. 
 " the prevention of the pollution of rivers, and in parti- 
 " eular to prevent the establishment of new sources of 
 " pollution : 
 
 " Be it therefore enacted by the Queen's most excellent 
 " Majesty, by and with the advice and consent of the lords 
 " si:)iritual and temporal, and commons, in this present 
 " Parliament assembled, and by the authority of the same, 
 " as follows : 
 
 " 1. This Act may be cited for all purposes as the Rivers Short title of 
 " PoUution Prevention Act, 1876. '^'*- 
 
 " Part I. — Law as to Solid Matters. 
 
 " 2. Every person who puts or causes to be put or to Proliibition as 
 " fall or knowingly permits to be put or to fall or to be soild^matfers 
 *' carried into any stream, so as either singly or in combi- i^to streams. 
 *' nation with other similar acts of the same or any other 
 " person to interfere with its due flow, or to pollute its 
 " waters, the solid refuse of any manufactory, manufac- 
 " turing process or quany, or any rubbish or cinders, or 
 " any other waste or any putrid solid matter, shall be 
 " deemed to have committed an offence against this Act. 
 
 *' In proving interference with the due flow of any 
 " stream, or in proving the pollution of any stream, 
 '* evidence may be given of repeated acts which together 
 " cause such interference or pollution, although each act 
 " taken by itself may not be sufficient for that purpose. 
 
 " Part II. — Laic as to Sewage Pollutions. 
 " 3. Every person who causes to fall or flow or know- Pi-ohibition as 
 " ingly permits to fall or flow or to be carried into any into streams 
 *' stream any solid or liquid sewage matter, shall (subject °* sewers. 
 " as in this Act mentioned) be deemed to have committed 
 " an oft'ence against this Act.
 
 176 
 
 OF NATURAL RIGHTS OF WATER. 
 
 " Where any sewage matter falls or flows or is carried 
 " into any stream along a channel used, constructed, or in 
 " process of construction at the date of the passing of this 
 " Act for the purpose of conveying such sewage matter, 
 " the person causing or knowingly permitting the sewage 
 " matter so to fall or flow or to be carried shall not be 
 " deemed to have committed an offence against this Act 
 " if he shows to the satisfaction of the Court having eogni- 
 " sance of the case that he is using the best practicable and 
 " available means to render harmless the sewage matter so 
 " falling or flowing or carried into the stream. 
 
 " Where the Local Grovernment Board are satisfied after 
 " local inquiry that further time ought to be granted to 
 " any sanitary authority, which at the date of the passing 
 " of this Act is discharging sewage matter into any stream, 
 " or permitting it to be so discharged, by any such channel 
 " as aforesaid, for the purpose of enabling such authority 
 " to adopt the best practicable and available means for 
 " rendering harmless such sewage matter, the Local 
 " Government Board may by order declare that this sec- 
 " tion shall not, so far as regards the discharge of sewage 
 " matter by such channel be in operation until the espira- 
 " tion of a period to be limited in the order. 
 
 " Any order made under this section may be from time 
 " to time renewed by the Local Grovernment Board, subject 
 " to such conditions, if any, as they may see fit. 
 
 " A person other than a sanitary authority shall not be 
 " guilty of an offence under this section in respect of the 
 " passing of sewage matter into a stream along a drain 
 " communicating with any sewer belonging to or under 
 " the control of any sanitary authority, provided he has 
 " the sanction of the sanitary authority for so doing. 
 
 "Part III. — Law as to Mamifacturing and Mining 
 Pollutions. 
 Prohibition as <« 4^ Every person who causes to fall or flow or know- 
 
 to cLTclltlfl,*^© 
 
 into streams " inglj permits to fall or flow or to be carried into any
 
 THE EIGHT TO WATER IN ITS NATURAL QUALITY. 177 
 
 " stream any poisonous, noxious, or polluting liquid pro- from manu- 
 " ceecling from any factory or manufacturing process sliall ^'^'^^^^^s- 
 " (subject as in this Act mentioned) be deemed to have 
 " committed an offence against this Act. 
 
 " Where any such poisonous, noxious, or polluting 
 " liquid as aforesaid falls or flows or is carried into any 
 " stream along a channel used, constructed, or in process 
 " of construction at the date of the passing of this Act, or 
 " any new channel constructed in substitution thereof, and 
 *' having its outfall at the same spot, for the purpose of 
 " conveying such liquid, the person causing or knowingly 
 " permitting the poisonous, noxious, or polluting liquid so 
 " to fall or flow or to be carried shall not be deemed to 
 " have committed an offence against this Act if he shows 
 " to the satisfaction of the Court having cognizance of the 
 " case that he is using the best practicable and reasonably 
 " available means to render harmless the poisonous, 
 " noxious, or polluting liquid so falling or flowing or 
 " carried into the stream. 
 
 " 5. Every person who causes to fall or flow or know- Prohibition as 
 " ingly permits to fall or flow or to be carried into any i^toTtrcam 
 " stream any solid matter from any mine in such quan- fi'om miuos. 
 " titles as to prejudicially interfere with its due flow, 
 " or any poisonous, noxious, or polluting solid or liquid 
 " matter proceeding from any mine, other than water in 
 " the same condition as that in which it has been drained 
 " or raised from such mine, shall be deemed to have com- 
 " mitted an offence against this Act, unless in the case of 
 " poisonous, noxious, or polluting matter he shows to the 
 " satisfaction of the Coiu't having cognizance of the case 
 " that he is using the best practicable and reasonably 
 " available means to render harmless the poisonous, 
 '' noxious, or polluting matter so falling or flowing or 
 " carried into the stream. 
 
 " 6. Unless and until Parliament otherwise provides Restriction on 
 " the following enactments shall take effect, proceedings STtwf' 
 " shall not be taken against any person under this part of v>^^^ «* t^e 
 
 C. N ° ■
 
 178 
 
 OF NATURAL RIGHTS OF WATER. 
 
 this Act save by a sanitary aiitliority, nor shall any such 
 proceedings be taken ■without the consent of the Local 
 Grovermnent Board : Provided always, that if the 
 sanitary autliority, on the application of any person 
 interested alleging an offence to have been committed, 
 shall refuse to take proceedings or apply for the consent 
 by this section provided, the person so interested may 
 apply to the Local G-overnment Board, and if that 
 Board on inquiry is of opinion that the sanitary autho- 
 rity should take proceedings, they may direct the 
 sanitary authority accordingly, who shall thereupon 
 commence proceedings. 
 
 " The said Board in giving or withholding their con- 
 sent shall have regard to the industrial interests involved 
 in the case and to the circumstances and rec[uirements of 
 the locality. 
 
 " The said Board shall not give their consent to pro- 
 ceedings by the sanitary authority of any district which 
 is the seat of any manufacturing industry, unless they 
 are satisfied, after due inquiry, that means for rendering 
 harmless the poisonous, noxious, or polluting liquids 
 proceeding from the processes of such manufactures are 
 reasonably practicable and available under all the cir- 
 cumstances of the case, and that no material injmy will 
 be inflicted by such proceedings on the interests of such 
 industry. 
 
 " Any person within such district as aforesaid, against 
 whom proceedings are proposed to be taken under this 
 part of this Act, shall, notwithstanding any consent of 
 the Local Government Board, be at liberty to object 
 before the sanitary authority to such proceedings being 
 taken, and such authority shall, if requii-ed in writing 
 by such person, afford him an opportunity of being 
 heard against such proceedings being taken, so far as 
 the same relate to his works or manufactuiiug processes. 
 The sanitary authority shall thereupon allow such person 
 to be heard by himself, agents, and witnesses, and after
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 179 
 
 " inquiiy siicli authority shall determine, having regard 
 " to all the considerations to which the Local Grovernment 
 " Board are by this section directed to have regard, 
 " whether such proceedings as aforesaid shall or shall not 
 " he taken ; and where any such sanitary authority has 
 " taken proceedings under this Act it shall not be com- 
 " petent to other sanitary authorities to take proceedings 
 " under this Act till the i^arty against whom such proceed- 
 " ings are intended shall have failed in reasonable time to 
 " carry out the order of any competent Court under this 
 " Act. 
 
 " Part IV. — Administration of Law. 
 
 " 7. Every sanitary or other local authority having Sanitary 
 " sewers under their control shall give facilities for affOTd"!'^ili 
 " enabling manufacturers within their district to carry the ties for fac- 
 " liquids proceeding from their factories or manufacturing i^^lnto^"^" 
 " processes into such sewers : sewers. 
 
 " Provided that this section shall not extend to compel 
 " any sanitary or other local authority to admit into 
 " their sewers any liquid which would prejudicially affect 
 " such sewers or the disposal by sale, application to land, 
 " or otherwise, of the sewage matter conveyed along such 
 " sewers, or which would from its temperature or other- 
 " wise be injurious in a sanitary point of view : 
 
 " Provided also, that no sanitary authority shall be re- 
 " quired to give such facilities as aforesaid where the 
 " sewers of such authority are only sufficient for the re- 
 " quu'ements of their district, nor where such facilities 
 " would interfere with any order of any Court of com- 
 " petent jurisdiction respecting the sewage of such 
 " authority. 
 
 " 8. Every sanitary authority shall, subject to the Power of 
 " restrictions in this Act contained, have power to enforce au^l^oi^y to 
 " the provisions of this Act in relation to any stream being enforce Act. 
 " within or passing through or by any part of their 
 " district, and for that purpose to institute proceedings in 
 " respect of any offence against this Act which causes 
 
 N 2
 
 180 
 
 OF NATURAL RIGHTS OF WATER. 
 
 Power of Leo 
 Conservancy 
 Board to en- 
 force Act. 
 
 interference with the due flow within their district of 
 any such stream, or the pollution within their district of 
 any such stream, against any other sanitary authority or 
 person, whether such offence is committed within or 
 without the district of the first-named sanitary authority. 
 " Any expenses incurred by a sanitary authority in the 
 execution of this Act shall be payable as if they were 
 expenses properly incurred by that authority in the 
 execution of the Public Health Act, 1875. 
 " Proceedings may also, subject to the restrictions in 
 this Act contained, be instituted in respect of any 
 offence against this Act by any person aggrieved by the 
 commission of such offence. 
 
 " 9. The Conservancy Board constituted under the Lee 
 Conservancy Act, 1868, shall, within the area of their 
 jurisdiction, have, to the exclusion of any other autho- 
 rity, the powers for enforcing the provisions of this Act 
 which sanitary authorities have under this Act. 
 " The said Conservancy Board may also enforce the 
 provisions of the Lee Conservancy Act, 1868, under the 
 head or division ' Protection of Water,' by application 
 to the county court having jurisdiction in the place in 
 which any offence is committed against those provisions, 
 and such court may by summary order require any 
 person to abstain from the commission of any such 
 offence, and the provisions of this Act with respect to 
 summary orders of county courts and appeal therefrom 
 shall apply accordingly. 
 
 Offences to be 
 restrained by 
 summary 
 order of 
 county court. 
 
 Legal Proceedings. Saving Clauses. Definitions. 
 
 " (1.) Legal Proceedings. 
 " 10. The county court having jurisdiction in the place 
 " where any offence against this Act is committed may by 
 " summary order require any person to abstain from the 
 " commission of such offence, and where such offence 
 " consists in default to perform a duty under this Act may 
 " require him to perform such duty in manner in the said
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 181 
 
 order specified ; the coiu't may insert in any order such 
 conditions as to time or mode of action as it may think 
 just, and may suspend or rescind any order on such 
 undertaking being given or condition being performed 
 as it may think just, and generally may give such 
 directions for carrying into effect any order as to the 
 court seems meet. Previous to granting such order the 
 court may, if it think fit, remit to skilled parties to 
 report on the 'best practicable and available means' 
 and the nature and cost of the works and apparatus 
 requii'ed, who shall in all cases take into consideration 
 the reasonableness of the expense involved in their 
 report. 
 
 "Any person making default in complying with any 
 requirement of an order of a County Court made in 
 pursuance of this section shall pay to the person com- 
 plaining, or such other person as the Court may direct, 
 such sum, not exceeding fifty pounds a day for every 
 day during which he is in default, as the Court may 
 order ; and such penalty shall be enforced in the same 
 manner as any debt adjudged to be due by the Court ; 
 moreover, if any person so in default persists in disobey- 
 ing any requirement of any such order for a period of 
 not less than a month or such other period less than 
 a month as may be prescribed by such order, the Com-t 
 may in addition to any penalty it may impose appoint 
 any person or persons to carry into effect such order, 
 and all expenses incurred by any such person or persons 
 to such amount as may be allowed by the Coimty Court 
 shall be deemed to be a debt due from the person in 
 default to the person or persons executing such order, 
 and may be recovered accordingly in the County Court. 
 "11. If either party in any proceedings before the Appeal from 
 County Court under this Act feels aggrieved by the IZ^vlnoY^' 
 decision of the Court in point of law or on the merits, or of case into 
 in respect of the admission or rejection of any evidence, of Justice.
 
 182 
 
 OF NATURAL RIGHTS OF WATER. 
 
 Certificate of 
 inspector of 
 Local 
 
 Government 
 Board as to 
 best practic- 
 able means. 
 
 " lie may appeal from that decision to the High Court of 
 " Justice. 
 
 " The appeal shall be in the form of a special case to be 
 " agreed upon by both parties or their attorneys, and, 
 " if they cannot agree, to be settled by the judge of the 
 " County Court upon the application of the parties or 
 " their attornies. 
 
 " The Court of Appeal may draw any inferences from 
 " the facts stated in the case that a jury might draw from 
 " facts stated by witnesses. 
 
 " Subject to the provisions of this section, all the enact- 
 " ments, rules, and orders relating to proceedings in actions 
 " in County Courts, and to enforcing judgments in County 
 " Courts and appeals from decisions of the County Court 
 " judges, and to the conditions of such appeals, and to 
 " the power of the superior Com-ts on such appeals, shall 
 " apply to all proceedings under this Act, and to an 
 " appeal from such action, in the same manner as if such 
 " action and appeal related to a matter within the ordinary 
 " jurisdiction of the Court. 
 
 " Any plaint entered in a County Court under this Act 
 " may be removed into the High Court of Justice by leave 
 " of any judge of the said High Court, if it appears to 
 " such judge desirable in the interests of justice that 
 " such case should be tried in the first instance in the 
 " High Court of Justice and not in a County Court, and 
 " on such terms as to security for and payment of costs, 
 " and such other terms (if any) as such judge may think 
 "fit. 
 
 " 12. A certificate granted by an inspector of proper 
 " qualifications appointed for the purposes of this Act by 
 " the Local Grovernment Board to the effect that the 
 " means used for rendering harmless any sewage matter 
 " or poisonous, noxious, or polluting solid or liquid matter 
 " falling or flowing or carried into any stream, are the 
 " best or only practicable and available means under the
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. ~ 183 
 
 " circumstances of the particular case, shall in all courts 
 " and in all proceedings under this Act be conclusive 
 " evidence of the fact ; such certificate shall continue in 
 " force for a period to be named therein, not exceeding 
 " two years, and at the expiration of that period may be 
 " renewed for the like or any less period. 
 
 " All expenses incurred in or about obtaining a certifi- 
 " Gate under this section shall be paid by the applicant for 
 " the same. 
 
 " Any person aggrieved by the grant or the withhold- 
 " ing of a certificate under this section may appeal to the 
 " Local Government Board against the decision of the 
 " inspector ; and the Board may either confirm, reverse, 
 " or modify his decision, and may make such order as to 
 " the party or parties by whom the costs of the ai3peal are 
 " to be borne as to the said Board may appear just. 
 
 " 13. Proceedings shall not be taken under this Act Restriction ou 
 " against any person for any offence against the pro- f^i" offences'. 
 " visions of Parts II. and III. of this Act until the 
 " expiration of twelve months after the passing of this 
 " Act ; nor shall proceedings in any case be taken under 
 " this Act for any offence against this Act until the 
 " expiration of two months after written notice of the 
 " intention to take such proceedings has been given to the 
 " offender, nor shall proceedings under this Act be taken 
 " for any offence against this Act while other proceedings 
 " in relation to such offence are pending. 
 
 " 14. The Local Grovernment Board may make orders Orders as to 
 " as to the costs incurred by them in relation to inquiries q^^es. 
 " instituted by them under this Act, and as to the parties 
 " by whom such costs shall be borne ; and every such 
 " order and every order for the payment of costs made by 
 "the said Board under section twelve of this Act may be 
 " made a rule of her Majesty's High Court of Justice. 
 
 " 15. Inspectors of the Local Grovernment Board shall. Power of in- 
 *' for the purposes of any inquiry directed by the Board ^ocai 
 " under this Act, have in relation to witnesses and their Govemmeut 
 
 ' Board.
 
 184 
 
 OF NATURAL RIGHTS OF "WATER. 
 
 Powers of 
 Act cumula- 
 tive. 
 
 Saving of 
 rights of im- 
 pounding and 
 diverting 
 water. 
 
 Saving of 
 certain Con- 
 servancy 
 
 Acts. 
 
 " examination, the production of papers and accounts, and 
 " the inspection of places and matters required to be 
 " inspected, similar powers to those which the inspectors 
 " of the said Board have under the Public Health Act, 
 " 1875, for the pui'poses of that Act, 
 
 " (2.) Saving Clauses. 
 " 16. The powers given by this Act shall not be 
 " deemed to prejudice or affect any other rights or powers 
 " now existing or vested in any person or persons by Act 
 " of Parliament, law, or custom, and such other rights or 
 " powers may be exercised in the same manner as if this 
 " Act had not passed ; and nothing in this Act shall 
 " legalize any act or default which would but for this Act 
 " be deemed to be a nuisance or otherwise contrary to 
 " law : Provided nevertheless, that in any proceedings for 
 " enforcing against any person such rights or powers the 
 " Court before which such proceedings are pending shall 
 " take into consideration any certificate granted to such 
 " person under this Act.^ 
 
 " 17. This Act shall not apply to or affect the lawful 
 exercise of any rights of impounding or diverting water, 
 " 18. Nothing in or done under this Act shall extend 
 to interfere with, take away, abridge, or prejudicially 
 affect any right, power, authority, jurisdiction, or privi- 
 lege given by 'The Thames Conservancy Acts, 1857 
 and 1864,' or by ' The Thames Navigation Act, 1866,' 
 or by ' The Lee Conservancy Act, 1868,' or any Act or 
 Acts extending or amending the said Acts or either of 
 them, or affect any outfall or other works of the Metro- 
 politan Board of Works (although beyond the Metro- 
 polis) executed under the Metropolis Management Act, 
 1855, and the Acts amending or extending the same, or 
 take away, abridge, or prejudicially affect any right, 
 power, authority, jurisdiction, or privilege of the Metro- 
 politan Board of Works. 
 ^ As to effect of tliis section on acquii-ed rights of pollution, see 2)ost.
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 185 
 
 " 19. Where any local authority or any urban or rural Saving of 
 sanitary authority has been empowered or required by cei-tain^local 
 any Act of Parliament to carry any sewage into the sea authorities. 
 or any tidal waters, nothing done by such authority in 
 pursuance of such enactment, shall be deemed to be an 
 oifence against this Act. 
 
 " (3.) Definitions. 
 " 20. In this Act, if not inconsistent with the context, Defiuitions. 
 " the following terms have the meanings hereinafter re- 
 " spectively assigned to them ; that is to say, 
 
 " ' Person ' includes any body of persons, whether cor- 
 
 " porate or unincorporate : 
 " ' 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 Grovemment Board, by order published in 
 " the London Grazette. Save as aforesaid, it in- 
 " eludes rivers, streams, canals, lakes, and water- 
 " courses, 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 : 
 " ' Solid matter' shall not include particles of matter in 
 
 " suspension in water: 
 " 'Polluting' shall not include innocuous discoloration: 
 " 'Sanitary authority' means — 
 
 " In the metropolis as defined by the Metropolis 
 " Management Act, 1855, any local authority act- 
 " ing in the execution of the Nuisances Removal 
 " for England Act, 1855, and the Acts amending 
 " the same; 
 " Elsewhere in England, any urban or rural sanitary 
 " authority acting in the execution of tlie Public 
 " Health Act, 1875.
 
 186 OF NATURAL RIGHTS OF WATER. 
 
 " Part V. — Application of the Act to Scotland. 
 Modificatioiis " 21. In the application of this Act to Scotland the 
 Scotlaud. " following provisions shall have effect : 
 
 " (1.) The expression 'sanitary authority' shall mean 
 " and include the local authority in any parish 
 " or burgh in Scotland, acting under the Public 
 " Health (Scotland) Act, 1867: 
 
 " (2.) The expression 'London Grazette' shall mean 
 " Edinburgh Grazette : 
 
 " (.'i.) The expression 'the Public Health Act, 1875,' 
 " shall mean the Public Health (Scotland) Act, 
 " 1867, and any Acts amending the same : 
 
 " (4.) This Act shall be read and construed as if for 
 " the expression ' the Local Government Board,' 
 " wherever it occurs therein, the expression ' the 
 " Secretary of State' were substituted; and the 
 " expression 'the Secretary of State' shall mean 
 " one of her Majesty's Principal Secretaries of 
 "State: 
 
 " (5.) The expression 'the county court' shall mean the 
 " sheriff of the county, and shall include sheriff 
 " substitute ; and the expression ' plaint entered 
 " in a county court' shall mean petition or com- 
 " plaint presented in a sheriff comi : 
 
 " (6.) The expression 'the High Court of Justice' shall 
 " mean the Court of Session in either division of 
 " the Inner House thereof : 
 
 " (7.) x^l the jurisdiction, powers, and authorities neces- 
 " sary for the purposes of this Act are hereby 
 " conferred on sheriffs and their substitutes : 
 
 " (8.) The Court of Session may, on the application of 
 " the Lord Advocate, on behalf of the Secretary 
 " of State, interpone their authority to any order 
 " made by the Secretary of State as to the costs 
 " incurred by him in relation to inquiries in-
 
 THE RIGHT TO WATER IN ITS NATURAL QUALITY. 
 
 187 
 
 stituted by liim under this Act, and as to the 
 parties by whom such costs shall be borne ; 
 and may grant decree conform thereto, upon 
 which execution and diligence may proceed in 
 common form : 
 " (9.) An inspector appointed for the purposes of this 
 Act by the Secretary of State shall, for the 
 purposes of any inquiiy directed by the Secre- 
 tary of State under this Act, be entitled, by a 
 summons signed by him, to requii'e the attend- 
 ance of all persons he may think fit to call 
 before him in regard to the matters of the 
 inquiiy, and to administer oaths to, and exa- 
 mine upon oath, all such persons, and to 
 require and enforce the production upon oath 
 of all documents, accounts, or papers in any- 
 wise relating to such inquiry; and shall also 
 have, in relation to the inspection of places 
 and matters required to be inspected, similar 
 powers to those which sanitary inspectors have 
 under the Public Health (Scotland) Act, 18G7. 
 
 " Part VI. 
 " 22. In the application of this Act to Ireland the Application 
 " following provisions shall have effect : Ireland ^ ° 
 
 " (1.) The expression 'sanitary authority' shall mean 
 
 " any urban or rural sanitary authority acting 
 
 " in the execution of ' The Public Health (Ire- 
 
 " land) Act, 1874 : ' 
 " (2.) The expression ' The PubUc Health Act, 1875,' 
 
 " shaU mean * The Public Health (Ireland) Act, 
 
 "1874:' 
 " (3.) The expression 'the Local Government Board' 
 
 " shall mean the Local Gfovernment Board for 
 
 " Ireland : 
 " (4.) The expression 'the county court" shall mean the 
 
 " civil bill court :
 
 188 OF NATUKAL RIGHTS OF WATER. 
 
 " (5.) The expression 'plaint entered in a county court' 
 " shall mean civil bill process: 
 
 " (6.) The expression 'the High Court of Justice' shall 
 " mean any of the superior Courts of common law 
 " in Dublin, or any judge thereof to whom appeals 
 " may be brought from the decision of a civil bill 
 " Court : 
 
 " (7.) The expression 'the judge of the County Court' 
 " shall mean the chairman of quarter sessions and 
 " judge of the civil bill court : 
 
 " (8.) The expression 'the London Grazette' shall mean 
 " the Dublin Gazette : 
 
 " (9.) All the jmisdiction, powers, and authorities neces- 
 " sary for the purposes of this Act are hereby 
 " conferred upon the civil bill courts and superior 
 " courts, and the judges of the same respectively : 
 
 " (10.) All penalties, when recovered by or on behalf 
 " or at the instance of or in any proceeding insti- 
 " tuted by any sanitary authority, or any officer of 
 " such authority, shall be paid to such sanitary 
 " authority, and by the same applied in aid of 
 " their expenses under the Sanitary Acts ; and save 
 " as aforesaid all such penalties shall be applied in 
 " manner directed by ' The Fines Act (Ireland), 
 " 1851,' and any Act amending the same. " 
 
 Percolating Water and Water having no defined Course. 
 Abstraction ^]^q principles of law which regulate the rights of owners 
 
 and diversion . . . 
 
 of, not action- of land in respect of water flowing in known and defined 
 able. 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. ^ 
 Eight to Thus in the case of liawstron v. Taylor { it has been 
 
 1 As to pollution, sec j^ost, p. 199. ^ 11 Ex. 353.
 
 TERCOLATING WATER HAVING KO DEFINED COUESE. 189 
 
 held that the owner of laud has an unqualified right to drain surface 
 drain it for agricultural purposes in order to get rid of a<n^ic'uit*iu-ai 
 mere surface water, the supply of the water being casual, purposes. 
 and its flow following no regular or definite course ; and a 
 neighbouring proprietor cannot complain that he is thereby 
 deprived of such water which otherwise would have come 
 to his land. So in Broadbcnt v, lianisbof/taw,'^ 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 sub- 
 terraneous 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 defen- 
 dant's land in no definite channel into the brook ; it was 
 held that the plaintiff had no right as against the defen- 
 dant to the natural flow of any of the waters. So in 
 Great rex v. Haymird,- it was held, following Woody. Waud,^ 
 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 flowed, 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 im- 
 provement of his land, and so cutting off the supply. 
 
 The same rules of law have, after some difference of Subterranean 
 opinion, been established in a series of cases to apply to "*^''^*^''- 
 subterranean water percolating through the strata of the Wells. 
 earth in no definite or known course. 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.* In 
 the case of Acton v. Bhindell,^ it was decided that the Acton v. 
 o^\^ler of land through which water flows in a subter- -^'^'""'^^^^• 
 raneous course has no right or interest in it which will 
 enable him to maintain an action against a landowner 
 
 1 11 Ex. 602. Canal, 7 Ex. 282 ; Buddmx.Clutton 
 
 2 3 Ex. 291. Vnion, 1 H. & N. 627, 630; Wood 
 
 3 3 Ex. 7-18. V. Waud, 3 Ex. 748; see Phear, 
 ^ Chasemore v. Richards, 7 H. L. p. 33 ; Angell, p. 152. 
 
 349 ; Dickenson v. Grand Junction ^ 12 M. & W. 324.
 
 190 OF NATURAL RIGHTS OF WATER. 
 
 who, in carrying on mining operations 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 ques- 
 " tion argued before us," says Tindal, C. J., delivering the 
 judgment of the Cornet, "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 siu'face. 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 acquii^e 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. 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 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 bear- 
 " ing a heavy expense, if the latter has erected machinery 
 " for the purposes 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 adjoining 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
 
 PEKCOLATING WATER HAVING NO DEFINED COURSE. 191 
 
 " 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 consequences at 
 " once unreasonable and unjust, we feel ourselves war- 
 " ranted 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 Dickenson v. T/ie Grand Junction Canal,^ the Court of Didoison v. 
 Exchequer held that an action would lie against a land- tioTcanah' 
 owner for digging a well and so preventing subterraneous 
 water from reaching a natural siu'face stream, which it 
 would othermse 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 
 tliis opinion has been overruled by the decision of the 
 House of Lords in Chasemove v. RicJianh. 
 
 In the case of Acton v. Blunclell, just cited, the questions 
 before the Court were two, — viz. whether a landowmer 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 the affirmative ; for says he, "If in the 
 " exercise of such right he intercepts or drains off the 
 " water collected froin underground spri)igs in /n's )ieighbour\s 
 " icell, this inconvenience to his neighbour falls within 
 " the description of damnum absque injuria, which cannot 
 " become the ground of action.'' 
 
 The first of these two propositions has been re-asserted 
 in the case of Chasemore v. Richards ^ by the House of 
 Lords, affirming the judgment of the Court of Exchequer 
 
 1 7 Ex. 282. - 7 H. L. 349.
 
 192 
 
 OF NATUR\L RIGHTS OF WATER. 
 
 Loiifj user 
 fjivos no fur- 
 ther right of 
 action. 
 
 Chascmore v. 
 Richards. 
 
 Chamber. This case, moreover, decides a point not raised 
 in Acton v. Blundell, viz., that a prescriptive right by long 
 user to the water of the well or surface stream, with which 
 the sinking of the shaft interfered, would give no further 
 
 right of action.^ 
 
 In Chasemore v. Richards,^ the plaintiff, who owned an 
 ancient mill on the river Wandlo, and had for more than 
 sixty years enjoj^ed 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 extensive 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 defen- 
 dant 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, 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 appropriate 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 deflnite channel has been conclusively settled l)y 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 care- 
 ' fully adjusted and established. The principle of these 
 
 ' See also per Maule, J., in - 7 H. L. 319. 
 
 Smith V. Kenrick, 7 C. B. 546.
 
 PERCOLATING WATER HAVING NO DEFINED COURSE. 193 
 
 " 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 Caned Co.,^ that, 
 " ' If 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 com^se, 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.' But it appears to me that the prin- 
 " eiples 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 under- 
 " ground strata, which has no certain course, no defined 
 " limits, but which oozes through the soil in every direc- 
 " tion in which the rain penetrates. There is no difficulty 
 " in determining 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 description. 
 " When does this right commence ? Before or after the 
 '' rain has found its way to the ground ? If the owner 
 " of land, thi"ough 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 
 1 7 Ex. 300, 301.
 
 194 OF NATURAL RIGHTS OF WATER. 
 
 " to the River Wandle, is strained tlirough 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 ? 
 " 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 natiu-e of the thing 
 " ' itself.'^ This distinction between water flowing in a 
 " definite channel, and water, whether abo^'e or under- 
 " groimd, not flowing in a stream at all, but either drain- 
 " ing oft 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 argu- 
 " ment." The learned lord goes on to cite Broadbent v. 
 Bamshotham,^ Eaicstron v. Taylor^ and Acton v. Blundcll,'^ 
 and continues : " Against this concurrence of authority, 
 " what is there to be offered in favour of the plaintiff 
 " but the nisi prius case of Bahton v. Bensted,^ and the 
 "case of Diclxcnson v. Grand Junction Canal "^^ With 
 " respect to Bahton 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 Ellen- 
 " borough's mind. With respect to the case of Dichenson 
 " V. Grand Junction Canal, upon which the plaintiff also 
 " relied, after the observations made upon it by Mr. 
 " Justice Cress well in the Exchequer Chamber," and by 
 " Mr. Justice Wightman in delivering the opinion of the 
 
 1 2 H. & N. 191. 5 1 Camp. 463. 
 
 2 11 Ex. 602. 6 7 Ex. 282. 
 
 3 11 Ex. 3o3. ' 2 n. &N. 168. 
 
 4 12 M. & W. 324.
 
 PERCOLATING WATER HAYING NO DEFINED COURSE. 195 
 
 " judges to this House, ^ 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 consideration. 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 woidd have ultimately found its way into the 
 " Eiver "Wandle ; and that, therefore, the judgment of the 
 " Exchequer Chamber ought to be affirmed." 
 
 Following this decision, it has been held in Reg. v. licg. v. Mctro- 
 Metropolitan Board of Works,^ that a landowner was not 0/ ^Works!." 
 entitled to compensation imder the MetrojwJitan Sc/rers 
 Act (11 8f 12 Vicf. 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 compen- 
 sation 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 actionable, 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 be- 
 coming the subject of legal right, had prejudicially affected 
 the plaintiff's right to it. 
 
 1 7 H. L. 369. 2 3 B. & S. 710 ; 9 Jvu-., N. S. 
 
 1008 ; 32 L. J., Q. B. 105. 
 
 O 2
 
 OF NATURAL RIGHTS OF WATER. 
 
 So in Bmiii v. Marfdl^ 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 woidd lie for the interception of percolating 
 water before it reached the well. 
 
 In a late case in the Privy Council,- it has been 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,^ if in 
 working the mines he drains the water from the sur- 
 face. 
 
 It has, moreover, been decided that where water which 
 has actually percolated into, and is in a well, has been 
 abstracted by operations in the adjoining land, no action 
 will lie. Thus, in the New Rirer Co. v. Joltnson,^ where a 
 well of the respondent was drained by a sewer constructed 
 by the appellants under a local Act incorporating the 
 W(dencorks Clauses Act, 10 S^ 11 Vict. c. 17, the Court of 
 Queen's Bench held that as on the authority of Acton v. 
 BlundcU,^ and CJiciHemore v. Richards^^ no action would 
 have lain for what was done, the statute gave the respon- 
 dent 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 construct their works, the respon- 
 " dent 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 run- 
 " ning 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 
 
 Ml L. T., N. S. 455. ment, see jmst, p. 209 ct seq. 
 
 2 BaUacorldsh Co. v. Harrison, * 2 E. & E. 43.5. 
 L. R., 5 P. C. 49. s 12 M. & W. 324. 
 
 3 As to effect of express agree- "^ 7 H. L. 349.
 
 PERCOLATING WATER HAVING NO DEFINED COURSE. 197 
 
 " one, of water merely percolating ; as to which Acton v. 
 " BlnndeW^ shows conclusively that no action will lie, and 
 " that the only remedy of the owTier 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,- not only 
 " does not and coidd not overrule it, but is itself virtually 
 " overruled by the judgment of the House of Lords in 
 " Chaseniore v. Richards,^ in which Acton v. BlundclV- is 
 " approved and acted upon." 
 
 In conformity with the doubt expressed by Crompton, Actually in a 
 J., it has been held by Lord Hatherley, L. C, in Grand ^^fj'ctannel. 
 Junction Canal v. S/iugar,^ that although a landowner will 
 not, in general, be restrained from di-awing off the sub- 
 terranean 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 Chasc- 
 " more v. Richards, and the distinction is plain. If you 
 " are simply using what you have a right to use, and 
 " leaving your neighbour 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 
 " yoiu'self. In this case there is, ex conce&sis, a defined 
 " channel in which this water was flowing, and I think 
 " the e"ST.dence is clear that some of it is withdi'awn 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 Chaseniore v. Richards, or any other case, 
 " has decided more than this, that you have a right to all 
 
 1 12 M. & W. 324. •■' 7 H. L. 349. 
 
 2 7 Ex. 282. ' L. R., 6 Ch. 483.
 
 198 
 
 OF NATURAL RIGHTS OF WATER. 
 
 " tliG water wliicli you can draw from tlie different sources 
 " wliicli may percolate underground ; but that lias 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 underground 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 youi'self, 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."^ 
 Support from An owner of land has, on the same principle as governs 
 water. " ' the foregoing cases, no right at common law to the support 
 of subterranean water. 
 
 In PoppIeircU v. Hodfjliinsoii,^ 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 subsequently granted the remaining adjoining portion 
 to certain trustees for erecting a church. The defendant, 
 a builder employed by the trustees, by necessary excava- 
 tions 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 Com-t 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, 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 
 
 ^ As to rights and liabilities of R. C. 442; Biriinnffhuiii Canal v. 
 
 mine owners with regard to water, Dudlei/, 7 H. & N. 989 ; Lunn v. 
 
 see ante, p. 128 ct seq. ; and as to Birmingham, L. R., 8 Q. B. 42; and 
 
 canals, sec Stourbridge Canal v. 2>ost, Ch. V. 
 
 Dudkg, SOL. J.,Q. B. 108; Dudley ^ l_ ^^ 4 jjx. 248; 38 L. J., 
 
 Canal v. Grazchrooh, 1 B. & A. Ex.126; 17 W. R. 80G (Ex. Ch.). 
 59 ; Cromford Canal v. Cutis, 5
 
 PERCOLATING WATER HAVING NO DEFINED COURSE. 199 
 
 " land to another for some special purpose, — for building 
 " piu'poses, 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 was 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. Rail Co.^ it has been held by the 
 House of Lords that, where the o"WTier 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, pro^dded 
 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 injunc- 
 tion 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 aban- 
 doned for forty years. 
 
 Although no action will lie for the diversion or abstrac- rollution of 
 tion of percolating water, the law is otherwise with regard ^v^ater.^ ^"^^ 
 to its pollution. The principle on which this distinction 
 rests is expressed by the maxim, " 6Vc utere tiio id aUenum 
 " non Icedas." 
 
 In the case of JlodgVimon v. Enno)\' the plaintiff owned 
 a mill, and proved an immemorial right to the pure flow 
 of a stream from a natural cavern into which rain water 
 ran by underground passages. The defendant, the owner 
 of land on a hill above the cavern, and in the process of 
 lead working, discharged polluted water from pits through 
 
 1 10 H. L. Cas. 333; 29 L. J., J., Q. B. 108; Birmingham Canal 
 
 Ch. 308. See also Earl Ripon v. v. Dudley, 7 H. & N. 969 ; Bir- 
 
 Bobart, 3 Myl. & K. 169; Dudley mingham Canal v. Swindell, 7 H. & 
 
 Canal v. Grazehrook, 1 B. & A. 59 ; N. 980, n. 
 
 Stourbridge Canal v. Dudley, 30 L. - 4 B. & S. 229.
 
 OF NATURAL RIGHTS OF WATER. 
 
 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 Chascmore v. Richards, no action would lie for 
 any interference with underground percolating 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. Cockbiu-n, C. J., says : " In Chase- 
 " )>wre V. Richards^ it was decided that, until water rises 
 " to the surface of the land, the law gives no right of 
 " action to a party who has suffered by its abstraction. 
 " But in the present case, the right of the plaintiff cannot 
 " be disputed, for it is found that he and those whom he 
 " represents have always had a right to have the water 
 " in question flow in its accustomed course and purity. 
 " Then, by the act of the defendant, the water has been 
 " polluted and fouled ; which being once an ascertained 
 " fact, it makes no difference that, by the manner in 
 " which the defendant discharges the polluted water from 
 " his works, it goes over the surface of the buddies, from 
 " whence it flows a certain distance over the limestone 
 " formation, before it arrives at the plaintiff's watercourse. 
 " It is clear, in point of law, equity, and justice, that the 
 " plaintiff has a cause of action." Blackburn, J. : "I take 
 " the law to be as stated in Tenant v. Goldicin^ 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 Report in Salk. 361, ' he 
 " whose dirt it is, must keep it that it may not trespass.' " 
 So, in Woniersly v. Church,^ Lord Romilly, M. E., 
 granted an injunction to restrain the defendant from deep- 
 ening his cesspool, so as to cause polluting matter to 
 percolate through the soil, and foul the plaintiff's weU. 
 The cases of Mayor v. Chadii-ich,^ and Wood v. Waiid,^ also 
 
 1 7H. L. 349. ^ 11 A. &E. 571. 
 
 - 2 Ld. Raym. 1089; Salk. 21, ^ 3 Ex. 748. See also Sutclife 
 
 360; 6 Mod. 311 ; Holt, 500. v. £ooth, 32 L. J., Q. B. 136. 
 
 3 17 L. T.,N. S. 190.
 
 PERCOLATING WATER HAVING NO DEFINED COURSE. 201 
 
 draw distinction between the right to divert and the right 
 to pollute water arising from temporary causes. " The 
 " Court of Queen's Bench," says Pollock, C. B., deliver- 
 ing the judgment of the Court in the latter case, " in the 
 ' subsequent case of Magor v. Chadicick, supported a ver- 
 ' diet for the plaintiff for the distui'bance of a stream, 
 ' under circumstances somewhat similar ; but in that case 
 ' the action was not brought against the party in whose 
 ' land the artificial watercourse commenced, nor anyone 
 ' claiming under him, and he had not put an end to it by 
 ' altering the mode of working his mines ; but what is 
 ' more important, the action was not brought for abstract- 
 ' ing, but for fouling — a species of injuiy which does not 
 ' stand on the same footing ; for, although the possessor 
 ' of the mine might stop the stream, it does not follow 
 ' that he or any other could pollute it whilst it continued 
 'to run." 1 
 
 1 As to pollution of artificial watercourses, see ante, p. lo-l ct scq.
 
 ( 202 ) 
 
 CHAPTEE IV. 
 
 OF ACQUIRED RIGHTS OF WATER, AND THE EASEMENT 
 OF WATERCOURSE. 
 
 Acqtiired 
 rights of 
 Tvater tei'med 
 easements. 
 
 Defiuitiou of 
 easement. 
 
 In addition to the natural right to receive flowing water 
 in its accustomed course, rights, the object of which is to 
 interfere with the natural course of the stream, may ho 
 acquired over a 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 
 Ijy 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.'^ 
 
 Such acquired rights are termed easements. 
 
 An easement may be defined as a service or conve- 
 nience which one neighbour hath, without profit upon, 
 over, or from any land or water of another.- 
 
 An easement (under which head all acquired rights of 
 water are classed) differs from a profit a 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 a prendre carries 
 with it a right to take and appropriate a portion of the 
 soil and its produce.^ 
 
 Easements must be used in connection with some tene- 
 
 ' Gale on Easements, p. 270 ; 
 Sampson t. Modduwt, 1 C. B., N. S. 
 611. 
 
 - Co. Litt. 19, 20 ; see also 
 Angell on Watercourses, p. 244 ; 
 HcuTuis V. Shi2)pam, 5 B. & C. 221 ; 
 
 Manning v. Wasdalc, 5 A. & E. 
 764 ; Eacc v. Ward, 4 E. & B. 702. 
 ^ Phear, Rights of Water, p. 57 ; 
 Mace V. Ward, 4 E. & B. 702; 
 3£anning v. Wasdale, 5 A. & E 
 764.
 
 OF ACQriRED RIGHTS OF WATER, 203 
 
 ment, and cannot, as hereditaments, be created or acquired 
 in gross. ^ 
 
 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 tene- 
 ment. Considered with reference to the servient tenement, 
 an easement is frequently termed a servitude. 
 
 The easements relating to water may be classified Easemeuts of 
 thus: 2— ^^t"'- 
 
 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 quahty. 
 
 2. The right to conduct water across a neighbour's land 
 by an artificial watercom-se, and to go on his land for the 
 purposes of clearing it. 
 
 3. The right to discharge water or other matter on a 
 neighbour's land. 
 
 4. The right to go on a neighbour's land to draw water 
 from a well. 
 
 It is proposed to consider, first, how these easements 
 may be acquired ; and, secondly, the nature, extent, and 
 mode of enjoyment of the above-mentioned particular, — 
 easements of water. 
 
 Easements of Water , hoi.c accjuircd. 
 
 The origin of rights of this kind is referred either to 
 express contract between the parties, or to a similar con- 
 tract implied from the peculiar relation of the parties at 
 the time they became possessed of their respective tene- 
 ments, or from the long-continued exercise of the right 
 from which a previous contract between them may be 
 
 ^ Ackroyd v. Siiiith, 10 C. B. well, B., in Xitttal v. Braccwcll, 
 
 161; SliuttleiLorth v. Le Fleming, L. R., 2 Ex. 11. 
 
 19 C. B.,]Sr. S. 637 ; Hill v. Tuppcr, - The acquired rights of fi.shciy 
 
 2 H. & C. 121 ; and see also re- and na\'igation are iidly treated of 
 
 marks on the last case by Bram- elsewhere; see Chaps. VI. and VII.
 
 204 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 An casement 
 is au iucor- 
 poreal right. 
 
 By express 
 affreemeut. 
 
 An easement 
 can only he 
 created or 
 assigned at 
 law by deed. 
 
 inferred;^ or to the provisions of an Act of tlie legis- 
 latm'e.- 
 
 " A watercourse," says Woolrych,^ " may be either a 
 " real or an incorporeal hereditament. If by grant, pre- 
 " scription, or otherwise, one should have an easement of 
 " this kind in the land of another person, it woidd 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 ecelum." 
 
 The ceremony required by law for the creation of ease- 
 ments and all other incorporeal hereditaments, is a deed, 
 devise, or record ; and as the same ceremonies are requi- 
 site in the transfer of a right as are requisite in its origi- 
 nal formation, a water right as an incorporeal heredita- 
 ment can only be assigned by deed, devise, or record.^ 
 
 This point was decided in Hewlins v. SM2)pam,^ 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 judgment of 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 incor- 
 " poreal rights, such as rights of common, rents, advow- 
 " sons, &c. It lies not in livery, but in grant, and a free- 
 " hold interest in it cannot be created or passed (even if a 
 " chattel interest ma>j, u-JucJi I think it cannot), otherwise 
 " than by deed." « 
 
 ' Gale on Easements, jd. 3. 
 
 ^ Per Cockbiu'n, C. J., in Mason 
 V. ShrewsbuDj Railwai/, L. R., 6 
 Q. B. 537. 
 
 2 Wooli-ych, p. 146. 
 
 ■* Angell on Watercourses, j). 
 324 ; Gale on Easements, p. 27. 
 
 5 5 B. & C. 221 ; see as to this 
 subject, Gale on Easements, pjx 
 
 27—83. 
 
 '' Jletvlins V. Shippam, 5 B. Sc C. 
 221 ; see also Tentman v. Smith, 4 
 East, 107 ; see also Corker v. Paijue, 
 18 W. R. 436 ; Cocker v. Couper, 1 
 C. M. & R. 418 ; Duke of Somerset 
 V. Fogu-eU, b B. & C. 875 ; Gale, 
 pp. 29, 53.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 205 
 
 After citing other cases ^ in support of his opinion, the 
 learned judge continues: "And in Fentiman v. Sniifh,^ 
 " where the plaintiff claimed to have passage for water by 
 " a tunnel over defendant's land. Lord Ellenhorough 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 coun- 
 " termanded, that a rifjlit 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." ^ 
 
 The doctrine laid down in this case was fully recognized 
 in Coclxcr v. Cotcper,^ 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 plaintiff's refusal to 
 pay for the use of the water the defendant 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 Ileiclina v. Sh/'ppani is decisive to show that 
 " an easement like this cannot be conferred unless by 
 
 1 Co. Litt. 9a, 42a, 169 ; 2 Roll. Lake, Sayer, 3 ; and Tai/hr v. 
 
 Abr. 62 ; Shop. Touch. 231 ; Monk Wafers, 7 Taunt. 374. 
 
 V. Dutler, Cro. J-dc. o'i ; Hionsei/ V. ^ 1 C. M. & R. 418; see also 
 
 Rawson, 1 Vent. 18 — 25; Hoskins Wood v. Leadbitter, 13 M. & W. 
 
 V. Robi7is, 1 Vent. 123—163 ; Ear- 838 ; Wood v. Manley, 11 A. & E. 
 
 rison V. Parker, 6 East, 154. 30 ; Bird v. Higginson, 6 A. & E. 
 
 ~ 4 East, 107. 824 ; Ferry v. Fitzhoive, 8 Q. B. 
 
 ^ See also the renaark.s of the 757 ; Bryan v. Whistler, 8 B. & C. 
 
 learned judge on the cases of 771«<tv 288; BroiviiY. Windsor, 1 Cr. & J. 
 
 V. Broekiceli, 8 East, 309 ; Webb v. 20 ; Wallis v. Harrison, 4 M. & W. 
 
 Faternostcr, Palm. 71 ; Wood v. 538.
 
 20G 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 Equitable 
 doctriue of 
 acquiescence. 
 
 " deed." With regard to the effect of a licence, Mr. Phear^ 
 thus expresses himself. "It is very important in con- 
 " sideling the subject of easements to distinguish as early 
 " as possible between a riylit'^ to do an act in alieno solo and 
 " a licence to commit an act of trespass. The rigJit involves 
 " a certain continuing element, and has an incorporeal exist- 
 " ence, whether any act be done under it or not : the pos- 
 " sessor 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 ac- 
 " quires 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 — /. e. from any- 
 " thing, the effect of which would be to prevent his free 
 " exercise of it when he chose. On the other hand a 
 " licence^ merely excuses the act when done, is retrospec- 
 " tive 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 mo- 
 " ment." 
 
 Where, however, the owner of a servient tenement has 
 by express consent, or by such acquiescence as would 
 make it a 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,^ adminis- 
 tering equity, will, in many cases, restrain him from the 
 benefit of this rule. " The Com^t," says Lord Eldon,^ 
 
 1 Page 58. 
 
 - See judgment of Eayley, J., in 
 Ileivims V. S/iijtjmm, 5 B. & C. 
 232. 
 
 * Brooke's Abridc title "Li- 
 cense;" Shep. Touch. 239; TJ'ood 
 V. Lcadhitler, 13 M. & W. 842. 
 
 ^ See 36 & 37 Vict. c. 6C, s. 21. 
 
 2 Dann v. Spurrier, 7 Vcs. 235 ; 
 
 Saiiisdcn v. Dyson, L. E., 1 H. L. 
 140; Watercourse case, 2 Ec[. Abr. 
 522, pi. 3 ; Short v. Ta>jhr, cited 
 ibid.; Toicell v. Thomas, 6 Hare, 
 300 ; Laird \. Birhcnhead, 1 John. 
 500 ; J)uhc of Beaufort v. Tatrich, 
 17 Beav. 60; WiUiaras v. Earl of 
 Jirt'Cy, 1 Cr. & Ph. 91 ; Somerset 
 Canal v. llareourt, 24 Beav. 271 ;
 
 EASEMENTS OF WATER, HOW ACQUIRED. 207 
 
 " will not permit a man knowingly, though, passively, to 
 " encourage another to lay out money under an erroneous 
 " opinion of title (and the circimistance of looking on is 
 " in many cases as strong as using terms of encourage- 
 " ment)— a lessor knowing and permitting those acts 
 " which the lessee would not have done, and the other 
 " must conceive that he would not ^ave done, but upon 
 " an expectation that the lessor would not have thrown 
 " any obstacle in the way of the enjoyment." Thus in 
 Dulic of Devousliirc v. EgUn^ where expense had been 
 incurred in constructing a watercourse through defen- 
 dant'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. 
 
 So where a licence to take water v/hich 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 Banl;aH v. Teiniaiif,- the defendant, being 
 the owner of a canal of which plaintiffs were customers, 
 gave the plaintiffs to understand that as long as they 
 were customers they sliould have the use of the waste 
 water of the canal for certain furnaces and smelting works 
 which they had erected on the banks. James, Y.-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 foimd his way of giving them the relief they 
 asked. He cited in his judgment what Lord Lough- 
 borough says in Claverin(js case :^ "There was a case (I do 
 
 Rochdale Canal v. Kinr/, 2 Sim. jST. 194; Banl-art \. Houyhton, 27Beav. 
 
 S. 28 ; Cotchhig v. Bassett, 32 Bear. 42.5 ; Baukart v. Tcnnant, L. R., 10 
 
 101. Eq. 141. 
 
 ' 14 Beav. 530. As to what - L. E,., 10 Eq. 141. 
 
 acquiescence is not sufficient, see " 5 Vesey, 590. 
 Blanchard v. Bridges, 4 A. & E.
 
 208 OF ACQUIRED RIGHTS OF WATER. 
 
 " 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 consider- 
 " able expense. Mr. Clavering saw the thing going on; and 
 *' in the execution of that plan it was very clear the col- 
 " liery was not worth a farthing without a road over his 
 " ground ; and when the work was hegun 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." 1 
 
 "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 ease- 
 " ment 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.' " 
 Parol licence A parol licence has, moreover, been held to be sufficient 
 
 may work the < , • • i • ,• i i ... 
 
 extinguish- to cxtmguisli an existing easement, as where permission is 
 ment of an g;rven to a man to erect something on his own land which 
 
 easement. , . . • i ji • 
 
 IS incompatible with the continuance of some easement 
 over it. Thus, in Liggins v. Inge,- 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 effect of 
 which was to divert into another channel the water which 
 was requisite for the working of plaintiff's mill ; subse- 
 cjuently the plaintiff complained to the defendants of the 
 
 ^ Bavies v. Scar, L. R., 7 Eq. AUcrleij v. Earl of Shreusbunj, 10 
 
 • 427; Rce aXiio lianlcart \. llouffhton, W.N. 71. 
 
 27 Beav. 425; Bhmchaidx. Bridges, 2 7 Bui^. 693. 
 
 4 A. & E. 194; Laihj iStanloj of
 
 EASEMENTS OF WATER, HOW ACQUIRED. 209 
 
 injurious effects of the weir, and called upon tliem to ' 
 restore the bank to its ancient height, and to remove the 
 weir ; and uj^on refusal on the part of defendants to do 
 this, an action was brought. The Coui't held, on the 
 authority of Winter v. Brochcell,^ and Hewlins v. Shipjyam,^ 
 that the licence was irrevocable. In the judgment of 
 Baylej, J., in Hcn-Uns v. S/tipjjamy' the learned judge, in re- 
 ferring to the case of Winter v. BrochiveU, says, " The case 
 " of Winter v. Brockirelt, which was relied upon on the part 
 " 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 con- 
 " sented to the obstruction 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 easement 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 in- ■ 
 terference 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.^ 
 
 An easement may be granted either separately and Construction 
 apart from the dominant tenement, or it may be included express^grant 
 
 1 8 East, 308. see also Angell on Watercourses, ^^^'i. 
 
 2 5 B. & C. 221, and ante, p. 204. pp. 483—510, and American cases 
 2 See Gale on Easements, p. 29 ; therein cited.
 
 210 OF ACQUIRED RIGHTS OF WATER. 
 
 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 ^;cr sc, 
 the precise words of the instrument itself must determine 
 the extent of the right created.^ " I think," says Jessel, 
 M. E,.,^ " 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 mean- 
 *' ing, 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." ^ 
 Ttnjkr V. 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, watercourses, &c., with 
 powers 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 
 
 ^ Gale, p. 3i. v. Mrnjor of Phjmouth, 3 Bing. N. 
 
 - Tatjler v. St. Helens, 6 Ch. D. C. 691; Chadwick v. Marsdeti,'L.'R., 
 
 264 ; see also Watts v. Kelson, L. 2 Ex. 285. 
 
 R., 6 Ch. 166; Wardle v. Brocldc- '" See per Bramwell, L. J., in 
 
 hurst, 1 E. & E. 1058 ; Xortham v. Brain v. Marfell, 41 L. T., N. S. 
 
 Uurlcij, 1 E. & B. 665 ; Blatchford Vol.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 211 
 
 water from tlie dams and reservoirs, but was not to exercise 
 this power if the company resolved that it would be in- 
 jurious 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.^ 
 
 In ChaduicJi v. ATarsdoi,'^ the reservation of the free chadwidc v. 
 running or water and soil, coming irom any other building 
 and lands contiguous to the premises demised in and 
 through the sewers and watercoiu-ses, 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 pro- 
 ducts of the ordinary use of the land for habitation, such 
 as night soil and sewage, but not to entitle him to send 
 through the drain the offensive refuse of a manufactory. 
 
 In Brain v. MarfeJl^ the respondent, Marfell, conveyed F,rain v. 
 to the appellant, Brain, a well or spring, and the sole right 
 to the water therein and obtainable therefrom and the 
 
 1 See also Kortham v. Hurleij, 1 Pijcr v. Cartey, 1 H. & N. 916 ; 26 
 E. & B. 665. L. J., Ex. 258. 
 
 2 L. R., 2 Ex. 285 ; see also ^ 41 l, x., N. S. 455 (C. A.). 
 
 p 2
 
 212 OF ACQUIRED RIGHTS OF WATER. 
 
 rif^ht 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 distur- 
 bance by him, Marfell, or his heirs, assigns, or any other 
 person or persons whomsoever. A railway company pur- 
 chased from respondent lands in the proximity of the 
 spring, without recourse to theu' 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. 
 Ilau'stro7i V. In the case of Raicstron v. Taylor,'^ it appeared that for 
 
 twenty years and more water had flowed through an old 
 drain on defendant's land, and along an ancient water- 
 course, and thence along a close of the defendant called 
 Gr. B., and had thence contributed to supply plaintiif'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 
 apj)urtenances 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 
 of Gr. B., retui-ning the sui-plus, 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 
 
 1 11 Ex. 3G9. 
 
 Tdi/lor.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 213 
 
 land near to the close Gr. B., and which had previously 
 been accustomed to flow along the old drain and ancient 
 watercoui'se into the close Gr. B. ; and he caused the water 
 to he 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 purposes mentioned in the proviso, but the surplus 
 could not be returned to the close Gr. 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.^ 
 
 In Whitehead v. Parks, ^ a grant of all streams of water Whitehead \. 
 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 
 di'ain such underground water from the land. Pollock, 
 C. B., says, " In the case of Novtham 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."^ 
 Where a local Act of Parliament authorized a company South Shields 
 to enter upon lands in a manor and search for any spring cbol^L^"' ^ 
 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 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 dovni pipes and the inhabitants might, with 
 consent of the company, obtain water by pipes to com- 
 municate with the company's pipes at certain charges, 
 
 1 See Northam v. mcrleij, 1 E. & 2 2 H. & N. 870. 
 
 B. 665.
 
 214 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 Benefits of 
 the right to 
 an casement 
 
 according to the bore of tlie 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.^ 
 
 Upon a grant or covenant conferring an easement, the 
 
 successive owners of the dominant estate, who, in the case 
 
 iims with the of an 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.- 
 
 Thus in the ease of Cooli-e v. CJdlcote,^ 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 fur- 
 ther 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.^ 
 
 The grant, however, of a right not appui'tenant to land 
 operates only as a personal licence, and is not assignable, 
 — it confers no 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 main- 
 
 Not so riyhts 
 unconnected 
 with laud. 
 
 ^ South Shields Water Co. v. 
 Coohson, 1.5 L. J., N. S., Ex. 315; 
 see per Lord Eldon in Blakemore v. 
 Glamorgan, 1 Myl. & K. 162, as to 
 effect of local Acts of Parliament. 
 
 ^ Gale on Easements, p. 85. 
 
 23 Ch. D. 694 ; see Spencer's 
 case, 5 Rep. 16a ; 1 Smith's L. C. 60. 
 
 ^ As to the effect of notice with 
 regard to lights, see Allen v. Lock- 
 ham, 11 Ch. Div. 790.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 215 
 
 tain an action against a person wlio distiu'bed liis 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 cove- 
 " nant on the part of the grantors, and is binding on them 
 " as between themselves and the grantee, but gives him 
 " no right of action in his own name for any infringement 
 " of the supposed exclusive right." ^ 
 
 No particular words are necessary for a grant or cove- No particular 
 nant convejdng an easement. Any words which clearly grant neces- 
 show the intention to give an easement which is by law ^^^■ 
 grantable are sufficient to effect that purpose.^ 
 
 Where the dominant tenement itself is conveyed, it Implied grant 
 
 . 01 an ease- 
 
 would seem that all rights which the conveymg party ment. 
 
 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, provided no additional biu'den be 
 
 thereby imposed on the servient tenement.^ 
 
 "WTiere there has been unity of ownership of the domi- On severance 
 
 of tenements . 
 
 nant and servient tenements, and where consequently all 
 easements have been merged in the general rights of pro- 
 perty, questions of difficulty arise, on the severance of the 
 tenements, as to whether such easements or quasi-ease- 
 ments 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 There is an 
 pass to the grantee, by implication of law, 1st. AU those oTneces^y^* 
 
 1 nUl V. Tupper, 2 H. & C. 121; ^ Q^le, pp. 88, 369; 11 H. 6 
 
 see also remarks on the case by 22, p. 19 ; 2 Roll. Abr. 60, pi. 1 
 
 Bramwell, B., in Xidtal v. Brace- Beauddy v. Brook, Cro. Jac. 289 
 
 well, L. R., 2 Ex. 11; Achroyd v. Tentiman v. Smith, 4 East, 107 
 
 Smith, 10 C. B. 164. Canham v. Fish, 2 Cr. & J. 126 
 
 - Eoivbotham v. Wilson, 8 H. L. Tyringham'' s case, 4 Rep. 36 b 
 
 Cas. 362 ; Holmes v. Sell^; 3 Lev. Wyat Wild's case, 8 Rep. 78 b 
 
 305. Harris v. Brewe, 2 B. & A. 1G4 
 
 Codlmg v. Johnson, 9 B. & C. 934.
 
 216 
 
 or ACQUIRED RIGHTS OF WATER. 
 
 casements to 
 the grautec. 
 
 But no cor- 
 responding 
 reservation in 
 favour of 
 tn-antor. 
 
 Ewart V. 
 Cochrane. 
 
 easements over the other part of the tenement without 
 wliich the enjoyment of the severed portion could not be 
 had at all ; and 2ndly. All those continuous 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 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.^ 
 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? 
 
 The proposition that where the dominant portion of the 
 tenement is granted first, the grantee, as against the 
 grantor and his successors, has by implied grant all those 
 • conti nuous and ap parent easeme nts over the other portion 
 of the tenement necessary toThe enjoyment of the part 
 granted, has never been disputed, and is now finally 
 declared to be the law by the House of Lords in the case 
 of Eivart v. Cochrane? 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 obstruction 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 
 
 1 Wlmldon v. Burroics, 12 Ch. 
 D. 31 ; Barnes v. Zoac/i, 4 Q. B. 
 D. 494 ; JFatts v. Xelson, L. R., 6 
 Ch. 166 ; Tolden v. Bastard, L. R., 
 1 Q. B. 156, 161 ; Crossley v. Light- 
 Older, L. R., 2 Ch. 476; Sujielci v. 
 Brown, 12 W. R. 356; Bi/er v. 
 Carter, 1 H. & N. 916 ; Nicholas v. 
 
 Chamberlain, Cro. Jac. 121 ; Gale 
 on Easements, p. 96. 
 
 - Barlow v. Blades, 1 C. M. & R. 
 448, per Bayley, J. ; Worthington 
 V. Gimson, 29 L. J., Q. B. 116; 2 
 E. & E. 618 ; Fcarson v. Spencer, 4 
 L. T., N. S. 769. 
 
 3 4 McQ. Scotch App. p. 117.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 217 
 
 " 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 Pijer 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 necessa ry for ^e conve nient and comfortable 
 " enjoyment^j^UJie^ro perfy^s it existed before the time 
 " orfcgrant."^ 
 
 With regard to the second proposition, namely, that 
 there is no impHed 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,'^ it was held by the Court ^"'•choias v. 
 that if one erects a house and builds a conduit thereto in 
 another part of his land, and conveys water by pipes to 
 the house, and afterwards sells the house with the ajipur- 
 tenances, excepting the land, or sells the land to another, 
 reserving to himself the house, the conduit and pipes pass 
 wiih. 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 appurte- 
 
 ' Ewart V. Cochrane, 4 McQ. - Cro. Jac. 121. 
 
 Scotch App. 117.
 
 Carter. 
 
 218 OF ACQUIRED RIGHTS OF WATER. 
 
 nances to one, and tlie land to another, the vendee shall 
 have the conduit and the pipes and liberty to amend 
 them. But by Popham, i f the lessee erects such_ ja 
 conduitj _and afterwards the lessor, du i ing the lease, sells 
 the house to one, and the land wherein the conduit is, t o 
 another, aft er the lease determines, he who hath the la nd 
 wherein ^e conduit is, may disturb the other in the usin g 
 thereof, and may break it, because it w^as not erected by 
 one who had a ])ermanent estate or inheritance.^ 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 Surij V. Pigott,^ 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." 
 Pj/cr V. In the case of Pijer 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 con- 
 veyance the drain existed running under plaintiff's house, 
 and then under defendant's, and discharging itself into 
 
 ' Palmer, 444 ; Popham, 166 ; 3 Compton v. Richards, 1 Price, 27 ; 
 
 Eiilstrode, 339 ; Noy, 84 ; Latch, Glave v. Hardinri, 27 L. J., Ex. 392, 
 
 153; W. Jones, 145. As toother per Bramwell, B.; I'earson y. Spcn- 
 
 casesof necessary easements, see Co:i; ccr, 1 B. & S. 571 ; 3 B. & S. 766, 
 
 V. Matfmcs, 1 Yentr. 237 ; Palmer Ex. Ch. ; Tyringhani' s case, 4 Eep. 
 
 V. Fletcher, Lev. 122; Richards 38; Hertz y. lliion Bank, 2 G\S. 
 
 V. Rose, 9 Ex. 220; Marchic v. 286; White v. Pass, 7 H. & N. 
 
 Plach; 19 C. B.,N. S. 190; Sivans- 722; Podd v. Purchell, 1 H. & C. 
 
 borough t. Coventry, 9 Bing. 305; 113; Gale, pp. 96— 131. 
 
 Riviere v. Bower, Ey. & Moo. 24 ; = 1 H. & N. 916 ; Gale, p. 101.
 
 EASEMENTS OF WATER, HOW ACQUIKED. 2 
 
 tlie common sewer; water from the eaves of defendant's 
 house fell on plaintiif'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 di-ained 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 Coui't that where the 
 owner of two or more adjoining houses conveys one to 
 a purchaser, such purchaser wiU be entitled to the benefit 
 of all di'ains 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 " necessarilij iised'^ 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 apimrent and con- ' • 
 tinuous easement, the Court said, that although the defen- 
 dant 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 
 kno^\^l 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 Pijcr v. Carter have been 
 strongly dissented from in two cases in the Court of Chan- 
 cery. The fii'st, that of Suffield v. Broicn,^ Was a case of a Suffidd v. 
 dock and wharf owned by the same party, where the bow- 
 sprits of vessels in 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 EoUs, Lord Eomilly, held that the 
 right to project the bowsprits was necessary to the enjoy- 
 1 12 W. E. 3.jG.
 
 220 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 ment of the dock, and was, therefore, impliedly granted by 
 the conveyance. On appeal, Lord Chancellor Westbury 
 reversed this decision of the Master of the Eolls: " 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 ~lEEe"property so 
 granted an easement in respect of the other property, 
 the user of which existed during the unity of owner- 
 ship."^ In the course of his judgment he criticises Grale 
 on Easements, ch. 4, and says, " If nothing more be in- 
 tended 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 man- 
 ner, 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 subse- 
 quently 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 tene- 
 ment which remains the property of him, the grantor." 
 His lordship goes on to disapprove of Pyer v. Carter, and 
 ' SuffieU V. Brou-n, 12 W. R. 356.
 
 Lightowler. 
 
 EASEMENTS OF WATER, HOW ACQUIRED. 221 
 
 says, " I cannot look upon tliat case as riglitly decided, 
 '' and must wholly refuse to accept it as any authority." 
 
 In Crossley v. Lightoiclcr'^ it was held, that on the con- CrosskijY. 
 veyance of riparian land the 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 Sufficld v. Brown, and adds, " It 
 " appears to me to be an immaterial cii'cumstance 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 ; 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,^ in 1860 the owner Watts y. 
 of two 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 pre- 
 " mises 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 defendant, 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 without any words of grant ; and 
 
 1 L. R., 2 Ch. 478. & E. 1058; and see also cases cited 
 
 ~ Watts V. Kelson, L. R., 6 Ch. by Gale, p. 90. 
 1C6 ; Wardle v. Broclclchnrst, 1 E. 
 
 Kdso)t.
 
 Burroics. 
 
 222 OF ACQUIRED RIGHTS OF WATER. 
 
 furtlior, 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 
 site of the cattle sheds. In the course of the argument, 
 Mellish, L. J., says : " I think the order of the two convey- 
 " ances in point of date is immaterial, and that Pyer v. 
 " Carter,^ 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 Pycv v. Carfery'^ 
 Whechion v. In the late case of Whecldon v. Biwrous,^ a vendor 
 
 conveyed a plot of land, part of his property, to A., 
 without any reservation of the easement of access of light, 
 and subsequently another adjoining plot, part of the pro- 
 perty retained, to B. Bacon, Y.-C, held that the ease- 
 ment, though apparent and continuous, was not of neces- 
 sity, and consequently there was no implied reservation of 
 it by the vendor out of his conveyance to A. 
 
 On appeal, the Court of Appeal,^ consisting of James, 
 Baggallay, and Thesiger, L.JJ., upheld the decision of 
 the Yice-Chancellor ; and Thesiger, L. J., delivering the 
 judgment of the Court, discusses in an elaborate judg- 
 ment 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 
 
 1 1 n. & N. 916. Harford, L.E,., 2 Eq. 507; Curriers' 
 
 - 12 Ch. Div. 31 ; 27 W. R. Co. v. Corbett, 11 Jiir., N. S. 719. 
 
 165 ; see Ellis v. Manchester Car- ^ 12 Ch. Div. 48. 
 
 riage Co., 2 C. P. D. 13 : Mussell v.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 223 
 
 " 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 enjoy- 
 " ment 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 W 
 " 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 mentioned 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 imder 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 con- 
 " trary, 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 SuffieJd v. Brown, ^ it appears to me that it has existed 
 " almost as far back as we can trace the law upon the 
 " subject ; and I think it right, as the case is one of 
 " considerable importance, not merely as regards the 
 1 4 De J. & S. 185.
 
 224 OF ACQUIRED IIIGHTS OF WATER. 
 
 " parties, but as regards vendors and purcliasers 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,^ Nicholas v. Chamberlain,^ Tenant v. Goldicin,^ 
 
 Sicanshorongh v. Coventry,'^ Cox v. Mathews,^ and Compton 
 
 V. Ixichards,^' as authorities for the principles of law stated 
 
 at the beginning of his judgment, and continues : " I now 
 
 " come to Pi/er v. Carter,'' which seems to break the 
 
 *' hitherto iinbroken ciuTent 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 
 
 " ouffht to be allowed. That was a case of a somewhat 
 o 
 
 " special character. A house was conveyed to the defen- 
 *' dant 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 ownership, 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 reser- 
 
 1 1 Lev. 122. 5 1 Vent. 237. 
 
 2 Cro. Jac. 121. 6 1 Price, 27. 
 
 3 2 Ld. Raym. 1089, 1093. ' 1 H. «& N. 916. 
 
 4 9 Biacr. 305.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 225 
 
 " vation to the grantor of the right to carry away this 
 " water which came from the defendant's premises by the 
 " medium of the di'ain, which also went through his 
 " premises. Though those circumstances 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. That Court laid down that there was 
 " 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 
 do-^TL in Pyer v. Carter were distinctly overruled in White 
 V. Bass,^ and cites with approval the judgment of Lord 
 "Westbury in Suffield v. Broun as stated on a former page.- 
 " But," he continues, " Suffield v. Brourr has been con- 
 " firmed by an equally high authority, for, in Crossley and 
 " Sons V. LightoicJer,^ Lord Chelmsford as Lord Chancellor 
 " had to deal with a similar question, and he there says : 
 " ' Lord "Westbury, however, in the case of Suffield v. 
 " ' Broicn, 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 mth 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 re- 
 " ' linquish 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 
 
 1 7 H. & N. 722. 3 L. R, 2 Ch. 478. 
 
 2 4 De J. & S. 185, ante, p. 219 * 1 H. & N. 916. 
 et seq. 
 
 C. Q
 
 226 OF ACQUIRED RIGHTS OF WATER. 
 
 " ' 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 IFatts v. Kelson,'^ 
 " and no doubt there are observations of Lord Justice 
 " Mellish to the effect that the order of conveyance in 
 " point of date is immaterial, that Pi/cr v. Carler"- is good 
 " sense and good law, and that most of the common law 
 " judges have not approved of Lord Westbury's observa- 
 " tions. 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,^ the judges of the Court of Exchequer had dis- 
 " tinctly, as regards the reasoning of Pijev v. Carter^ 
 " overruled that case. No doubt, also. Lord Justice 
 " James says, * I am satisfied -with the decision in Pycr 
 " V. Carter.^ But in the considered judgment of the 
 '•' Court, when, if it had been intended to say that 
 " Sujfiehl V. Broicn^ 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 Lords 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^ said, ' This case 
 " ' has always been cited "svith 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 Siiffichl v. Broun,^ where, though he ob- 
 " ' jected to the decision in P//er v. Carter,' in which it 
 " ' was held that a right to an existent continuous apparent 
 " ' easement was imj^liedly reserved in the conveyance by 
 " ' the owner of two houses in the alleged servient houses, 
 
 1 L. R., G Ch. 1C6, 174. ^ Cro. Jac. 121. 
 
 2 1 H. & N. 916. 6 4 De J. & S. 185. 
 
 3 7 H. & N. 722. ■; 1 H. & N. 916. 
 
 4 4 Dc J. & S. 18.5.
 
 EASEMENTS OF WATEE, HOW ACQUIRED. 227 
 
 " ' yet he seems to agree that the right to such an easement 
 " ' would pass by implied grant where the dominant tene- 
 " ' ment is conveyed first ;' and that is what the Court of 
 " Appeal had to decide in Watts v. Kelson.^ Therefore 
 " Watts V. Kelson is no authority to justify us in over- 
 " ruling Suffield v. Brown, — still less for overruhng it, 
 " supported as it is by the case of Crossley and Sons v. 
 " Light Older? 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 nimiber of other cases'^ 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 con- 
 " trary, support the propositions that in the case of a 
 " grant you may imply a grant of such continuous and 
 " ajDparent 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 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^ and to Richards v. 
 " liose ;^ 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. 
 
 1 L. R.,6 Ch. 166. Button v. Taylor, Lutw. 1487; 
 
 2 L. R., 2 Ch. 478. Bavics v. Sear, L. R., 7 Eq. 427, 
 5 Pennington v. Galland, 9 Ex. 1, 431. 
 
 12 ; Clark v. Cogge, Cro. Jac. 170; * 1 H. & N. 916. 
 
 Stajile y. Hay don, 6 Mod. 1 ; Chi- ^ 9 Ex. 218. 
 
 Chester v. Lethbridgc, Willes, 72, n.; 
 
 Q 2
 
 228 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 Wliat words 
 iioeessary to 
 pass ail easti- 
 lucut uot of 
 uecessity. 
 
 " Carter, and I cannot see that there is anything un- 
 " reasonable 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 
 " earned 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 reason- 
 " able — 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 
 " liis own ?" His lordship concludes his judgment by 
 referrmg again to the case of Sicanshorouglty. Coventry,^ 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. 
 
 With regard to what words are necessary in a convey- 
 ance to pass an easement not necessary to the enjoyment of 
 the tenement granted, it has been held that general words, 
 such as " appertaining," " belonging," &c., are insufficient 
 on the severance of tenements to pass such rights as ways, 
 commons, &c. ; but in the case of WanJlc v. Rroclile/iarst, it 
 I 9 BiDR. 305.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 229 
 
 was held that, by the grant of a farm with the usual words 
 " with all Yv'atercourses 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 judgment was affirmed in the Ex- 
 chequer 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.^ 
 
 It should be here noticed that the maxim of law is, that Secondary 
 whosoever grants a thing, is supposed also tacitly to 
 grant that without which the grant would be of no effect;- 
 and that consequently, 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.^ 
 Thus, where there is an easement of watercourse over 
 another's land, there is an implied right of going on that 
 land to clear and repair it, and, where there is a right 
 of drawing water, this includes the right of going and 
 returning over the servient owner's land.* In executing 
 works necessary for the enjoyment of the easement, 
 nothing of com-se 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 secondary 
 
 1 1 E. & E. 1058; see also 121; Hinchdiffe \. Earl of Kinnoul, 
 
 Watts V. Kelson, L. R., 6 Ch. 175. 5 Bing. N. C. 1 ; see also Pyer v. 
 
 - 11 Rep. 52; Angell, p. 278. Cartvr, 1 H. & N. 916; Pearson v. 
 
 ' See Gale, p. 549. Siwncer, 3 B. & S. 761 ; Bodcl v. 
 
 * Broicn v. Best, 1 "Wils. 174; Burchell, 1 H. & C. 113; and 
 
 Bracton, lib. 4, ff. 232 a, 233 a ; American cases in Angell, eh. 5. 
 Nicholas v. Chamberlain, Cro. Jac.
 
 230 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 No alteration 
 can be iiuulc 
 iu an case- 
 ment increas- 
 ing tlic 
 restriction. 
 
 casements, forming in most cases one entire right with the 
 principal casement, cease also on its extinction.^ 
 
 As every casement is a restriction upon the rights of 
 property of the owner of the servient tenement, no altera- 
 tion can he made in tlie mode of enjoyment by the owner 
 of the dominant heritage, the effect of which will be to 
 increase such restriction. Supposing no grant to exist, 
 the right must bo limited by the amount of enjoyment 
 proved to have been had ; - but a mere alteration in the 
 mode of enjoyment, whereby no injury is caused to the 
 servient heritage, will not destroy the right.^ 
 
 By prescrip- 
 tion. 
 
 Prescription 
 at comnion 
 law. 
 
 The existence * of the evidence necessary to prove an 
 actual grant of a special right to a watercourse, may be 
 inferred from a long use and enjoyment without interrup- 
 tion. It is laid down in Bracton,^ 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 incor- 
 poreal hereditament may be acquired by lajise of time. 
 This mode of acquisition has been by both denominated 
 prescription, which they say is founded on usage, — longa, 
 continua, et jxicifica. They also state that every prescription 
 supposes a grant once made and afterwards lost ; and that, 
 therefore, nothing can be claimed by prescription '' which 
 in its nature could not have been granted. 
 
 Prescrij)tion may be defined as " a title acquired by 
 possession had during the time and in the manner fixed by 
 law."" By common law an enjoyment to confer a title 
 
 ^ Civil Law, L. 17, ff. quemad. 
 serv. amit.; Feter v. Danid, 5 C. B. 
 563 ; Beeston v. Weate, 5 E. & B. 
 986. 
 
 2 See CaivJcicdl v. Eussdl, 26 L. 
 J., Ex. 34. 
 
 3 LttttreWs case, 4 Kep. 86 ; Hall 
 V. Swift, 6 Scott, 167 ; 4 Bing. N. 
 C. 381. 
 
 ■* Angell on Watercoui'ses, }). 
 
 351. 
 
 ^ Lib. 4, xxx\-iii, sect. 3. 
 
 " Carlyon v. Loverbuj, 1 H. & N. 
 784; Rochdale Co. v. Raddiffe, 18 
 Q. B. 287 ; see also Ivimcy v. 
 Stocker, L. E,., 1 Ch. 396. 
 
 ' Gale, 151; Co. Litt. 113 b; 
 sec also the judgment of Cockbum, 
 
 C. J., in AnfjHS v. Ballon, 3 Q. B. 
 
 D. 100, where an elaborate history
 
 EASEMENTS OF WATER, HOW ACQUIRED. 231 
 
 to an easement must have continued dvmng 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 shown to have been of more recent date than the 
 prescription, the right in earlier cases was held to be 
 defeated.^ 
 
 To obviate the inconvenience, which must have arisen By lost grant, 
 from allowing long enjoyment to be defeated merely 
 by showing that the origin of the right was subsequent 
 to the reign of Eic. I., the Courts introduced a new title 
 by the presumption of a grant made and lost in modern 
 times.^ According to this doctrine, from evidence of 
 enjoyment of from twenty to sixty years,'^ a jury were at 
 liberty to presume a grant of the right claimed, although 
 the origin of the right was shown to be more recent than 
 the time of legal memory.'* Such a presumption might be 
 rebutted y' 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." 
 
 of the origin of the doctrine of pre- Kott, ib. 214 ; Lachj Dartmouth v. 
 
 scription is given ; and same case liohcrts, 16 East, 334 ; Ilokroft v. 
 
 on appeal, 4 Q. B. D. 462. Ecel, 1 Bos. & Pul. 400 ; Lovdt v. 
 
 1 Gale, J). 156; see Jenkins v. Wilson, 3 Bing. 115; Codling v. 
 Harvey, 1 Cr. M. & R. 894 ; Burij JoJwson, 9 B. & C. 933 ; see per 
 V. Pope, Cro. Eliz. 118. Cockbiim, C. J., in Angus v. Dal- 
 
 2 Gale, p. 159. to/i, 3 Q. B. D. 100. 
 
 3 See liolle v. Whyte, L. R., 3 ^ g^g pgj. Cockbiim, C. J., in 
 Q. B. 303. Angus y. Dalton, 3 Q. B. D. 100. 
 
 ^ Keymer v. Summers, cited in ^ Per Alderson, B., in Jf«^j«s v. 
 
 Read v. Brookman, 3 T. R. 157 ; Harvey, 1 C. M. & R. 895 ; per 
 
 Bull. N. P. 74; Campbell y. Wilson, Parke, B., in Bright v. Walker, 1 
 
 3 East, 294 ; see also Mayor of Hull C. M. & R. 217. 
 V. Horner, Cowp. 102 ; Eklridge v.
 
 232 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 The Prescrip- 
 tion Act. 
 
 Tho statute 2 ,^^ 3 JFi/L IV. c 71, commonly called 
 the Prescription Act, was intended further to accomplish 
 this object, by shortening, in effect, the period of prescrip- 
 tion, and making that possession a bar or title of itself, 
 which was so before only by the intervention of a juiy.^ 
 
 The provisions of this Act, so far as they relate to the 
 easement of watercourse, are as foUows : — 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,^ or 
 the use of any water,^ to be enjoyed or derived upon, 
 over, or from any land or water of our said Lord tho 
 King, his heirs or successors, or being parcel of the 
 Duchy of Lancaster, or of the Duchy of Cornwall, or 
 being the property of any 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 '^ thereto, without 
 interruption for the full period of twenty years, shall be 
 defeated or destroyed by showing 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 ; ^ and where such way or 
 
 1 Bright V. JFalkcr, 1 C. M. & E. 
 217, per Tarke, B. 
 
 - A claim to adulterate the water 
 of a natural stream is a claim to a 
 watercourse within this section ; 
 Wright y. WiUiams, 1 M. & W. 77; 
 Carlyon v. Lovering, 1 H. & N. 797. 
 
 ^ A claim of right to go on any 
 man's close, and take water from 
 a spring there, is an easement; 
 Race V. Ward, 4 E. & E. 702; 
 Manning v. Wasdale, 5 A. & E. 
 764 ; Constable v. JVicholson, 14 C. 
 B., N. S. 230. A right to keep 
 an opening from an ancient ditch 
 into a stream closed, can be estab- 
 lished by twenty j-ears' uninter- 
 rupted user ; iJreicitt v. Sheard, 7 
 C. & P. 465. A claim to have 
 
 water diverted, which would 
 otherwise have come to plaintiff's 
 land, is a claim to a watercoiu'se 
 under 2 & 3 WHl. IV. c. 71; Mason 
 V. Shreicsburi/ Hail. Co., L. R., 6 
 Q. B. 578. A claim to the waste 
 water allowed to pass from a canal 
 is not a claim to a watercourse 
 imder the Prescription Act ; Staf- 
 fordshire Canal v. Birmingham, L. 
 R., 1 H. L. 254. A claim to a 
 weir in a non -navigable river is 
 within tho Act ; Eolle v. Whyte, 
 L. R., 3 Q. B. 286; LeconfeldY. 
 Lonsdale, L. R., 5 C. P. 657. 
 
 ^ See TicMe v. Broivn, 4 A. & E. 
 369. 
 
 * As to this, see Gale on Ease- 
 ments, p. 171, n. {g).
 
 EASEMENTS OF WATER, HOW ACQUIRED. 
 
 233 
 
 " other matter as herein last before mentioned shall have 
 " been so enjoyed as aforesaid for the full period of forty 
 " years,^ the right thereto shall be 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, 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.^ 
 
 Sect. 7 provides that the time during which any person 
 otherwise capable of resisting any claim, shall be infant, 
 idiot, non comjjos mentis, feme covert, or tenant for life, or 
 during which any action shall have been diligently prose- 
 cuted, until abated by the death of the party or parties. 
 
 ' In Mason v. Shrewsbury Railway 
 (L. R., 6 Q. B. 578), a canal com- 
 pany before 1800, under powers of 
 an Act of Parliament, diverted to 
 the canal a great part of the water 
 of a brook which flowed through 
 plaintiff's land. The rest of the 
 water continued to flow as before. 
 In 1847, defendants, iinder an Act 
 of Parliament, bought and discon- 
 tinued the canal. In 1864, defen- 
 dants restored, by means of a cut, 
 the water which had been diverted 
 to the brook. 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 
 suflicient to cai-ry off the water in 
 extraordinary floods. In 1866, 
 such a flood occurred, and da- 
 maged plaintiff's lands. The 
 
 Coiu't held, that there being no 
 obligation imposed on the canal 
 comimny to continue the diversion 
 of the water, plaintiff had no 
 right of action. By Blackburn 
 and Hannen, JJ., on the ground 
 that, though the claim to have the 
 water diverted was a claim to a 
 w^atercoiu'se under the Prescrip- 
 tion Act, yet the enjoyment was 
 not of right, and therefore, 
 though of more than forty years, 
 it conferred no right on the plain- 
 tiff. By Cockbum, C. J., on the 
 ground that plaintiff, the owner of 
 the servient tenement, could ac- 
 quii-e no right against the owner 
 of the dominant tenement. See 
 also National Manure Co. v. Donald, 
 4 H. & N. 8. 
 
 - Ennor -v.BarweU, 6 Jm\, N. S. 
 1233.
 
 234 
 
 OF AC(iUlIlEl) RIGHTS OF WATER. 
 
 shall bo excluded from the computation of the periods 
 hereiubefore mentioned, except in cases where the right or 
 claim is hereby declared to be absolute and indefeasible. 
 
 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 bo 
 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 x^eriod of forty 
 years ; provided the reversioner contests the claim within 
 three years after the lease expires.^ 
 
 The Prescrip- 
 tion Act docs 
 uot supersede 
 the cominou 
 
 lliAV. 
 
 By and 
 against whom 
 claims by 
 prescription 
 may be made. 
 
 The common law as to the acquisition of easements has 
 not been superseded by the Prescription Act, although it 
 has given some increased facilities to a party claiming an 
 easement. He may proceed on election, either under the 
 statute, or according to the common law, or both.^ 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 ; ^ 
 whereas, at common law, a shorter time, if aided by con- 
 firmatory evidence, has been held sufficient to support a 
 verdict.^ 
 
 As the right to an easement can only exist in respect of 
 a tenement, the continued user by which the easement is 
 to be acquired must be by the person in possession^ of, or 
 
 ^ See Mr. Gale's explanation of 
 this section, p. 184; and Wright 
 V. Williams, 1 M. & W. 77 ; Only 
 V. Gardiner, 4 M. & "W. 49G 
 Richards v. Fry, 7 A. & E. 698 
 Jones V. I'rice, 3 Bing. N. C. 52 
 I'alk V. Skinner, 18 Q. B. 568 
 Clai/ton V. Corhi, 2 Q. B. 813; iy 
 V. Mum ford, 11 Q. B. 675. 
 
 2 Gale, p. 165 ; Phear, Eights 
 of Water, p. 79 ; Warrick v. 
 Queen's Collcfjc, L. E., 6 Ch. 728 ; 
 Ladijman v. Grave, L. R., 6 Ch. 
 764, n. ; Aynsley v. Glover, L. R., 
 
 10 Ch. 283. 
 
 3 Ennor y.Baricell, 6 Jur., N. S. 
 1233. 
 
 ^-Per Lord EUenborough in 
 Beak}/ v. Share, 6 East, 215 ; i>cr 
 Chambre, J., in Woodi/er v. Ilad- 
 den, 5 Taunt. 125 ; and see Reg. v. 
 Retrie, 4 E. & B. 737. 
 
 * See Caved v. Martijn, 19 C. B., 
 N. S. 732, where the lessee or 
 licensee of the right of digging 
 clay, was held to have sufficient 
 interest in the soil to claim a pre- 
 scriptive right to the flow of water
 
 EASEMENTS OF WATER, HOW ACQUIRED. 235 
 
 claiming imder the owner of, the dominant tenement ; and 
 as such user is evidence of a previous grant, and as the 
 right claimed is in its nature not of a temporary kind, but 
 one which peiTaanently affects the rights of pro25erty 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, i.e. the 
 owner of an estate of inheritance,^ and, therefore, in order 
 that such user may confer an easement, the o's^Tier 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,- — contra non rolentem ageve iwn curn't prce- 
 scriptio.^ 
 
 As by the common law, the title to an easement is from No easement 
 a presumed grant by the owner of the servient tenement, (^iaimed when 
 and as only such easements can be claimed by the Prescrip- <^he servient 
 
 owner i.s 
 
 tion Act as could be lawfully claimed at common law, by under a dis- 
 custom, 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 intercej)ting percolating water, the House of Lords 
 held- that as no grant could have been made of such per- 
 colating water, length of time could raise no presumption 
 of such a grant. 
 
 So, in The Staffordshire Canal v. Birmingham CanalJ' 
 where a prescriptive claim, by user of forty years, was set 
 up to a use of water which a canal company was not em- 
 powered to make by their Act, Lord Chelmsford, L. C, 
 says, " To impose such a servitude upon the water in their 
 
 under 3 & 4 Will. IV. c. 71 ; see 667. 
 
 Ivimey v. Stacker, L. R., 1 Ch. ' Gale, p. 189. 
 
 396. * 7 H. L. C. 349. 
 
 1 Daniel V. Xorth, 11 East, 372 ; ^ L. R., 1 H. L. 2.54 ; Eoehdale 
 
 see Phear, Eights of Water, pp. Canal v. RadcUfe, 18 Q. B. 287 ; 
 
 80, 85 ; 1 Wms. Saund. 346 ; 2 National Manure Co. v. Donald, 4 
 
 Wils. 258. IT. & N. 8 ; see also FAhrcll v. 
 
 - Gray Y.Bond, 2 Bred. & Bing. Birmingham Canal, 3 H. L. 812.
 
 y 
 
 236 
 
 J 
 
 I 
 
 .V 
 
 Enjoyment 
 must be nee 
 vi, nee elain, 
 nee precario, 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 " canal as that contended for by the appellants, would 
 " have been ultra vires of the respondents, and consequently 
 " Icngrth 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." 
 
 So, in The Rochdale Canal v. Eadcliffe,^ 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 in- 
 evitable waste) so that no obstruction should accrue to the 
 navigation, the surplus water to go to the Bridgwater 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 defendants. 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 pui'poses mentioned in the plea, would 
 have been illegal and no justification, and, therefore, that 
 the grant for such purposes, implied from twenty years' 
 user, was no legal defence. 
 
 The enjo}Tiient which, by length of time, both at com- 
 mon law and under the statute, will confer the right to an 
 easement must be uninterrupted,- open,^ and of right, — 
 
 by shutting' down a fender, it was 
 held that this did not destroy the 
 right, as tliere was nothing to 
 prevent a second easement being I 
 acquired, as subordinate to one! 
 akeady existing, where the sub- 
 ject-matter admitted of it. 
 
 ^ See Angus v. Dalton, 3 Q. B. 
 D. 85. 
 
 1 18 Q. B. 287. 
 
 - An act of partial interruption 
 may qualify an easement without 
 destroying it. Thus, in RoUe v. 
 Whijte (L. R., 3 Q. B. 286), 
 where a weir was claimed across 
 a river by prescription, and a 
 miller on the banks was proved 
 to have occasionally inteiTupted it
 
 EASEMENTS OF WATER, HOW ACQUIRED. 237 
 
 nec I'i, nee clam, nee precnrio} Where, therefore, the right^ 
 claimed has been interrupted 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.^ 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 or writing.* 
 
 In order, moreover, to raise the presumption of a fmcl adverse, 
 grant of an easement in a watercourse, the user or 
 enjoyment must have been adverse,^ — that is, have inter- 
 fered with the enjoyment of the owner of the servient 
 tenement. "By usage," says Cresswell, J., delivering the 
 judgment of the Court in Samjyson 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 presump- 
 " tion 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 
 " natural right, such user, however long continued, would 
 " not render the defendant's tenement a servient tene- 
 " ment, 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 
 
 1 Civ. Law, 1, ff. de serv. 1. 275; Bright y. JFalker, 1 C, M. & 
 
 10, fE. ; Co. Litt. 113 b ; Bracton, R. 219 ; Gale, p. 209. 
 
 lib. 2, f. 51, f. 52 a, 222 b. * 2 & 3 Will. IV. c.71, s. 3; see 
 
 - Angell, p. 369; see Gated v. per Blackbvuii, J., in Mason v. 
 
 J/ff?-^yw, ^^os<, 253, where the ques- Shreivsburtj Railway, L. E,., 6 Q. 
 
 tion of right is fully treated ; B. 578. 
 
 Mason v. 8hrewsbi(ri/ Railway, L. ^ Angell, p. 368. 
 
 R., 6 Q. B. 578. « 1 C B., N. S. 611. 
 
 a See per Erie, C. J., 17 Q. B.
 
 238 OF ACQUIRED lllGHTS OF WATER. 
 
 " tenement, or the natural use of the water by the defen- 
 " dant, 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 main- 
 " tainable." 
 
 User, moreover, which is neither physically capable of 
 prevention by the owner of the servient tenement, nor 
 actionable, cannot support an easement either affirmative 
 or negative.^ 
 Claim to case- An easement may also be claimed by particular custom, 
 ciLstora ^ ^s i^ ^^® 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.^ Thus, in Harrop v. Sirst^ 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 
 Couii 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,^ and Manning v. Wasdale,^ a right to 
 go on another's land and take water for domestic pm-poses, 
 was held to be an easement, and not aprofif a prendre, and 
 so capable of being claimed by custom by the inhabitants 
 of a district. 
 
 In Carli/on v. Lorcring,^ a right was claimed by custom 
 to use a natural stream for the purpose of washing ore, 
 
 1 Sturges v. Bridgman, 11 Ch. Flneux y. Hovcden, Cyo.'E^z. &&4:. 
 
 D. 852 ; Webb v. Bird, 13 C. B., * L. R., 4 Ex. 43 ; see Mmcy 
 
 N. S. 841 ; Chasemore v. Richards, v. Stacker, L. R., 1 Ch. 396. 
 
 7 H. L. 349 ; see Angus v. Baltctn, •* 4 E. & B. 702. 
 
 3 Q. B. D. 85 ; 4 Q. B. D. 1G2. s 5 A. & E. 758. 
 
 - Wcstburij V. roucU, cited in M H. & N. 784.
 
 EASEMENTS OF WATER, HOW ACQUIRED. 239 
 
 and carrying away sand, stones, rubble, and other stuf? 
 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 ob- 
 " jected that the custom pleaded in the present case was 
 " unreasonable and indefinite, as the exercise of the cus- 
 " tom 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 
 " are 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 unreasonable. It is possible more stuff may 
 " come down at one time than another ; but that does not 
 " show that the custom is bad (see Tyson v. Smith)} We 
 " think it is to be confined in user to the necessary work- 
 " ing of the mine, etc." 
 
 Particular Easements of Water. 
 The right which a riparian owner has to the flow of a 
 natiu'al 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 pre- 
 judice. Thus, a right to divert and obstruct the flow of 
 the stream, or to pollute its waters, may be gained by Act 
 of Parliament, by express grant, or by long enjoyment, as 
 prescribed by law.^ 
 
 ^ 6 A. & E. 745 ; 9 A. & E. 406. course by tin -bounders under cus- 
 
 See Ivimey v. StocJcer, L. R., 1 Ch. tom of Cornwall. 
 396, and Gavcd v. Marttjn, 14 W. - Sampson v. Hocldinot, 1 C. B., 
 
 R. G'2, as to acquisition of water- N. S. 590 ; Embreij v. Oicen, 6 Ex.
 
 240 OF ACQUIRED RIGHTS OF WATER. 
 
 " The general rule of law," says Lord Ellenborougli,^ 
 " as applied to this subject, is, that, independent of any par- 
 " ticular 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, without 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." 
 
 Easement of " The right of diverting water," says Cockbum, C. J., in 
 obstniction. Masoii V. Shreicshury Railway Co.^ " which, in its natural 
 " course, would flow along the land of a riparian owner, 
 " and of conveying it to the land of the party diverting it, 
 " the servUics aquce ducendie 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 enjoy- 
 " ment 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 ease, 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 cases of Beeston v. Weate^ and Saunders v. Newman'^ 
 
 353 ; Houard v. Wright, 1 Sim. & ^ L. R., 6 Q. B. 586. 
 
 Stu. 190. •^ 5 E. & B. 986. 
 
 ' Beaky v. Shaw, G East, 208. * 1 B. & A. 258.
 
 PARTICULAR EASEMENTS OF WATER. 241 
 
 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 supply- 
 ing 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 arti- 
 ficial cut did not destroy the right of action by the owner 
 of the dominant tenement. 
 
 In Saunders v. Newman,^ 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 de- 
 stroyed 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 
 diversion or obstruction cannot be materially altered or cannot'^be'^ 
 increased to the further detriment of the servient owner, materially in- 
 Thus in the case of Bealey v. SJicuc- it was held, that where 
 a mill owner had acquired a right by twenty years' unin- 
 terrupted 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 
 
 1 1 B. & A. 258. HiU, 5 B. & A. 1 ; Alder v. Savile, 
 
 ~ 6 East, 208 ; see also Mason v. 5 Taunt. 424. 
 
 0. R
 
 242 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 A mere 
 alteration 
 does not 
 destroy the 
 right. 
 
 mill owner for a further subsequent diversion to the 
 lower mill owner's injury. So in Broivn v. Best,"^ where 
 defendant had enlarged certain ancient pits by which he 
 had a right to divert water, and thereby damaged the 
 plaintiff, — it was held that he might have cleaned the pits, 
 but could not enlarge them. 
 
 A mere alteration in the mode of enjoyment, as the 
 change of a mill from a fulling to a grist mill or the like, 
 whereby no injury is caused to the servient heritage,^ or a 
 trifling alteration in the course of a watercourse, does not 
 destroy the right. Thus in Hall v. S/rift^ it appeared 
 that plaintiif 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. 
 
 Easement of 
 pollution. 
 
 A right to pollute the waters of a natural stream is an 
 easement within the Prescription Act, and may be 
 acquired, like any other easement, by user.^ 
 
 Thus a claim to let off upon neighbouring land water 
 from pits impregnated with metallic substances, and 
 thereby rendered noxious, may be acquii'ed by forty years' 
 user under the Prescription Act.^ So a right to use a 
 natural stream for the purpose of washing ore and carry- 
 ing away sand, stones, rubble, and other stuff dislodged 
 and severed from the soil in working a mine, may .be 
 claimed by prescription or custom.*' 
 
 1 1 Wils. 174. 
 
 - LuttreVs case, 4 Rep. 86. 
 • 3 6 Scott, 167 ; 4 Biug. N. C. 
 381. As to effect of alteration on 
 the easement of light, see Barnes 
 V. Loach, 4 Q. B. D. 494 ; TapUng 
 \. Jones, 11 H. L. 290; National 
 Plate Glass Co. v. Prudential As- 
 
 surance Co., 6 Ch. D. 757 ; Blan- 
 charcl v. Bridges, 4 A. & E. 176 ; 
 Ellis V. Manchester, 2 C. P. D. 13. 
 
 ■* Wood V. Waud, 3 Ex. 748. 
 
 5 Wright V. Williams, 1 M. & 
 W. 77. 
 
 •"' Carlyon v. Lorcrvng, 1 H. & N. 
 797 ; see also Crossley v. Lights
 
 PARTICULAR EASEMENTS OF WATER. 243 
 
 Such a right to pollute a stream can only be gained by Can only be 
 a continuance of a perceptible amount of injury to the fonthmous'^ 
 servient tenement for twenty years. Thus in Murgatroi/d and percep- 
 V. Robinson,^ where an action was brought by the o^vTier oVinUuy'for 
 of a mill, which of right ought to be supplied with a flow twenty years, 
 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 occuj)iers 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 showing that the defendant had, during 
 twenty years, of right caused the refuse to go into plain- 
 tiff'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.^ 
 
 In GoIdsDiid v. Tiinhridgc Wells,^ where an injunction 
 was granted to restrain the draining of a town into a 
 stream passing through the plaintiff's lands, the defendants 
 proved that the sewage of the town had always flowed 
 into the stream, and, on that ground, set up a prescriptive 
 right to continue the discharge. It was, however, proved 
 that though some sewage did formerly flow, and for fifty 
 years had flowed into the brook, that, nevertheless, about 
 ten years ago the water was pure and flt for domestic use, 
 and that the pollution had since then gradually increased. 
 Under these chcumstances Sir J. Romilly, M. R., held, 
 the prescriptive right was not proved, and granted the 
 relief prayed. "My opinion is," says the learned judge, 
 " that any person who has a watercourse flowing thi'ough 
 " his land, and sewage which is perceptible is brought into 
 
 ou-ler, L. R., 3 Eq. 279 ; 2 Ch. ^ 7 Ell. & Bl. 391. 
 
 478 ; Baxendale v. McMurrai/, L. - See Flic/ Id v. Thomas, 10 A. & 
 
 R., 2 Ch. 790 ; Wood v. Sutdiffe, 2 E. 590. 
 
 Sim., N. S. 163; Murgatroyd v. ^ l_ j^ ^ ^ q-^_ 352- l_ r_^ j 
 
 Robinson, 7 E. & B. 391 ; Moore v. Eq. 161 ; see also Sampson v. Hod- 
 
 Wehh, 1 C. B., N. S. 673. dinot, ante, p. 237. 
 
 R 2
 
 2'44 OF ACQUIRED RIGHTS OF WATER. 
 
 " that watercourse, has a right to come to the Court 
 " of Chancery to stop it ; and that when the pollution 
 " is increasing, and gradually increasing from time to time, 
 " by the additional quantity of sewage poured into it, 
 " the persons who allow the polluted matter to flow into 
 " the stream are not at liberty to claim any right or 
 " prescription against him." The case was affirmed on 
 appeal,' Turner, L. J., remarking with regard to the 
 claim of prescriptive right, " I assume, but without mean- 
 ing to give any opinion on the point, that such a right 
 might well be acquired, but then I think it could be 
 acquired only by a continuance of discharge of the 
 " sewage prejudicially affecting the estate, at least, to 
 some extent, for the period of twenty years; and I 
 " think the evidence sufficiently shows that the discharge 
 has not prejudicially affected the estate for so long a 
 " period." 
 Foiiling must Where a right to pollute a stream has been acquired, 
 siderably^ki. ^^^ fouling must not be considerably enlarged to the pre- 
 creased. judice of the servient tenement, but the user which origi- 
 
 nated the right must also be its measure.^ 
 
 In an action for polluting a stream, where a prescriptive 
 right to do so is claimed, it is for the jury to say whether 
 the right claimed is an immemorial and unlimited right 
 of polluting the stream, or the more limited right of doing 
 so for the purposes of a business as carried on for more 
 than twenty years.^ 
 
 Thus, in the case of A.-G. v. Borough of Birmingham,'^ 
 it was proved that, before the passing of the Birmingham 
 Improvement Act, the drainage of the town and neigh- 
 bourhood was chiefly effected by various small sewers, 
 which flowed into the Eea, a tributory of the Tame ; and 
 that the sewage, owing to the distance it had to travel, and 
 to its flowing through a variety of small outlets, became 
 
 ' L. R., 1 Ch. 349. 3 j^oore v. Webb, 1 C. B., N. S. 
 
 - Crossley v. Lightoicler, L. R., 673 ; see Rochdale Canal v. Rad- 
 2 Ch. 478. cUffe, 18 Q. B. 287. 
 
 * 4 Kay & J. 528 ; see ante, p. 162.
 
 PARTICULAR EASEMENTS OF WATER. 245 
 
 gradually purified by filtration, before it reached the 
 estates of the plaintiff, a riparian owner, about seven miles 
 off, so that the waters were well filled with fish, and could 
 be used for brewing and domestic purposes. After the 
 passing of the Act before mentioned, which incorporated 
 the Towns Improvement Act, the 107th sect, of which 
 Act provides, that nothing therein shall render lawful any 
 act, which, but for the Act, would be a nuisance ; the 
 whole of the sewage was discharged by a main sewer 
 into the Tame at the point where it was joined by the 
 Eea, and the effect of this was to pollute the river Tame 
 downwards to and beyond the plaintiff's estate, to such an 
 extent that the fish died, and cattle could no longer drink 
 of the water. On an information at the relation of the 
 plaintiff, Wood, V.-C, held, that though the council of 
 the borough were bound by their local act to drain the 
 town, they were not justified in so doing in increasing 
 the nuisance to the extent proved. With regard to the 
 prescriptive right claimed, the learned Vice- Chancellor 
 says, " It was argued that the inhabitants of Birmingham 
 " had a right to drain their houses into the Rea, and 
 " thence into the Tame ; but this, at least, is in evidence, 
 " that the alleged right, as exercised (assuming it to be 
 " a right), did not pollute the water of the Tame as it 
 " does now; did not kill the fish, or prevent the cattle 
 " from drinking of the river ; but immediately the defen- 
 " dants' sewers were opened, the fish were killed in the 
 " river, and the cattle would no longer drink of it ; and 
 " their cause and effect are clearly pointed out. The 
 " same sort of argument was addressed to me in the Luton 
 *' cme} There it was contended, and in fact the plaintiff 
 " admitted, that the inhabitants had a right to open their 
 " sewers into the river ; and the defendants, acting on 
 " behalf of the community, claimed to exercise all the 
 " rights which its several members possessed. But the 
 
 1 A.-G. V. Luton, 2 Jur., N. S. 180; see A.-G. v. Kingston, 13 W. R.
 
 246 OF ACQUIRED RIGHTS OF WATER. 
 
 " answer is this. The right thus claimed is like that 
 
 " which exists in the case of adjoining mines upon dif- 
 
 " ferent levels. From the necessity of the case, every 
 
 " owner of a mine must submit to the inconvenience of 
 
 " having the water of an adjoining mine upon a higher 
 
 " level descend upon his mine, so long it descends in the 
 
 " natural course of drainage ; hut that does not entitle the 
 
 " owner of the adjoining mine to throw upon him, in 
 
 " some other and more objectionable way, water which 
 
 " might be allowed to descend upon him in a modified 
 
 " form, not occasioning the same amount of injury to his 
 
 '' property. So here, before the defendants' operations, 
 
 " the drainage of Birmingham, entering the river in 
 
 " driblets, and at different parts of the stream, was largely 
 
 " diluted before it reached the plaintiff's property, and 
 
 " did not subject him to that inconvenience of which he 
 
 " now complains."^ The learned Vice- Chancellor also 
 
 held, that the fact that a vast population would suffer if 
 
 the town remained undrained, and unless the rights of the 
 
 plaintiff were invaded, was one which the Court could not 
 
 take into consideration;- and that though the plaintiff had 
 
 submitted to the injury for four years, trusting to the 
 
 assurances of the defendants that it would be remedied, 
 
 he was not precluded from relief.^ 
 
 A mere As in the case of diversion and obstruction, a mere 
 
 quality of change in the quality of the polluting discharge not in- 
 
 poUiition does creasing, as against the servient tenement, to any sub- 
 not destroy . . . 
 the easement, stantial or tangible degree the amount of pollution, does 
 
 not destroy the easement. In the case of Baxendale v. 
 McMunrn/,'^ the defendant, the owner of an ancient paper- 
 mill, where paper had been made of rags, introduced a 
 
 ' See also Moore v. Webb, 1 C. ^ See also Pennington v. Brinsou 
 
 B., N. S. 673 ; A.-G. v. Leeds, L. Hall Co., 5 Ch. Div. 769, and ante, 
 
 R., 5 Ch. 583 ; A.-G. v. Kingston, p. 158 et scq. 
 
 13 W. R. 888 ; A.-G. v. Halifax, ^ g^g ^s to this, A.-G. v. Leeds, 
 
 39 L. J., Ch. 129; A.-G. v. L. R., 5 Ch. 594, per Lord Ha- 
 
 Ltiton, 2 Jirr., N. S. 180 ; Gold- therley, L. C. 
 
 smid V. Timbridge Wells, L. R., 1 •* L. R., 2 Ch. 790 ; see also 
 
 Ch. 345; Cator v. Lewisham, 11 ^l.-(?. v. ^Ttc/w^, 16 Ves. 338. 
 Jur., N. S. 340.
 
 PARTICULAR EASEME^■TS OF WATER. 247 
 
 new vegetable fibre, and carried on the works on the same 
 scale for making paper from this new material. For 
 more than twenty years before this change, the refuse 
 arising from the paper manufacture had been discharged 
 into the stream which ran past plaintiff's house. The 
 Lords Justices held, reversing a decree of Stuart, Y.-C, 
 that the easement to which defendant was entitled was to 
 be presumed to be, not a right to foul the stream by dis- 
 charging into it washings produced by the working up of 
 rags, but a right to discharge into it the washings pro- 
 duced by the manufacture of paper in the reasonable and 
 proper course of such manufactm'e, using only proper 
 materials for the purpose, but not increasing the pollution, 
 and that the onus lay on the plaintiff to prove any in- 
 crease of pollution. 
 
 The right to discharge water over the lands of others. Easement of 
 or to receive the discharge of water from the lands of watercourse, 
 others by means of watercourses artificially created, is 
 obviously not a natural right of property, but is the 
 subject-mattter of contract between the parties. As such it 
 may be established, like any other easement, either by 
 express grant, or by prescription which presumes a grant. 
 Such right may obviously be created for the sole benefit of 
 the person discharging the water, or for the sole benefit of 
 the person receiving the discharge, or for the mutual 
 benefit of both. Where the right is created by express 
 contract, the rights of the various parties will be regulated 
 by the words of the deed^ creating the right. "Where it 
 depends on prescription, the user which originated the 
 right must also be its measure.- 
 
 Although no action will lie, by a riparian owner on the Eights in 
 banks of an artificial watercourse, for its diversion or ob- ^dred^y'' 
 struction, merely as an incident to the property through grant or pre- 
 which it passes,^ yet there is no doubt that the long-con- 
 
 ^ See Shnr}} v. Waterhousc, 3 - Crosslcy v. Lightoider, L. R., 2 
 
 Jur.,N. S. 1022. Ch. 478. 
 
 ^ See code, p. 106.
 
 248 OF ACQUIRED RIGHTS OF "SVATER. 
 
 tinned submission of a servient owner to tlie diseliarge of 
 water upon his tenement, or to the conducting it through 
 his land by the owner of the dominant tenement, will 
 confer a right to continue the discharge of water, or to 
 continue to receive the supply of it through the land of the 
 servient owner.^ An artificial watercourse may, moreover, 
 have been originally made under such circumstances, and 
 have been so used as to give all rights that a riparian 
 proprietor would have had, had it been a natural stream.^ 
 Eameshir " There is no doubt," says Sir Montagu Smith, delivering 
 v.'lioonj "'^* the judgment of the Judicial Committee of the Privy 
 Schari Council in a late Indian Appeal,^ " that the right to the 
 
 water of a river flowing m a natural channel through a 
 " man's land, and the right to water flowing to it, 
 " through an artificial watercourse constructed on his 
 " neighbour's land, do not rest on the same principles. 
 " In the former case each successive riparian proprietor 
 " is, prima facie, entitled to the unimpeded flow of the 
 " water in its natural course, and to its reasonable enjoy- 
 " merit as it passes through his land, as a natural incident 
 " to his ownership of it. In the latter, any right to the 
 " flow of the water must rest on some grant or arrange- 
 " ment, either proved or presumed, from or with the 
 " owners of the lands from which the water is artificially 
 " brought, or on some other legal origin. The above dis- 
 " tinction seems to be now clearly established ; for, 
 " although it was said by the Court of Queen's Bench 
 " in the case of Magov v. C/iadin'ck,'^ that it was no mis- 
 " direction to tell the jury ' that the law of watercourses 
 " is the same, whether natural or artificial,' it was held in 
 " a subsequent case, which appears to their lordships to 
 " be correctly decided — Wood v. Wcnid^ — that this ex- 
 " pression is to be considered as applicable to the par- 
 " ticular case, and that, as a general proposition, it would 
 
 ' Gale, p. 296. Koonj Bchari TattuJi, 4 App. Cas. 
 
 2 Sutchfc V. Booth, 9 Jur., N. 121, 126. 
 
 S. 1037 ; 32 L. J., Q. B. 136. Ml A. & E. 586. 
 
 •■' Eameshur Fcrshad Sbif/h v. "> 3 E.x. 748 ; IS L. J., Ex. 305.
 
 PARTICULAR EASEMENTS OF WATER. 249 
 
 be too broad ; on the other hand, it appears to their 
 lordships that the proposition that a right to the use of 
 water flowing through an artificial channel cannot be 
 presumed from the time, manner, and circumstances of 
 its enjoyment, is equally too broad and untenable. It was 
 said by the Court in Wood v. Waud^ — '"We entirely 
 concur' with Lord Denman, 0. J., that " the proposition 
 that a watercoui'se of whatever antiquity, and in what- 
 ever degree enjoyed by numerous persons, cannot be 
 enjoyed so as to confer a right to the use of the water, 
 if proved to have been originally artificial, is quite inde- 
 fensible ;" but, on the other hand, the general proposi- 
 tion that, under all circumstances, the right to water- 
 com'ses, arising from enjoyment, is the same, whether 
 they be natural or artificial, cannot possibly be sus- 
 tained. The right to artificial watercoui'ses, as against 
 the party creating them, surely must depend upon the 
 character of the watercourse, whether it be of a perma- 
 nent or temporary nature, and upon the circumstances 
 under which it is created. The enjoyment for twenty 
 years of a stream diverted or penned up by permanent 
 embankments, clearly stands upon a different footing 
 from the enjoyment of a fiow of water originating in the 
 mode of occupation or alteration of a person's property, 
 and presumably of a temporary character, and liable to 
 variations.' In a case which occiuTed soon after this 
 decision, Greatrex v. Hayward,' Baron Parke shoiily 
 states the principle thus — ' The right of the party to an 
 ' artificial watercoiu'se, as against the party creating it, 
 ' must depend upon the character of the watercourse and 
 ' the circumstances under which it was created.' In the 
 case, then, in c[uestion, the Coui-t considered that the 
 watercourse was of a temporary nature only, and that 
 no right had been acquired by an enjoyment of twenty 
 years. 
 " In a subsequent case the Coui^t of Queen's Bench 
 
 1 3 Ex. 777. '^ 8 Ex. 293.
 
 250 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 Pollution of 
 
 artificial 
 
 ■\vatercoiu"scs. 
 
 Diversiou of 
 natural 
 .stream by 
 artificial 
 means. 
 
 directed a new trial, on the ground that the jury might 
 ' have heen misled by the direction of the learned judge 
 ' who tried the cause, to the effect that if the stream were 
 ' an artificial one, no right whatever could have been 
 ' acquired in it. The Court held the direction was in- 
 ' correct, — ' because ' (in the words of the Court) ' although 
 ' ' it may have been an artificial watercourse, it may still 
 ' * have been originally made under such circumstances, 
 ' * and have been so used, as to give all the rights that 
 ' ' the riparian proprietors would have had, had it been a 
 ' ' natural stream:' SutcUfe v. BoothP'' 
 
 With regard to the question of pollution, the law would 
 appear to be somewhat unsettled ; for while in the cases 
 of Magor v. CJuithcick'^ and Wood v. TFaucP — to be con- 
 sidered hereafter — the Courts were of opinion that even in 
 cases where from the circumstances a riparian owner may 
 have no right to compel the continuance of an artificial 
 watercourse, he may have a right to prevent the pollution 
 of it while it continues to run, on the ground that no man 
 can have a right to send dirty water on another's land, 
 unless he can prove a prescriptive right so to send dii-ty 
 water ;"' on the other hand, it has been held in subsequent 
 cases that the mere possession of water, not of right, but 
 by permission or grant from a riparian owner, would not 
 entitle the licensee to maintain an action for diversion or 
 pollution against a wrongdoer.^ 
 
 Where a natiu'al stream having a natural source is 
 diverted by artificial means without injury to the rights 
 of others, the riparian owners who would have had rights 
 on the natural coui-se of the stream do not lose those 
 natural rights from the fact that the water so diverted 
 iloAvs in an artificial channel.*^ Where, however, such 
 
 1 32 L. J., Q. B. 136. 
 
 2 11 A. & E. 571. 
 
 3 3 Ex. 748 ; see also SutcUfe v. 
 Booth, 32 L. J., Q. B. 136. 
 
 ■" A.s to thi.s, see Cawkivcll v. 
 linssdl, 26 L. J., Ex. 34. 
 
 iriudoj V. Lni»g, 3 H. & N. 
 
 3 H. & C. 300 ; Ciosslei/v. Lightowlcy, 
 L. R., 2 Ch. 478 ; .see also Hodg- 
 kinson V. En)wr, 4 B. & S. 229 ; 
 and see ante, Ch. III., p. 1-53 et 
 seq., where the question is fully- 
 discussed. 
 
 6 Nitttal V. BraccweU, L. B., 2 
 
 476, 075, 901 ; Stockport v. Potter, Ex. 1 ; Stockport v. I'ottcr, 3 H. &
 
 PARTICULAR EASEMENTS OF WATER. 251 
 
 artificial channel is carried across the lands of others, all 
 rights to it, as between the owner through whose land it 
 passes and the owner for whose benefit it flows, will be 
 regulated by the laws of artificial watercourses, as stated 
 in this chapter. 
 
 The right to discharge water on another's land is re- Easement to 
 cognized in the case of Wriaht v. Wi/licnns,^ where it "iischarge 
 
 ° '^ ' _ , water. 
 
 was held that a right to let off water from pits impreg- 
 nated with a poisonous substance upon the land of another, 
 might be acquired by user under the Prescription Act ; 
 and in Cairkurn v. HusseU,- where it was held that proof 
 of a prescriptive right to send ordinary refuse water into 
 another's drain would not justify the dominant o"«Tier in 
 sending the foul water and filth from his privies into that 
 drain, but that the right as claimed must be proved by 
 grant or user. 
 
 The right to receive the flow of water from another's Easement to 
 land is exemplified in the case of Tvimey v. Stockcr,^ where -^^ater. 
 it was proved that the water of an artificial watercourse 
 had been used from before the time of living memory by 
 tin-bounders, according to the custom of Cornwall, which 
 enables any person to mark out a piece of waste ground, 
 the owner of which does not choose to work the mines 
 under it, and work them without the consent of the o^\Tier, 
 yielding to the owner a share of the proceeds. In 1856, 
 the tin-bounders abandoned the mine ; since which time 
 the plaintiffs, the owners of the soil, had been in posses- 
 sion. A bill by the owners of the soil to restrain the 
 diversion of this watercoui'se by the owner of the land on 
 which it rose was dismissed by the Yice- Chancellor, on the 
 ground that there was no privity of estate between the 
 
 C. 300, see ante, p. 122 et seq. ; 10 Q. B. 26, 50; Gavedv. Martyn, 
 
 Becston v. Weate, 5 E. & B. 986 ; see, 3-1 L. J., C. P. 353 ; Rex v. Bap- 
 
 however, Crosskij v. Llffhtowler, L. tist Mill Co., 1 M. & S. 612 ; Rex 
 
 E., 2 Ch. 478. V. St. Austell, 5 B. & A. 093 ; 
 
 1 1 M. & W. 77. Gooddmj v. Michel, Cro. Eliz. 441 ; 
 
 2 26 L. J., Ex. 34. Crease v. Saul, 2 Q. B. 862 ; Vice 
 
 3 L. R., 1 Ch. 396. Astocus- v. Thomas, cited in 2 Q. B. at 
 torn of tin bounding-, see Rogers p. 880. 
 
 on Mines, 347 ; Rogers v. Brenton,
 
 252 OF ACQUIRED RIGHTS OF WATER. 
 
 owner of the soil and the bounders, and that the owner 
 could not, therefore, claim an easement by prescription on 
 the ground of their enjoyment of it. The Court of Appeal 
 reversed this decision, and granted the injunction prayed, 
 holding that from the proof of user beyond living memory 
 of the water for the pm^pose of working the mines, there 
 was an ii-resistible presumption, even independently of the 
 statute 2 ^* 3 JFi/l. IV. c. 71, that the owners of the mines 
 had, either by prescription or grant, acquired a right to 
 the easement claimed, and that this presumption was not 
 rebutted by the fact that the mines had been worked by 
 the tin-bounders. 
 '^l In the Irish case of Powell v. Butler,^ it was held that 
 where plaintiff had for twenty years used an artificical 
 watercourse, made for the benefit of all the persons by or 
 through whose land the water was caused to flow, he had 
 acquired a right to the flow of it from and through defen- 
 dant's lands above, and could maintain an action for the 
 diversion of it. 
 Right of " A question of much greater difficulty," says Mr. Gale, 
 
 owner to com- " arises in the case of a discharge of water when the 
 pel dominant '< servient owner seeks to compel the dominant owner to 
 
 owner to con- . , . 
 
 tinue dis- " contmue it, and to prevent him from altering its course, 
 " and thus attempts to invert their relative positions, and 
 " himself to become dominant. The chief objection is, 
 " that there is no submission {paticntia) by the dominant 
 " owner to the enjoyment of the water by the servient, 
 " — he discharges the water for his own convenience, 
 " and to what use the other may apply it when so dis- 
 " charged is immaterial to him, — he has no means of 
 " preventing such an application but by discontinuing the 
 " discharge, and thus depriving himself of the use of his 
 " own easement. Supposing it to be unknown by which 
 " party the flow of water was caused, and that the flow is 
 " beneficial to the owners of both tenements, — to the one 
 " by the discharge — to the other by the use to which he 
 
 1 Ir. R., 5 C. L. 309. 
 
 cliarge of 
 water,
 
 PARTICULAR EASEMENTS OF WATER. 253 
 
 " puts the water on receiving it, — it would probably be 
 " presumed that a reciprocal easement did exist." ^ 
 
 This question has been elaborately discussed in a series and rights on 
 of considered judgments, and as the point is a most im- watercourses 
 portant one, involving a consideration of the whole law of generally, 
 artificial watercourses, it will be well to discuss the various 
 cases at some length. 
 
 In the case of Gavecl v. Martijn^- an action was brought Gaved v. 
 for obstructing the plaintiff, the occupier of certain clay '' "^'^i'"- 
 works, in his right to certain artificial watercourses. The 
 first watercourse had been made originally by his prede- 
 cessor in title with the licence of the proprietor of land on 
 a natural stream from which the water was derived, and 
 the Court held that this was not such an enjoyment as of 
 right as to entitle him to claim a prescriptive right to its 
 flow from an uninterrupted user of twenty years. The 
 second watercourse had been made by plaintiff in defen- 
 dant's land, and had been enjoyed, adversely, for twenty 
 years. The Court held he was entitled to sue for the in- 
 terruption of it, and that his right was not destroyed by 
 the fact that the land in which the water had its source 
 was, by the custom of Cornwall, subject to the rights of 
 tin-bounders to use the water, if they chose, for until they 
 chose to exercise their rights, the general law of the land 
 applied to Cornwall as to any other county. The third 
 watercourse was made by miners, imder whom the defen- 
 dant claimed for the purpose of draining their mines ; and 
 the Court held that the evidence showed that the miners 
 had not abandoned their control of the stream, and that, 
 therefore, no rights could be acquired over it by prescrip- 
 tion. 
 
 The law with regard to artificial watercourses is thus 
 stated by Erie, C. J., delivering the opinion of the Court 
 of Common Pleas. " Rights and liabilities in respect of 
 " artificial streams, when first flowing on the surface, are 
 
 1 Gale on Easements, p. 298. - 19 C. B., IST. S. 732 ; 14 W. R. 
 
 62.
 
 254 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 " entirely distinct from rights and liabilities in respect of 
 " natural streams so flowing. The water in an artificial 
 " stream flowing in the land of tlie party by whom it was 
 " caused to ilow, is the property of that party, and is not 
 " subject to any rights or liabilities in respect of other per- 
 " sons. If the stream so brought to the siu'face is made 
 " to flow upon the land of a neighbour without his consent, 
 "it is a wrong for which the party causing it so to flow is 
 " liable. If there is a grant by the neighbour, the terms 
 " of the grant regulate the rights and liabilities of the 
 " parties thereto. If there is uninterrupted user of the 
 " land of the neighbour for receiving the flow as of right 
 " for twenty years, such user is evidence that the land, 
 " from which the water is sent into the neighbour's land, 
 " has become the dominant tenement, having a right to 
 " the easement of so sending the water, and that the 
 " neighbom-'s land has become subject to the easement of 
 " receiving that water. But such user of the easement of 
 " sending on the water of an artificial stream, is, of itself, 
 " no evidence that the land from which the water is sent 
 " has become subject to the servitude of being bound to 
 " send on the water to the land of the neighbour below. 
 " The enjoyment of the easement is, of itself, no e^^.dence 
 " that the party enjoying it has become subject to the 
 " servitude of being bound to exercise the easement for 
 " the benefit of the neighbour. A right of way is no 
 " evidence that the party entitled thereto is under a duty 
 " to walk ; nor a right to eaves- dropping on the neighbour's 
 " land, that the party is bound to send on his rain w^ater 
 " to that land. In like manner, we consider that a party 
 " by the mere exercise of a right to make an artificial 
 " drain into his neighbour's land, either from mine or sur- 
 " face, does not raise any presumption that he is subject 
 " to any duty to continue his artificial drain, though there 
 " may bo additional circumstances by which that presump- 
 " tion would be raised or the right proved. Also if it be 
 " proved that the stream was originally intended to have
 
 PARTICULAR EASEMENTS OF WATER. 255 
 
 " a permanent flow, or if the party by whom or on whose 
 " behalf the artificial stream was caused to flow is shown 
 " to have abandoned permanently, without intention to 
 " resume the works by which the flow has ceased and 
 " given up all rights to and control over the stream, such 
 " stream may become subject to the laws relating to 
 " natui'al streams. The law relating to natural streams is 
 " entirely different. The flow of a natm-al stream creates 
 " natural rights and liabilities between all the riparian 
 " proprietors along the whole of its course. Subject to 
 " reasonable use by himself, each proprietor is bound to 
 " allow the water to flow on without altering the quantity 
 " or quality. These natural rights and liabilities may be 
 " altered by grant or by user of an easement to alter the 
 " stream, as by diverting or fouling or penning back, or 
 " the like. If the stream flows at its source by the opera- 
 " tion of natm-e, — that is, if it is a natural stream, the 
 " rights and the Kabilities of the party owning land at its 
 '' source are the same as those of the proprietors in the 
 " course below. If the stream flows at its som-ce by the 
 " operation of man, — that is, if it is an artificial stream, 
 " the owner of the land at its source or the commencement of 
 " its flow, is not subject to any rights or liabilities towards 
 " any other person in respect of the water of the stream. 
 " The owner of such land may make himself liable to 
 " duties in respect of such water by grant or contract ; but 
 " the party claiming a right to compel performance of 
 " those duties must give evidence of such rights beyond 
 *' the mere suffering by him of the servitude of receiving 
 " such water." 
 
 In the case of Mason v. Shrewsbury Railway,^ Coekburn, Mason v. 
 C. J., states his opinion, that in no case can the owner of a^^^^"^'^"**"'"^ 
 a servient tenement acquire, by the mere existence of the 
 easement, a right as against the owner of the dominant 
 tenement to continue the diversion of a stream. " Now 
 
 ■* L. E.., 6 Q. B. 578 ; see Staffordshire Canal v. Birmingham, L. R., 
 1 H. L. 254.
 
 256 OF ACQUIRED RIGHTS OF WATER. 
 
 " it is of the essence of such an easement," he says, " that 
 " it exists for the benefit of the dominant tenement alone. 
 " Being in its very nature a right created for the benefit 
 " of the dominant owner, its exercise by him cannot 
 " operate to create a new right for the benefit of the 
 " servient owner. Like any other right, its exercise may 
 " be discontinued, if it becomes onerous, or ceases to be 
 " beneficial to the party entitled. An easement like the 
 " present, while it subjects the owner of the servient tene- 
 " ment to disadvantage, by taking from him the use of the 
 " water, for the watering of his cattle, the irrigation of 
 " his land, the turning of his mill or other beneficial use 
 " to which water may be applied, may, on the other hand, 
 " no doubt, be attended incidentally with equal or greater 
 " advantage to him, — as, for instance, by rendering him 
 " safe from the danger of inundation. But this will give 
 " him no right to insist on the exercise of the easement 
 " on the part of the dominant owner, if the latter finds it 
 " expedient to abandon his right. In like manner where 
 " the easement consists in the right to discharge water 
 " over the land of another, though the water may be 
 " advantageous to the servient tenement, the owner of the 
 " latter cannot acquire a right to have it discharged on to 
 " his land, if the dominant owner chooses to send the 
 *' water elsewhere, or apply it to other piu-j^oses. And 
 " upon this principle, as it appears to me, might the case 
 " of Wood V. IVaud have been decided without reference 
 " to the Prescription Act (2 ^^ 3 JFl/L IV. c. 71), or to 
 " the question as to whether there had been enjoyment 
 " ' as of right,' so as to satisfy that statute. I prefer to rest 
 " my judgment on the principle — as it appears to me, a 
 " fundamental one — that an easement exists for the benefit 
 " of the dominant owner alone, and that the servient 
 " owner acquires no right to insist on its continuance, or 
 " to ask for damages on its abandonment."^ 
 ArkwrUjht y. In Arkicrig/if V. Gel/, the plaintiffs were owners of 
 
 Geli. 
 
 ' Cf. per Erie, C. J., m Gaved v. Martyn, 19 C. B., N. S. 732.
 
 PARTICULAR EASEMENTS OF WATER. 257 
 
 certain cotton mills erected in 1772, and worked by the 
 united force of a natural stream, and of an artificial sough, 
 which had been made previous to that date by a mining 
 company, for the purpose of draining theu' mines. Subse- 
 quently another sough was made at a lower level, by 
 another mining company, of whom the defendants were 
 the representatives, by the permission of the owners of 
 the mines, by whom the former sough was made. The 
 effect of this second sough was, in 1836, to drain away 
 and divert the water from the first made sough, to the 
 injury of the plaintiff's mills. The Court held, that the 
 defendants were in the same position in respect to the 
 diversion of the water, as if they had been the owners of 
 the mine drained by the first sough, and were proceeding 
 to unwater a further portion of their mine by a new 
 sough ; and that as the stream was not a natural water- 
 course, but an artificial one of a temporary character, 
 having its continuance only whilst the convenience of the 
 mine owners requii-ed it, and made with the sole object of 
 getting rid of a nuisance to the mines, and as, moreover, 
 the plaintiff was aware of the temporary character of the 
 watercourse, he had acquired no right of action for the 
 diversion of it. 
 
 In the case of Magor v. Chachcich,^ the plaintiffs com- llagor 
 plained of the pollution of a stream running to their 
 brewery. This stream flowed from the mouth of an adit 
 or underground passage in adjoining lands not belonging 
 to the plaintiffs, which had been originally made more 
 than fifty years ago by the owner of a mine for the pur- 
 pose of draining it — but the mine had not been worked 
 for thirty years. After the working had been discon- 
 tinued, the plaintiffs had used for twenty years pure water 
 from the adit for brewing. The defendants, owners of 
 other mines, subsequently used the adit for draining their 
 mines, and so made the water foul and unfit for brewing. 
 
 1 11 A. & E. 571 ; see remarks Gavcd v. Martijn, 19 C. B. (N. S.), 
 of Erie, C. J., on this case in ante, p 2o3. 
 
 Chad wick.
 
 258 OF ACQUlREn IIIOIITS OF WATRR. 
 
 , lA The learned judge at the trial told the jury that, m the 
 
 \ .'' absence of custom, artificial watercourses were not dis- 
 
 tinguished in law from natural ; that the same rules of 
 law applied to them ; and that twenty years' enjoyment 
 might warrant them in finding in favour of the right. 
 The jury found for plaintiff, and the Court of Queen's 
 Bench refused to grant a new trial, holding that there 
 was no misdirection by the learned judge. 
 Wood V. In the case of IFood v. Waud,^ the Court of Exchequer 
 
 laid down in an elaborate judgment the law affecting 
 artificial watercourses, and the rights of riparian owners 
 thereon. In that ease, the waters from the workings of a 
 colliery (partly pumped up and partly caused by the 
 overflow of an old coal pit which had become filled with 
 water) had for more than twenty years flowed through 
 two artificial subterraneous channels, one of which, called 
 the Bowling Sough, passed clii'ectly through the plaintiff's 
 land ; the other, called Low Moor Sough, passed into a 
 natural stream called the Bowling Beck, which, so aug- 
 mented, passed through the plaintiff's land. Plaintiff had 
 used the water of the soughs for about ten years. The 
 defendant having works on the banks of each channel 
 above the points where they respectively arrived at the 
 plaintiff's land, and at the Bowling Sough, diverted the 
 water of each of them. The channels were subterraneous; 
 but the Court determined the question as it would have 
 done if they had been surface streams, and held that the 
 plaintiff could not recover for the diversion. " This ques- 
 " tion," says Pollock, C. B., delivering the judgment of the 
 Coui't, " is not with respect to the rights of the plaintiffs 
 " as against the owners of the collieries which the soughs 
 " relieve from water, but as to the rights of the plaintiffs 
 " and defendants inter sc; and it will be better to consider, 
 " in the first place, how they would stand if the streams 
 " were not underground. With respect to a claim of 
 " right as against the colliery o^vners, if it be true that a 
 " right was gained to these streams by the riparian pro- 
 
 ' 3 Ex. 718.
 
 PARTICULAR EASEMENTS OF WATER. 259 
 
 " prietors as against them, in consequence of tlieir acquies- 
 " cence for twenty years, by virtue of the presumption of 
 " a grant, or of Lord Tenterden's Act (2 4-3 Will. IV. 
 " c. 71), there would be no difficulty as to the right of the 
 " riparian proprietors against each other, or against other 
 " persons. But Mr. Cowling admitted that a grant could 
 " not be presumed, and that he should have great diffi- 
 " culty in establishing the right under Lord Tenterden's 
 " Act. This Court, as then constituted, much considered 
 " that subject in the case of Arlncriglit v. Gell. We have 
 " again considered it, and are satisfied that the principles 
 " laid down, as governing that case, are correct, and were 
 " properly acted upon in it, by deciding that no action lay 
 " for an injury by the diversion of an artificial water- 
 *' course, where, from the nature of the case, it was 
 " obvious that the enjoyment of it depended upon tem- 
 " porary circumstances, and was not of a permanent 
 " character, and where the interruption was by the party 
 " who stood in the situation of the grantor. The Court 
 " of Queen's Bench, in the subsequent case of Magor v. 
 " CJiadiriclx, supported a verdict for the plaintiif, for the 
 " disturbance of a right to the enjoyment of a stream, 
 " under circumstances somewhat similar ; but in that case 
 " the action was not brought against the party in whose 
 " land the artificial watercourse commenced, nor anyone 
 " claiming under him; and he had not put an end to it by 
 '' altering the mode of working of his mines, but what is 
 " more important, the action was not brought for abstract- 
 " ing, but for fouling — a species of injury which does not ( 
 " stand on the same footing ; for though the possessor of i 
 " the mine might stop the stream, it does not follow that 
 " he or any other could pollute it whilst it continued to 
 " run ; and besides, from the course which the cause took 
 " at Nisi Prius, the precise question which we have now 
 " to consider does not appear to have called for decision. 
 " The two cases are therefore distinguishable, and the 
 " expressions used by the learned judges in that case, as to 
 
 s 2
 
 260 OF AC(iUlREI) KIOIITS OF "WATER. 
 
 " the similarity of natural and artificial streams, are to bo 
 " understood as applicable to tliat particular case. "We 
 " entirely agree with Lord Denman, C. J. (in Marjor v. 
 " C/tadiricJi), that the proposition that a watercourse, of 
 " Avhatover antiquity, and in whatever degree enjoyed 
 " l)y numerous persons, cannot bo enjoyed so as to confer 
 " a right to the use of tlie water, if proved to have been 
 " originally artificial, is quite indefensible ; ^ but, on the 
 " other hand, the general proposition, that, under all 
 " circumstances, the right to watercourses arising from 
 " enjoyment is the same, whether they be natural or 
 " artificial, cannot possibly be sustained. The right to 
 " artificial watercourses against the party creating them, 
 " surely must depend upon the character of the water- 
 " course, whether it be of a permanent or temporary 
 " nature, and upon the circumstances under which it was 
 " created. The enjoyment for twenty years of a stream 
 " diverted or penned up by permanent embankments, 
 " clearly stands upon a different footing from the enjoy- 
 " ment of a flow of water originating in the mode of 
 " occupation or alteration of a person's property, and 
 " presumably of a temporary character, and liable to 
 " variation. 
 
 " The flow of water for twenty years from the eaves of 
 " a house could not give a right to the neighbour to insist 
 " that the house should not be pulled down or altered, so 
 " as to diminish the quantity of water flowing from the 
 " roof. The flow of water from a di'ain for the purposes 
 " of agricultural improvements for twenty years could not 
 " give a right to the neighbour, so as to preclude the 
 " proprietor from altering the level of his drains for the 
 " greater improvement of his land. The state of cir- 
 " cumstances in such cases shows that one party never 
 *' intended to give, nor the other to enjoy, the use of the 
 " stream as a matter of riyltt.'"'^ 
 
 ' See Grcatnx v. Uayward, 8 Ex. 291 ; Su'cUffe v. Booth, 9 Jur., N. S. 
 1037; 32 L. J., Q. B. 136.
 
 PARTICULAR EASEMENTS OF WATER. 261 
 
 The riglit to discharge rain-water from the roof of a Easement of 
 house, either by means of a spout, or by drip, which is a ^^' 
 nuisance in the absence of a prescriptive right, may be 
 acc^uired by user, and is not destroyed by a mere alteration 
 in the height of the eaves not increasing the burthen on 
 the servient tenement.^ No corresponding right to the 
 flow of rain-water /ro;; J the roof of a house can be acquired 
 by prescription.^ 
 
 Extinguishment of Easements of Water. 
 
 " The modes by which easements may be lost," says 
 Gale,^ " correspond with those already laid down for their 
 " accjuisition. 1. Corresponding to the express grant is 
 " the express renunciation. 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 accj^uisition by prescription, abandonment of 
 " user."^ 
 
 An express release at law to be effectual must be by By express 
 deed, but in equity an easement may be lost by agreement ^■'^^'^^s^- 
 or acc[uiescence.^ 
 
 Easements are also extinguished by operation of law if By merger. 
 
 1 Harvey v. Walters, L. R., 8 stituted a railway company by Act 
 
 C. P. 162 ; Thomas v. Thomas, 2 C. of Parliament, 'it was held that 
 
 M. & R. o-i ; 1 Gale, 61 ; see Gale they could not grant away their 
 
 on Easements, p. 613 ; and ante, right to the water, for as they had 
 
 Chap. III. p. 133. ceased to require it for their canal, 
 
 - TTood V. Wand, supra ; Greatrex the riglit to take it ceased ; Xa- 
 
 V. JIai/tcard, 8 Ex. 291. tlonal Manure Co. v. Donald, 4 H. 
 
 3 Gale ou Easements, p. 578, & N. 8; 28 L. J., Ex. 185. 
 
 5th edit. * Gale on Easements, p. 578 ; 
 
 ^ Where an easement is granted Goddard on Easements, -p- 367 ; see 
 
 for a particular purpose by Act of Fisher v. Moon, 11 L. T., N. S. 623 ; 
 
 Parliament, the easement ceases JVaterlow v. Bacon, Li.'R., 2 Y,q. ol4; 
 
 when the particular purpose is ac- Johnson v. TVijatt, 9 Jur., N. S. 
 
 complished. Thus, where a canal 1334 ; Bavics \. Marshall, 10 C. B., 
 
 company, Avho had a right to take N. S. 697 ; Soloman v. Glover, 10 
 
 water for a canal, were recon- W. N. 117 ; and ff«<c, p. 204.
 
 262 OF ACQUIRED RIGHTS OF WATER. 
 
 tlie seisin of the domiuant and servient tenements are 
 united in one and tlie same person.^ Unity of possession 
 only suspends an easement, — it requii'es unity of seisin to 
 destroy it.'- 
 
 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,^ " between a way or 
 " common and a watercourse. 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 natune, having taken this course naturally, and 
 " cannot be averted."^ 
 By licence. \ It has already been stated, that a licence by the domi- 
 I nant owner to do an act incompatible with the existence 
 I of an easement, may work its extinguishment, even when 
 \ the licence is by parol.-^ 
 Ahandonment The mere Suspension of the exercise of a prescriptive 
 of enjoymc^ut. ^-^^^^ -^ ^^^ sufficient to dcstroy the right, without some 
 evidence of an intention to abandon it ; but a long-con- 
 tinued suspension may render it necessary for the person 
 claiming the right to show that some indication was given 
 during the period that he ceased to use the right of his 
 intention to preserve it.^ 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 thirty years, and 
 during that time drew water for three new ponds ; it was 
 held that the right to di'aw water to the old pond was not 
 destroyed, as it was impossible to conceive that he intended 
 
 1 Godclard on Easements, p. 364; ^ 3 Bulst. 339; Poph. Ecp. IGG. 
 
 Gale, p. 581 ; see ante, p. 215 ct * See Br'ujht v. Walker, 1 C, 
 
 scq. M. & E. 219 ; and Goddard on 
 
 - Thomas v. Tliomas, 2 C., M. Easements, p. 3G5. 
 
 &: R. 31 ; iSimpcr v. Folcij, 2 John. ^ Ante, p. 208. 
 
 i& II. 555 ; James v. I'hoit, 4 A. tic ^ Crosslei/ v. Lif/Jituiclcr, L. R., 
 
 E. 761 ; Co. Litt. 313 a. 2 Ch. 478 ; 3 Eq. 279.
 
 EXTINGUISHMENT OF EASEMENTS OF WATER. 263 
 
 to abandon the right, when he was actually drawing water 
 into three new ponds instead of into the old one.^ 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.^ 
 
 Where the dominant tenement is altered in such a way By alteration 
 as will make it " incapable any longer of the perception of Jeifemcnt!''*' 
 " the particular easement," or where the alterations are of 
 such a permanent character as will evince an intention on 
 the part of the dominant owner to abandon it, the ease- 
 ment will be extinguished, although the abandonment has 
 not existed for twenty years. Thus, in Crossley v. Light- , 
 oickr,^ 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 nonuser of this easement was 
 not in itself a proof of abandonment of it, without some 
 evidence of intention to abandon it, yet the nonuser of the 
 mills for twenty years, and the fact that they had been 
 allowed to go to ruin, Avas sufficient to destroy the right. 
 
 An encroachment by the dominant owner, which will By eucroach- 
 render the easement necessarily more onerous to the ser- ^^^^ ' 
 vient tenement, will have the effect of destroying the ease- \ 
 mentj;^ but a mere alteration, causing no injury to the ' 
 servient heritage, will not destroy the right.^ 
 
 Thus, in Caid-iccll v. Russell,^' where the plaintiff had a ■ 
 prescriptive right to send waste water down the defen- 
 dant's drain, and sent down also foul water from his 
 
 I Hale V. Olroud, 14 M. & W. Brown v. Bed, 1 Wils. 174; Cross- 
 
 789. See per Wood, V.-C, in % v. ZiyA^OH/cr, L. K.. 2 Ch. 478; 
 
 Crossley Y. Lightoiclcr, L. E., 3 Eq. A.-G. v. Birmingham, 4 K. & J. 
 
 p. 293. 528; ^i.-G. v. Kingston, 13 W. R. 
 
 - Bower v. Uill, 1 Biug. N. C. 888. 
 
 549. 5 LutlrcVs case, 4 Rep. SG ; Rail 
 
 3 L. R., 2 Ch. 478; L. R., 3 v. Swift, G Scott, 167, and cases 
 
 Eq. 279; see Beg. v. C/wrlci/, 12 cited ante, p. 2-i2; Ilarvcgv.iralters, 
 
 Q. B. 518; TFard v. Ward, 7 Ex. L. R., 8 C. P. 62; Thomasy. Thomas, 
 
 838 ; Mason v. Hill, 5 B. & Ad. at 2 C, M. & R. 34. 
 
 p. 16 ; Biggins v. Inge, 7 Biug. 693. ^ 26 L. J., Ex. 314. 
 
 i Bealcg v. Shaw, 6 East, 208 ;
 
 264 
 
 OF ACQUIRED RIGHTS OF WATER. 
 
 privies, the Court held that defendant had a right to stop 
 the whole drain, as the encroachment could not be pre- 
 vented in any other way ; but in the subsequent case of 
 ///// V. Cock,^ where the plaintiff increased a prescriptive 
 right to water by lengthening a gutter, the defendant was 
 not held justified in stopping this excessive user, by means 
 which altogether prevented plaintiff's enjoyment of the 
 water. 
 
 1 2G L. T., N. S. 185 ; ecc post, Ch. X.
 
 ( 265 ) 
 
 CHAPTER V. 
 
 or CANALS, WATER SUPPLY, AND DOCKS. 
 
 It is proposed iu the present chapter to treat of the rights, 
 duties and liabilities of — I. Canal Compaiiies ; II. Water 
 Companies ; and III. Doek Companies. 
 
 All such bodies are either combinations of adventui'crs These bodies 
 incorporated under Acts of Parliament in order to supply gt^hites for " 
 a public Yv^ant for their own profit, or are public bodies individual 
 invested with the like pov/ers for the public benefit. In 
 both cases, however, they are but substitutes for individual 
 enterprise. 
 
 "It is well observed," says Blackburn, J.,^ "by Mr. 
 " Justice Mellor in Coe v. Wise," of corporations like the 
 " present, formed for trading- and other profitable pur- 
 " poses, that though such corporations may act without 
 " reward to themselves, yet iu 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) showing 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 v/orks. If, indeed, the legislature has 
 " by express enactment or necessary intendment enacted 
 " that they shall not be subject to such a liability, there is 
 " an end of the question." 
 
 Since all these bodies are almost universally in- Rights aud 
 
 duties of 
 
 1 Delivering the oijinion of the H. L. 93 ; 11 H. L. Cas. 686. 
 judges iu the House of Lords iu - 5 Best & Sm.440; 4 New Rei). 
 
 Mersey Docks Co. v. Gibb, L. R., 1 364.
 
 2G6 
 
 OF CAXALS, WATER SUPPLY, AND DOCKS. 
 
 bodies exer- 
 cising statu- 
 torj' powers. 
 
 IS V. 
 
 Gcddis 
 Baim Reser- 
 voir. 
 
 corporated by Act of Parliament, and derive all their 
 powers to interfere with the rights of private property 
 from the special enactment creating 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 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 lq so 
 doing they must not occasion any needless injury to any 
 one.^ 
 
 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 neces- 
 sary works for the required piu"poses, but at recurring 
 intervals afterwards) inconvenience 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.^ 
 
 These principles were laid down in the case of Gcddis 
 v. Bann licsen-oir,' which was an appeal heard in the 
 House of Lords against a judgment of the Exchequer 
 Chamber in Ireland, reversing a previous judgment of the 
 Court of Uueen's Bench there. 
 
 A local Act of Parliament incorporated certain persons 
 for the purpose of seeming a regular and proper supply of 
 water to mill-owners Avhose 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 
 
 1 Gcddis V. Jjumi Reservoir, 3 App. 
 Cas. 430. 
 
 3 App. Cas. 430.
 
 OF CANALS, WATER SUPPLY, ATSID DOCKS. 267 
 
 supply of water for tlie river Bann at all seasons of tlie 
 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 8'2nd clause gave similar 
 directions, and ordered that the surplus water should be re- 
 turned unto the different streams from wliich it had been 
 taken ; and also made provisions for supplying with water 
 the cattle depasturing in the fields there. 
 
 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 overflowed 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 opera- 
 tions 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 Cvachicll v. Mayor and Corporation of 
 Thctford,^ which had been cited for the defendants. 
 "In that case," said Lord TIatherley,- "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 Par- 
 " liament, and being utterly guiltless of any negligence, 
 
 1 L. E., 4 C. P. 629 ; see Ch. VII. 2 3 App. Gas. p. 448.
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 " 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 Tlie Corporation of Thetford. In the 
 " Thetford case^ 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 im- 
 " provements in it ; a part of the necessary alterations was 
 " the placing of stanchions in the river. When the river 
 " was so 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 the com- 
 " pany 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 chan- 
 " nels 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 
 " maldng provision for the additional quantities of water 
 " that would be sent down, and at the varying periods 
 
 1 L, K, 4 C. P. 629.
 
 OF CANALS, WATER SUPPLY, AND DOCKS, 269 
 
 " at whicli tliey 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 occiuTence 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 
 " Thctford case,^ nor within any principle which could be 
 " laid down with regard to parties keeping themselves 
 " entirely within their powers, and taking care that the 
 " powers of an Act of Parliament v/hen exercised shall be 
 " exercised in a manner to prevent needless injury. "\Ve 
 " are not bound nor entitled to suppose that they will 
 " wilfully do injmy 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 pre- 
 " vent the mischief." 
 
 Lord Blackburn in the course of his judgment made the 
 following remarks: 2 " It is agreed on all sides that the Act 
 " 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 
 
 1 L. E., 4 C. P. 629. 2 3 App. Cas. 45.5.
 
 OF CANA7,S, AVATEK SUITLY, AND DOCKS, 
 
 " greater in quantity and in a different way from wliat 
 " 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 Coiu't 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 estab- 
 " lished that no action will lie for doing that which the 
 " legislature has authorized, if it be done without negli- 
 " gence, although it does occasion damage to anyone ; 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." 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. 
 
 Thus in Allnntt v. Inglis,'^ which turned on the rights 
 of the London Dock Company, Lord EUenborougli stated 
 
 ' 12 East, 527.
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 271 
 
 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 ;^ and this 
 important general principle was confirmed and extended 
 in the case of The Mersey Doclc Trustees v. Gibb{- which Mcrscji Bode 
 turned on the liability of the plaintiffs for injuries caused ^' ' * 
 by the negligence of the their oiijjioi/es ; 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 particidar 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 illustra- 
 tion of this subject, some of the remarks of Mr. Justice 
 Blackbm-n, who delivered their opinion in reply. After 
 approving the doctrine laid down in Parncihij v. Lancaster 
 Canal^ and pointing out the distinction between dock 
 trustees and a canal company, he continued : "If the 
 " legislatm-e directs or authorizes the doing of a particular 
 " thing, the doing of it cannot be WTongful ; if damage 
 " results from the doing of that thing, it is just and j^roper 
 " that compensation should be made for it, and that is 
 " generally provided in the statutes authorizing the doing 
 
 I Allmdt V. InqVis, 12 East, 527. ^ n Ad. & El. 223 ; seeiJo.s/, p. 
 
 - L. K., 1 H.'L. 93 ; 11 H. L. 299. 
 Cas. 686.
 
 272 OF CANALS, WATER SUrPLY, AND DOCKS. 
 
 " of such things. But no action lies for what is dnmnnm 
 " sine injuria; 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 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 imder 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 {T//e King v. Fease'^). This, we think, is 
 " the point decided in T/iC Governors of the British Cast 
 " Plate Manufacturers v. Meredith,^ Sutton v. Cla)'he,^ and 
 " several other cases, as is well explained by Mr. Justice 
 " Williams in Wliitehouse v. Feliowcs.'^ 
 
 " But though the legislature has authorized the execu- 
 " tion of the works, it does not thereby exempt those 
 " authorized to make them from tlie obligation to use 
 " reasonable care that in making them no unnecessary 
 " damage shall be done." In Bri)w v. The Great Western 
 Rail. Co.^' 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 by reason of the works being negli- 
 " gently done, as to which the ov/ner's remedy by way 
 " of action remains."^ The learned judge pointed out 
 that this distinction is as applicable to works executed 
 for one purpose as another. "It is pointed out by 
 
 ' 4 Bai-n. & Ad. 30. ^ Lender v. Moxon, 3 Wils. 4G1 ; 
 
 - 4 T. R. 794. 2 Sir W. Bl. 424 ; Sutton v. Clarice, 
 
 3 G Taunt. 29. G Tav.ut. 29; Jo)ws v. Bird, 4 Barn. 
 
 •> 10 C. B. (N. S.) 765. & AW. 837; see 11 H. L. Cas. 714. 
 '•> 2 Best k Sm. 402, 411.
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 273 
 
 " Lord Campbell in The Soufhaiupfon Itch in Bridge v. 
 " The Southampton Local Board of Health (8 Ell. & Bl. 
 " 801 — 812), 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 defer- 
 " ence 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 maintain an action against that 
 " body, and be indemnified out of the funds vested in it 
 " by the statute."^ The House of Lords gave judgment 
 in accordance with this opinion of the judges. 
 
 We shall now proceed to notice in detail some of the 
 principal points of the law relating to I. Canals; II. Water 
 Saj)])!!/ ; and III. Doclis. 
 
 I. Canals. 
 
 A canal may be defined to be an artificial highway by Defiuitiou of 
 water constructed for the benefit of the public by ad- ^''*°^^- 
 ventui-ers authorized by the legislature to take tolls for 
 its use, as a compensation for their risk and labom^ in the 
 undertaking. 
 
 It differs from a river navigation chiefly in the fact that 
 the company or proprietors working it do so for theii' own 
 profit, and usually have the soil of the canal vested in 
 them by the terms of their Act, whilst the trustees of a 
 
 ^ SeeWardY. Zce,7'Ell.kB\. ■126; C. B. (N. S.) 765; Brownhw v. 
 
 Clothier v. Webster, 12 C. B. (N. S.) Metropolitan Board of Worls, 13 C 
 
 798 ; Ruck v. WilUams, 3 Hurl. & B. (N. S.) 768 ; 16 C. B. (N S ) 
 
 N. 308 ; Whitelwusc v. Fclloices, 10 546.
 
 274 
 
 OF CANALS, WATER STJPrLY, AND DOCKS. 
 
 river made navigable by Act of Parliament appear usually 
 to have a mere possession of the soil for tlie pm^poses of 
 improving tlie navigation, and, like dock trustees, to be 
 bound to apply the profits for the futm^e benefit of the 
 public,^ 
 
 " Canals," said Bayloy, J., in Rex v. Nichohon^^ "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." 
 Canal com- PoUock, C. B., in the case of Manhj v. 6Y. Helena Canal 
 
 panics. ^^_^3 tlius defined the status of the undertakers: "The 
 
 " owners of this canal are to be looked on as a trading 
 " company, who, though the legislatm-e permits them to 
 " do various acts described in these statutes, are to be con- 
 " sidered as persons doing them for theii' 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." 
 Rights of The method, therefore, hitherto pursued in treating of 
 
 "^auies^defined I'^f^^ural streams manifestly cannot be applied to the con- 
 and limited sidcratiou of artificial waterways like canals. The ownership 
 Parliament, ^f the soil, and the rights and duties incident to canal 
 proprietors, are in each 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 pm'pose 
 of arriving at general rules with regard to it.^ 
 
 In order to consider the principles which have been 
 
 ' See ante. Chap. II. p. 80, and 
 post, Chap. VII. 
 
 2 12 East, 330. 
 
 ^ 2 H. k N. 840. 
 
 * There arc, however, a certain 
 number of general public statutes 
 
 regidating the traffic on canals, the 
 charges of companies, and the lia- 
 bilities of the owners of barges 
 plying on them. See for these, 
 jjosf, Chap. VII.
 
 CANALS. 275 
 
 followed in the construction of the private Acts incorpo- 
 rating canal companies, it will he well to state briefly what 
 is the general nature of these enactments.^ 
 
 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 pui'pose of carrying 
 on the navigation which exists for the benefit of the 
 general public, though they themselves are not precluded 
 from being carriers on their own canals. The company 
 are bound to abstain from any act which may cause 
 inconvenience or injmy either to public or private owners 
 when carrying out their works,- and to submit in certain 
 cases to the due exercise of the rights of others where such 
 rights do not interfere with their own.^ 
 
 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. WJtceJij,^ 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 ; 
 " 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 Marc/ie,^ where some previous authorities are 
 
 ^ See post, Chap. VII. v. Glamorganshire Canal, 2 C, M. 
 
 - Gcddis V. Bann Reservoir, 3 & R. 133 ; Glamorganshire Canals. 
 
 App. C. 430; A.-G. v. Bradford Blakemore, 1 C. & F. 262. 
 Navigation, 35 L. J., Cli. 619; 'licg. ^ 2 B. & Ad. 793; see Parnabiy 
 
 V. Dclamere, 13 W. R. 757; Freston v. Lancaster Canal, 11 A. & E. 223; 
 
 V. Norfolk Hail. Co., 2 H. & N. see, too, the remarks of Lord Eldon 
 
 735. and Lord Lyndliui'st in Blakemore 
 
 ^ Monmouth Canal Co. v. Hall, 4 v. Glamorganshire Canal, 1 M. & K. 
 
 H. & N. 121; London and Birming- 162, 169 ; 1 C. & F. 262. 
 ham Railway v. Grand Junction ^ 8 B. & C. 51. 
 
 Canal, 1 Rail. Cas. 224 ; Blakemore 
 
 T 2
 
 27 G OF CANALS, WATER SUrPLY, AND DOCKS. 
 
 " cited ; and it was also acted upon in the case of The 
 " Leah and Liverpool Canal Co. v. Iliistler."^ 
 
 Wo will now proceed to consider the various decisions 
 on particular enactments incorporating canal companies in 
 tlie following order : — 
 
 1. Sueli as relate to the ownership of the soil ; 
 
 2. Such as turn on the rights and duties of canal 
 companies to other proprietors ; 
 
 'i. Such as refer to their duties towards the public in 
 respect of the navigation. 
 
 OvTOcrsiiip of The soil of canals is, as a rule, vested in the proprietors 
 
 i*^r'oprietort absolutely by the terms of their Act, though only for the 
 
 but oiiiy for purposes for which they are incorporated.- Thus 16 Geo. III. 
 
 of Ihcii-^Act! ^- 28, an Act for maldng and maintaining the Stourbridge 
 
 Canal, empowers the company " to purchase land for the 
 
 " use of the navigation, and vests the lands acquired by 
 
 " voluntary or compulsory sale in the proprietors for 
 
 " the use of the navigation, and for no other use or 
 
 " purpose whatsoever."^ 
 
 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 permis- 
 sion to a company to make erections, such as a dam or 
 mound, upon it,^ and such possession has been held to 
 entitle them to maintain trespass.^ 
 
 The powers of companies vary considerably in this 
 respect ; and in each case, as was said by Lord Tenterden 
 in Stourbridge Canal v. Wiieehj^ " 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 
 
 1 1 B. & C. 42i ; cf. Lord Rail. Co., 4 E. & B. 798 ; Xatlonal 
 
 Brougham in Stockton and Barlinq- Manure Co. v- Donald, 4 H. & N. 8. 
 
 ton Itallwaij v. Barrett, 11 C. & JF. 3 2 B. & Ad. 792. 
 
 590; 8 Scott, N. R. 641. ■* Ihjson and another v. Collich, h 
 
 ■ Dostocl; V. North Staffordshire B. & A. GOO; S. C, 1 D. & R. 225.
 
 CANALS. 277 
 
 of the ownersliip may be, it is permitted solely for the 
 purposes of the Act. 
 
 Thus a canal company, incorporated by Act of Parlia- 
 ment 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.^ 
 
 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 pui'pose 
 " or use whatsoever," but reserved to proprietors of pur- 
 chased 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 Rail- 
 way 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.- 
 
 In Regina v. Arc/ibis/iop of York,^ B. was empowered to Scfi- v. A)r/i- 
 make a canal, to supply it from brooks, &c., and to in- '^'"^'"^-^ 
 close and appropriate 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 pro- 
 perty. 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 
 
 ^ National Manure Co. v. Donald, ~ Bostock v. North Staffordshire 
 
 4 H. & N. 8 ; see Staffordshire and Hail. Co., 4 E. & B. 798. See also 
 Worcester Canal v. Biruiiiif/Jiam, L. Kill v. Tapper, 9 Jur., N. S. 725 ; 
 E., 11 H. L. 64. and ante, Chap. IV. 
 
 3 14 Q. B. 81.
 
 278 or CANALS, water supply, and docks. 
 
 forming tlio canal, passed to B. where there had been no 
 actual purchase. — Held, also, that the Crown had no 
 power to convey the lands in question. " If the statute 
 " gave tliem no more than such use of the soil as was 
 " necessary for the purposes of the canal, and they have 
 " not acquired the freehold in any other way, the right 
 " will be in her Majesty, and the verdict for her tenant is 
 
 " right, and we are of this opinion So long as the 
 
 " ground was covered with water penned back for purposes 
 " of the canal, it was difficult to say that the canal pro- 
 " prietors were doing anything but what their act justified, 
 " so long as they exercised powers and used the lands in a 
 " way which the Crown could not interfere with, and which 
 " was consistent with the Crown's retaining the freehold 
 " of the soil." — Lord Denman, C. J. 
 HocMaie Canal In The RocJidale Canal v. Radcliffe^ an Act for estab- 
 V. Eadchjfc. ligj^ing a canal company, pro"sided 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 retiu-ned 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 con- 
 densing, lie set up a claim, as of right, to do so by 
 twenty years' user. It was proved that defendant had an 
 old mill which had existed for twenty years, and that he 
 had added a new mill Avithin 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 justification in respect of a certain mill was 
 supported by proof of defendant having used the water of 
 the old mill for twenty years. Pleld, also, the failure of 
 proof as to the cistern did not entitle plaintiff's to an entire 
 verdict. 
 
 The plaintiff's moved fur judgment iio)i ohdantc rci'e- 
 (Ucto : — Held, that the company could not, consistently 
 
 1 18 Q. B. 287.
 
 CANALS. - 279 
 
 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.^ 
 
 " 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 show a grant by 
 " a person capable of making the grant relied on. Now 
 " the grant here is by a person having no distinct owner- 
 " ship 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 sup- 
 " posed, 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 suffi- 
 ciently established their right at law, had it not been for 
 their negligence.- 
 
 Eeservations of fishery, mines, and such like rights, to Reservations 
 the proprietors of lands on canals, are not uncommon in ppoprietoi-rof 
 most of the Acts, which, it may be noted, ordinarily lands adjoin- 
 contain clauses empowering proprietors to sell, as well as °' 
 those authorizing companies to buy, lands.^ 
 
 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 wharfs, quays, 
 &c. in or upon their respective lands, and to land goods, 
 
 1 18 Q. B. 287 ; cf. Rochdale Canal N. S. 78. 
 Co. V. Ei/iff, U Q. B. 122, 136 ; see ^ gee post, Chap. VII. ; Hobins 
 
 jmst, p. 290 ct seq. v. Wancick Canal, 2 Biug-. N. C. 
 
 ^ Eochdale Canal x. Kiiifj, 2 Sim., 483.
 
 280 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 Fislaery. 
 
 Eeservations 
 as to mines. 
 
 &c., provided they did not prejudice or obstruct the navi- 
 gation 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. ^ 
 
 Where the right of fishery in a canal is not reserved, as 
 it sometimes is,- it is of the kind termed territorial, being 
 identical with the ownership of the soil, though the pro- 
 prietors are of course at liberty to let it.^ 
 
 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 
 0"\vner 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 
 severalty. 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 reservoii'.'* 
 
 Reservations with regard to the right to work mines are 
 usually made for the benefit of proprietors of purchased 
 lands, the principle followed usually being to permit the 
 working by the owner, at the same time making pro- 
 visions in favour of the company, which empower them to 
 inspect and pm^chase the mines where the operations carried 
 on appear likely to endanger the canal.* 
 
 1 Monmouth Canal v. Hill, 4 H. 
 &K 421. 
 
 "^ Bostock V. North Staffordshire 
 Bail. Co., 4 E. & B. 798; Snape 
 and Wife v. Bobbs, 1 Bing. 202; 
 S. C, 8 Moore, 23. 
 
 2 Wooh-ych, Law of Waters, p. 
 65. 
 
 ■* Grand Union Canal v. Ashbi/, C 
 
 H. & N. 394. 
 
 = Cromford Canal v. Cutts, 5 Rail. 
 Cas. 442; Barnsleij Canal y. Tuibill, 
 3 Rail. Cas. 451 ; Budleij Canal y. 
 Grazcbrook, 1 B. & Ad. 59 ; Birming- 
 ham Canal v. Budlcij, 7 H. & N. 
 909; Wicjhthj Canal v. Badleij, 7 
 East, 366 ; Birmingham Canal v. 
 JX«m7.w/o;-<^, 7East,371,note; StouV'
 
 CANALS. 281 
 
 In the case of Dudley Canal v. Grazebrook,^ an Act 
 provided that 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 extra- 
 ordinary 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 comj)any had 
 not pm-chased 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. 
 
 No 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 Bkiiii v. Binmnghaiii Canal Co.,'^ 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 provided 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 
 
 hrldqe Canal v. Budlei/, 3 L. J., ^ 1 B. & Ad. 59. 
 
 Q. B. 108. See ante, Chap. III. p. - L. R., 8 Q. B. 42. 
 
 14G.
 
 282 or CANALS, water SUrPLY, AND DOCKS. 
 
 working of tlicm, 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 de- 
 fendants did all they could to keep the canal watertight. 
 The result of the Avorking 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 
 Pigott, 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." 
 
 In some cases Acts contain provisions for the benefit of 
 mine owners with regard to the transport of the minerals 
 along the canal passing through their lands.^ 
 Ordinary The terms of conveyances of land to the company are 
 
 struction as' regulated in each case by the provisions of each particular 
 to convey- ^ct, but the Ordinary rules with respect to such contracts 
 on canal com- would appear to be binding on them, 
 panics. ^ j^Qgj^^l ^^^t empowered proprietors to contract for the 
 
 sale of, and to 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 pay- 
 ment 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.- 
 
 A canal company, empowered to purchase lands for 
 
 ' Fuich V. Birminrjitam Canal, 5 - Hobiiis v. Warwick Canal, 2 
 
 B. & C. 820. Bing-. N. C. 483 ; see Harborough 
 
 V. Shadloiv, 7 M. & W. 37.
 
 CANALS. 283 
 
 gross sums, or rent- charges, took possession of lands of an 
 infant on agreement with his steward, and, after an award 
 by commissioners of the gross sum or rent-charge, such 
 sum was paid to the steward. No person being party to 
 this award who had power to bind the infant, it was 
 invalid, and no conveyance was executed, and the pm-chase- 
 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 
 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 injimction, on the 
 ground of acquiescence, the company undertaking to put 
 in force their parliamentary powers for the purchase of 
 land.i 
 
 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 pay- 
 ment or tender of certain sums for the purchase of such 
 lands, and, by leave of the owners, such lands should vest 
 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."- 
 
 A question as to copyhold lands arose in the case of 
 
 1 Somerset Canal v. Harcourt, 2 « Fatrick v. Beaufort, 6 Ex. 498. 
 
 De a. & J. 646.
 
 284 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 Dimes V. Gmml Jioiction Canal} There an Act of Parlia- 
 ment 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 ^'quousqac,'' 
 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 injunction, the Vice- 
 Chancellor made a decree directing the customary 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.^ 
 
 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 Kailway Company, it 
 was lield that the latter had authority to take a lease 
 of another canal.^ 
 
 Liabilities of It is usual in caual Acts to insert clauses providing for 
 paiiies'aTto ^^® amouut of compensation to be given by companies for 
 compensatiou damage done to the interests of neighbouring proprietors. 
 Acts. 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 
 
 1 3 H. L. 794. 
 
 • Hex V. Stawforth, 1 M. & S. 
 32; cf. Shand v. Hcndcri>o)i, 2 Dow, 
 
 519; seejuo*^, p. 287. 
 
 ^ Eor/crs V. Oxford Rail. Co., 25 
 Bcav. 322.
 
 CANALS. 285 
 
 on full forty yards, sliould 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. ^ 
 
 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 com- 
 pensation.^ 
 
 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 perpetual 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 6/., the present damage 
 at nil, but the future damage at 2,800/. ; it was held that 
 this verdict was wrong, since, in order to enable the juiy 
 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 land on payment of 6/. at any 
 time during the fifteen years.^ 
 
 In the somewhat similar case of Tkichiesse v. Lancastci' 
 
 ^ Foiton V. Troit and Mersey v. Belamere, 13 W. R. 757. 
 
 Kavigation Co., 2 Rail. Cas. 837; " Barker v. NottingJiam Canal Co., 
 
 cf. Cromford Canal v. Cutts, 5 Rail. 15 C. B., N. S. 726. 
 
 Cas. 442 ; Bimn v. Birmingham ^ Lee v. Milncr, 2 M. & "W. 824. 
 Canal Co., L. R., 8 Q. B. 42; Reg.
 
 28G OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 Canal Co.,'^ where no specified time was assigned witliin 
 which the canal should be completed, it was held that 
 a Court of law could not interfere, since no limitation as 
 to time could bo assigned to the powers conferred by an 
 intendment that they were to be exercised within a reason- 
 able 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 there- 
 under.^ 
 
 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.^ 
 
 In Kcnnet and Avon Navigation v. Withevington,^ the 
 plaintiffs were authorized by an Act to maintain a navi- 
 gation, and alter dams, &c. from time to time. Persons 
 injured were to receive compensation from commissioners 
 under the Act. The commissioners w^ere 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. 
 At common In addition, however, to the duty imposed on them by 
 
 ue^-n"^' statute to make compensation, companies will be held 
 
 liable at common law for damage done by them through 
 negligence or mismanagement of their works.^ 
 
 1 4 M. & W. 472. Co., 4 M. & W. 472. 
 - licxv. Co)nmissioners of the Xene * 18 Q. B. 530. 
 
 OutfaU, 9 B. & C. 875. ^ Preston v. XorfoUc RaUiraii, 2 
 
 3 T/iick/iesse v. Lancaster Canal IT. & N. 735.
 
 CANALS. 287 
 
 Where a canal Act contained provisions for compensa- 
 tion, it was lield that such provisions related to the due 
 and proper management of the works, and not to their 
 negligent management, and, therefore, did not oust the 
 right of action against a canal company for so negli- 
 gently keeping their sluices open that their canal over- 
 flowed.^ 
 
 So too, where a canal company pumped foul water into 
 a canal so as to make it a nuisance, it was held to he no 
 defence that the foulness was caused by other persons ; - 
 and 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 8f 10 Vicf. c. 93.3 
 
 In the last-named case, it was contended for the company 
 that they were no more liable than the trustees of a high- 
 way 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 Greorge 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 pro- 
 perty, 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 pro- 
 perty, and are as much responsible for any injury from 
 
 ^ C'ocJcburn v. Ereicash Canal, 11 35 L. J., Ch. 619. 
 W. R. 34. 3 Manlei/ v. St. Eelens Canal, 2 
 
 • A.-G. V. Bradford Xavigation, H. & N. 840.
 
 288 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 " works connected with it, as any other owner of private 
 " property would bo."^ 
 
 Where, however, companies keep strictly within the 
 terms of their Acts, they will not be held liable, either for 
 compensation or at common law, for injuries caused in the 
 duo execution of theu' 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 dii'ected for them, on the ground that there was no 
 negligence.^ 
 
 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 0. level would flow. In 1826, the canal pro- 
 prietors 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 iraste irater not required 
 should flow into the river above plaintiff's forge. The 
 company pumped water from C, and in consequence 
 whereof, 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 com- 
 pensation ; the water, which could be used again, was 
 pumped back again, not being waste water.^ 
 
 "Where a swing bridge over a canal crossing a public 
 
 ^ ^ee Mcrsei/ Docks v. Gibb, L. -TFhitchousey. Birmingham Canal, 
 
 R., 1 H. L. 93 ; 2 H. & N. 849 ; 27 L. J., Ex. 25 ; Mayor of King's 
 
 Tarnaby v. Lancaster Canal, 11 A. Lynn v. Pembcrton, 1 Sw. 244, 250. 
 & E. 227; and see ante, p. 267 et •' EllwcU v. Birmingham Canal, 3 
 
 seq. H. L. 812.
 
 CANALS. 289 
 
 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 negligence on the part of the company, 
 and the deceased having been guilty of contributory 
 negligence, no action would lie.^ And in the same way, a 
 canal company was not held 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 excavations in his land, unless they are 
 substantially adjoining the road, and so near as to be 
 dangerous.^ 
 
 If, moreover, the damage be caused by circumstances Vis major, 
 over which the company had no control, and can be excuse^ ^^ 
 proved to result from ris major, canal companies ■udll 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 company 
 (the defendants) were not liable, since the water which 
 did the mischief was not brought there by them.^ " 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 
 
 ^ Witherly v. Regmfs Canal, 12 App. Cas. 529. 
 C. B., N. S. 2. ^ As to this question, see further 
 
 ^ Bulls V. South York Eailwai/, ante. Chap. III. 
 3 Bing. 241. Sec Lang v. Kerr, 3 
 
 C. U
 
 290 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 Remedies for 
 injuries by 
 canal com- 
 panies. 
 
 " I may term a reasonable selfislmess in sncli matters ; it 
 " says, ' Let every one look out for himself and protect his 
 " ' own interest.' "^ 
 
 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 iip."^ 
 
 A similar principle was followed in BougJiton v. Midland 
 and Great Western Batl. 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 di-ain (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 respon- 
 sible 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. 
 
 Where a particular jurisdiction is appointed under a 
 canal Act to determine all fpiestions as to things to be 
 done under the Act, if the canal proprietors do anything 
 not exactly in accordance 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 a? 
 
 ^ N'leld V. London and North 
 Western Rail. Co.,!^. R., 10 Ex. 4. 
 2 Ir. E.. 7 C. L. 109. 
 
 ^ SJiand V. Henderson, 
 (H. L. C.) -,19. 
 
 2 Dow
 
 CANALS. 291 
 
 Parties injured, however, are bound to use due diligence 
 in applying for redress. 
 
 So wliere 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 injunc- 
 " tion is gone."^ 
 
 A question as to the right to the surplus water of a Rights to sur- 
 
 canal under special Acts of Parliament arose in the case ^ ^^^ ^^ ^^'' 
 
 of Blal-cmore v. T//e Glaniorgaiis/n'rc Canal? The Acts of BlakemorcY. 
 
 Parliament^ authorizing the formation of the canal con- GJamorgan- 
 _c) ^ shire Canal. 
 
 tained a reservation, in favour of the owners of certain 
 iron works, of the surplus water flowing from the canal, 
 do^^Ti a certain cut or watercourse. 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."* 
 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 afSrmed. 
 
 At the second triaP it was held, that the company, 
 having after the two years erected an engine to force up 
 
 ^ Shand v. Henderson, 2 Dow ^^ 30 Geo. III. c. 82; 3G Geo. III. 
 
 (H. L. C.) 519. c. 69. 
 
 2 1 M. & K. 154; 1 C. & F. 262; * 3 Y. & Jerv. 60. 
 
 2 C, M. & R. 133 ; 3 Y. & Jerv. = 2 C. M. & R. 133. 
 
 CO. 
 
 u 2
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 more Wcatcr into the canal, wlicrcby 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. It was also held that, since by 
 sect. 7 of 30 Geo. III. c. 82, the lock to be made near the 
 plaintiff's works was to be always kept in good repair, for 
 the pm-pose of preventing leakage or waste of water, the 
 company had no right to pass water below the lock, though 
 necessary to the lower part of the canal, except that which 
 necessarily passed by barges being lowered through the 
 locks, and that the " notch " constructed by the company 
 for conveying water below the lock, was not authorized by 
 the Act. 
 
 On the hearing before the House of Lords,^ Lord Lynd- 
 hurst, ))ifer 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 com- 
 pleted 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. 
 
 " It does not appear to me," says Lord Eldon,- " to be 
 " of importance to consider whether these iron works have 
 " or not any right to the water, founded upon usage prior 
 " to the making of this canal ; because I follow and adopt 
 " the expression of the Lord Chief Justice of the King's 
 " Bench, and I am glad to fasten myself in some measure 
 " on this great authority, and say that I regard them all 
 1 1 C. >t F. 2G2. - 1 M. & K. 1G2.
 
 CANALS. 293 
 
 " in the Uglit of contracts made by the Legislature on 
 " behalf of every person interested in anything to be done 
 " under them ; and I have no hesitation in asserting, that, 
 " unless that princij)le is applied in construing statutes of 
 " this description, they become instruments of greater 
 " oppression than anything in the whole system of ad- 
 " ministration under our Constitution." 
 
 On a subsequent day, in finally disposing of the case, 
 his Lordship remarked : ^ "If my opinion upon the effects 
 " of the Acts of Parliament be right, 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 occasion, 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 plaintiff having filed a second and third supple- 
 mental bill against the same canal company in 1825 on the 
 trial of certain issues framed upon the same principle with 
 the issues formerly directed by Lord Eldon, Lord Lynd- 
 hiu'st in giving judgment stated that he concurred with 
 Lord Eldon and Lord Wynford in considering the Acts of 
 Parliament in the light of a bargain between the company 
 of proprietors and the plaintiff, and in holding that after 
 the canal was finally completed, the company were no 
 longer at liberty to alter or enlarge it to the damage of 
 Mr. Blakemore. 
 
 Lord Brougham, L. C.,- who granted the injunction, 
 mth certain limitations, commented on the construction 
 put upon the Acts of Parliament, and hinted that he 
 considered they had been somewhat too stringently con- 
 
 1 1 M. & K. 168. 2 lb. 161.
 
 294 
 
 OF CANALS, WATER SUrPLY, AND DOCKS, 
 
 StafTordshlre 
 and Worcester- 
 shire Canal v. 
 Birmi)i(jham 
 Canal. 
 
 strued, though ho was of opinion that the decisions already 
 given ought not to be disturbed. " The leading principle, 
 ' then, on which I proceed in dealing with this applica- 
 ' tion, the principle wliich, as I humbly conceive, ought, 
 ' generally speaking, to be the guide of the Court, and to 
 ' limit its discretion in granting injunctions, at least 
 ' wliere no very special circumstances occur, is that only 
 ' such a restraint shall be imposed as may suffice to stop 
 ' the mischief complained of, and where it is to stay farther 
 ' injury, to keep things as they are for the present." 
 
 The case of The Stajfonlshire and Worcestershire Canal v. 
 Birmingham Canal^ 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, autho- 
 rizing the formation of the B. Canal, and requiring the 
 latter company to make a " communication " between the 
 B. and the S. and TV. Canals at A., giving the latter 
 company power to make this commmiication 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 afterwards 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- which contained in the 
 ]5th sect, provisions enabling the B. Company, the pro- 
 prietors of several canals, to raise the water of the canals 
 from one level to another by reservoirs and machinery, &c. 
 The 83rd sect., with a %'iew to preserve the communication 
 at A., forbade the B. Company to use water from or out 
 of the W. level (which was the highest level of the B. 
 Company — the communication at A. being 132 feet below 
 it) for any purpose whatever when the depth of the water 
 1 L. R., 1 II. L. 2.5i. 2 5 "Will. xY. c. xxxiv.
 
 CANALS. 295 
 
 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 sect, 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 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 recently 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 Legis- 
 latm^e, 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 Tcq)ling v. Jones,^ and Elicell v. 
 BirmingJtam Canal;- for the respondents, BocJidak Canal v. 
 Radclifc,^ Magor v. C/iadirick,^ and Ai'Iarj-ig/it v. (?e//,-^ were, 
 infer alia, cited. 
 
 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 pui'poses, 
 which were those of making and maintaining a free com- 
 munication between diflterent places by navigable canals ; 
 and that the ordinary doctrines as to the permissive use of 
 
 1 11 H. L. Cas. 200. ^ 11 Ad. & E. 571. 
 
 - 3 H. L. Cas. 812. ^ 5 M. & W. 203. 
 
 ^ IS Q. B. 287.
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 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 prescrip- 
 tive right by user be founded on the fact that the B. 
 Company had for many years allowed the v/ater to pass 
 out of the B. canal in a particular manner, so as to prevent 
 the B. Company from afterwards improving its machinery 
 and economising the water, for the water so passing into 
 the S. and W. Canal, did not constitute a stream or water- 
 course within the meaning of the Prescription Act, 2 (^ 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. 
 
 "The 2nd section of that Act" (2 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, prescription or grant. Custom and pre- 
 " scription are here out of the question, and if the respon- 
 " dent could not have granted the use of the water to the 
 " appellants, the Act is wholly inapplicable; but to impose 
 " such a servitude upon the water in their canal, as that 
 " contended for by the aj)peUants, would have been ultra 
 " rircs of the respondents, and consequently length of user 
 " could never confer an indefeasible claim upon the appel- 
 " lants 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 natui'al nor even an artificial stream. The water in 
 " the canal is not flowing water. It is accumulated under 
 " the authority of the legislatm-e in what is in fact a tank 
 " or reservoir, v/hich the respondents are bound to econo- 
 " mize and use in particular manner for the convenience of
 
 CANALS. 297 
 
 " the public. It never flows. It is let clown 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 respon- 
 " dents. Of su.cli grant there is no trace whatever, and it 
 *' cannot be presumed. To have entered into any such 
 " engagement would have been a clear breach of duty in 
 " respondents." 
 
 In the case of 2I((son v. S/irc/cshiui/ Bail. Co.,^ a canal Claim ao-ainst 
 comimny, imder the powers of their Act, diverted before ^ ^''^^''^^ *'°™" 
 1800 a great part of the waters of a brook flowing through water 
 the plaintiff's land to theu* 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 w\as 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 Ilannen, JJ., proceeded on the 
 ground that, though the claim to have the water diverted 
 w^as a claim to a watercourse under the Prescription Act, 2 c^ 
 3 JFilL IV. c. 71, yet the enjoyment w^as 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 
 
 1 L. R., 6 Q. B. 578 ; cf. Hoch- 287 ; Hodc/son v. Mco.'or of Yorl; ''S 
 dale Canal Co. v. RadcUffc, 18 Q. B. L. T., N. S. 836. '' ' "
 
 298 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 Canal com- 
 panies en- 
 titled to 
 ordinary 
 remediew at 
 law. 
 
 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 
 " (rrescription Act) had never been passed." ^ 
 
 Where the statutory rights of companies are infringed, 
 they arc entitled to the ordinary remedies at law.- 
 
 " Such a company," said Erie, J., in Roclulak' Canal 
 Co. V. KliKj^' " has all the rights and remedies wliich an 
 " individual 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 manufactm^ers within a 
 certain distance ^^•ere 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. 
 
 The declaration stated that the company had made the 
 canal and that the defendants had used the water for pur- 
 poses other than that of condensing steam. It was ob- 
 jected 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 commissioners 
 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 wi'ongful act 
 ■\^'as 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 right- 
 ful purpose, and not over wrongdoers.'^ Erie, J., observed. 
 
 1 See ante, Chap. IV., p. 252 et clife, 18 Q. B. 287; see ante, p. 278. 
 scq. * See Cockburn v. Erexcash Canal, 
 
 - Mochdalc Canal v. Kuirj, 14 Q. 11 W. K. 31, ante, p. 283; Shand 
 
 B. 122, 13G. V. Henderson, 2 Dow (H. L. C.) 
 
 3 lb.; cf. Eoehdulc Canal y. Had- 519, ante, p. 286.
 
 CANALS. 299 
 
 "It is said the company could have no property in tliis 
 " water ; perhaps not in the identical passing atoms, but 
 " they had in the flow, \h.Qjfnmeii aqua?." 
 
 In bringing actions, canal companies, like individuals, 
 are liable to be dej)rived 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.^ 
 
 The owners of a canal taking tolls for the navigation Duties with 
 are bound, at common law, to use reasonable care in making na\'i"-ation. 
 the navigation secure.- 
 
 Paniahy v. Lancaster Canal- was an action which came Duty to 
 before the Exchequer Chamber on error from the Coui't of navi"-ation. 
 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 com- 
 pany completed the canal, and took tolls on it ; that a boat 
 
 1 Kcnnct and Avon Canal \. Great 161; Shand v. Henderson, 2 Dow 
 
 WcUeru Bail. Co., 4 Eail. Cas. 90 ; (H. L. C.) 519. 
 
 cf. liochdale Canal v. King, 2 Sim., '■ Tarnahn v. Lancaster Canal, 11 
 
 N. S. 78 ; Lord UaMci/ v. Kcnsing- A. & E. 223 ; see Merfei/ v. GiM, 
 
 ion Canal Co., 5 B. & Ad. 138; L. R., 1 H. L. 93; Jrinch v. Con- 
 
 Frascr v. Sucinsea Canal, 1 Ad. & senators of Thames, L. H., 9 C. P. 
 
 EI. 354; S. C, 3 N. & M. 391; see 738; L. R., 7 C. P. 456 ; Forbes v. 
 
 Lord Brougham in Blakcmorc v. Lee Conservaney, 4 Ex. Div. 116 ; 
 
 Glanwrganshirc Canal, 1 M. & K. and_^;os(!, Chap. VII.
 
 300 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 sunk in the canal, so that vessels passed witli difficulty in 
 the day, and at night were in danger of running foul of it; 
 that, although the company could and ought to have re- 
 quested 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 plain- 
 tiff's boat, navigating the canal, ran foul of the sunken 
 boat and was damaged. 
 
 On the trial, before Coleridge, J., at the Liverpool Sum- 
 mer Assizes, 1836, it was objected that, admitting the 
 facts as laid in the declaration, no breach of duty was 
 shown. Yerdict being given in favour of the plaintiffs, 
 leave was reserved to move for a nonsuit. 
 
 Lord Denman, C. J., delivermg the judgment of the Court, 
 after hearing the arguments in favour of the defendants 
 said, " We do not feel the smallest doubt that this action 
 " may be maintained. The only one of the numerous cases 
 " cited, that appeared to point the other w^ay, is Harris v. 
 " Bahcr^ v/here trustees of a road were held not liable to 
 " an action for a personal injury arising from the plaintiff's 
 " falling in the night-time over a heap of scrapings placed 
 " on the roadside by the defendant, who placed no light to 
 " give notice of the obstruction. But that case may be 
 " distinguished, as the action was against public officers 
 " who derived no benefit from the road. The present de- 
 " fendants, on the contrary, invite the whole of the public 
 " to navigate on their canal in consideration of the tolls 
 " paid. They have lawful power to make the canal in all 
 " respects fit for navigation, and particularly to remove the 
 " kind of obstruction by which the plaintiff suffered. It is 
 " the same in principle as if they announced the carrying 
 " on of a business at premises accessible only by a certain 
 " road over their land, which was open to the public for 
 
 1 4 M. & S. 27.
 
 CANALS. 301 
 
 " that purpose, but wliieli they only, and not the public, 
 " had a right to repau', and they left that road in so bad a 
 " state that a person's leg was broken when he came to 
 " transact business with them there. A more familiar 
 " example, and not of a rare occurrence, is that of a shop- 
 " keeper who leaves a trap-door open in his shop, and 
 " causes a customer to fall down and suffer injury." 
 
 The plaintiffs having entered up judgment, the defen- 
 dants brought error in the Exchequer Chamber, when the 
 judgment of the Court of Queen's Bench was affirmed. 
 
 Tindal, C. J., after stating the facts of the case, said:^ 
 " The principal objection in this case was, that the clause y 
 
 " recited in the declaration, and which is therein stated 
 '' to have cast a duty on the company to remove the 
 " obstruction caused by the sunken boat, was not obliga- 
 " tory, but was an enabling or permissive clause only. 
 " And we are all of that opinion. Neither the clause 
 " recited, nor anj'thing in the Act of Parliament con- 
 " tained, imposes such a duty on the defendants below ; 
 " and the allegation in the declaration as to the duty of the 
 " company seems to have been founded on a mistake as to 
 " the true meaning and effect of that clause. But admittino- 
 " this to be so, the question then arises whether, upon the 
 " facts stated in the declaration, another duty of a dif- 
 " ferent kind was not imposed by the common law upon 
 " this company; and whether a sufficient breach of that 
 " duty is not alleged. It is clear that the statement of the 
 " duty in the declaration is an inference of law from the 
 " facts, and need not be stated at all, or, if improperly 
 " stated, may be altogether rejected. Omitting, there- 
 " fore, as it appears to us, the improper and unfounded 
 " statement of duty in the declaration, the facts stated in 
 " the inducement show 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, 
 
 1 11 A. & E., p. 242.
 
 or CANALS, WAIER SUPrLY, AND DOCKS. 
 
 " 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 
 " 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 priu- 
 " ciple 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 cus- 
 " tomers suffer injury. The declaration, it is true, con- 
 " tains no averment of such a duty, which it need not do, 
 " nor any allegation in express terms of the breach of such 
 " duty. But the question still is, whether the facts alleged 
 " do not necessarily imply that there was a breach of that 
 " duty. We have felt some doubt upon this point; but 
 " we think, on consideration, that in substance such breach 
 " of duty is sufficiently assigned. It is averred that the 
 " company had notice of the obstruction by the sunken 
 " boat, and they did not (within such a reasonable time 
 " after such notice) either weigh up the boat, or remove 
 " the obstruction in any other way, or do that which, in 
 " the event of their choosing to do neither of those things, 
 " they certainly ought, if they had used reasonable care 
 " to prevent accidents, to have done, — namely, either place 
 " a signal, or give some notice to those who were navi- 
 " gating in that part of the canal. The allegation that 
 " they neither removed the obstruction, nor gave actual or 
 " constructive notice of it, amounts to an allegation of a 
 " breach of their common law duty to take reasonable care 
 " to prevent mischief by the obstruction ; and the allega- 
 " tion that they did not do so within a reasonable time after 
 " notice, is equivalent to a statement that a reasonable 
 " time had elapsed to have enabled them to have either 
 " removed the obstruction or given such notice of it. On 
 " this ground we think that there is a good breach of a 
 " common law duty, and that the declaration may be 
 
 1
 
 CANALS. 303 
 
 " supported, and, consequently, that the defendant in 
 " error is entitled to our judgment."^ 
 
 It follows from the principle above noticed, that canal Rig-ht to re- 
 proprietors "U'ill not be enabled to recover damages for damao-e\o 
 injuries to their navigation unless they keep it in good navigation. 
 order. A canal compau}-, who w-ere 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. ^ 
 
 In WaIJ;cr v. Loc,^ commissioners of a navigation were 
 authorized to lease the canal, and, in case the lessees 
 should permit the canal to bo out of repair, the commis- 
 sioners 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 commis- 
 sioners might seize the tolls. The canal having been 
 leased, the lessees allowed the canal to gbi 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 Lleicdhjn v. Swansea Canal,^ where the company had ■V\niat are 
 by their act the usual powers for maintaining the naviga- ^ary^r'^^'^'^' 
 tion, the question as to what constitutes acts necessary for maiutaiaing 
 
 navigation. 
 ^ See further as to " Navigation " - Sfafiordshire Canal v. Hallam, 
 
 and the duties of persons naviga- C B. & C. 317. 
 tiug, 2yosi, Chap. VII. » 1 H. & N. 350. 
 
 * 2 H. & N. 509.
 
 304 OF CANALS, MATER SUPrLY, AND DOCKS. 
 
 maintaining navigation, was raised. The defendants had 
 agreed to pay the plaintiffs 10/. a week for any water 
 above a certain lock, when they should consider it neces- 
 sary 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 ihc navigation below the lock, and, 
 tlierefore, that the 10/. 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 
 10/. was recoverable, since the latter object did constitute 
 such a purpose. 
 
 Where a canal company were authorized to make a 
 canal, and do other acts necessary for the making, im- 
 proving, and using it, it was held that they were em- 
 powered to deepen and widen it after it had been com- 
 pleted, and to charge for so doing.^ 
 
 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.^ 
 Bridges. Canal companies are usually empowered by the incorpo- 
 
 rating Act to construct and maintain bridges — a provision 
 which is rendered necessary to remedy inconveniences 
 arising from their powers to interrupt highways. 
 
 ' Itcx V. Glamorrjanslnrc, 7 B. & - Kiunct and Avon Xaviqat'ion v. 
 
 C. 722. Wltherington, 18 Q. B. 530.
 
 CANALS. 305 
 
 Thus, in Bex v. Lindsay,^ 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 
 buiihen of the repair on the inhabitants of Lindsay, 
 county Lincoln. 
 
 Bridges thus constructed must be adequate to meet the 
 wants of the public. 
 
 This point was thoroughly discussed in the case of 
 ManJey v. St. Helens,^ already referred to. 
 
 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 completed. 
 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 the swivel bridge open, a j)erson 
 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 jiuy 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 (^ 10 Vict. c. 93, and that the 
 
 1 14 East, 317. See as to ^ 2 H. & N. 840. 
 
 "Beidges,"^os^, Chap. VIII. 
 
 C. X
 
 306 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 bridge being in their possession the action was rightly 
 bronglit against them and not against the boatman. It 
 was furtlior dcoidcd that whether or not the bridge was 
 sufficient wlien built, the company were bound to maintain 
 it sufficient with reference to present circumstances. 
 
 Martin, B., remarked^ : — " It is perfectly clear what is 
 " the common law obligation of persons who make canals 
 " of this kind. They may make a bridge, but common 
 " sense points out it must be a proper bridge, and fit for 
 " travelling over ; and I agree with the Lord Chief Baron 
 " that if we Avere now discussing what kind of bridge it 
 " ought to be, I should say a bridge suitable to the present 
 " state of society." 
 
 Watson, B., said: — "The case is neither more nor less 
 " than this — certain persons are empowered to make a 
 " canal through a district, not merely for the benefit of 
 " the public, but to expend money and derive benefit and 
 " profit from the use of the canal. A statute gives them 
 " power to interrupt a public highway — a thing that can 
 " only be done by the authority of Parliament, — and to 
 " make a bridge which shall be open so as to let boats 
 " pass. So far the company are justified in what they 
 " did ; but they are not like the trustees of a public 
 " highway, who are allowed to stop a public way in order 
 " that their own work may be of use. The ground on 
 " which I decide the present case is, that if Parliament 
 " empowers persons to interfere with a public highway, 
 " they may do it, but not so as to prejudice the lives and 
 " limbs of people. For instance, a gas company or a 
 " water company may put pipes through streets, but must 
 " not do it in such a way as shall prejudice persons 
 " passing by ; they may make trenches in the streets, but 
 " are bound at night to place lights, &c. so as to prevent 
 " the Queen's subjects being injm-ed. That is the prin- 
 " ciple — the power must be exercised reasonably and not 
 " to the prejudice of the public ; and that is also the effect 
 
 ' 2 H. & N. 852.
 
 CANALS. 307 
 
 ' of this verdict, as I read it, and I think any other verdict 
 ' would be erroneous. 
 
 " Several objections have been suggested to the plain- 
 ' tiff's right to recover. First, that this company is like 
 ' ordinary public trustees, as for instance, turnpike trustees ; 
 ' but that is not so. Such persons are empowered to collect 
 ' tolls, not for the benefit of themselves, but of the public ; 
 ' they are public officers discharging public duties for the 
 ' benefit of the public. . . . Then it is said this is an injury to 
 ' an individual from a public nuisance, and therefore not 
 ' actionable. It is quite clear that any injury to a public 
 ' right is indictable, and that a person can only maintain 
 ' an action in such a case when he has sustained in- 
 ' dividual damage from it. But that is not this case — a 
 ' disturbance of a public right is authorized by statute, 
 ' but the injury is caused by the negligence of the 
 ' parties." 
 
 As to what amounts to a dedication of a bridge erected 
 by a company to the public can only be decided by the 
 evidence in each particular case. 
 
 A company required by the terms of their Act to make 
 bridges over their canal for the use of adjoining land- 
 owners, erected a swivel bridge for the use of the Rolls 
 Estate. From 1810 to 1822 the public occasionally used 
 it. From 1822 to 1832 the company took tolls from 
 persons not of the EoUs Estate crossing it, and in 1834 
 they built a stone bridge. In an action for trespass for 
 crossing the bridge without leave. Lord Denman told the 
 jury that, supposing the bridge to have been originally 
 built as a carriage way for the exclusive use of the Rolls 
 Estate, still, if in consequence of acts of the company 
 an idea grew up in the public mind that they intended to 
 dedicate the bridge to the public, such act would amount to 
 a dedication. It was held that, taking all the summing 
 up together, there was no misdirection ; that the evidence 
 warranted the jury in finding a dedication, and that there 
 
 X 2
 
 308 or CANALS, -WATER SUPPLY, AND DOCKS. 
 
 was nothing in tlie constitution of the company to prevent 
 thorn from so dedicating it.^ 
 Navigation The navigation of canals^ is, of course, open to all the 
 
 oirpayim' ^'^ puljlic ou tlio payment of tolls, and it has been lield that 
 tolls. there is a public right of user of a canal with boats pro- 
 
 pelled by steam, provided they do no more injmy than is 
 occasioned by traction by horses,^ 
 
 It has been held that a provision in a local Act (9 Geo. 
 III. c. 71), empowering a company to make bye-laws for the 
 government 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 51."^ 
 Tolls. The subject of tolls will be found treated at length in a 
 
 subsequent chapter,* 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.*^ 
 
 Such was the principle laid down in the case of Stoiir- 
 hridge 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, 
 
 ' Grand Surrei/ Canal v. Hall, 1 the use of steam. 
 
 M. & G. 392. * Caldcr and Hcbble Xavigation \. 
 
 - See further as to "Navigation," Tillhuj, 3 Rail. Cas. 735. 
 
 iwst. Chap. VII. * See post, Chap. IX. 
 
 2 Case V. M. Rail. Co., 5 Jui'., "^ Leeds and Liverpool Canal v. 
 
 N. S. 1007. The case was or- Hustler, 1 B. & C. 424 ; Stour- 
 
 dered to stand over for experi- bridge Canal v. Wheeley, 2 B. & A. 
 
 monts to be made by an engineer 793. 
 
 appointed by the Court to ascer- ' 2 B. cS: A. 793. 
 tain the damage to the canal by
 
 CANALS. 309 
 
 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 0's\Tiers 
 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. ^ 
 
 In Britain v. Cromford Canal,^ 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 payable for coal loaded at a place 
 more than two miles from A., although conveyed upon a 
 part of the canal within firo miles of A. 
 
 That was an action of trespass for seizing and detaining 
 plaintiff's barge. Plea the general issue. The justifica- 
 tion of the defendants depended upon a claim of an 
 additional toll of Is. per ton gross tonnage on coal or coke 
 navigated iipon a certain part of the Cromford Canal. 
 The clause under which the claim was made ran : " For all 
 " coal or coke which shall be navigated, carried and con- 
 " veyed upon any part of the said intended canal, from 
 " the place where the said canal shall cross the river 
 " Amber, or for any place within two miles thereof and 
 " passing in the direction of Cromford, the further sum of 
 " one shilling per ton." 
 
 At the trial at the Derby Assizes before Abbott, C. J., 
 it appeared that the plaintiif 's barge, having commenced 
 her voyage at a place more than two miles from the point 
 mentioned in the above clause, had been navigated on a 
 part of the Cromford Canal with coal and coke on board, 
 
 ^ Stourhridge Canal v. Whcclci/, 2 - 3 B. & A. 139. 
 
 B. & Ad. 792.
 
 310 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 witliiu the specified distauco, and tliat she was passing in 
 the direction towards Cromford. The learned judge, at 
 the trial, thought that this did not make the plaintiff 
 liable to pay this additional toll, and a verdict was found 
 in his favour. 
 
 A now trial being moved for, on the ground that the 
 learned judge was mistaken in his construction of the 
 clause, the ride was refused, Abbott, C. J., saying : 
 " I thought at the trial that the words ' navigated from,' 
 " used in this clause, denoted a voyage from the place 
 " where the goods were loaded on board the barge. I 
 "think so stilh" Bayley, J., remarked : "The ground 
 " for this toll was that great expense was incurred by the 
 " company in making this part of the canal. And as 
 " persons who travelled only a short distance on the canal 
 " would pay only a small toll, the legislature provided, 
 " that if that short distance was in this particular sj^ot, 
 " they should pay an additional toll. That reason, how- 
 " ever, does not apply to persons who come from a 
 " distance, and whose ordinary payments, therefore, are 
 " more considerable. I think, therefore, the legislature, in 
 " using this mode of expression, must have contemplated 
 " a voyage commencing within the specified limits. Our 
 " construction may, perhaps, be inconvenient in cases 
 " where that voyage commences just beyond the limits, 
 " but we cannot make a new toll." 
 
 As noted above, the varying of tolls and the regidation 
 of traffic, are now provided for by various general 
 statutes.^ 
 
 The decision in the case of Stride v. Sivansea Canal,- 
 turned on the construction of 8 (^ 9 Vict. c. 28, and of The 
 Raihcaij Traffic Act, 1854 (17 ^ 18 Vict. c. 31). 
 
 A canal company were authorized by their Act to 
 
 • demand a fixed sum for goods carried over any part of 
 
 the canal, which said respective rates should be equal 
 
 1 8 & 9 Vict. c. 28 ; 8 & 9 Vict. 37 & 38 Vict. c. 40, &c. ; see ante, 
 c. 42; 10 Sc 11 Vict. c. 94; 17 & 18 p. 270, n^dpost, Chap. VII. 
 Vict. c. 31 ; 36 & 37 Vict. c. 48; = IG C. B., N. S. 245.
 
 CANALS. 311 
 
 throughout the whole length of the said intended canal. 
 By a subsequent public Act, 8^9 Vicf. c. 28, proprietors 
 of canals were empowered to vary or alter the tolls granted 
 to them, "either upon the whole or for any particular por- 
 " tion or portions of such canals, according to local cir- 
 " cumstances, or the quantity of traffic, or other\vise, as 
 " they should think fit ; " with a proviso that such tolls 
 were to be charged equally to all persons and after the 
 same rate, whether per ton or per mile, in respect of all 
 boats of the like description passing along or using the 
 same portion of canal, and all goods, &c. of the like de- 
 scription conveyed or propelled in a like boat, &c., passing 
 along or using the same portion of the said canal under 
 the like circumstances : — Held, that it was competent to 
 the company to agree to carry at a lower rate for a parti- 
 cular individual in consideration of a larger guaranteed 
 minimum toll, in order to enable them to enter into a suc- 
 cessful competition with rival lines of railway. 
 
 Erie, C. J., said: "It seems to me that the contract 
 " with the Ystalyfera Iron Company falls exactly mthin 
 " the principle which has been laid down as to railway 
 " companies by many cases in this Court, — where it has 
 " been held that the company is guilty of no violation 
 " of T/ie Railwaij Traffic Act, 1854, in carrying large 
 " guaranteed quantities of any description of goods for 
 " long distances in full train loads at lower rates than 
 " they will carry smaller quantities for less distances and 
 " without such rates. I see nothing unreasonable in such 
 
 " an arrangement I am of opinion that the tariff 
 
 " is vaHd." 
 
 Byles, J., remarked : " It seems to me that The Railways 
 " Clauses Consolidalioit Act, 18-15, which is recited in 8 ^^ 
 " 9 Vicf. c. 28, and T/ie Baihcay Traffic Act, 1854, are in 
 " pari niaterid with this Act, and that it ought to receive 
 " substantially the same construction. The proviso in 
 
 " sect. 2 is not absolute The principle adverted 
 
 " to by my lord has been laid down and acted upon in a
 
 312 OF CANALS, AVATER SUPPLY, AND DOCKS. 
 
 " great number of cases in this Court, the most recent of 
 " which is In re Oxlade and The North Eastern Rail. Co} 
 " The same principle was acted upon in the cases of In re 
 " Jones and The Eastern Counties Rail. Co.y- In re Nichol- 
 " son and The South Western Rail. Co."^ 
 
 It has been held that the mortgagee of the toUs 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."^ 
 
 "We will conclude this section with a few remarks as to 
 canal shares,^ though a fidl consideration of this branch 
 of law does not properly come within the scope of this 
 work. 
 Caual 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 com- 
 pany does not contain a clause declaring the shares to be 
 personal property.*" 
 
 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.'' 
 
 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.^ 
 
 1 15 C. B., K. S. 680. see IIuddersfcM Canal v. BucUey, 
 
 • 3 C. B., N. S. 718. 7 T. R. 36 ; Weald of Kent Canal 
 3 5 C. B., N. S. 366. Cf. as to v. Robinson, 5 Taunt. '801; Konvich 
 
 this class of cases, Staffordshire and and Loicestoft XavigationY. Theobald, 
 
 Worcestershire Canal v. Trent and Moo. & Malk. 151; Thames Tunnel 
 
 Mersei/ JS'avif/ation, 6 Taunt. 151 ; Co. v. Sheldon, 6 B. & C. 3-il ; sec 
 
 see Woolrych, p. 308 ; Hex v. Woolrych, p. 50 et seq. 
 Leicestershire and Northamptonshire "^ Edwards v. Hall, 6 De G., M. 
 
 Canal, 3 RaU. Cas. 1 ; see Wool- & S. 74. 
 
 lych, p. 309; also Keppcl v. Bailei/, ' Ex parte Lancashire Canal Co., 
 
 2 Myl. & K. 517. 1 Dea. & Ch. 411. 
 
 * Tibbits V. Yorke, 5 B. & Ad. ^ Robinson v. Addison, 2 Beav. 
 605. 515. 
 
 ^ As to calls for caual shares,
 
 CANALS. 313 
 
 By a canal Act the shares were to be deemed personal 
 property. The canal ran through the dioceses of Worcester 
 and Lichfield. The transfer of shares and payment of 
 dividends was in Lichfield: — Held, that for purposes of' 
 l^robate, the shares, being personal property, might be con- 
 sidered locally situate in Lichfield.^ 
 
 The Court will grant a mandamus to a canal company 
 to enter on their books the probate of the will of a share- 
 holder, leaving any question as to validity of probate to 
 be raised by return to the writ.' 
 
 The law relative to canal tolls, and the rateability of 
 canals and canal tolls, is fully discussed in a future 
 chapter.^ 
 
 IL Water Supphj. 
 
 Water is supplied^ to the public (1) By companies Water supply- 
 having parliamentary powers ; (2) By companies which kkKiTof"^'^*^ 
 have no such parliamentary authority; or (3) By local bodies, 
 authorities,^ — each of which requires a separate notice. 
 
 (1) In the case of companies having parliamentary 2)0ice)'s, Companies 
 a special Act is obtained, with which it is customary ^ntary 
 to incorporate the following general enactments : — The powers. 
 Watericorhs Clauses Acts,1^4:7 and 1863; TJie Lands Clauses 
 Consolidation Acts, 18-15, 1860 and 1869 ; and The Com- 
 panics Clauses Consolidation Acts, 1845, 1863 and 1869.^ 
 
 The preamble of The Watcrworhs Clauses Act, 1817 TheWater- 
 (10 4- 11 Vict. c. 17), « states that it is expedient to com- ^ct? ^^''''''' 
 prise in one Act sundry provisions usually contained in lo & ii Vict. 
 
 c. 17. 
 
 ^ Ex 2}(trte Home, 7 B. & C. 632. debted for most of the materials 
 
 - Bex V. Worcester Canal, 1 M. -^or this section. 
 
 & R. 529. 5 Michael & WiU, p. \\i. 
 
 ' See Chap. IX. ^ An Act for consoUdating in 
 
 * The law relating- to water one Act certain pro^-isions usually 
 supply is manifestly too -wide a contained in Acts authorizing- the 
 subject to be treated exhaustively making of -waterworks for supply- 
 in a work like the present. The ing to-wns with water. Sect. 12 does 
 reader is refen-ed for details to the not empower a company to exe- 
 excellent work of Messrs. Michael cute any -woi'ks not authorized by 
 <fc Will on the Law relating to the special Act ; SimjJson v. South 
 Gasand Water Supply (2nd edition, Staffordshire Watericorks Co., 11 
 1877), to which the authors are in- Jui'., N. S. 453 ; 34 L. J., Ch. 380.
 
 314 OF CANALS, WATER SUrPLY, AND DOCKS. 
 
 Acts of I'arliament authorizing the construction of water- 
 works for supplying towns with water, and that as well 
 for avoiding tlie 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 he 
 " authorized by any Act of Parliament hereafter to he 
 " passed, which shall declare that this Act shall he incor- 
 " poratcd therewith ; 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 theremth as formmg one 
 "Act." (Sect. 1.) The term ''special Act" is defined 
 (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 " prescribed," 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 "^jrc- 
 scribed," the expression "prescribed for that pm^iose in 
 "the special Act" had been used: and the expression 
 " (lie lands and streams"^ 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 expres- 
 sion " tJie undertaldng" shall mean "the waterworks and 
 the works connected therewith by the special Act autho- 
 rized to construct the waterworks."- "Water-rate" is 
 
 • By sect. 3, "/rrwr/s" iueludes under 8 & 9 Vict. c. 18; sec Fer- 
 
 " mcssiiag-e.s, lands, tenements and rand v. Bradford [Mayor of), 21 
 
 " hereditaments, or heritages of Beav. 412 ; 2 Jur., N. S. 175. 
 
 "any teniu'e ; " ^^ streams^'' in- ^ Sect. 3 defines ^^ icater ivories^ ^ 
 
 eludes ' ' springs, brooks, rivers, and to mean ' ' the waterworks and 
 
 " other i-unning -waters." The Act " works connected therewith, by 
 
 places the talcing of streams on the " the special Act authorized to be 
 
 same footing as the taking of land " constructed."
 
 WATER SUPPLY. 315 
 
 defined by sect. 3 to include "any rent, reward or payment 
 " to be made to the undertakers for a supply of water." 
 
 This statute was amended by tlie 26 t^ 27 Vict. c. 93, Waterworks 
 T/ie Watencorks Clauses Ad, 1863,^ sect. 1 of which, after ises!^^ ^ ' 
 reciting the Act of 1847, states that " sundry provisions of 
 " the like nature, but not comprised in the said Act, are 
 " now frequently introduced into Acts of Parliament re- 
 " lating 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 
 IFatencorJis Clauses Act, 1847, and the provisions as to the 
 recovery of penalties contained therein are incorporated 
 with this Act.^ 
 
 The Lands Clauses Consolidation Act, 1845^ (8 Vict. c. 18), The Lands 
 consolidates the provisions usually introduced into Acts soMaUon*^' 
 relative to the purchase of land for public purposes. By -A-cts. 
 sect. 1, it 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 under- 
 " taking." 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 
 
 ^ An Act for consolidating in so}i, 8 W. R. 470. 
 one Act certain provisions fre- ^ An Act for consolidating in one 
 quently inserted in Acts relating Act certain pro'S'isions usually in- 
 to Waterworks. sei-ted in Acts authorizing the 
 
 - By sect. 1, "The two Acts may taldng of Lands for undertakings 
 
 " be cited together as the Water- of a public natiu-e. The preamble 
 
 "works Clauses Acts, 1847 and states the expediency of comprising 
 
 " 1863." For decisious on points in one general Act sundry provisions 
 
 connected with these Acts, cf. At- usually introduced into Acts of Par- 
 
 /t bison V. Gateshead Watencorks Co., liament relative to the acquisition 
 
 2 Ex. Div. 44 ; Bush v. Trow- of lands requu'ed for works of a 
 
 bridge Waterworks Co., L. R., 10 public natiu'e, and to the compen- 
 
 Ch. 459; Metropolitan Hoard of sation to be made for the same, "and 
 
 Works V. Xew Hirer Co., 37 L. T., " that as well for the inrrpose of 
 
 N. S. 124 ; Edgemore Highway " avoiding the necessity of repeat- 
 
 Board v. Colne T alley Water Co., " ing such provisions in each of the 
 
 46 L. J., Ch. 889; Xeic River Co. " several Acts relating to such 
 
 V. Mather, L. R., 10 C. P. 462; see " undertakings, as for insuring 
 
 post, note (•*), p. 318, and note (■'), " greater uniformity in the pro- 
 
 p. 322. See, too, Hildrethy. Adam- " visions themselves." (Sect. 1.)
 
 31G 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 The Lands 
 Clauses Con- 
 solidation 
 Acts, ISGO 
 and 1869. 
 
 The Com- 
 panies Clansos 
 Consolidation 
 Acts. 
 
 Eig-hts of 
 water com- 
 panies. 
 
 *' 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 incorporated 
 " with such Act, form part of such Act, and be construed 
 " therewith as forming one Act." Section 2 defines '^special 
 " Ad" to mean " any Act which shall be hereafter passed 
 " which shall authorize the taldng of lands for the under- 
 " taking to which the same relates, and with which this 
 " Act shall be so incorporated as aforesaid ;" and section 5 
 provides the form in which portions of the Act may be in- 
 corporated with other Acts.^ 
 
 The Acts amending this enactment, and cited with it, 
 are The Lands Clauses Consolidation Acts of 18G0 and 
 1869 (23 ^ 24 Vict. c. 106, and 32 ^ 33 Vict. c. 18). 
 
 T/ie Companies Clauses Consolidation Acts of 1845, 1863, 
 and 1869 (8 Vict. c. 16,^ 26 ^ 27 Vict. c. 118,^ 32 Sf 33 
 Vict. c. 48),'* consolidate the law regulating the constitution 
 of companies incorporated for carrying on undertakings 
 of a public nature. 
 
 Of the powers of companies incorporating these sta- 
 tutes, the authors of " The Law relating to Gras and 
 Water," write : — " Thus authorized, a company may take 
 
 ' " F/'Cscribed,^^ is defined, as in 
 the Waterworks Clauses Act, 1847, 
 sect. 2. The same sect, defines 
 ^' the H-ci;-A-s" or '^t/ic loidirfn/ciiir/s^' 
 to mean the works or undertakings 
 of whatever natiu-e which shall by 
 the special Act be authorized to be 
 executed, and ' ' the promoters of 
 " the undertaking''^ to include the 
 parties, whether company, under- 
 takers, commissioners, trustees, cor- 
 porations, or private persons, by 
 the special Act empowered to exe- 
 cute such works or imdertaking. 
 "Land" includes "messuaj^es, 
 " lands, tenements, and heredita- 
 " ments of any teniu'c." (Sect. 3.) 
 By sect. 6, power is given to pro- 
 moters of undertakings to purchase 
 lands by agreement, and sect. 7 
 enables parties under a disability 
 to sell and convey. For decisions 
 on points connected with these 
 
 Acts, cf. Stone v. Corporation of 
 Yeovil, 2 C. P. D. 99; Jiush v. 
 Trowbridge Water Co., L. R., 10 
 Ch. 459; North Eastern Ilailway 
 Co. V. Elliot, 6 Jur., N. S. 817; 
 New River Co. v. Midland Itailway 
 Co., 36 L. T., N. S. 529 ; see 
 note P), p. 318, and note (3), p. 322. 
 
 - An Act for consolidating in 
 one Act certain provisions usually 
 inserted in Acts with respect to the 
 constitution of Companies incorpo- 
 rated for carrying on undertakings 
 of a public nature. 
 
 ^ An Act for consolidating in 
 one Act certain pro\-isions fre- 
 quently inserted in Acts relating 
 to the construction and manage- 
 ment of Companies incorporated for 
 carrying on undertakings of a pub- 
 lic nature. 
 
 * AnActtoamendTheCompaniea 
 Clauses Act, 1863.
 
 WATER SUPPLY. 817 
 
 " compulsorily lands and streams, subject to the provisions 
 " and restrictions of tlie Lands 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 other- 
 " wise by the execution of the powers thereby conferred, 
 " full compensation for the value of the lands and streams 
 " so taken or used, 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 undertakers."^ The amount of the compensation 
 is to be determined, and the payment enforced in the 
 manner provided by the Lands Clauses Consolidation Acts. 
 For the purpose of constructing waterworks, the under- 
 takers may enter upon the lands and places described on 
 the plans ^ and in the books of reference, and may take 
 the levels and set out parts thereof, and dig and break up 
 the soil, and trench and sough the same, and remove and 
 use earth, stone, mines, minerals, trees, and other things. 
 They may sink wells,^ make, maintain, alter, or discontinue 
 reservoirs, waterworks, cisterns, tanks, aqueducts, drains, 
 cats, sluices, pipes, culverts, engines, and other works, 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 ; and in all cases where it can be done, they are to pro- 
 " vide other watering places, drains, and channels for the 
 
 ^ Michael & Will, p. Iviii et scq. occupiers thereof, on the plans or 
 
 The introduction contains a sum- books of reference may be corrected 
 
 mary of the powers and duties of before the justices subject to the 
 
 water companies. conditions prescribed by the Act. 
 
 ^ Errors, misstatements, and ^ See as to this point, South 
 
 wrong descriptions of any lands, Shields Wafcrirorks Co. v. Cooksofi, 
 
 streams, or the owners, lessees, or 5 L. J., Ex. Ch. 31.3.
 
 318 
 
 OF CANALS, ^VATER SUPPLY, AND DOCKS, 
 
 " 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 sus- 
 " tained by them through the exercise of such powers."^ 
 Provision is made for the settlement by justices of differ- 
 ences as to the construction of accommodation works, for 
 cases where the imdertakers 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- for the 
 purposes of laying pipes.^ 
 
 ^ Michael & Will, p. Iviii et scq. 
 Unless othormse authorized by 
 their special Act, the undertakers 
 must not deviate from the line of 
 the works laid down iu the plan 
 more than ten yards when con- 
 structing' theii" waterworks, nor 
 may they lay down any pipe or 
 other work in any land not dedi- 
 cated to public use without the 
 consent of the owners and occupiers 
 thereof. 
 
 ~ As to sects. 48 and .52 of 10 & 
 11 Vict. c. 17, on this point, see 
 Glover V. East London WaterworJis, 
 16 W. E. 310 ; 17 L. T., N. S. 475, 
 C. P. ; and as to minerals, see Ilnd- 
 dersfield Corporation and Jacomb, In 
 re, 17 L. R., Eq. 476; 30 L. T., 
 N. S. 78 ; 31 L. T., N. S. 466. 
 Rights and •' Michael & Will, p. Iviii et 
 
 liabilities of scq. For the rights and duties 
 water com- generally of bodies exercising sta- 
 panies. tutory powers, see ante, p. 261 et 
 
 seq. ; it will be useful here, how- 
 ever, to note some of the leading 
 decisions relative to the rights 
 and liabilities of water companies 
 which, while prevented by the 
 law from unduly trenching on the 
 rights of the public, are at the 
 same time protected from harassing 
 actions by individuals which other- 
 wise intei-fcre with the discharge 
 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. 
 
 In Atkinson v. Gateshead Water 
 Co., 2 E.x. Div. 441, the plaintiff 
 
 brought an action for damages 
 against the company for not keep- 
 ing their pijies charged as re- 
 quired by their Act, whereby his 
 premises were burnt down. Under 
 the Waterworks Clauses Act, 1847, 
 the company were bound — (1) to 
 maintain fire plugs, sects. 33 — 43 ; 
 (2) to furnish a sufficient supply of 
 water for certain public piu-poses, 
 sect. 37; (3) to keep pipes to wlaich 
 fire plugs are affixed at a certain 
 pressure at all times, and to allow 
 all persons to use it for extinguish- 
 ing fii'e at all times, ■\\'ithout pay- 
 ment, sect. 42. (4) To supply all 
 owners with sufficient water for 
 domestic purposes, sect. 35. A 
 penalty of 10/., of which one- 
 half may be awarded to the in- 
 foi-mer, is imposed for each breach, 
 and for breaches of duties (2) and 
 (4) they are to forfeit 40/. a day, 
 sects. 37 and 43:— Held (rever.sing 
 the decision of the Coiu't of Ex- 
 chequer), that the statute gave no 
 right of action. Per Cockbiim, 
 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, 
 New River Co. v. Johnson, 6 Jur., 
 N. S. 374 ; Blagrove v. Bristol 
 Watcrn-orhs Co., 1 H. &ISr. 369 ; 20 
 L. J., Ex. Ch. 57 ; Barber v. Not- 
 tingham and Grantham Bail. 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 iu the 
 owners on each side. On an action 
 being brought by a firm who had
 
 WATER SUPPLY. 
 
 319 
 
 On the other hand, as respects the rights of the public, Rights of 
 " Owners and occupiers are entitled to demand a supply * ^^ puolic. 
 
 contracted with K., owner of the 
 soil on both sides, to make a cut 
 through the embanknaent on which 
 the road and pipes were carried over 
 his soil for the stoppage of their 
 works by an escape of water from 
 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 plain- 
 tiffs could not. ' ' If we did so 
 ' {i.e. held defendant liable), we 
 ' should establish an authority for 
 ' saying- that in such a case as 
 ' Fletcher V. litjlands, the defendant 
 ' would be hable, not only to an ac- 
 ' tion by the owner of the di'owned 
 ' mine, and by such of his 
 ' workmen as had their tools de- 
 ' stroyed, but to an action by 
 ' every worknian employed in the 
 ' mine, who in consequence of its 
 ' stoppage made less wages." 
 BlackbiuTi, J. ; Cattle v. Stoclcton 
 Water Co., L. E,., 10 Q. B. 453. 
 
 An Act, incorporating The Water- 
 works Claiises Act, 1847, empowered 
 the Trowbridge Water Company 
 to divert the water of certain springs 
 forming the principal supply of a 
 brook. The oMTier of a water 
 meadow below through which the 
 brook subsequently flowed, alleged 
 by bill thatthe water was materially 
 diminished, and prayed that defen- 
 dants might be restrained and com- 
 pelled to treat for the purchase of 
 her interest under the 1 8th clause of 
 The Lands Clauses Act. It was 
 held, that not being an owner of 
 anything "taken" under the Act, 
 she could not compel defendants to 
 treat for pui'cliase, and her proper 
 remedy was to apply for compensa- 
 tion for lands injuriously affected. 
 James, L. J., said, " I am of opi- 
 " nion that it is impossible in any 
 " legal or other sense of the words 
 " to say that she was the owner or 
 ' ' occupier of anj-thing which they 
 " entered on or took. They en- 
 " tered on the channel or bed of a 
 " stream somewhere above plain- 
 " tiff's land, and there they took 
 
 " by way of diversion water for 
 " purjDoses of their waterworks, 
 ' ' which water, to put the ease 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 
 " Avliich a person is the O'mier or 
 " occupier of a stream runrdng 
 " through his land, that is to say, 
 " the water -n-ould have then be- 
 ' ' come within the ownershiiJ, and, 
 " to some extent, witldn the oc- 
 " cupancy of the plaintiff'. But 
 " when it was intercepted by de- 
 " fendants just as if it had been 
 " intercej)ted by any other riparian 
 " proprietor, although it might 
 " have become part of her pro- 
 " perty, the water which was ac- 
 " tually intercepted was not her 
 " projDerty ;" Bush v. Trowbridge 
 7rffCcrC'o.,L. R., 10 Ch. 459. See, 
 too, Si»ipso?i V. South Stafordshire 
 TFatenrorks Co., 11 Jur., N. S. 453 ; 
 34 L. J., Ch. 380 ; 13 W. R. 729 ; 
 A.-G. V. Bristol JFaterworks, 10 
 Ex. Ch. 884; 24L. J., Ex. Ch. 205. 
 In Waller v. Mayor of Manehester, 
 6 H. & N. G67, the defendants 
 Avere empowered to construct a 
 reserA'oir, but were not to divert 
 the waters of the river Etherow 
 till it was completed. They wei'e 
 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 ri^^er Etherow till 
 they had commenced to discharge 
 seventy-five feet per second. De- 
 fendants made a reservoir which, 
 tlu'ough engineeriug difficulties, 
 was never completed, but they di- 
 verted 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 coimt, for diverting the water; 
 3rd and 4th counts, claiming da- 
 mages from the defendants for not
 
 320 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 " of water for domestic purposes,^ only where tliey have 
 " laid down communication pipes, and paid or tendered 
 
 supplying seventy-fiv^e cubic feet. 
 —Defendauts paid money into Coiu't 
 as to the 1st count; as to the 3rd 
 and 4th they pleaded that the re- 
 servoir had not been finished so as 
 to make it their duty to sujoply the 
 water: — Held, that the plea was 
 good, and the plaintiff's 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 plain- 
 ' ' tiffs did not think fit to interfere 
 " by mandamus or injunction, but 
 " suffered the defendants to inter- 
 ' ' cept the water for more than six 
 " years. Under the circumstances 
 " plaintiffs are only entitled to 
 " damages for getting less water 
 " from the natural stream." — Pol- 
 lock, C. B. 
 
 By sect. 41 of the New River 
 Company'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 Metro- 
 politan 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 "Waterworks Clauses 
 Act, 1847 ; Metropolitan Board of 
 Works V. Xeiv Miver Co., 37 L. T., 
 N. S. 124. 
 
 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. \. Bennett (L. R., 
 8 Ex. 196, 1873) the defendant was 
 the owner of various tenements, 
 for which he paid poor rates, water 
 rates, &c. By theii* Act the jilain- 
 tiffs were bound to supply houses 
 within a certain district with water 
 at following rate per annum — i. c., 
 where the rent was 71., at not ex- 
 ceeding G 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). Sec, too, Side- 
 bottom V. Glossop Reservoir, 1 Ex. 
 Ch. 611, Ex. Ch. ; Rook\. Liverpool 
 [Mayor of), 7 C. B., N. S. 240. 
 
 Sect. 43 of the Waterworks 
 Clauses Act, 1847 (10 & 11 Vict, 
 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 duiing 
 " 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 10^., 
 " and shall also forfeit to every 
 " person having paid or tendered 
 " the rate, the sum of 40s. for 
 " every day during which such 
 ' ' refusal or neglect shall continue 
 ' ' after notice in writing shall have 
 " been given to the undertakers of 
 " the want of supply." By sect. 
 74 of the same statute, it is pro- 
 \aded that ' ' if any person supplied 
 " with water neglect to pay the 
 " water-rate, the undertakers may 
 ' ' stop the water from flowing into 
 " the premises, by cutting off the 
 " pipe to such premises, or by such 
 " means as the iindertakers shall 
 " think fit." 
 
 A tenant of premises supplied 
 by a comjiany with water having 
 failed to pay the water-rate, the 
 company, under the powers con- 
 ferred on them by sect. 74, severed 
 the communication with their main 
 pipes. A subsequent tenant de- 
 manded a supply of water for the 
 
 ^ As to what are ' ' domestic pur- 
 poses," see Bnshi/ v. Chesterfield 
 Waterworks, EL Bl. & El. 176 ; 27 
 L. J., M. C. 174, and ante, Chap. 
 III. p. 116.
 
 •WATER surrLY. 321 
 
 " the water rate ^ payable in respect 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 
 " superintendence 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 ho 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 bo 
 " between the pipes of the company and his house, build- 
 same premises, tendering to the with their main pipes ; Sheffield 
 company the current quarter's rate, Watcricorls Co. v. Wilkinson, 4 C. 
 and the estimated expense of re- P. D. 411. See, too, Purncll v. 
 storing the communication, but the Wolrcrhrimpton New Waterworks Co., 
 company refused to supply the 10 C. B., N. S. 576 ; Weak v. W. 
 water until the arrears due from ]\[iddlescx Watencorks Co., 1 J. & 
 the former tenant were paid. A W. 358 ; West Middlesex Water- 
 magistrate having convicted the works Co. v. Suerkrop, 4 C. & P. 
 company under sect. 43 of the Act 87 ; Cardiff {Mayor of) v. Cardiff 
 for such refusal, it was held that, Waterivorks Co., 5 Jur., N. S. 953; 
 although the company were not Bafeman v. Ashton-under-Lyne , 27 
 warranted in refusing to supply L. J., Ex. Ch. 458 ; 3 H. etN. 323. 
 water to the incoming tenant until ^ Sect. 3 of 10 & 11 Vict. c. 17 
 
 the arrears due to them as above defines "«■«(" tv-ra^c" as " any rent, 
 stated were paid, they could not be ' ' reward, or payment to be made to 
 made liable to the penalties im- " the undertakers for a supply of 
 posed by sect. 43 until he himself " water." See Sheffield Waterworks 
 had restored the communication Co. v. Wilkinson, siq^ra.
 
 OF CANALS, -WATER SIPPLY, AST) DOCKS. 
 
 " ing, or promises, or any sewer or clivain therein," but 
 doing as little damage as possible. The owners of all 
 dwelling houses, or parts of dwelling bouses, occupied as 
 separate tenements, where the annual value does not 
 exceed 10/., are liable to the payment of the water rates, 
 instead of the occupiers thereof.^ 
 
 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. The undertakers are bound to keep a 
 supply of water for public pui'poses, such as fire plugs, 
 cleansing sewers, drains, &c., and for supplying public 
 pumps. They are also authorized to provide a supply for 
 trade and other piu-poses ; and special regulations are 
 made for the case where companies are employed to 
 supply by meter. 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.^ By both 
 the Water "Works Clauses Acts, the waste of water is 
 prohibited by strict provisions.^ The 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 Michael & Will, pp. Iviii ct thus created should from time to 
 
 seg. time take measures to prevent the 
 
 - It is provided, ' ' that the i^rofits occiuTcnce of any inconvenience or 
 
 " to be divided among the under- injury which the effecting siich 
 
 " takers in any year shall not purpose may occasion, not only in 
 
 " exceed 10 per cent, on the paid- the original execution of theneces- 
 
 " up capital, unless a larger di\-i- saiy works, but at recun-ing in- 
 
 " dend be at any time necessary tervals. 
 
 ' ' to make up the deficiency of any Thus, where a company incor- 
 
 " previous dividend wliich shall poratcd for suppljdng mill- owners 
 
 " have fallen short of that rate ;" on the Bann were empowered to 
 
 Michael & "Will, p. lx^•iii. make a reservoir, and to send the 
 
 3 Some of the principles regu- water, when necessary, doT;\Ti a 
 
 lating the ditties of water com- special channel, and also to enter 
 
 panics may be here conveniently on the lands of different streams, 
 
 noticed. It is a primary duty and to scour the channels, it was 
 
 where persons are by an Act of held, that they were responsible 
 
 Parliament incorporated for a .spe- for damage caused by an ovei-flow 
 
 cial purpose with full powers arising from their neglecting to 
 
 for executing it, that the body keep the special channels scoured,
 
 WATER SUPPLY. 
 
 323 
 
 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 parliamentanj ^micers. — Where Companies 
 
 haTin"- no 
 
 since they "were bound under the 
 Act to see that the due execution 
 of their works shoiild not be in- 
 jurious to the lands on the banks 
 of the channel ; Geddis v. Bann 
 Jieserroir, 3 App. Cas. 430. See 
 ante, p. 266. 
 
 So, too, it is incumbent (under 
 the Waterworks Clauses Act, 1847, 
 sect. 31) on a water company in- 
 tending to break up roads to com- 
 municate beforehand the plan to 
 the road authority, and this is 
 suf&cient to enable the road au- 
 thority to judge whether it re- 
 quires any modification, and it 
 rests with the water company, in 
 case of its disapproval, to apply for 
 the determination of two justices 
 before proceeding to commence 
 operations ; Edgemore Highicay 
 Board Y. Colne Valley Water Co., 46 
 L. J., Ch. 889. 
 
 "With regard to questions of 
 compensation for injiu-ies to land 
 which may arise with reference to 
 the Lands Clauses Act, 1845, a 
 company would appear to be bound 
 by the terms of theii- agreement, 
 even though they fail to carry 
 them out in entirety. On this 
 point Stone v. Corporation of Yeovil 
 (2 C. P. D. 99) is instructive. 
 There the defendants, a water 
 company, were empowered by an 
 Act iucorjDorating the Lands and 
 Waterworks Clauses Acts to take, 
 use and divert certain, streams, 
 and, amongst others, that of the 
 plaintiff, a mill-owner. Defen- 
 dants gave plaintiff notice of their 
 intention to take all the stream, 
 but actually took half only. To a 
 statement of claim by the plaintiff for 
 939/. pennanent damages awarded 
 to him by a survej'or for the abstrac- 
 tion of the whole stream, the defen- 
 dants demuiTcd, 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, however (affirming the de- 
 cision in the Common Pleas Di- 
 vision), that they had such power, 
 and that, having given notice of 
 an intention to purchase the whole, 
 they were bound to make com- 
 pensation 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 in- 
 juriously aft'ecting property, the 
 statement showed a good agTce- 
 ment by a limited owner for per- 
 manent injiuy under sects. 9 and 
 68. In cases of disputes regarding 
 the payment of rates, sect. 68 of 
 the Waterworks Clauses Act, 1847, 
 provides that the question of annual 
 value is to be determined by two 
 j ustices. 
 
 This provision would appear to 
 override an3rthing to the contraiy 
 in any private Act incorporating 
 it. Sect. 46 of the New River 
 Act, which incorporates the Water- 
 ■n'orks Clauses Act, enacted ' ' that 
 " nothing in this Act, or any Act 
 " incorporated therewith, is to 
 " prevent the company from re- 
 " covering any sum not exceeding 
 " oOL, due as water rates, &c., by 
 " an action as provided." But it 
 was held in The Xeiv Eiver Co. v. 
 Mather (L. P., 10 C. P. 442), 
 that where a bona fide dispute as to 
 value arises, the company, before 
 they can sue, must obtain a decision 
 of justices. 
 
 Closely connected with the duty 
 incumbent on companies to prevent 
 injury, noticed above {Geddis v. 
 Bann Reservoir, 3 App. C. 430), is 
 the question of responsibility for 
 mischief caused through negli- 
 gence. 
 
 In an action against a Avater com- 
 pany for so managing their pipes 
 that they burst, and, water es- 
 caping, injured the plaintiff's pre- 
 mises, it was shown that there was 
 an extraordinary frost, and that 
 the turncock had examined the 
 
 Y 'Z
 
 324 
 
 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 pariiamcutary such bocUcs undertake to supply water it is to bo noted 
 powcih. ^-^^^ ^l^^y -^^^ ^l^g^, pipes in streets and public ways at 
 
 plug, and packed it with straw and 
 ice on the 29th Novomhor : it was 
 doubtful, however, whether ho had 
 looked at it after. It burst on tlie 
 29th December. Held, that there 
 was some evidence of neghgencc to 
 go to the jury ; Stcgglcs v. Xiw 
 River Co., 13 W. R. 413. 
 
 In Harrison v. SontJi Jl^csicrn Bail. 
 Co. (10 Jur., N. S. 992) the defen- 
 dants were charged with the duty 
 of repairing 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 de- 
 fendants were liable, although there 
 was an obligation on others which 
 they did not perform ; Pollock, 
 C 13., observing, inter alia, that 
 " there was nothing in the matter 
 "of so extraordinaiy a character 
 " as that the defendants wei'e not 
 " boiind to anticipate 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 stop- 
 " ping 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 
 negligence, a plea must be express 
 and not too general. Thus where 
 damages were claimed by a plain- 
 tiff from the East London Water- 
 works Company for neglect 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 purposes other than 
 those in respect of which rates were 
 paid, it was pleaded by the com- 
 pany : 
 
 1st. That the fire-plug 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. Eaat London 
 Watcrivorks, 2G L. T., N. S. 475. 
 
 Wliere, however, a water com- 
 pany 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 precautions 
 were not sufficient in an exceptional 
 circimistance (as, for instance, a 
 winter of extreme cold, such as no 
 man could have foreseen) , will not 
 render them so ; Blt/th v. Birminci- 
 ham Water Co., 11 Ex. 781. As to 
 vis major, see ante, p. 138 et seq. 
 
 Again, no action at common law 
 lies against the owner of land by a 
 person who has strayed fi'om the 
 public highway, and fallen into a 
 reservoir or any excavation near to 
 but not substantially adjoining it ; 
 Hardcastle 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 landowTier 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 
 between the land-o^vner and the 
 company. A water company in- 
 corporated by a special Act incor- 
 porating th e Lands and Waterworks 
 Clauses Acts def)osited plans show- 
 ing theii' intention to make a tim- 
 nel through the plaintiff's laud 
 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 West- 
 biuy, L. C, they were not entitled 
 to do so ; Simpson v. Sonth Stajford- 
 sJtire Waternorks, 11 Jur., N. S. 
 453 ; 34 L. J., Ch. 380. 
 
 It may be convenient to note
 
 WATER SUPPLY. 325 
 
 their peril, being liable to an indictment 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. They have also no power to acquire 
 lands and water, or to levy tolls or charge rates or rents, 
 save by agreement.^ 
 
 Both projected companies and those already existing^ 
 can, however, by means of The Gas and Water Facilities 
 Aet, 1870 (33 Sf 34 Vict. c. 70), ^ 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 water- 
 " works and works connected therewith, or to supply 
 " water in any district within which there is not an 
 " existing company, corporation, 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 amal- 
 " gamate their undertakings." Lastly, by sub-sect. 5, 
 
 here that the princij^le that a and sold the surj^his ; Halifax v. 
 
 grantor knowing the purposes for SootJiill, 31 L. T., N. S. 6. 
 which his conveyance is accepted It has been decided that a water 
 
 cannot derogate therefrom, applies company has no claim to com- 
 
 to a compulsory sale by Act of pensation for interest in land under 
 
 Pai'liament ; but that such prin- sect. 68 of the Lands Clauses Act, 
 
 ciple does not apply to an acci- 1845, because their pipes are laid 
 
 dental state of cii-cumstances, such under such land ; New River Co. 
 
 as the flooded state of a mine at v. Midland Rail. Co., 36 L. T., N". 
 
 the time of the conveyances ; N. S. 539. See, too. Ward v. IFolver- 
 
 E. Rail. Co. v. Elliot, 6 Jul'., N. S. hampton Waterworks Co., 41 L. J., 
 
 817; 10 H. L. Cas. 333. Ch. 308; Clowes v. Staffordshire 
 
 It would appear that a water Potteries Waterworks Co. 27 L. T., 
 
 company has no right to interfere N. S. 521. 
 Avith the sale of water for a profit so ^ Michael & "Will, p. Ivi. 
 
 supplied by them to a township, - " An Act to facilitate in certain 
 
 A^'here the a greement merely stated ' ' cases the obtaining of powers for 
 
 that the company should supply " the construction of Gas and 
 
 not more than 75,000 gallons, nor " Waterworks, and for the sujiply 
 
 less than 25,000, and the township " of Gas and Water." 
 took more than 25,000 gallons,
 
 326 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 " two or more companies or persons supplying gas or 
 " water in any district, or in adjoining districts," can be 
 autliorized " to manufactiu'e gas or to supply water, and to 
 " enter into agreements jointly to furnish sucli 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,' ac- 
 " cording as the same relate to the supply of gas or water; 
 *' provided that any gas or water company empowered as 
 " aforesaid may apply for and avail themselves of the facili- 
 " ties 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, association, or person for carrying out the 
 above purposes (sect. 4), the Board of Trade being em- 
 powered to consider any application or objection thereto 
 (sect. 6), and if it be deemed expedient to make the 
 provisional order. The IFatcncorliS Clauses Acts, 1847 
 and 1863, and the Lands Clauses Consolidation Acts of 
 1845 and 1860, are, by sect. 10,^ to be incorporated with 
 such provisional order, save where varied thereby. 
 
 This enactment was amended by 36 ^- 37 Vict. 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 metro- 
 polis as defined by T/ie Metropolis Management Act, 1855. 
 
 It remains to notice a few points respecting — 
 Local autho- (3) Local autJioriUcs cmpou-cred to supply water . — 10 i^ 11 
 
 iig^'matcr!^^" y'^<^i- c- 34 {The Towns Improvement Clauses Act, 1847)3 
 
 \Qk 11 Yict. 
 
 c. 34. ' Cf. sect. 1 of 33 & 34 Vict. c. imdertaking. 
 
 70. Sect. 10 excepts, so far as re- - "An Act to amend the pro- 
 gardsthe incorporation of the Lauds "visions of the Gas and Water- 
 Clauses Consolidation Acts, the " works Facilities Act, 1870." 
 provisions (1) with respect to the ^ "An Act for consolidating in 
 purchase and taking of lands, other- " one Act ccrtahi pro^■isions iisually 
 ■wise than hy agreement ; and (2) " contained in Acts for paving, 
 ■with respect to the entiy upon " draining, cleansing, lighting, and 
 lauda by the promoters of the " improving towns."
 
 WATER SUPPLY. 327 
 
 made some provision in this respect (sects. 121 — 124), and 
 
 incorporated The Lcmds Clauses ConsoIidatio)i Act, 1845 
 
 (sect. 19). It was, however, superseded as regards water 
 
 hj 11 4" 12 Vict. c. 63 {The PuhUc Health Act, 1848), ii&i2Vict. 
 
 imder 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 waterworks, 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 TJie 
 
 Lands Clauses Consolidation Act, 1845 (sect. 48), excepting 
 
 such enactments as related to the purchase and taking of 
 
 lands otherwise than by agreement.^ 
 
 These powers were supplemented by 21 (^22 Vict. c. 98 21 & 22 
 [The Local Government Act of 1858),^ 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 laud, by obtaining a 
 provisional order, to be afterwards confirmed by Parlia- 
 ment. This Act was further amended by 24 ^ 25 Vict. c. 61. 
 
 The Sanitary Acts of 1866 and 1874^ extended to sewer 29 & 30 
 authorities the powers given to local boards ; the latter 37 ^ 33 
 statute incorporating the powers of the Lands Clauses Act, ^i^t. c. 89. 
 and authorizing sanitary authorities to purchase, either 
 within or without their districts, any land covered with 
 
 1 Cf . Michael & Will, p. Ixviii. amended by the Local Government 
 
 - " An Act to amend the Public Act, 1858, Amendment Act, 1861 
 
 " Health Act, 1848, and to make (24 & 25 Vict. c. Gl). 
 
 " fiu'ther provisions for the local ^ 29 & 30 Vict. c. 90, Sanitary 
 
 " government of towns and popu- Act, 1866 (ss. 11 — 13) ; 37 & 38 
 
 " lous places." Sects. 51 — 53 deal Vict. c. 89, the Sanitary Law 
 
 specially with water. The Act was Amendment Act, 1874.
 
 OF CANALS, AVATER SUPPLY, AND DOCKS. 
 
 water, or any water, or right to take or convey water ^ 
 (sects. 31 — 33). 
 
 The PuhUc Health Ad, 1875 (38 ^' 30 Vict. c. 55), 
 repeals all tlie statutes noticed above, consolidating, and, in 
 some respects amending, the law.- 
 
 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 therein, or any 
 part of such place, with " a supply of water proper and 
 " convenient for public and private purposes," and for 
 those purposes or any of them may — 
 
 (1) Construct and maintain waterworks, dig wells, and 
 do all other necessary acts ; 
 
 (2) Take on lease or hire any waterworks, and, with 
 the sanction of the local government board, pm'chase any 
 waterworks 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 
 
 (3) Contract with any person for a supj)ly of water.^ 
 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. 17G), unless they have acquired by agree- 
 
 ' Eut the compulsory powers of give ■written notice to any such 
 
 purchase contained in the said water company, within whose limits 
 
 Lands Clauses Act shall not be of supply they are desirous to 
 
 exercised, except in pursuance of supjjly water, before beginning to 
 
 a provisional order of the Local construct ; and so long as any com- 
 
 GoveiTunent Board (sect. 33). pauy are able and willing to supply 
 
 - Michael & Will, pp. Ixxiv — water, proper and sufficient for all 
 
 Ixxxiii. reasonable pm-poses for wluch it is 
 
 3 Their powers are, however, reciuired by the local authority, it 
 
 limited in that where there exists is not lawful for the latter to con- 
 
 a water company empowered by struct any waterworks w^ithin such 
 
 Act of Parliament, or any order limits (sect. 52). Differences as to 
 
 confirmed by Parliament, to svipply being able and w-illing to supply 
 
 water within the district of the to be settled by arbitration ; see 
 
 local authority, and exercising such sects. .52 and 179 — 181; and cf. 
 
 powers within the limits of their sects. 53, 54, for provisos asto notice, 
 special Act, local authorities must
 
 WATER SUPPLY. 329 
 
 ment the necessary lands and easements for their "water- 
 works ; and in order to do this they must publish the same 
 notices by advertisement in the local papers, and serve the 
 same notices on owners, lessees, and occupiers, as if they 
 were proceeding for an Act of Parliament (sect. 176).^ 
 Water 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 pm-e and wholesome supply of water is 
 imposed on local authorities (sects. 55, 176), and they 
 have now all the powers of The TFafencorks Clauses Act, 
 1863, and many of those of The Wafencorks Clauses Act, 
 1847, — such, for instance, as those relating to the breaking 
 up of streets for the purpose of laying pipes, the laying 
 of communication pipes, and the waste and misuse of 
 water and recovery of water rates.^ 
 
 1 Sect. 4 defines "/««(fs" as sects. 68 — 70, as to provisions for 
 
 "messuages, buildings, lands, the protection of water ; sects. 270 
 
 " easements, and hereditaments of and 279, as to the formation of 
 
 " any tenure ;" but as this defiui- united districts for water supply ; 
 
 tion does not include water rights, and sects. 229, 277, as to special 
 
 local authorities must obtain a drainage districts, for the purpose 
 
 private Act, and not a pro^-isional of charging thereon exclusively the 
 
 order, where their intended water- expense of works ; of. Michael & 
 
 works involve the abstraction of Will, pp. Ixxv — Ixxxvui. 
 
 water from rivers, streams, &:c.; By sect. 52, it is required that 
 
 sect. 176 ; see Michael & Will, pp. a water company, contracting to 
 
 Ixxvii, 444. supply a district, must be both 
 
 - The following provisions are "able and willing;" and such com- 
 noteworthy : — They may supply pany must be able therefore to 
 water by measure (sect. 58), and show not only that it has the ne- 
 supply baths and washhouses (sect. cessaiy powers, but also that it 
 65) . The duty is imposed on them of can f lu-nish the requisite supply of 
 supplying fire-plugs (sect. 66), and water. Where there were two corn- 
 watering streets (sect. 148). Sect. panics, one of which had powers, 
 64 vests in them all existing public but no water, and the other water, 
 cisterns, pumps, wells, <fcc., and but no powers, and the first com- 
 places them under their control; pany sold its plant, «S:c. to the 
 and sect. 61 empowers local autho- other, several members of which 
 rities to supply water to the dis- bought all the shares in the first, 
 tricts of other authorities. See also with the view of exercising all its
 
 330 0¥ CANALS, WATER SUrPLY, AND DOCKS. 
 
 The above brief sketch of the statutes dealing with 
 water supply may be fitly concluded by a mention of the 
 
 Other cuact- following enactments which are connected with the subject. 
 '_ 14 Sf 15 Vicf. c. 34 {The Labouriiifj Classes Lodginy 
 
 Vict. c. 34. Houses Act, 1851) authorizes water companies and com- 
 missioners or trustees of waterworks or other persons 
 having the management thereof, to supply in their dis- 
 cretion water to lodging houses established under the 
 Act, " either without charge, or on such other favourable 
 " terms as they shall think fit."^ 
 
 35 k 3G 35 8) 3G Vicf. c. 91 {The Mumci2X(l Corporations {Borough 
 
 Funds) Act, 1872) provides for the manner in which local 
 authorities must proceed in order to oppose or promote any 
 bill in Parliament.^ 
 
 38 & 39 38 (^ 39 Vicf. c. 86 {The Consjnracij and Protection of 
 
 Froperfij Act, 1875) is noteworthy as containing provisions 
 to protect local authorities and communities from ma- 
 licious breaches of contract in connection with water 
 supply.^ 
 
 40 & 41 The Limited Owners' Reservoirs and Wafer Sujjpl// Further 
 
 Vict. c. 31. jTacimies Act, 1877 (40 8f 41 Vict. c. 31), enables landowners 
 of limited interests 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 subscriptions for the construction of 
 railways and navigable canals under The Lnprovonent of 
 Land Act, 1804, sects. 6, 7, 8, &c.'' 
 
 EatcabUity. The rateability of water companies will be treated of in 
 a subsequent chapter." 
 
 po-v\-£r.s, it was held that such ^ ji^ p_ Lxxxiii. " Au Act for 
 
 powers could not be so delcg-ated; " amending' the Law relating to 
 
 Itichmond and Southivark Water- " Conspiracy and to the Protection 
 
 xcorks Co.\. EicJunond Ve.stnj, 3 Ch. " of Property, and for other pur- 
 
 D. 82. " poses;" sects. 4, 5, 14, 15, 18, 19. 
 
 ^ Michael & Will, p. Ixvi. * 27 & 28 Vict. c. 114. 
 
 - lb. p. Ixxxiv. s Bee post, Chap. IX.
 
 DOCKS. 331 
 
 III. Docks. 
 
 Docks ^ usually consist of a series of basins connected by Definition, 
 locks, together wtli quays, wharves, and warehouses, and 
 are used for the convenience of unloading cargoes from 
 vessels, as well as for refitting and repairing ships that 
 have sustained damage during a voyage. 
 
 Though they are always erected in connection with some Ownership of. 
 port or harbour, t]iey are quite distinct therefrom ; the 
 property in a port, and that in the docks situated within 
 the town, which is the head of the port, being frequently 
 in diiferent persons, as is the case both in the Liverpool 
 and the London Docks.- 
 
 They may be in the hands either of trustees for the 
 public benefit,^ or of a company of adventurers ; ^ but in 
 each case they are usually established imder a special Act 
 of ParKament, by which the rights and duties of the pro- 
 prietors are defined; and when that is the case, they can- 
 not be exceeded.^ When 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.*" 
 
 The number of special Acts relative to docks led to the 
 passing of The Harbours, Docks, and Piers Clauses Act, 
 1847 (10 (^'11 Vict. c. 27), the preamble of which recites 
 that, "it is expedient to comprise in one Act sundry pro- 
 " visions usually contained in Acts of Parliament autho- 
 " rizing the construction or improvement of harbom's, 
 " docks, and piers, and that, as well for avoiding the neces- 
 " sity of repeating such provisions in each of the several 
 " Acts relating to such undertakings, as for ensuring a 
 " greater uniformity in the provisions themselves" (s. 1.) 
 
 ^ As to docks, see also ante, Eailw. Cas. 599. 
 
 Chap. I. p. 43. 5 Gxmning on Tolls, p. 123. 
 
 - Gunning on Tolls, p. 129. ^' AUnut v. Inglis, 12 East, 527 : 
 
 ^ Mcrscij Docks v. Gibbs, L. R., 1 and see Gunning, p. 123. For the 
 
 II. L. 90. subject of dock dues, see 2'ost, 
 
 ■* lte(/. V. Briatol Lock Coiiqxai>/, 2 Chap. IX.
 
 332 OF CANALS, WATER SUPPLY, AND DOCKS. 
 
 By this statute, wliicli is framed on the model of the 
 Lands Clauses and Waterworks Clauses Consolidation 
 Acts, various x^rovisions usually contained in Acts creating 
 dock companies 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 therewith" (sect. 1); the term 
 " the loidcrtah-crs" beuLg defined by sect. 2 to mean "any 
 " person authorized by a special Act to construct any 
 " harbour, dock, or pier."^ 
 
 It is, however, to the special Act that reference must be 
 made, to ascertain the rights of the dock proprietors ; that 
 Act constituting the form of contract 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- 
 
 By Act of Parhament, 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 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 ; 
 Lord Tenterden, C. J., saying, " The plaintiffs cannot 
 " claim anything that is not distinctly given." ^ 
 Liability of The principle on which a private person or a company 
 
 panies. is liable for damages occasioned by the neglect of servants, 
 
 applies to a corporation which has been entrusted by 
 
 ' For other general statutes re- B. & Ad. 793 ; Blakemorc v. Gla- 
 
 lating to docks, see ante. Chap. I. morfjanshirc Canal, 1 M. & K. 1G2, 
 
 p. 44 ; and;>o«;, Chap. VII. 169 ; aud Lord Brougham's judg- 
 
 - UiiU Bock Co. V. La Marchc, 8 ment in Stockton and Darlington 
 
 B. & C. 51. See too Leeds and liailuai/ v. Barrett, II C. &F. 590 ; 
 Liverpool Canal v. Hustler, 1 B. & 8 Scott, N. E,. 641. 
 
 C. 424 ; Lord Tenterden's remarks •> Kingston-on-Utill Dock Co. v. 
 in Stourbridge Canal v. Wluchj, 2 La Marche, 8 B. & C. 42.
 
 DOCKS. 333 
 
 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 them- 
 selves 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.^ 
 
 On these principles, dock trustees were held liable to 
 the owners of ships in actions for damages caused to them 
 by negligently managing a harbour under their control.- 
 
 In the case of Cos v. JFise,^ it was held, on this principle, 
 that commissioners, authorized by Act of Parliament to 
 make and maintain a sluice, which bm'st owing to the 
 negligence of their servants, were not exempt from liability, 
 by reason of tlieir being commissioners 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. 
 
 When the Bristol Dock Company were authorized to 
 make a 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.'* 
 
 ^ Mcrsci/ Dock Trustees v. Gibbs, Mcyscy Dock Co. v. Glhhs, L. R., 1 
 
 L. R., 1 H. L. 90 ; 11 H. L. Cas. 11. L. 90. 
 
 686 ; 12 Jur., N. S. 571. * Rcq.\. Bristol Dock Co., 2 Railw. 
 
 3 lb. Cas. 599. 
 
 3 L. R., 1 Q. B. 711, foUowing
 
 OF CANALS, WATER STTPPLY, AND DOCKS. 
 
 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 
 liouses 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 appre- 
 hension of injury to the navigation, though no actual in- 
 jury, it was hold that a mandamus should issue to compel 
 the defendants to repair.^ 
 
 Their Act of Parliament directed the Bristol Dock Com- 
 pany 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 re- 
 quired 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.- 
 
 On the other hand, 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 injm-ious to the rights of others. 
 
 The London Dock Company were empowered to make 
 a new entrance to their dock, and to take down houses and 
 stoppages. Every person having an estate or interest, not 
 less than a tenancy from year to year, \\]\o should be 
 injured in his said estate or interest by the making of any 
 
 1 Jiet/. V. J3ristol Dock Co., 11 - Jie.r x. Bristol Dock Co., 6 B. & 
 
 RaUw. Cas. 542. C. 181.
 
 DOCKS. 335 
 
 such 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 en- 
 titled to such compensation. Lord Denman, C. J., saying, 
 " It is the necessary consequence of the lawful act done by 
 " the company."^ 
 
 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 before 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 compensa- 
 tion.2 
 
 ' Rex\. London Bock Cfa., 5 A. & - Coe v. Wise, L. R., 1 Q. B. 
 
 E. 1G3. 711.
 
 ( 336 ) 
 
 CHAPTER VI. 
 
 OF FISHERY. 
 
 Definition of 
 right of 
 fishing. 
 
 The vfO'ioii.^ HifjI/fs of Fisher?/. 
 
 The right of fishing is a right which may exist either in 
 connexion with or independent of the ownership of the 
 soil 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 terri- 
 torial fi-sJtenj} When it is independent of the ownership 
 of the soil, it is either a common right — like tlie 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 fishery is an estate of inheritance, which will pass 
 by a grant of all other estates of inheritance,^ an incor- 
 poreal hereditament, which can only be granted by a 
 deed,^ and which cannot be the subject of an exception 
 in a deed.* 
 
 It is, moreover, not, strictly speaking, an easement, but 
 it is a profit a prendre in the soil of another. As such, it 
 may exist either in gross, or as appurtenant to a manor,'' 
 and, in some cases, as appurtenant to a house or to land.^ 
 
 1 See "Woolrych on Waters, p. 
 110; Schultes' Aquatic Rights, p. 
 87 ; Angell on Watercourses, p. 80. 
 
 2 Coojjer V. Fhibbs, L. R., 2 H. 
 L. 150. 
 
 2 Duke of Somerset v. Fogwell, 5 
 B. & 0. 87o : Bird v. Higgenson, 2 
 A. & E. G96. 
 
 * Corker v. Faync, 18 W. R. 43G; 
 
 Wlcl-ham v. Flawhcr, 7 M. & W. 
 G3. 
 
 ' Fogcrs v. Allen, 1 Camp. 30") ; 
 8hi(ttleu-nrth\.Le Fleming, 19 C. B., 
 N. S. 702, per Willes, j'.; JVicMam 
 V. II flicker, 7 M. & W. 63. 
 
 ITages v. Bridget, 1 R. L. & S. 
 390 ; see Edgar v. Fisheri/ Commis- 
 sioners, 23 L. T., N. S. 737.
 
 THE VARIOUS RIGHTS OF FISHERY. 337 
 
 A right of fishery in gross is not within the Prescription 
 Act (2 Sf 3 JFiU. IF. C.71).' 
 
 A right of fishery would appear not to be a sufficient 
 interest in land to give a claim to compensation under the 
 Lands Clauses Consolidation Act.- 
 
 Much difficulty arises, especially in the interpretation 
 of old cases, from the confusion of the terms used to 
 express the various kinds of fishery recognized by the 
 law, from sufficient attention not having been paid to the 
 fact that nearly all the kinds of fishery may exist either 
 in the owner of the soil, or in a stranger, — in which two 
 cases the law, as to trespass particularly, will materially 
 differ.^ It will be the most convenient course here to 
 attempt, in the first place, to define and explain the various 
 kinds of fishery and their incidents, and then to proceed 
 to consider how and where such rights of fishery may be 
 enjoyed. Finally, we shall enumerate and discuss the 
 various statutory regulations of and restrictions on the 
 rights of fishery, with regard to the kinds of fish which 
 may be caught, and the means which may be used to 
 catch them, and the seasons during which they may be 
 caught. 
 
 The kinds of fishery mentioned in our books are, accord- The various 
 ing to the best authorities, four in number,'* — viz. (1) A fi^shery 
 common fishery; (2) A several fishery; (3) A free fishery; 
 (4) A common of fishery. A fishery in gross is also some- 
 times 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 fisher// to define that kind of 
 several and exclusive fishery arising from and connected 
 with the ownership of the soil in non-tidal waters. 
 
 1 Shuttleivorth v. Le Fleming, Bloomjield v. Johnson, lr.'R.,SC. Ij. 
 
 supra ;£ land v. Lijjscombe, 4 E. & 107. 
 B. 713. * See Paterson's Fishery Laws, 
 
 " Bird V. Great Eastern Rail. Co., pp. 4, 45; Woolrych on Waters, p. 
 
 19 C. B., N. S. 268. 75; Houck on Navigable Eivers, 
 
 ^ See Paterson's Fishery Laws, p. 138. 
 p. 4, and per Fitzgerald, B., in 
 
 C. Z
 
 338 
 
 OF FISHERY. 
 
 Common 
 fishery. 
 
 Several 
 fishery. 
 
 Free fishery. 
 
 A common fisliery is that kind of right which all the 
 public liavo to fish in the sea and in tidal navigahle rivers, 
 as far as the flux and reflux of the tide. This right can- 
 not, it would seem, exist in non-tidal waters, whether they 
 be navigable or not.^ 
 
 A several fishery is a right of fishing in a particular 
 place 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 some- 
 times called a free fishery. It exists ^jrw^i fade 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,^ and has a privileged property 
 in the fish before they are caught.^ 
 
 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,'' as such a right is too exclusive to be claimed as 
 appurtenant to land.'' 
 
 A free fishery, also sometimes called a common of 
 fishery, is a fishery in a certain place, not exclusive, but 
 co-extensive with the rights of others.^ It may exist in 
 tidal waters, to the exclusion of the public ; in which case 
 it resembles a several fishery, except that it is enjoyed by 
 
 1 Mu&set V. Burch, 35 L. T., N. 
 S. 486 ; llarqreaves v. Biddanis, L. 
 R., 10 Q. B. 587; BloomfieU v. 
 Johnson, Ir. E,., 8 C. L. G8 ; see 
 post. 
 
 - Malcolm. ton v. O^Dca, 10 II. L. 
 593, per Willes, J.; jBloomficld v. 
 Johnson, Ir. E,., 8 C. L. 68; 'Holford 
 v. Bailetj, 13 Q. B. 445 ; Seymour 
 V. Courtenai/, 5 Burr. 2815 ; Co. 
 Litt. 122 a ; Halo do Jure Maris, 
 p. 1 ; Gipps V. WooUicot, Skin. 677 ; 
 Smith V. Jtcmp, 2 Salk. 637 ; Kin- 
 
 nerslei/ v. Orpe, 1 Doug. 56. 
 
 3 Jlolford V. Bailei/, 13 Q. B. 
 426. 
 
 * Child V. Grecnhill, Cro. Car. 
 553. 
 
 •' Rogers y. Allen, 1 Camp. 311. 
 
 •" Edgar \. Commissioners of Fish- 
 eries, 23 L. T.,N. S. 737. 
 
 " Seymour v. Courtenai/, 5 Buit. 
 2814; Malcolmson v. (rj)ea, 10 H. 
 L. 593; Holford v. BnUey, 13 Q. B. 
 415; Gipps V. Woollieot, 3 Salk. 
 291; Co. Litt. 122 a.
 
 THE VARIOUS RIGHTS OF FISHERY. 339 
 
 two or more persons. It may exist in the owner of tlie 
 soil of non-tidal waters in conjunction witli others, or it 
 may exist in two or more strangers, to the exclusion of the 
 owner of the soil.^ The main distinction hetween a 
 several and a free fishery is, that the one is exclusive, and 
 the other is not ; - and that, in non-tidal waters, a several 
 fishery implies a right to the soil, while a free fishery does 
 not.^ 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."^ 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 the property till they are caught.^ 
 A free fishery may be claimed in gross or as appurtenant 
 to land.'' 
 
 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 late case, already cited," " Some 
 " discussion took place during the argument as to the 
 " proper name of such a fishery, whether it ought not to 
 
 1 See Paterson's Fishery Laws, * Bloomfield v. Johnson, per Fitz- 
 
 p. 53. gerald, B., Ir. E., 8 C. L. 68; 
 
 - In Blooni^cld v. Johnson ii -was, Holford v. Bailey, 13 Q. B. 426; 
 
 lield, that the gi-ant of a free Gipps v. WoolUcot, Skin. G77, per 
 
 fishery, especially by the Crown, Holt, C. J. ; UjHon v. Dawkins, 3 
 
 is the grant of a fishery not exclu- Mod. 97. 
 
 sive, and evidence cannot be re- ^ Bloonificld v. Johnson, supra. 
 
 ceived to show that it was intended ^ See per Willes, J., in Edgar v. 
 
 to exclude the grantee. Commissioners of Fisheries, 23 L.T., 
 
 3 Holford V. Bailcij, 13 Q. B. N. S. 737 ; Rogers v. Allen, 1 
 
 426; Marshall v. uieswater, 3 B. Camp. 311; Hayes \. Bridges, I 'R. 
 
 & S. 732 ; see also Bloomfield v. L. & S. 390. 
 
 Johnson, Ir. E., 8 C. L. 105. '' Malcolmson v. O'Dea, 10 H. L. 
 
 593. 
 
 z 2
 
 OF FISHERY, 
 
 Effect of 
 grant of a 
 fishery. 
 
 Common of 
 fishery. 
 
 " 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, 7 
 " Jleii. VII., 13, down to the case of Ilolford v. Bailey 
 " (13 U. B. 444), where it was clearly shown that the 
 " only substantial distinction is between an exclusive right 
 >" of fishery, usually called ' several,' sometimes ' free ' 
 " (used as in free warren), and a right in common with 
 '' others, usually called ' common of fishery,' sometimes 
 " ' 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." 
 
 '^^^lere the owner of a several fishery grants a free 
 fishery, the grantee takes a free fishery ; but where he 
 grants his fishery without specifying what kind of fishery, 
 the whole fishery will pass.^ 
 
 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 owTier." - 
 
 A common of fishery appears to be much the same as a 
 free fishery — /. e., a right not exclusive to fish in a par- 
 
 ' Alderman of London v. Hastings, 
 2 Sid. 8. 
 
 - Seymour v. Courtenay, 5 Buit. 
 2815; see also Rolford v. Fritchard, 
 
 3 Ex. 793; Bird v. Higgenson, 2 A. 
 &: E. 696, as to the right of letting 
 l^art of a fishery ; see also 1 Mod. 
 106.
 
 THE VARIOUS RIGHTS OF FISHERY. 341 
 
 ticular place, 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.^ 
 
 "A common of fishery," says Paterson,^ "is of three 
 " kinds — common appendant, common appurtenant, and 
 " common in gross. A common appendant is a right in- 
 ^" separably annexed to the possession of a particular 
 " house, and the extent of the right is measured by the 
 " reasonable requirements of the family. It is a right of 
 " a permanent nature attached to a house, and is not 
 " available to mere inhabitants or lodgers, but is re- 
 " stricted to him who has an estate or interest in the 
 " house.^ 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.^ A common of piscary 
 " appurtenant is a right claimed by a person in resj^ect 
 " of a house not necessarily connected by way of tenure 
 " or otherwise with the liability of the fishery, the right 
 " must have been granted by deed within the time of legal 
 " memory.^ It may also be severed from the house and 
 " land to which it is appurtenant.*^ 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 right of fishery apart from the ownership of the soil, Licences 
 being an incorporeal hereditament, can only be conveyed 
 by deed." A licence to fish is distinct from a right of 
 
 ' Patersou'sFisheryLaws, p. 55; Tretti/ \. Butler, 2 Sid. 87. 
 
 Woolrych, p. 127; 4 "Edw. IV. 29. ^ Tenicl v. Sarsloj), 3 Keb. 66 ; 
 
 - Fishery Laws, p. 56. Hayes v. Bridges, 1 E., L. k S. 
 
 ^ Gateivard^s case, 2 Rep. 59 a. 890. 
 
 * Ordeway Y. Orme, 1 Bulst. 183; '' DiiJcc of Somerset v. Fogicell, 5 
 
 Tinney v. Fisher, 2 Bulst. 87 ; B. & C. 875 ; Bird v. Higgenson, 2 
 
 English v. Burnell, 2 Wils. 258. A. & E. 696. 
 
 *' Cowlam v. Slack, 15 East, 107 ;
 
 342 
 
 OF FISHERY. 
 
 Fislicry in 
 the high seas 
 is commou 
 to all the 
 world. 
 
 fishery, and is revocable at will. A licence {in order to he 
 hinding on ihc grantor), even for an liour, must be granted 
 by deed.^ But the fishery may be let by verbal agreement, 
 and even where no rent has been agreed upon, the land- 
 lord is entitled to sue the tenant for a reasonable rent for 
 use and occupation.^ 
 
 Having now defined the various kinds of fishery recog- 
 nized by the law, we now propose to consider how and 
 w'here such rights can be enjoyed. 
 
 Fishery in the Sea. 
 On the high seas the right of fishing is common to all 
 the world without any restriction or limitation whatever^ 
 either as to the description of fish that may be caught, or 
 the means of catching them. When, hov\'ever, disputes of 
 a private character arise on the open sea between fishermen 
 of difi;erent countries, the solution of tliese 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 Cjuestion.^ 
 
 Fisheiy iu 
 the temtorial 
 ■waters of the 
 realm. 
 
 The rights of fishery in the territorial waters of the 
 realm within the distance of three nautical miles of low 
 water mark would appear to be vested exclusively in the 
 subjects of the 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.'* 
 Within the ports and harbom\s and in the sea v^^ithin the 
 body of a county, or intiri fauces terrce, and between high 
 
 1 Holfordv. Bailey, 13 Q. B. 426, 
 per Parke, B.; JEopkins v. Robinson, 
 2 Lev. 2. 
 
 - Holford V. Fritchard, 3 Ex. 
 793. 
 
 3 Aberdeen Aretie Co. v. Sutter, 4 
 Macq. App. Cas. 3.")5; Fenuinej v. 
 Lord GrenviUc, 1 Taimt. 14" ; see 
 also Patcrsou's Fishery Laws, pp. 
 6j 7, and cases cited there; Little- 
 
 dale V. Smith, 1 Taunt. 243 a; 
 Hogarth v. Jaclcson, M. & M. 58 ; 
 Skinner v. Chapman, M. & M. 
 59, n. 
 
 ■* See Paterson's Fishery Laws, 
 p. 6 ; Hale de Jui-e Maris, c. 4 ; 
 Selden, Mare Clausuni, bk. 11, e. 
 81 ; see also Reg. v. Kegn, 2 Ex. 
 Div. 205.
 
 FISHERY IN THE SEA. 3i3 
 
 and low water mark, the fishery is, by commou law, 
 common to all the subjects of the realm, subject to legal 
 restrictions mentioned hereafter. 
 
 By a convention entered into with the French govern- Couvention 
 ment, which is embodied in the Sea Fisheries Act, 1868,'^ ^^^ 
 it is provided that British fishermen shall enjoy the ex- 
 clusive 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 
 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. Yarious regulations and restric- 
 tions on the manner of taking, and the seasons for taking 
 fish, are imposed, which will be considered in a later part 
 of the chapter. 
 
 A convention also exists with the United States as to With _ 
 the fisheries on the coast of North America, embodied in ™^^^^^- 
 the statute 18 8^ 19 Vid. c. 3. 
 
 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.^ 
 
 Fisher// in Tidal Waters. 
 
 The right of fishing in the sea between high and low The public 
 water mark, in tidal waters, in estuaries and arms of the "» ^ • 
 sea, and in pubKc navigable rivers, so far as the tide ebbs 
 and flows, \% 2^rimd facie vested in all the subjects of the 
 realm.^ It seems somewhat doubtful whether this right is 
 
 1 31 & 32 Vict. c. 45. App. 641, per Lord Blackburn 
 
 - Ward V. Crcssicell, Willes, Crichton v. Collerj, 19 W. R. 107 
 
 265. Beg. v. Stimson, 4 B. & S. 301 
 
 3 Malcolmson v. O'Bea, 10 H. L. Carter v. 3Iurcott, 4 Burr. 2163 
 
 593 ; 3Iurphi/ v. Si/an, It. R., 2 C. Fitzwaltcr' s case, 1 Mod. 106; Hale 
 
 L. 143; Bristowe v. Cormicait, 3 de Jui-c Maris, p. 1, c. 4.
 
 314 OF FISHERY. 
 
 to Lo considered as luelonging to the public of common 
 right, or whether they derive it from the Crown as owner 
 of the bed and soil of tidal waters ; ^ but, however acquired, 
 this right is now absolute and cannot be barred or inter- 
 fered with by grant or charter from the Crown.- This 
 I)ublic 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.^ This right of using the shore, 
 however, does not extend to the right of using the adjoin- 
 ing land for the purposes of fishery, either in the way of 
 fixing nets by stakes, or drying nets, or drawing them 
 ashore ; 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.^ 
 Interference j^ would appear that, by common law, the public have 
 
 with, mdict- CI- -1 1 IT • 
 
 able; the right of catching m the sea and public rivers all the 
 
 fish they can 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.^ The 
 
 right of public fishery, however, includes the right to use 
 
 lawful nets.^ 
 
 and actionable It has been held by the Irish Coui't of Exchequei', that 
 
 speckT " ^^ infringement of the public right of fishery is actionable 
 
 damage. on proof of special damage, and that a member of the 
 
 public who was 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, 
 
 ^ As to this, see Wooliych on Edw. IV. f. 29 a, pi. 7 ; Tadicick v. 
 
 Waters, p. 76 ; and Mayor of Car- K)iight, 7 Ex. 861 ; BlundcU v. 
 
 lisle V. Graham, L. R., 4 Ex. 361. Catteral, 5 B. & ^Vld. 291. 
 
 '^ Warren v. Mathews, 6 Mod. ^ As to this, see Paterson, p. 33 ; 
 
 73. judgment of fishery commissioners 
 
 3 BlimdcU V. Catteral, o B. & A. in Lcconfeld v. Lonsdale, L. R., 5 
 
 299, per Holi-oyd, J. C. P. 664 ; Hamilton v. Donegal, 3 
 
 ^ Year Book, 13 Hen. VIII. 15, Eidg. P. C. 267. 
 6 ; 8 Edw. IV. 19, pi. 30 : Hale « TVarren v. Matheus, 6 Mod. 
 
 de Port. Maris, p. 86; Year Book, 15 73.
 
 FISHERY IN TIDAI. WATERS. 345 
 
 withiu certain limits prohibited by statute, caused damage 
 to tbe plaintiff in the exercise of his right to fish.^ 
 
 The public have no right to take royal fish,— i. c. whale. Royal fish, 
 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.- 
 
 The public common fishery is, it would appear, confined Public right 
 
 to the sea and tidal waters, and cannot exist at law in non- ^?|^^ed to 
 
 '_ _ _ tidal waters. 
 
 tidal waters, although navigable and navigated from time 
 immemorial, for the purposes of commerce, the right to 
 navigate giving no right to fish. This point has been ex- 
 pressly decided by the Irish Courts in two modern cases; 
 and though it has never come du-ectly before the English 
 Courts, it would seem, from opinions expressed by learned 
 judges, as well as from principle, that the same rule of law 
 would prevail in this country if occasion necessitated its 
 decision. 
 
 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 attach- 
 ing to a navigable river up to the flow and re-flow 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.^ 
 
 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.'* 
 
 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. 
 
 1 Whdan v. Hewsoii, Ir. E,., 6 C. •' Ilargreavcs v. Diddams, L. E,., 
 
 L. 283. 10 Q. B. 582. 
 
 ~ See Hall on the Seashore, p. * M/(ssct v. JBurch, Bo Tu.T. ,1:^.8. 
 
 80 ; Paterson's Fishery Laws, pp. 486. 
 24, 2G5, and cotte, Chap. I. p. 40.
 
 346 OF FISHERY. 
 
 The question, liowovor, as to tlie 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 prevailed, which has, as has been 
 said, never been expressly decided by the English Comis. 
 In the Irish Court of Common Pleas,^ this question 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 prima facie to the riparian 
 owners usque ad mediaiii fihini aqiice, 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.^ "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 bej'oncl the 
 " point to which the sea ebbs and flows even in a river so 
 " used for public purposes, the soil is prima facie in the 
 " riparian owner, and the right of fishing private." 
 
 In the case of Bloomfield v. Jo/uisoii,^ the Irish Court of 
 Exchequer Chamber affirmed, with some hesitation, a 
 judgment of the Court of Common Pleas, which deter- 
 mined that there is no public right of fishery in large 
 inland non-tidal navigable lakes. The same point was 
 
 1 Miuyhy V. El/an, Iv. E., 2 C. 713 ; Bland v. Lipscombc, 4 E. & B. 
 
 L. 143. 713, noie{c). 
 
 - See Hudnon v. McRae, 4 B. & ^ iy._ R.^ g c. L. G8. 
 S. 585 ; Race v. IFard, 4 E. & B.
 
 FISHERY IN TIDAL WATERS. 347 
 
 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 Bloomfidd 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.^ The case subse- 
 quently 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 prhnu 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 j^rinid facie entitled to the soil ad 
 medium filum aquce, applied to large inland lakes.^ In the 
 case of Mayor of Carlisle v. Graham, the English Coui-t of 
 Exchequer held, following Murphu v. Ryan, that as the 
 public right of fishing in public navigable rivers arose 
 from the ownership of the Crown of the bed of such rivers, 
 where a public navigable river changed its bed and flowed 
 over a channel in the soil of a subject, the public right of 
 fishing was lost.'* In Orr Etcing v. CoIquJioun, it is ex- 
 pressly decided, that the right of navigation on non-tidal 
 waters confers no right of property on the public navigating.^ 
 If, therefore, it be law that the public right of fishing is 
 a right arising from the o^vnership 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 ownership 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 
 
 ^ Bristoive v. ConiiicaH, Ir. E,., 10 ^3 App. C. 641. 
 
 C. L. 398. ^ L. R.,4 Ex. 361. 
 
 - Ir. E,., 10 C. L. 434. 5 2 App. C. 839.
 
 348 
 
 OF FISHERY. 
 
 Several 
 fisheiy in 
 tidal waters. 
 
 How cliiiined. 
 
 Led of such lakes "belongs, another element of difficulty 
 enters into the subject with regard to them. In the 
 case of Bey. v. JJtii-roir,^ which was an appeal from 
 a conviction hy justices of a defendant who set up 
 a bo)Hl fiile claim of right as one of the public to fish 
 in Ulleswatcr, Cockburn, C. J., seems rather to doubt 
 the principles of law as stated in Murplnj v. Bijan. " 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 fm'ther argument ; and though there is recent 
 " authority for the proposition, that cases 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 bona 
 ^\fldcs, 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 jyrimd facie every subject is entitled to fish in 
 the sea and tidal waters, jet prior to Magna Charta, the 
 Crown could by its prerogative exclude the public from 
 such prima facie right, and grant the exclusive right of 
 fishery to a private individual, either together mth or 
 distinct from the soil. The Grreat Charter restained this 
 exercise of prerogative for the future, but left untouched 
 all fisheries which were made several to the exclusion of 
 the public by act of the Crown not later than reign of 
 Henry II.'- Where, therefore, an individual claims a 
 several fishery in the sea or tidal waters, he must prove his 
 
 ' 34 Justice of Peace, p. 53. 
 
 - Malcolmson v. f/Den, 10 H. L. 
 693; Crichton v. Colhj, 19 W. R. 
 107; Carter v. Mtcrcott, 4 Buit. 
 
 21G3; Fifzu-altcr's case, 1 Mod. 106; 
 see also JJitkc of Xorthumherland v. 
 Houghton, L. R., 5 Ex. 127.
 
 FISHERY IN TIDAL WATERS. 349 
 
 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 afhrmatively 
 his exclusive right. ^ 
 
 "Where he can prove an express grant or charter from By grant, 
 the Crown, his right is without question.- Where the 
 claim is by prescription, the effect of the evidence in such By prescrip- 
 cases is thus 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." ^ 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 plaintiif 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 prima facie evidence 
 that the right had a legal origin, •?. e., had been exercised 
 
 ' Crlchton V. Colley, 19 W. R. - Hale de Jure Maris, p. 1, c. 5. 
 
 107 ; Carter v. Murcott, 4 Buit. ^ Malcobnson v. O'Dea, 10 H. L. 
 
 2163, per Lord Mansfield; Meff. v. 618; see also Gaun v. Free Fishers 
 
 Stimso>i, 4 B. & S. 301 ; Hale de of Whitstable, 11 H. L. 192. 
 Jure Maris, p. 1, c. 4.
 
 350 • OF FISHERY. 
 
 before Magna Charta, and, that being the case, the several 
 fislicry could lawfully bo afterwards made the subject of 
 a grant by the Crown to a private individual.^ 
 
 But though the long exclusive enjoyment of a several 
 fishery in a public navigable river is sufficient prima facie 
 evidence to presume that the Crown had granted a separate 
 right before Magna Charta, yet any reasonable ground 
 for considering that the user had not been exclusive, may 
 be sufficient to negative such right. This point arose in 
 a modern case,- on a case stated by the special commis- 
 sioner of fisheries for the opinion of the Court of Common 
 Pleas. The appellants claimed a right to a several fishery 
 by means of a raise 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 neighbour- 
 hood. 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 fisliery 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 Report, 
 " I entn-ely adhere to what was said by the judges in the 
 " Shannon case {JIalcoImsoii v. CfBea, 10 H. L. 593), that 
 " long exclusive enjoyment of a right to a fishery in a 
 " public navigable river, is sufficient evidence, and e\*idence 
 " upon which, in the absence of any evidence to the con- 
 " trary, 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 
 
 1 Malcohnson v. CBca, 10 H. L. - E(lqar\. Commissioners of Fish - 
 
 r)93: Duke of Devonshire v. Modnett, erics, 23 L. T., N. S. 732. 
 1 Huds. & Br. 332.
 
 FISHERY IN TIDxVL WATERS. 351 
 
 " 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 Avould 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 presump- 
 " tion of a lost grant to the subject since the time of legal 
 " memory. It will not do to prove thiiiy years' enjoy- 
 " ment 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 conclu- 
 '' sion, that there v/as a grant as early as the reign of 
 " Henry II." 
 
 In the case of Holford v. George,^ where the owner of 
 a several fishery in a navigable tidal river claimed a right 
 to use certain engines which were made illegal by The 
 Salmon FisJtcnj 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 conclusive 
 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 commis- 
 sioners in that case would not have been justified in 
 assigning to them an origin before Magna Charta. In 
 
 1 L. R., 3 Q. B. 639.
 
 352 
 
 OF FISHERY. 
 
 a similar caso,^ the Court of Common Pleas held that if 
 during all living memory the enjoyment of the riglit 
 claimed had been uniform and unvarying, and consistent 
 also witli the ancient documents of title, that the commis- 
 sioners would have been bound to refer it to a legal 
 origin, — as by grant, charter, or immemorial usage, if 
 possible. 
 As appurte- It has been said that rights of fishery may be claimed 
 manors or l^^th m gross — i.e. by special grant or prescription — or 
 lands. as appm-tenant to a manor 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.,- that a several fishery may be appurtenant to 
 a manor; and this is approved by Willes, J., in S/niftle- 
 irorfh V. Le Flc)>iin(j.^ In the Irish case of Hayes v. 
 Bridges,^ the Court held that an exclusive right of fishery 
 might be prescribed for as appurtenant to land. In the 
 case of Edgar v. TJte Special Commissioners of Fisheries,^ 
 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 in the said 
 " house have fished as appurtenant to the land ; but when 
 " you come to prove the right, can you show under sucli 
 " 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 naviorable tidal river? It has been 
 
 ^ Eaivstorne v. Backhouse, L. R,., riglit, was held sufficient to sup- 
 
 3 C. P. 67; see Reg. v. Downing, port an indictment for stealing 
 
 11 C. C. C. 580, where evidence oysters from the bed. 
 
 that the prosecutor and his father - Rogers v. Allen, 1 Camp. 305 ; 
 
 had for forty-five years exercised see also Reg. v. Stiinson, 4 B. & S. 
 
 the sole and exclusive right of 301. 
 
 oyster fishing, and that a verdict '■ 19 C. B.,N. S. 702. 
 
 had been given in 1846 for the * 1 E,., L. & S. 390. 
 
 prosecutor in an action to try his ^ 23 L. T., N. S. 737.
 
 FISHERY IN TIDAL WATERS. 353 
 
 " 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 
 " enjo}Tiient 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 Several 
 been said, a franchise originally granted by the Crown. fj!|^"i{ig'^p 
 A well-kno'OTi 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.^ 
 In the case of T/ie DuJce of Northumherland v. Hough- 
 ion,'^ 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 origi- 
 nally 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 re- 
 
 1 See Paterson's Fisheiy Laws, p. 18. - L. K., 5 Ex. 127. • 
 
 r. A A
 
 354 OF FISHERY. 
 
 granted by the Crown. The Court held that plaintiff 
 was entitled to judgment, — Martin, B., being of opinion 
 that a several fishery is one of those franchises which does 
 not merge upon being resumed by the Crown, either by 
 forfeitm-o or otherwise, — Kelly, C. B., and Bigott, B., ap- 
 parently being of the same opinion, but holding that as 
 the words liberties and free usages did not include a 
 several fishery, tlie question of merger did not arise.^ 
 Effect of rj\]^Q riffht of an exclusive fishery in the sea and tidal 
 
 •'■rant. 
 
 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, whore the Crown is owner prima facie of the soil 
 between high and low water mark, and in public navi- 
 gable rivers, where it is owner priaul 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. 
 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 
 right.- It would appear, therefore, that though as a fact 
 an exclusive fishery in tidal waters is generally coupled 
 with the exclusive o"wnership of the soil, there is no pre- 
 sumption that they are united as in the case of private 
 streams. 
 
 In the case of T/ie Duhe of Somerset v. FogiceN,^ 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 onl}^ and 
 not to pass the soil. Bayley, J., remarking — " Considering 
 
 1 As to this point, see also Pater- 1 Sliaw, 230. 
 
 son's Fishery Laws, p. 18, in case - Taterson, p. 20; see Dide of 
 
 of ^'Ibbot of Strata MarccUa, 9 Rep. Beaufort v. Suaiisea, 3 Ex. 413. 
 
 24 a; Jlcdd;/ v. ll'Itcclhousc, Cro. ^ h B. Sc C. 884; as to private 
 
 Eliz. 591; It, v. Mayor of London, streams, see j)ost.
 
 FISTIERY IN TIDAL WATERS. 60U 
 
 " the nature of the franchise and the law as to rights of 
 " fishery in other rivers, I have no difhculty 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,^ as has a 
 grant of all those fishings of the halves and halvendoles, 
 with the appm-tenants to the halves due and accustomed 
 within the river Severn within a manor, and of all royal 
 fishes, under an annual rent.- The words used in these two 
 cases quite admit of the larger construction. Lord Ellen- 
 borough, 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." 
 
 It has been hold in two late cases that the right of the 
 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 com-se 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. ^ 
 
 From this 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.* 
 
 A free fishery — i.e., a right of fishing not exclusive — Free fishery, 
 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 eu joyed by 
 
 1 ScratloH V. Broun, 4 B. & C. ^ Mayor of Carlisle v. Graham, 
 485 L. R., 4 Ex. 361 ; Murphy v. liyan, 
 
 2 E. V. Ellis, 1 M. k S. 652; Ir. R., 2 C. L. 143. 
 
 see also 6'rff?/ V. i?o«f7, 5 Moore, 527 ; ^ See Reg.\.Eiyn, 2 Ex. Div. 
 
 Ilalc de Jure Maris, 1 Harg. 34. 63, ante, p. 5. 
 
 A A 2
 
 356 OF FISHERY, 
 
 two or more persons iustcad of an exclusive right enjoyed 
 by one alone. ^ 
 User of The owner of a fishery has not of necessity a right to 
 
 8 eues. -^^^^j ^^^ ^j^g shore without the assent of the owners of the 
 
 freehold.'^ In cases of grants to individuals it is often a 
 question of construction whether the right to use the hanks 
 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.^ 
 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,^ 
 
 The right of fishery in the sea and navigable rivers is 
 subordinate to the right of navigation, and cannot be used 
 in any way so as to derogate from or interfere with such 
 right/ 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,'' 
 
 Where both the rights of navigation and of fishery are 
 incompatible, the fishermen must give way to the naviga- 
 tion of vessels,^ but the navigator must do the least possi- 
 ble injury to the fisherman, for he is in the exercise of a 
 lawful right. Thus, where oysters were placed in a public 
 
 ' See ante, p. 338. ^ Gann v. Free Fishers of JFJiU- 
 
 • Woolrycli on Waters, p. 167; stable, 11 H. L. 192; Foreman v. 
 Ipswich V. liroinie, Savil. 2. Free Fishers of Whitstable, L. R., 4 
 
 ^ Patersou's Fishery Laws, p. H. L. 285 ; Mai/or of Colchester v, 
 
 30. See E. v. Fllis, 1 M. & S. G66 ; £rooke, 7 Q. B. 339. 
 
 Co. Litt. 69 b; LiffonVs case, 11 •= Gann v. Free Fishers of Whit- 
 
 Hep. 52; 1 Wins. Saund. 323, n. G ; stable, 11 H. L. 192. 
 
 Shep. Touch. 89; Shuttleworth v. '' Anon., 1 Camp. 516, n. ; see 
 
 Le Fleming, 19 C. B., N. S. 683. Paterson, p. 32. 
 
 * Graij V. Bond, 2 B. & B. 067.
 
 obstructing 
 na%ds:atioD. 
 
 FISHERY IN TIDAL WATERS, 357 
 
 navigable river, so as to be a nuisance to the navigation, it 
 was held that the libei'ty of passage on a public navigable 
 liver 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 pro- 
 perty 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.^ 
 The nature of the right was not affected, even though the 
 vessel grounding might be liable to compensation for the 
 injury done.- 
 
 AU weu's appurtenant to fisheries, and all other fixed "Weirs, &c 
 engines for taking fish which obstruct the whole or part of 
 the navigation 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.^ 
 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 autho- 
 rize 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,^ 
 mills, weirs, stanks, stakes, and kiddles'^ which had been 
 
 ' Hay or of Colchester v. Broohc, 7 Edw. III. c. 2 ; 1 Hen. IV. c. 12 ; 
 
 Q. B. 339. 12 Edw. IV. c. 7, s. 3. 
 
 * lb. 373, and per Coltman, J., * Williams r. Wilcox, 8 A. & E. 
 
 at p. 355 ; see also Gaini v. Free 314. 
 
 Fishers of IFhitstable, 11 H.L.192; ° A deep pit of water or gulf; 
 
 see also Limes v. Fetley, 15 Q. B. Co. Litt. 5 (a). 
 
 329. ^ Open weirs, whereby fish are 
 
 3 25 Edw. III. Stat. 4, c. 4 ; 45 caught ; 2 Inst. 38,
 
 358 OF FISHERY. 
 
 set up in the time of Edward I. and subsequently, 
 legalized 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. ^ 
 Weirs ob- The question whether weirs and fixed engines for taking 
 
 fishery in fish in public navigable rivers, but which do not interfere 
 public rivers, ^-j.]^ ^1^^ navigation, are illegal and a nuisance, is not quite 
 so clear. So far as salmon are concerned, the question is 
 practically provided for by the Salmon Fishery Acts;^ but 
 as regards other fish, and where the Salmon Acts do not 
 apply, the question is still of some importance. 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,^ 
 but could not authorize the erection of weirs or the fixing to 
 the soil of fixed engines, which would be apiD'prcsture on the 
 soil of the Crown. Further, no prescriptive right could bo 
 acquired to such erections, it having been held that the 
 fishing in the sea being common, a prescription for such a 
 right is void.'^ Moreover, though the early statutes from 
 Magna Charta to 1 IIoi. IV., which order the destruction 
 of all weirs throughout 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" 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 Uueen's Bench, that the later 
 
 ^ As to what evidence is neces- ^ IVarrcn v. Mathews, 6 Mod. 
 
 sary to prove the existence of this 73. 
 
 immemorial right, see ITolford v. ^ Ward v. CrcssircU, "Willes, 2G5 ; 
 
 George, L. R., 3 Q. B. 639; Raw- Bevins v. Bird, 12 L. T., N. S. 
 
 stornc V. BackhouKe, L. R., 3 C P. 306. 
 
 67, and ante, p. 34S ct seq. '' Rollc v. Wlnjle, L. R., 3 Q. B. 
 
 - ^ee })ost, p. 386 ct seq. 286; Lecon field v. Lonndale, L. R., 
 
 3 Ante, p. 344. 5 C. P. 657.
 
 FISHERY IN TIDAL WATERS. 359 
 
 statutes 4 Hen. IV. c. 11, 2 Jfcn. VL c. 19, and 12 Edic. 
 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.^ 
 
 With regard to the right of the owner of a several 
 fishery in a public navigable river to maintain a 's\eir, 
 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, as 
 will be a public nuisance. 
 
 In addition to a liability for indictment for a public Obstructions 
 nuisance, the owner of a fishery who interferes in an ^°t,io^abL 
 unauthorized manner with the passage of fish up a river, 
 will be liable to an action for damages at the suit of 
 another owner prejudiced thereby.^ Thus where the de- 
 fendant, 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 plaintifi', the owner of a fishery above him, 
 could recover damages for the injury to his fishery.^ In 
 the case of Marquis of Donegal v. Hamilton,'^ where the 
 owner of a lower fishery on the Bann made weirs, cuts 
 and traps, b}^ 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. Fitz Gibbon, 
 
 ^ Bollc V. Whytc, per Cockbiirn, 246 ; sec also per O'Hagan, J., in 
 
 C. J., L. R., 3 Q. B. 301; Ilolforcl Murphy \. Ryan, Ir. R., 2 C. L. 
 
 V. Gcorrjc, L. R., 3 Q. B. 639. 148 ; Co., 2 Inst. 30; Wooliych, p. 
 
 • ireld Y. Hornhj, 7 East, 195, 197. 
 
 per Lord EUenborough, C. J.; Lc- ^ Wchl v. Hornhij, 7 East, 195 ; 
 
 coi)fvhl V. Lomdalc, L. R., 5 C. P. 3 >Sm. 244. 
 
 726, per Bovill, C. J. ; Lib. assiz. ^ 3 Ridg-. P. C. 267.
 
 obi) OF FISHERY. 
 
 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 de- 
 " rives, 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 proprietress 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 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." 
 
 Fisher// in Private Streams. 
 Belongs ;«•<;«« In all rivcrs and streams above the flow and reflow of 
 owners of the ^^® H^Q, whether such rivers are navigable or not, the 
 bod as ca proprietors of the land abutting on the stream are i^rimd 
 
 territorial , . „ ^ -i f ,i , i i 7 
 
 right. ^acie owners 01 the soil 01 the alceus or channel ad medium 
 
 Jilum aquw, and as such have ^;r/wa facie the right of 
 fishing in front of their land.- "According to the well- 
 
 ' 3 Ridg. P. C. p. 323. lisle v. Graham, L. R., 4 Ex. 361 ; 
 
 - Bickctt V. Morris, L. E,., 1 Sc. Murphy v. Byan, Ir. R., 2 C. L. 
 
 App. 47 ; IFisJiart v. WylUe, 1 143 ; Lamb v. Xewhiggcn, 1 Car. & 
 
 Macq. H. L. 389 ; Mayor of Car- K. 549 ; Farthcriche v. Mason, 2
 
 FISHERY IN PRIVATE STREAMS. 361 
 
 " 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, consti- 
 " tuting their legal boundary, and being so possessed, 
 " have an exclusive right to the fishery in the water which 
 " flows above their respective territories."^ Where a man 
 possesses land on both sides of the water, he has 2^rimd 
 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 to the bed still 
 remained in the former proprietor, and that he could 
 maintain an action of trespass against the defendant for 
 fishing on a strip of the bed which, before the encroach- 
 ment, had been his, defendant's, property.^ 
 
 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,'* 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." 
 
 As this right, in the case of opposite proprietors, only 
 extends prima facie to the middle line of the water, each 
 can only fish, whether with rods or nets, up to that 
 
 Rep. 658 ; FUzwalter^ s case, 1 Mod. App. C. 856. 
 
 106 ; Hale de Jure Maris, p. 1 ; ^ i C. V. T). 438 ; see ante, p. 
 
 Bracton, lib. 1, c. 28, 31 : see also 64. 
 
 Cooper V. Phibbs, L. E.., 2 H. L. 165, * See Lyon v. Fishmongers' Co., 1 
 
 per Lord Cranworth. -A-pp. C. 662. 
 
 1 Miayhy v. Eijau, Ir. E., 2 C. L. =" Marshall x. I'lleswafer Co., 3 B. 
 
 148. & S. 732 ; Bristoicc v. Cormican, 3 
 
 - See Paterson's Fishery Laws, App. C. 665. 
 p. 49 ; Orr Eu'uig v. Colqnhoun, 2
 
 lords of 
 manors 
 
 362 or FISHERY. 
 
 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 riglit to the whole fishery.^ 
 
 Is vested iu The rights of shooting and fowling, unless specially 
 
 of the lauds, reserved in a lease, are vested in the occupier or tenant of 
 tlie lands, and not in the landlord.- From analogy, it 
 would appear, that in an ordinary lease of lands, including 
 waters and streams, the right of fishing is, unless specially 
 reserved by the la,ndlord, impliedly granted to the tenant 
 as one of the profits of the land covered with water, 
 included within the boundaries of his lease.^ 
 
 Properly speaking, the right cannot be reserved by a 
 lease, but what is practically the same thing, the reserva- 
 tion is construed as a re-grant by the tenant to landlord.** 
 
 Claims by The presumptiou that the owner of the soil of the bed 
 
 of a non-tidal river is also owner of an exclusive right of 
 fishing therein, may be rebutted, but if not rebutted it is 
 the legal presumption.^ If, therefore, the lord of a manor 
 would intrude his claim, he must make it out by evidence 
 of his own, as by deed, and the presumption that a several 
 fishery passed to the lord as appurtenant to a manor under 
 a deed, has been held to be rebutted by proof, that before 
 the date of the deed the owners of the land had the right 
 of free fishery.*" 
 
 In waste The lord of a manor, heing priiju'i facie the owner of the 
 
 wastelands of the manor, -wHlhe pn'md facie entitled to the 
 right of fishing in the waters of the waste." The words 
 common or waste land, however, mean only those com- 
 monable lands of which the soil is in the lord, and not 
 
 1 Jlcraoiinn V. Klnsdla, Ir. R., H. L. 389. 
 
 11 C. L. 249 ; Taterson, p. 109. " Lamb v. Xcuii'iggcv, 1 Car. & 
 
 * See 2 Will. IV. c. 32. K. 549. See also Grand Union 
 
 ^ Paterson's Game Laws, p. 14 ; Canal x. AsJibi/, G H. & N. 403. 
 
 Paterson's Fishery Laws, p. 67 ; '' See Paterson, Fishery Laws, 
 
 Oke's Game Laws, p. 118. p. 54 ; Oke's Game Laws, pp. 50, 
 
 ■* Graham v. Ewart, 7 H. L. 128 ; Cormcell v. Saunders, 32 L. 
 
 331 ; Seymour v. Couricmn/, 5 J., N. S., M. C. 6 ; Graham v. 
 
 BuiT. 2817 ; Paterson, Fisheiy lurart, 26 L. J., N. S., Ex. 97 ; 7 
 
 Laws, p. 68. H. L. Cas. 331. 
 
 '" See Wishart v. WylUc, 1 Mcq. 
 
 lands
 
 FISHERY IN PRIVATE STREAMS. 363 
 
 open fields where owners had rights in severalty.^ A 
 lord of a manor is not justified in making such a store 
 place for fish as to disturb the commonable rights of his 
 tenants.- 
 
 Thus, if any one claims a right of fishery in another's 
 water, the onus of proof is on him. 
 
 It has been said before that a claim by the public to fish A claim by 
 in non-tidal waters has been held to be such a claim as can- ^^ \^ private 
 not exist at law,^ or be supported by immemorial user.^ -waters can- 
 MoreoYer, a claim by custom for all the inhabitants of a law, 
 parish to angle and catch fish in private waters,^ and a cus- or by custom, 
 tom for the commoners, copj^holders, and ancient free- 
 holders 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,'^ on the 
 ground that the right claimed was ajirq/it a jjrendrc on the 
 soil of another, which might lead to the destruction of the 
 subject-matter to which the alleged custom applied." 
 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.^ 
 
 A several or exclusive fishery in private waters may Several 
 exist in a stranger by grant or prescription from the owner fromThe^^^ 
 of the soil as an incorporeal hereditament." Such a fishery ownership of 
 may, it would appear, be claimed as appurtenant to a 
 
 1 Grand Union Canal y. Ashhi/, 6 . ^ Marplii/ \.Ei/a>/,lT.'R.,2 C. L. 
 
 H. & N. 394. ' 143. See ante, p. 344 ct seq. 
 
 - Cro. Car. 495 ; Hcere v. Dir/bi/. ' Bland v. Lipscomhe, 4 E. & B. 
 
 See also as to manors, Williams's 413. 
 
 Real Property, 119; Doc d. Bar- e AUgoodx. Gibson, 34 L. T., N. 
 
 rctt V. Kemp, 2 Bing. N. C. 102 ; S. 883. 
 
 Groie V. Wc&t, 7 Taunt. 39 ; Smith '• Race v. Ward, 4 E. & B. 702. 
 
 V. Earl Broxinlow, L. E., 9 Eq. « See Solford y. Bailei/, U Q. B. 
 
 241; Warrick y. Queen'' s College, Ij. 420. 
 
 R., 6 Ch. 716. 9 Marsliall v. Uleswater, 3 B. & 
 
 ^ Hargreavcs v. Diddams, L. R., S. 732, per Wightman, J. ; llol- 
 
 10 Q. B. 587 : J/kmcC v. Burch, 35 ford v. Bailey, 13 Q. B. 426 ; 8 Q. 
 
 L. T., N. S. 486 ; Sudson y.JIcBae, B. 1016. See Kinnersley y. Orpe, 
 
 4 B. & S. 585. Dous'. 50.
 
 364 
 
 OF FISHERY. 
 
 ■\Vlietlier 
 grant of, 
 passes soil. 
 
 manor, but not as appurtenant to land or a tenement, as 
 being too extensive a right. ^ 
 
 The ownership) of the soil of non-tidal rivers has been 
 said to import a right to the exclusive fishery thereon ; 
 much controversy has arisen as to whether the converse of 
 this proposition is true, — viz. that the ownership of a several 
 fishery imports the ownership of the soil. On this point 
 Lord Coke thus expresses himself: " If a man be seized of 
 " a river, and by deed do grant sejjamlem piscariam in the 
 " same, and maketh livery of seizin secundum formam 
 *' cJiartcp, 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 charts 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." ^ 
 
 In the case of Ho/ford v. Bailey ^^ Lord Denman, C. J., 
 delivering the considered judgment of the Court, says, at 
 p. 1016, "No doubt the allegation of a several fishery, 
 " 2J)'i»id facie, imports ownership of the soil, though they 
 " are not necessarily united." In the case of Marshall v. 
 UUesu-ater Co.,'* 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, re- 
 serving 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 feoffment with livery of seisin and the 
 reservation of a quit rent are not appropriate to an 
 incoq)oreal estate, and that, therefore, the soil j^assed 
 by the grant. Cockburn, C. J., though holding himself 
 
 1 Per Willes, J., in Edgar v. ^ s Q. B. 1000. See also same 
 Commissioners of Fisheries, 20 L. case on appeal, 13 Q. B. 426. 
 
 T., N. S. 737, and ante, p. 351. « 3 B. & S. 732. 
 
 2 Co. Litt. 4 b.
 
 FISHERY IN PRIVATE STREAMS. 365 
 
 bound by the case of Holford v, Bailci/, was himself 
 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 : ^ " 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 pm^poses 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 incidental 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 inciden- 
 *' tally ? Surely such a proceeding would be at once illo- 
 " gical and unlawyerlike." 
 
 In the case of Bhomfiehl v. Johmon^- where the Irish 
 Court of Exchequer Chamber held, that the grant of 2^ 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,^ 
 " I am aware of no case prior to that of Marshall v. TJUoi- 
 *' icater Navigation Co., in which anything really incon- 
 " sistent 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 dis- 
 
 1 Page 747. - Ir. R., 8 C. L. 68. 3 pag-g jqS.
 
 366 
 
 OF FISHERY. 
 
 " satisfied 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 IloJfonl 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 fisliery generally does, 2)rimu facie, imply the 
 " ownership of the soil, are the only authorities referred 
 " to, and this — I say it with deference — appears to me 
 *' quite consistent with Coke's position."^ 
 
 As the law now stands it would, therefore, appear that 
 where a grant of a several fishery is made, if nothing is 
 known as to the ownership of the land, the grant will 
 impliedly carry the soil, but as there is much difference of 
 opinion among learned judges on this point, it cannot be 
 taken to be finally settled.'- 
 
 Free fishery. A free fishery may exist in private waters by grant or 
 prescription 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 ex- 
 clusion of the owner of the soil. " If he who is the owner 
 " of the soil, and as such entitled to the exclusive 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 exclu- 
 " sive. The right of the grantee will be properly called — 
 " as all, I think, admit — a common of fishery. The right 
 
 ^ See Patersou, p. Go ; Hex v. 
 i:ilis, 1 M. & S. Ge.5, per Bayley, 
 J. ; D/ike of Somerset v. Fogivell, o 
 13. & C. 875 ; Hayes v. Bridges, 1 
 R., L.& S. 420 ; Scratten v.Broiai, 
 4 B. & C. 845. 
 
 ^ See Patcrson, p. Co. In 
 Jiolinson V. DJiiileep S'uigh, a grant 
 of "all that warren of conies" 
 was held to pass the soil of the 
 waiTen, and not merely the fran- 
 chise; 11 Ch. D. 798.
 
 FISHERY IN miVATE STREAMS. 367 
 
 " of the grantor is apparently something more, he has the 
 " o^^^lership 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 com- 
 " mon of fishery ; as applied to the grantor, it will be 
 " something more." ^ 
 
 The ownership of a free fishery — /. c, 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 cuiuce. Thus, 
 in Bhomfield v. Johnson {■ where the question was 
 whether a grant of lands adjacent to Lough Erne and 
 of a several fishery in the lake passed the soil ad 
 medium Jilum aquw, the Court of Exchequer Chamber in 
 Ireland held it did not; Eitzgerald, B., being of opinion 
 that, assuming that the presumption that by a grant of 
 lands adjacent to a fresh water river (the grantor being 
 owner of the soil of the river), the soil of the river passed 
 ad medium filum aquce, ajDplied 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 pre- 
 sumption that the soil was intended to pass. 
 
 The right of fishing in private waters is, of course, xjserof 
 equally subordinate to the rights of navigation, which fisheries, 
 may have been acquired by the public over such waters by 
 grant or prescription or Act of Parliament, and any in- 
 terference with them will be a nuisance, and indictable.^ 
 
 It has been held, however, that the provisions of Magna Weirs iu 
 Charta and of the other early statutes, including 17 liic. II. P^^y^t^ 
 
 •^ ' ° waters. 
 
 ' Bloomjield y . Johnson, Ir. R., 8 ^ WlUiams v. Wilcox, 8 A. & E. 
 
 C. L. 68, per Fitzgerald, B., at 333, per Lord Denman, C. J. ; 
 
 p. 107. See also Co. Litt. 122 a. Hale de Jure Maris, c. 2. See 
 
 - Ir. E,., 8 C. L. 68 ; see Alder- Orr Ew'ing v. Colquhoun, 2 App. C. 
 
 man of Lo7idon v. Hastings, 2 839. 
 Sid. 8.
 
 368 OF FISHERY. 
 
 c. 9, and 12 I^dir. IV. c. 7, wHcli proHbit 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 enjoy- 
 ment ; in short, by any means by which such rights may 
 be constituted.^ It would seem that a claim to a weir is 
 within the Prescription Act, and may be established by proof 
 of enjoyment 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 appel- 
 " lant 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 ease- 
 " ment7;ro ianto ; we see no reason why such a qualified 
 " easement should not be acquired by user for the time 
 " required to confer easements in respect of water."- 
 Obstruction The erection of a weir or other engine obstructing the 
 
 of fishery passage of fish, though not a public nuisance and in- 
 dictable, is, as has been said, an interference with the 
 rights of the owners of other fisheries, and is as such 
 prima facie actionable, as is also the enhancing and en- 
 larging of existing weirs.^ 
 
 Thus in the case of Weld v. Horuhj,^ the converting of 
 
 1 HoUe V. Whyte, L. E,., 3 Q. B. 302. See also per Bovill, C. J., in 
 
 286 ; Leconficld v. Lonsdale, L. R., Leconfield v. Lonsdale, L. R., 5 C. 
 
 5 C. P. 657 ; Callis on Sewers, p. P. 726. 
 
 259 ; Coke, 2 Inst. p. 38 ; Chester ^ 7 East, 195. 
 
 Mill case, 10 Co. Rep. 138. ^ L. R., 5 C. P. 725. 
 
 ■ Eolle V. Whyte, L. R., 2 Q. B.
 
 FISHERY IN PRIVATE STREAMS. 369 
 
 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 
 na\dgable 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 Lecon- 
 field V. Lonsdale,^ " It was an action for a private nuisance, 
 " and unquestionably maintainable in respect of the plain- 
 " tiff's private right of property, which was injm-ed by the 
 " act of the defendant in making his weir imper^-ious to 
 " fish, and so preventing them from arriving at the plain- 
 " tiff's fishery, a grievance long recognized as giving a 
 " right of action, independent of any question of public 
 " nuisance. See the precedent in the last case of year 
 " 46, Lib. Assiz.'^ In fact any unauthorized 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.- 
 
 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 injunc- 
 tion.^ 
 
 Fishery in Lakes and Pools. 
 
 "With regard to the law as to fishery in small ponds or in ponds and 
 pools, included in one property or manor, there can be no P°^^^- 
 doubt but that the owner of the property or manor has 
 prima facie the exclusive right to fish therein.^ Where the 
 boundary of two properties passes along the pool, it is 
 
 1 L. R., 5 C. P. 725. T., K S. 778 ; A.-G. v. Luton, 2 
 
 "^ See Marquis of Donegal v. Jur., N. S. 181 ; Oldakcr v. Hunt, 
 
 Hamilton, 3 Eidg. P. C. 267; & 'D.,M.. Sc Or. Z1Q; AldmVs case, 
 
 Murphy V. Hyan, Ir. E.., 2 C. L. 9 Rep. 59 a. See ante, Ch. III. p. 
 
 148. 150 ct seq. 
 
 ^ A.-G. V. Birmingham, 4 K. & ^ See Paterson, Fishery Laws, 
 
 J. 528 ; Bidder v. Croydon, 6 L. p. 2. 
 
 C. B B
 
 370 OF FISHERY. 
 
 taken to coincide with the medium filum of the pool, and 
 the fishery will of course follow this boundary line.^ 
 
 Though fish are animals fercp natmre, which cannot be 
 tlie 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 subject 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.^ 
 In largo With regard to the right of fishing in large navigable 
 
 lakesT ° non-tidal lakes, the law does not appear to be so clearly 
 settled. As has 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 aquee, though this pre- 
 sumption may be rebutted. In accordance with this 
 principle, the Irish Court of Exchequer Chamber, in 
 Bloomfield v. Jol/nso)),^ has held, with some hesitation, 
 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 the Irish Court of Exchequer held themselves bound 
 by the prior decision of the Exchequer Chamber in Bloom- 
 field 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.^ " If this vast sheet of water," he says, 
 " be navigable and navigated for the convenience of the 
 
 1 Phear's Rights of Water, p. 511 ; East, PI. C. 610, 2i. v. 
 
 1 ; "Woolrycli ou "Waters, p. 121. Hinisdon. 
 
 See also per Lord Blackbi^iru in ^ Ir. R., 8 C. L. 68. See ante, 
 
 Bristowc V. Cormican, 3 App. Cas. p. 346, and as to tlie ownership of 
 
 665. the bed of lakes, ante, Ch. II. p. 98. 
 
 - Paterson, p. 72; Gretfs case, * Bristoice \. Coyniican,lv.'R.,\0 
 
 Ow. 20 ; 1 Hale, PL C. 510, C. L. 43i.
 
 FISHERY IN LAKES AND POOLS. 371 
 
 " surrounding inhabitants, — if tlie lake affords a common 
 " passage for public use, — if its navigation be watched over 
 " and 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 vdth 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.' In- 
 " quisitive 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 Calniadi/ v. 
 " Hoice (6 C. B. 878). It may be faMy 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 at p. 651,^ " The defendants 
 
 1 3 Ai:)p. Cas. 
 B B 2
 
 372 
 
 OF FISHERY. 
 
 " 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 repli- 
 " cation there was a demui'rer, which demurrer was over- 
 " ruled. Against the order overruling this demurrer the 
 " respondents have not appealed, and the appellants 
 " remain, therefore, the victors on that issue. My lords, 
 " I mention this in order to show that it does not appear 
 " to me that your lordships can decide, whether the repli- 
 " cation to which I have referred was or was not a valid 
 " defence in law. That may be a fit question to raise in 
 " some other case ; but it cannot for the reasons I have 
 " mentioned be raised in this case,"^ Lord Blackburn in 
 the same case seems to be clear that the Crown has no 
 right to the soil or fishery in such lakes; but thinks it 
 doubtful whether the rule, that such adjoining proprietor 
 is entitled to the soil fisque ad jnedium fihim aquce (and 
 consequently to the fishing therein), applies to such lakes 
 as Lough Neagh. After referring to certain dicta of 
 Wightman, J., in MarsJiall v. TJUcswaicv Co., he continues, 
 " 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 Maris, cited by Mr. J. Wightman, gives 
 '' any countenance to such doctrine. But it did appear 
 " that the learned judge did not think the law as to land 
 " covered by still water was so clearly settled to be the 
 " same as the law as to land covered with running water, 
 "as to j Testify him in unnecessarily deciding that it was 
 " the same. More than this I think does not appear from 
 " that case. I own myself to be unable to see any reason 
 
 1 Sec a,lso per Lord Gordon, p. lakes, see also Marshall v. Ullcs' 
 G71. As to the right of fisliory in ivater Co., 3 B. k S. 732.
 
 FISHERY IN LAKES AND POOLS. 373 
 
 " wliy the law should uot 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 adjoining proprietor, where there are 
 " several, is entitled usque ad medium filum aqucB should 
 " apply to a lake, is a different question. It does not 
 " seem very convenient that such proprietor of a few acres, 
 *' fronting on Lough Neagh, should have a piece of the 
 " soil of the lough many miles in length tacked on his 
 " frontage." 
 
 In Reg. V. Burrow,^ a conviction by magistrates of defen- 
 dant for fishing in Ulleswater was quashed by the Court, 
 on the ground that a ho)id fide claim by defendant, as one 
 of the public, to fish there, ousted their jurisdiction, the 
 point not being so fully settled by authority as to make the 
 claim one which could not exist at law.^ 
 
 The right of fishery in canals and artificial watercourses Canals and 
 is of course incident prima facie to the ownership of the ^^jj^rg'^ 
 soil, as is the case in all other non-tidal waters, and it is 
 clearly competent for the canal proprietors to let their 
 right of fishery, if they should see fit.^ In many cases the 
 right of fishery is regulated by the Act of Parliament 
 creating the canal, and, in that case, will of course depend 
 on the construction of the Act. 
 
 Thus, where a canal was made through a manor, and it 
 was enacted by statute that the lord of the manor should 
 have the fishing in so much of the canal, or cut, or reser- 
 voir, as should be made in, over, or through the common 
 or waste lands of the manor ; and the owner of any other 
 lands should have a like right of fishery in so much of the 
 collateral cut as should be made in, over, or through his 
 lands; it was held that the words "common or waste" 
 meant those commonable lands of which the soil was in 
 the lord, and not open fields where owners had rights of 
 
 ^ 34 Justice of Peace, 53. and per Lord Blackburn in Bris- 
 
 - See, however, Sargreavrs v, toice v. Coriiiican, 3 App. Cas. 665, 
 
 iJiddams, L. R., 10 Q. B. 587 ; ante. 
 
 Hudson V. McUac, 4 B. & S. 495, ^ Woohych on Waters, p. 65.
 
 374 OF FISHERY. 
 
 severalty, and that the lord had only the right of fishing 
 in the canal or cut over his lands, and not in the reservoir.^ 
 
 Statutory llefjulations affecting Fishery. 
 
 General The statute laws relating to fishery, and framed for the 
 
 fOT*protection protection of fish as a valuable source of food supply, are 
 
 offish. chiefly important as regulating the season during which 
 
 fish may be caught, and the means which may be employed 
 
 Larceny Act. in catching them. In addition to this, the Larceny Act 
 (24 (^' 25 Vict. c. 96) declares the law with regard to poach- 
 ing fish. The importance of salmon, as an article of 
 food, has occasioned the passing of numerous statutes for 
 its protection. 
 
 Salmon. The principal Acts now in force relating to salmon, and 
 
 which are, so far as is consistent, to be read as one Act, 
 are 24 4' 25 Vict. c. 109; 26 Vict. c. 10, s. 3; 28 (^ 29 Vict. 
 c. 121 ; 36 (^ 37 Vict. c. 71 ; 39 (^ 40 Vict. c. 19. 
 
 Fresh-water With regard to other freshwater fish, except as to trout, 
 
 char, eels, and lampems in a salmon river, there were no 
 restrictions whatever as to season or means of captui-e, 
 until the passing of the Freshwater Fisheries Act (41 c^ 42 
 Vict. c. 39). With regard to sea fish, there are no statutory 
 restrictions imj)osed on their capture, except by the con- 
 vention with France embodied in the statute 31 4' 32 Vict. 
 c. 45, which regulates the fisheries within certain limits 
 therein specified. 
 
 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 
 
 Poaching. caught. Finally, a sketch will be given of the law relat- 
 ing to the poaching of fish.^ 
 
 1 Grand Union Canal Co. v. 40 & 41 Yict. c. 98, as to Norfolk 
 
 Ashby, 6 H. & N. 394. See also and SufPolk fisheries : 39 & 40 
 
 Snape v. Bobbs, 8 Moo. 23; Pater- Vict. c. 34 ; 18 Geo. III. c. 3, as 
 
 son, p. 66. See KHfe, Ch. V. p. 280. to the Severn: 20 & 21 Vict. c. 
 
 - There are various Local Fish- 148; 27 & 28 Vict. c. 113; 29 & 
 
 ery Acts in force (the provisions of 30 Vict. c. 89 ; 30 & 31 Vict. c. 
 
 which cannot be noticed here), e.g. 101, as to the Thames.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 375 
 
 By the Sea Fisheries Act/ and the convention thereto Sea Fisheries 
 annexed, between her Majesty the Uueen and the Emperor 
 of the French, the fisheries in the seas adjoining the coasts 
 of Grreat 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 ; and 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 pm-pose. 
 The fishing boats of one country are not to enter the 
 fishing limits of the other, unless by stress of weather, 
 contrary winds, &c. Ofiicers appointed by the Board of 
 Trade and officers of the navy, coast guard, and consular 
 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 Grreat Britain on board a boat, either British or 
 French, are deemed to have committed an offence against 
 the Act. 
 
 By Part III. of the Act it is provided, that the Board Oyster 
 of Trade may make an order for the establishment or ** ^^^^^* 
 improvement of oyster or mussel fisheries on the shore or 
 
 1 31 & 32 Vict. c. 45.
 
 OF FISHERY. 
 
 bed of tlie sea, or of an estuary or tidal river, and after 
 notice given and the inquiry, and report of an inspector, may 
 either confirm sucli order or not as seems fit. No order is 
 to be valid until confirmed by Act of Parliament. "When 
 sucb 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 conviction, to pay 20/. 
 and to forfeit all oysters and mussels taken. The portion 
 of sea shore comprised in such an order is to be deemed to 
 be within the adjoining county for purposes of jurisdic- 
 tion; such grants are not to be made for longer than 
 sixty years. No rights of several fishery are to be inter- 
 fered with, and compensation is to be paid to owners of 
 land taken. All oysters and mussels within such fishery, 
 or in any several fishery enjoyed independent of the Act, 
 are made the absolute property of the grantees or OAvners, 
 and are to be deemed to be in their actual possession for 
 all purposes, civil or criminal. Various restrictions, which 
 will be noticed afterwards, are imposed on the season for, 
 and mode of, taking oysters. 
 
 Salmon By the Salmon Fishery Act, 1861,^ and the Salmon Fishery 
 
 Acts!^ ^'>nendment Act, 1865,- it is provided, that for the protec- 
 
 Foi-mation of tion of Salmon fisheries, the justices of a county, at any 
 Court of Quarter Sessions, may apply to the Secretary of 
 State to form into a fishery district or districts, all or any 
 of the salmon rivers within their county. Where such 
 district is formed, a board of conservators may be appointed 
 by the Court of Quarter Sessions for enforcing the pro- 
 
 conservancy 
 
 districts and 
 boards. 
 
 1 24 & 25 Vict. c. 109, s. 33. 
 
 2 28 & 29 Vict. c. 121, s. G.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 377 
 
 visions 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.^ 
 
 All owners or occupiers of a fishery in such district, 
 which is rated to the poor at the gross rental of 30/. per 
 annum, and all owners of land in the district of the 
 annual value of 100/., having a frontage of not less than a 
 mile on any salmon river, are to be ex officio members of 
 the board ;^ and in districts where there are any public 
 fisheries, additional members may be elected by licensed 
 fishermen fishing in the public waters.^ 
 
 A fishery district may be altered, by including or 
 excluding any salmon river or part of it, by certificate 
 from the Secretary of State.^ 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." ^ Where more than one river flows into an 
 estuary, the Secretary of State may define the limits of 
 such estuary, and form it into a separate district.^ 
 
 The proceedings of the Boards of Conservators are Proceedings 
 regulated by sects. 21 to 26 of 28 4' 29 Vict. c. 101. ''* ^°^^^- 
 
 The Boards of Conservators have powers within their Powers of 
 districts to appoint water bailiffs (for which piu-pose they 
 may obtain the services of additional constables under 
 3 4' 4 Vict. 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, milldams, &c. ; to purchase 
 compulsorily or otherwise,*" for removal only, dams, 
 fishing weirs, milldams, and fixed engines ; to take pro- 
 ceedings against persons violating the Acts ; and generally 
 to do such acts as they may deem fit for the improvement of 
 
 1 Sect. 7. ^ Sects. 3, 5. 
 
 2 36 k 37 Vict. c. 71, ss. 26, 29. ^ 28 & 29 Vict. c. 71, s. 49. 
 
 3 28 & 29 Vict. c. 121, s. 20. '^ 36 Sc o7 Vict. c. 71, s. 49.
 
 378 OF FISHERY. 
 
 the fisheries : provided that nothing be done which may 
 injuriously affect any navigable river, canal, or inland 
 navigation.'^ 
 
 Bye -laws. Further they may make bye-laws ^ to alter the limits of 
 
 the annual and weekly close season within their district ; 
 to determine the length, size, and mesh of nets, and the 
 mode of using them ; 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- and char^ 
 in their district. They may impose penalties not exceed- 
 ing 5/. for each offence against the bye-laws;* all such 
 bye-laws must be confirmed by the Secretary of State 
 before coming into operation.^ 
 
 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 any boat which he has 
 reasonable 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 5/. ; 
 for the enforcement of the Act all water bailiffs to have 
 the powers of constables; and the production of the instru- 
 ment of theb appointment to be their warrant.'^ A water 
 
 1 28 & 29 Vict. c. 121, s. 27. ^ 36 & 37 Vict. c. 71, s. 49. 
 
 - 39 & 40 Vict. c. 19, s. 4. 5 gect. 41. 
 
 3 41 & 42 Vict. c. 39, s. 10. « Sect. 36.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 379 
 
 bailiff may, moreover, under special order of the Board, 
 enter on any lands, at reasonable times, to prevent 
 breaches of the Salmon Fishery Acts ; ^ 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.^ 
 
 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.^ 
 
 For the further protection of fish it is enacted, that Gratiugs. 
 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."* A Board of Conservators may, moreover, order 
 a grating to be placed at the expense of the Board, in any 
 watercourse, mill race, or leat, during such seasons of the 
 year as may be prescribed ; ^ and may widen any channel 
 sf> as to compensate for any diminution of any flow of 
 water caused by the erection of the gratings ; ^ 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 ; " the owners of 
 lands to preserve such gratings from injury.^ 
 
 The general superintendence of the salmon fisheries in Inspectors 
 England is vested in the Home Ofiice, which may appoint sioners. 
 two inspectors of fisheries for three years. The insjoectors 
 
 1 Sect. 37. * 36 & 37 Vict. c. 71, s. 58. 
 
 2 Sect. 38. « Sect. 59. 
 
 3 24 & 25 Vict. c. 109, s. 34. ' Sect. 60. 
 * Sect. 13. 8 Sect. CI.
 
 380 OF FISHERY. 
 
 are to make annual reports, containing a statistical ac- 
 count of the fislieries.^ Commissioners may be appointed 
 by her 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 in- 
 capable of catching fish such fishing mill dams, as are in 
 contravention of the Act.^ Certificates are to be given 
 stating the situation, size, and description of engines 
 proved to be privileged.^ 
 
 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 legahty of fishing 
 weirs, dams, and fixed engines in such district.^ An 
 appeal lies from the decision of Commissioners, by special 
 case, to any of the Superior Courts of Westminster.^ 
 
 The Fresli- By Thc Fi'csh Wafcv Fisheries Act, 1878, which is to be 
 
 rishcrics Act. ^'^^^ ^^ °^® ^^^^ ^^^^ Salmon Fishery Acts, 1861 to 187G, 
 the provisions of Thc Salmon Fishcnj Acts, 1865 and 1873, 
 which relate to the formation and regulation of conser- 
 vancy districts, and the a]ipointment and powers of con- 
 servators, are extended to all waters in England and Wales, 
 except to the counties of Norfolk and Suffolk, 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.'' In any 
 district subject to a Board 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 
 
 ^ 24 & 2.) Vict. c. 109, ss. 31, 32. sioners is renewed every year by the 
 
 - 28 & 29 Vict. c. 121, ss. 40, 42, Expiring La-ws Continuance Acts. 
 
 46, 55. 4 Sect. 43. 
 
 ^ Sect. 41. The powers of' ap- ^ Sect. 45. 
 
 pointing inspectors and commis- ^ 41 & 42 Vict. c. 39, s. 6.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 381 
 
 after the word salmon ; ^ 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.^ The provision of sect. 34 of the Act of 
 1861, as to search warrants, is to extend to all offences 
 within the Act. 
 
 On the high seas, as has been said, fish of all kinds may Statutory 
 be taken, at all seasons, and by all means.^ to'thrsoason 
 
 The fishery for all kinds of fish in the territorial waters ^y^y^^^g which 
 of the realm below low water mark, seems to be free from catch fish. 
 legal restrictions as to season, with the exception of the High seas. 
 coast of Cornwall east of Trevose Head, where the use of Tonitorial 
 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 mUe of any sea boat engaged in seine 
 fishing.^ 
 
 By a convention between the British and French Oysters. 
 Governments, incorporated into the Sea Fisheries Act, 
 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 would appear to be binding only on the sub- 
 jects of England and France, so far as it relates to the 
 sea beyond the limits of the territorial waters of either 
 country. 
 
 1 Sect. 7. 32 Vict. c. 45. 
 
 2 Sect. 8. _ * 31 & 32 Vict. c. 45, s. 68. 
 
 3 As to this, see Article 10 of ^ See convention annexed to 31 
 the convention attached to 31 & & 32 Vict. c. 45.
 
 waters. 
 Salmon. 
 
 382 OF FISHERY. 
 
 By sect, 19 of 31 (^ 32 Vict. c. 45, all restrictions wliat- 
 ever in England on the sale of sea fish (except salmon), 
 which is not diseased, unsound, unwholesome, or unfit for 
 the food of man, are abolished. 
 
 The restrictions on the sale of salmon during the close 
 season, 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. Kcyu,^ so within the limits of the Act, as to make the 
 possession of salmon caught out of season, within three 
 miles of shore, illegal. 
 Inland No salmon^ may be taken in any river (the term river 
 
 including such portion of any stream or lake with its 
 tributaries, and 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^) between 1st September and 
 1st February, both inclusive, under heavy penalties.'* If 
 the river is in a fishery district the Board of Conservators 
 have powers to vary the close time.^ Fishing for salmon 
 with rod and line only may be lawfully carried on until 
 the 1st November inclusive.'' No person may take salmon 
 except with rod and line during the weekly close season — 
 i. c, from noon on Saturday till six on the following 
 Monday morning.'^ This time may be varied by the 
 conservators of each district.'^ 
 
 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. ^ 
 
 Any person acting in contravention of these provisions is 
 liable to forfeit all fish taken by him, and any net or move- 
 able instrument used by him in taking the same, and further 
 to a penalty of 5/., and 1/. for every fish so taken. A net 
 so used for the purposes of taking salmon has been held to 
 
 1 2 Ex. Div. 68. 5 35 ^ 37 yjct. c. 71, s. 39. 
 
 - For definition of salmon, see "^ 24 & 25 Vict. c. 109, s. 17. 
 
 2-1 & 25 Vict. c. 109, s. 4. " Sect. 21. 
 
 3 28 & 29 Vict. c. 121, s. 3. 8 3c & 37 yict. c. 71, s. 16. 
 « 24 & 25 Vict. c. 109, s. 17.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 383 
 
 be forfeited, although the defendant who used it caught 
 nothing,^ 
 
 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 pui'poses ;- or take, destroy, buy, sell, or possess, 
 obstruct, or injure the young of salmon, or disturb a 
 spawning bed.^ All fixed engines must be removed during 
 the annual close time within thirty-six hours of its com- 
 mencement ;* and during the weekly close season a free 
 passage must be left through cribs, boxes, and cruives.^ 
 
 No trout or char may be taken in any river between Trout, &c. 
 October 1st and February 1st, both inclusive, under a 
 penalty of 21. for each offence, and forfeiture of all fish 
 taken.*^ A Board of Conservators has power, however, to 
 vary the close time in its particular district.^ 
 
 No person between January 1st and June 24th may fix Eels, &c. iu 
 in any salmon river — i. <'., in a river frequented by salmon ^^^™^° "^^^• 
 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 Fish desceud- 
 descending the stream.^ ""^ stream. 
 
 No person shall place at any time upon the apron of Lampems. 
 any weir any basket, trap, or device for taking fish, except 
 wheels or leaps for taking lampems, between the 1st August 
 and 1st of March.^ 
 
 No person may, between March loth and June 15th, Freshwater 
 both inclusive, fish for, catch, or attempt to catch any fresh fhaVti-out 
 water fish — /. c, any fish other than pollen, trout, and char, 
 char, which live in fresh water, and do not migrate to the 
 open sea. 
 
 ^ Rutter V. Harris, 1 Ex. Div. follows : — For salmon, salmon 
 
 97. trout, and trout, from September 
 
 2 24 & 25 Vict. c. 109, s. 14. 10th to March 31st, inclusive. 
 
 3 Sects. 15, 16. For other fresh water fish, in- 
 * Sect. 20. eluding eels (as to eels, see Wood- 
 '" Sect. 22. Iwme v. Etheridge, L. E,., 6 C. P. 
 6 41 & 42 Vict. c. 39, s. 5; 28 & 570), from February 14th to May 
 
 29 Vict. c. 121, s. 64. 31st, both inclusive. See Oke's 
 
 ' 39 & 40 Vict. c. 19. In the Fishery Laws, p. 33. 
 Thames, the close seasons are as * 36 & 37 Vict. c. 71, s. 15.
 
 384 OF FISHERY. 
 
 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 freshwater 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 Con- 
 servators, with leave of the said Board ; (c) To any person 
 taking fish for a scientific purpose (d) or for bait. 
 
 A Board' of Conservators, under the Acts of 18G1 and 
 1876, may, however, as regards any or all kinds of fresh 
 water 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.^ 
 Selling No person may buy, sell, or expose for sale, or have in 
 
 salmon, trout, i . . ^ ■■ " ■■ j. p ^ 
 
 or char in his possession lor Sale, any salmon, or part oi any salmon, 
 close season, between the 3rd September and 1st of February following, 
 both inclusive,^ or any trout or char between 2nd October 
 and the 1st of February following, both inclusive.^ 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, pro- 
 vided its capture by any net, instrument, or device other 
 than a rod and line, if within the United Kingdom,'^ was 
 lawful at the time and place where it was caught. The 
 burden of proof in all cases to be on the person selling. 
 Taking nn- No person may wilfully take, kill, or injure, or attempt 
 
 seasonable i j i i n i • i • 
 
 salmon trout ^^ take, or Duy or sell, or have m his possession, any un- 
 and char. clean Or unseasonable salmon, trout, or char.^ 
 
 1 41 & 42 Vict. c. 39, s. 11. & 37 Vict. c. 71, s. 18. As to 
 
 2 36 & 37 Vict. 0. 71, s. 19; 24 measuring of unseasonable sal- 
 & 25 Vict. c. 123, s. 21. men, trout, char, &c., see Oke's 
 
 3 36 & 37 Vict. c. 71, s. 20. Fishery Laws, 2nd ed. p. 41 ; 
 ^ See ante, p. 382. Bund's Law of Salmon Fisheries, 
 5 24 & 25 Vict. c. 109, s. 14 ; 30 p. 330.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 385 
 
 There appear to be now no general^ legal restrictions Statutory 
 on the means of catching sea fish, except salmon, in the fj^he means 
 sea or inland waters. The various statutes regulatine: the ^J which it is 
 
 iUeo-al to 
 
 kinds of nets to be used, and the size of mesh allowable, catch fish, 
 have been repealed by T//e Sea Fis/ieries Act, 18G7,- so far Sea fish other 
 as relates to England f and the Fresh Water Fisheries *^'^^ ''''^™^''- 
 Act expressly excludes all fish which migrate to the sea.'^ 
 The only exception to this freedom of fishery is that 
 contained in T/ic Fisheries {Di/namite) Act, 1877,^ 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.^ 
 
 By the Sea Fisheries Act, 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 distm'b in any other way such oyster 
 bed, under penalties ; such person being at the same time 
 liable to make compensation for all damage done, pro- 
 vided only that the oyster bed be properly marked out 
 and known.' 
 
 With regard to salmon, the restrictions imposed by T/ie Sahnon. 
 Salmon Fisheries Acts, 1861 — 1876, appear only to apply to 
 inland and tidal waters, as defined by the 2-1 8^- 25 Vict, 
 c. 109, s. 4, including estuaries, and the sea shore to low 
 water mark. By 41 ^ 42 Vict. c. 39, the provisions of 
 Tlie Fisheries {Dynamite) Act are extended to all private 
 fisheries, and no person, even the owner, may use dynamite 
 
 1 As to regulation of pilchard Laws, p. 247. 
 fisheries in the bay of St. Ives, « 41 & 42 Vict. c. 39. 
 
 Cornwall, see 4 & 5 Vict. c. 57. ^ 40 & 41 Vict. c. 65. 
 
 - 31 & 32 Vict. c. 45. c gect. 3. 
 
 ^ As to Scotland, see Paterson's " 31 & 32 Vict. c. 45, ss. 53, 54. 
 
 Fishery Laws, p. 165. As to See 28 & 29 Vict. c. 121, ss. 3, 5. 
 Ireland, see Paterson's Fishery 
 
 0. c c
 
 job OF FISHERY. 
 
 or any otlier explosive substance to kill fish in the United 
 Kingdom. No person may put any lime or other noxious 
 material into any water with intent to destroy fish,^ 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 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 Coui't 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 mto such 
 waters.^ 
 
 No person may, in any non-tidal water, use any device 
 to obstruct fish descending the stream.^ 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."* No person may fish for salmon with a net 
 having a mesh of less dimensions than two inches in 
 extension from knot to knot, 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 descrip- 
 tion of net to be used in their district.'^ 
 Licences. No person may fish for salmon in any fishery, either 
 
 with rod and line, or net, or weii', or fixed engine, mthout 
 a proper licence.*^ 
 
 No person may shoot or w^ork 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.^ 
 
 Dams, fisliLDg No person may use any fixed engine,^ dam or fishing 
 
 fixcd'en^ines. weir for taking salmon, unless lawfully existing at the 
 
 1 24 & 25 Vict. 0. 97, s. 32. s jj.s. 10, 28&29Vict.c. 121,s.27. 
 
 2 24 & 25 Vict. c. 109, ss. 5, 6. <= 28 & 29 Vict. c. 121, ss. 33— 
 See Rivers PoUution Act, 39 & 40 37 ; 36 & 37 Vict. c. 71, s. 22. 
 Vict. c. 75. ' lb. s. 14. 
 
 8 36 & 37 Vict. c. 71, s. 15. ^^ 24 & 25 Vict. c. 109, s. 11 ; 28 & 
 
 4 24 & 25 Vict. c. 109, ss. 8, 9. 29 Vict. c. 121, s. 3d, sec jMsf, p. 391.
 
 STATUTORY REGULATIOXS AFFECTING FISHERY. 38^ 
 
 passing of the Act.^ No person may catcli or kill, or 
 attempt to catcli or kill, except "with rod and line, or scare, 
 or disturb, or attempt to scare or disturb, any salmon 
 within 50 yards above, or 100 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, 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 fiow 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 fisher}'.- No ancient right or usage will justify fishing 
 except with a rod within the prescribed distance of a dam 
 in which there is no fish pass.^ 
 
 No fixed engine of any description, including stake nets, Fbced en- 
 bag nets, putts, putchers and nets fixed by anchor, or ^"^®^" 
 otherwise temporarily fixed to the soil, or other implement 
 for taking fish, fixed to the soil, or made stationary in any 
 other way, may be placed or used for catching salmon in 
 any inland or tidal waters. These provisions are not to 
 affect any ancient right or mode of fishing as lairfuUij 
 exercised at the time of the passing of the Act, or during 
 the five previous years— vi^., 1857, 1858, 1859, 1860, 1861, 
 by any person, by virtue of any grant or charter, or 
 immemorial usage ; but no person, by proving use of 
 
 1 24 & 25 Vict. c. 109, ss. 12, 23, & 25 Vict. c. 109, s. 12. 
 27 ^ Moulton V. Witby, 8 L. T., N. 
 
 - 36 & 37 Vict. 0. 71, s. 17 ; 24 S. 284 ; 9 Jiir., N. S. 472. 
 
 c c 2
 
 388 
 
 or FISHERY. 
 
 "What e\'i- 
 dence neces- 
 sary to es- 
 tablish a 
 claim to use 
 fixed engines 
 in a navig- 
 able river. 
 
 different engines during tliese years, Avill Lo allowed a 
 number of privileged engines during these years, exceeding 
 the greatest number in use during some one of the five 
 years. ^ 
 
 With regard to the meaning of the words ^^ lawfully 
 " f^rrcised,'^ the question of course will be different in 
 navigable and non-navigable rivers. In navigable rivers 
 all weirs and fixed engines for catching fish are illegal, 
 unless proved to have existed prior to the reign of Edward 
 1st f whereas in non-navigable waters a right to erect 
 such obstructions may be acquired by twenty years' unin- 
 terrupted enjoyment.'' 
 
 In the case of Ilolfonl v. George,"^ the owner of a several 
 fishery in the navigable and tidal river Severn, claimed a 
 right to use putchers and stop nets for the purpose of 
 taking salmon, on the ground of immemorial user. He 
 proved a user of forty-five years of some of the putchers, 
 and of twenty years of the others ; there was no evidence 
 of previous user, nor was there any evidence to the con- 
 trary. 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 con- 
 elusive 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 Eaustorne v. Bachhouso,^ 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 Vid. 
 c. 109; 28 ^ 29 VicL 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 
 
 1 24 & 25 Vict. c. 109, ss. 4, 11 
 28 & 29 Vict. c. 121, s. 39. 
 
 2 See ante, p. 357. 
 
 3 See ante, p. 3G7. 
 
 * L. R., 3Q.B. 639; and see fur- 
 ther as to evidence necessary to sup- 
 port such a claim, ante, p. 348 et acq. 
 
 " L. R., 3 C. P. C7.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 389 
 
 convenient hollows formed for placing tlie 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 Coiu't, 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 previously, amounted to an enhancement of 
 the engines, and that the commissioners were not boimd, 
 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 sect, of the Act of 
 " 18G5, the commissioners are bound to fix the situation, 
 " 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 cii'cumstances, would 
 " not be sufficient to found the presumption 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 18G1, 
 " as required by the Act of 1865.
 
 390 OF FISHERY. 
 
 "lu 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 commissioners were bound to make 
 " a presumption, and to find accordingly in favour of such 
 " right. The utmost extent, however, to which that argu- 
 " ment 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 tho 
 " appeUant." 
 What i.s a A stop net has been held to be a fixed engine within 
 
 gine." the definitions in these Acts. A stop net is used as fol- 
 
 lows : — The 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 sHghtly 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.^ 
 
 A net fixed to the bank by a stone, so as to give way on 
 being touched by salmon and so entangle the fish, was 
 held, in the case of Thomas v. Jones,^ not to be a fixed 
 engine within sect. 11 of 24 (^ 25 Vict. c. 109. To define 
 with more certainty what the legislature meant by " fixed 
 engine," sect. 39 of 28 8f 29 Vict. c. ]21, was passed; and 
 
 ^ Gore V. Commissioners of Fish- - 5 B. & S. 916. 
 
 erics, L. E.., 6 Q. B. 561.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 391 
 
 imder 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.^ 
 
 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 purpose, is not an offence within sect. 11 of 
 24 ^ 25 Fid. c. 109.2 
 
 No dam, except such fishing weirs and fishing mill rrivilegcd 
 dams as are lawfully in use in the year 1861, by virtue dams. 
 of grant, charter, or immemorial user, may be used for 
 catching or facilitating the catching of salmon, under a 
 penalty of 5/. 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 regulated 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 may, with consent of the Home Office, 
 attach to a mill dam such a pass, provided no injury is 
 done to the milling power.^ 
 
 A mill dam built solely for milling purposes, and with- 
 out any contrivances for catching fish, is not a fishing 
 mill dam within sect. 4 of 24 8f 25 Vicf. 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 ^ 29 Vicf. 
 c. 121 ; but any person so catching fish is liable to the 
 penalty imposed by sect. 12 of 24 c^ 25 Vict. c. 109.-* 
 
 1 Old'uig V. Wild, 14 L. T., N. Q. B. 30. See Eossiter v. Pike, i 
 S. 402. Q. B. D. 24 ; Pike v. Eossiter, 37 
 
 2 Watts V. Lucas, L. K., 6 Q. B. L. T., N. S. 635 ; Hodgson v. 
 226. Little, 14 C. B., N. S. Ill ; 32 L. 
 
 3 24 & 25 Vict. c. 109, ss. 12, 23, J., M. C. 220 ; 16 C. B., N. S. 
 27. 198; 33 L. J., M.- C. 229. 
 
 ^ Garnctt v. Backhoitsc, L. R., 3
 
 392 
 
 OF FISHERY. 
 
 Trout and 
 other fresh- 
 water fish. 
 
 It has been held in RoUe v. lF/i//te,^ that the provisions 
 making fish passes compulsory only relate to weirs reach- 
 ing more than half-way across the stream, and that where 
 there was a side stream fifteen feet wide, separated from 
 the main stream by an island, this was not a stream 
 within the Act so as to make a fish pass compulsory in 
 a dam reaching across the side stream. 
 
 The provisions of the Fisheries Dynamite Act now, 
 by the Fresh Water Fisheries Act,^ extend to all fish in 
 the United Kingdom, as does the 15th section of 36 ^ 37 
 Vid. c. 71, which prohibits obstruction of fish descending 
 the stream.^ The provisions of 2-1 8f 25 Vicf. c. 109, ss. 
 8 and 9, which prohibit the use of otter laths, spears, &c., 
 and the possession and use of roe for fishing, are now, 
 by the same Act, extended to trout and char within the 
 limits of the Act.^ That Act also provides for the estab- 
 lishment of fishery districts on trout and char rivers ; ^ and 
 in such fishery districts empowers conservators to issue 
 licences for fishing for trout and char, and incorporates 
 the sections of the Salmon Fishery Acts imposing penalties 
 on persons fishing without licence." With these exceptions 
 there seem to be no general restrictions as to the mesh of 
 nets which may be used, or the size of fish that may be 
 taken. 
 
 Poaching fish. It has been already stated, that at common law, ii're- 
 spective of statute, the stealing of fish in any small pond, 
 tank, or stew, which is private property, and where the 
 fish may be taken at will by the owner at any time, is 
 larceny, and punishable on indictment." In addition to 
 this, by the Larceny Consolidation Act^ certain offences 
 are created i^lating to the unlawful taking of fish in private 
 fisheries. This statute enacts, that — Whosoever shall un- 
 
 1 L. R., 3 Q. B. 286. 
 
 • 41 & 42 Vict. c. 39, s. 12. See 
 p. 385. 
 
 3 Sect. 5. 
 
 * lb. 
 
 5 Sect. 6. 
 
 G Sect. 7. 
 
 ■^ See ante, p. 369. 
 
 8 24 & 25 Vict. 0. 96.
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 393 
 
 lawfully and wilfully take or destroy any fish in any 
 water whicli shall run through or be in any land ad- 
 joining^ or belonging to the dwelling-house of any per- 
 son being the owner of such water, or having a right 
 of fishery therein, shall be guilty of a misdemeanor,^ 
 punishable by the common law with fine and imprison- 
 ment in addition to or in lieu of sureties;^ and whoso- 
 ever shall unlawfully or wilfully take or destroy, or 
 attempt to take or destroy, any fish in any water not 
 being such as hereinafter mentioned, but which shall be 
 private property, or in which there shall be any private 
 right of fishery,^ shall, on conviction 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 5/. 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 whosoever shall, by angling 
 between the beginning of the last hour before sunrise 
 and the expiration of the first hour after sunset, unlaw- 
 fully take or destroy, or attempt to take or destroy, any 
 fish in any such water as first mentioned, shall, on con- 
 viction before a justice of the peace, forfeit or pay any 
 sum not exceeding 5/., and if in any such water as last 
 mentioned, he shall, on like conviction, forfeit and pay 
 any sum not exceeding 21. 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 sufiicient 
 to prove that the oifence was committed either in the 
 parish, township, or vill named in the indictment or in- 
 
 1 The meaning of the word ^ Sect. 117. 
 
 adjoining is defined as " in actual * The statute has been held to 
 
 " contact, and not separated hy a apply to persons illegally fishing 
 
 " u'alk or fence.'''' SeeiJ. v. Hodges, in a several fishery, in tidal waters 
 
 Moo. & ]Vi. 341. as well as in private waters ; Faley 
 
 2 Sect. 24. V. Birch, 8 B. & S. 336.
 
 394 OF FISHERY. 
 
 formation, or in any parisli, townsliip, or vill adjoining 
 thereto.^ 
 
 The word " unlawfully " in this section means without 
 any claim of right or title in the offender, such as can 
 exist in law ; ^ 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 ; ^ and a certiorari may ho 
 obtained to quash any conviction they may have made ; "* 
 or the decision may be reviewed by a superior Court under 
 20 8f 21 Vict. c. 43.5 
 
 An angler in the day time, that is, between the be- 
 ginning of the last hour before sunrise, and the expiration 
 of the first hour after sunset, cannot be arrested ; but a 
 person angling at night, or fishing by other means than 
 angling, may be arrested, and then without warrant by 
 any person.*^ The tackle of persons found fishing against 
 the provisions of the Act, may be demanded, and, if re- 
 fused, may be seized by the owner of the fishery, or his 
 servant, or any person authorized by him. A person 
 angling in the day-time, from whom any implement shall 
 have been taken, is exempted from any further fine.^ 
 Sect. 38 of The Malicious Injuries Act, 1861,^ enacts as 
 follows: "Whosoever shall unlawfully and maliciously cut 
 " through, break down, or otherwise destroy the dam, 
 " fiood 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 fishing, with intent to take or 
 " destroy any of the fish in such pond or water, or so as 
 
 1 Sect. 24. The part of the 10 Q. B. 482. 
 
 shore between high aud low water ^ Eeff. v. Feal; 8 L. T., N. S. 
 
 mark is within the adjoining 536; Lcath v. Vine, 30 L. J., N. 
 
 county ; and the justices of the S., M. C. 207 ; Cormvell v. Saun- 
 
 county have jurisdiction over of- dcrs, 32 L. J., M. C. 6; Reg. v. 
 
 fences committed there, whether Burroic, 34 Justice of Peace, 53. 
 
 the Lxnd is covered or not with * Rcff. v. Stimsoii, 4 B. & S. 301. 
 
 water ; Emblcton v. Brown, 30 L. ' See White v. Feast, L. R., 7 
 
 T., N. S., M. C. 1 ; 3 E. & E. 234; Q. B. 353. 
 
 Reg. V. Ilmson, 8 E. & B. 900 ; and ^ Sect. 103 (24 & 25 Vict. c. 96). 
 
 see ante, Ch. I. p. 13. ' Sect. 25. 
 
 • Bndson v. McRae, 5 B. & S. » 24 & 25 Vict. c. 97. 
 485 ; Uargrcaves v. Biddams, L. E.,
 
 STATUTORY REGULATIONS AFFECTING FISHERY. 395 
 
 thereby to cause the loss or destruction of any 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 hereafter be put therein, or shall unlawfully 
 or maliciously cut through, break down, or otherwise 
 destroy the dam or flood gate of any mill pond, or reser- 
 Yoir, or pool, shall be guilty of a misdemeanor : 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, with or without hard labour, 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."
 
 ( 396 ) 
 
 CHAPTER VII. 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 The Right of Navigation. 
 
 The right of navigation is a right of way exercised for 
 the 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.^ 
 
 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 merchant shipping laws, as 
 well as the various questions arising in connection with 
 the jurisdiction of the Court of Admiralty .- 
 
 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, 
 
 ^ On- Ewbif/ V. C'ol'jtiJiou>i,2A])]). 276; Anon., DiU'ham Assizes, 1808, 
 
 C. 839 ; Gann v. Free Fishers of per Wood, B. 
 
 Whitstable, 11 H. L. 192; Foreman • The reader is refen-ed for a full 
 
 \. Free Fishers of WJtitstabIe,'h.'R., consideration of these subjects to 
 
 4 H. L. 266 ; Mai/or of Colchester Maude & Pollock's Law of Mer- 
 
 V. Brooke, 7 Q. B. 339 ; Bex v. chant Shipping ; Williams & 
 
 Russell, 6 B. & C. 566 ; Original Bnice's Admiralty Practice ; and 
 
 Hartlepool Collieries v. Gibb, 5 Ch. Boyd's Merchant Shipping Laws. 
 
 D. 713; Dimes v. retley, 15 Q. B.
 
 THE EIGHT OF NAVIGATION. 397 
 
 tliey have 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} 
 
 The sea is the necessary highway of all nations,^ and Tlie sea is the 
 the free navigation and commerce thereon is, therefore, alf nations. 
 the common right of all mankind.'^ 
 
 The ships of all nations, whilst navigating the high Jurisdiction 
 seas,'^ are subject only to the laws of their own country, uav^it^atmo-. 
 and no one nation has the right to exercise civil or 
 criminal jurisdiction over the ships of other nations dui'ing 
 their passage between one foreign port and another.'^ By 
 41 (^ 42 Vict. c. 73, foreigners on board foreign ships, 
 passing within three nautical miles of the English coast, 
 are made subject to English criminal law." 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.^ By 15 Ric. II. c. 3, it was provided, that the admiral 
 should have no jurisdiction within the body of counties, 
 either by sea or land, save for mayhem or murder done in 
 estuaries and mouths of rivers, below the bridges where he 
 should have a concurrent jurisdiction with the Coiuis of 
 
 ^ For the greater portion of this tion of foreign as well as Eng- 
 
 section, the authors have had re- lish ships; The Saxonia, 1 Lush, 
 
 course to Mr. A. C. Boyd's excel- 410; cf. Sir R. Phillimore, 2 Ex. 
 
 lent work on The Merchant Ship- D. 82. 
 
 ping Laws (1876), to which the * Sef/. v. Kei/n, 2 Ex. D. 217, 
 reader is referi-ed for fuller parti- per Kelly, C. B. ; The Vigilantia, 
 culars. Cf. also throughout Chap- 1 C. Hob. 1 ; The Vrou Anna Ca- 
 ter I. thcrinri, C. Rob. 161; The Success, 
 
 ~ Phillimore' s International Law, 1 Dodd's Ad. 131. 
 vol. i. pp. 210, 211. « See ante, Chap. I. p. 8; and 
 
 " Wheaton's International Law, the case oi Reg. v. Keyn, ante, pp. 
 
 by Boyd, p. 251. 5—8. 
 
 ^ For definition of the high seas, ' Jieg. v. Sattler, Dears. & B. 
 
 and the limitations of territorial Cr. C. 525 ; Reg. v. Anderson, L. 
 
 waters, see Chap. I. Territorial R., 1 Cr. C. 161 ; Reg. v. Lesley, 
 
 waters, as well as the high seas. Bell, C. 0. 220. 
 are free to the peaceful naviga-
 
 398 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Common law. This jurisdiction of the admiral was 
 transferred to the Central Criminal Court by 4 (^ 5 IFill. 
 IV. c. 36, and further changes have been made in the 
 present reign as to the civil jurisdiction of the Admiralty 
 Courts, which are thus stated by Mr. Boyd in "The 
 Merchant Shipping Laws ":^— "By 3 8f 4 Vict c. 65, s. 6, 
 " jurisdiction was given to the Admiralty Court to decide 
 " all claims and demands 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 npon 
 " the high seas, at the time when the damage was re- 
 " ceived, in respect of which such claim was made. And 
 " The AdmiraUu Court Act, 1861 (24 Vict. c. 10, s. 7) 
 " enacts in general terms, that the Court shall have juris- 
 " diction 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 Shijiping 
 " Acts." 2 
 
 Pirates. Pirates being the common enemies of all mankind, and 
 
 all nations having an equal interest in their apprehension 
 and punishment, may be lawfully captui-ed on the high 
 sea by the armed vessels of any particular State, and 
 brought within its territorial jurisdiction for trial at its 
 tribunals.^ 
 
 Tolls. No tolls are demandable from vessels navigating the 
 
 1 Page 262. See also for the " wHcli should subsist bet-ween its 
 
 origin and jiuisdiction of the Ad- " own subjects, and not to aflPeet 
 
 miralty Court, Williams' & Bruce's "the rights of foreigners, un- 
 
 Admiralty Practice. "less the contrary be expressed 
 
 * "It is a general rale in con- " or implied from the absolute ne- 
 
 " stniing Acts of Parliament, that " cessity of the case;" Boyd, Mer- 
 
 " the legislature must be presumed chant Shipping Laws, p. 262. 
 " to have intended by its enact- ■' Wheaton, International Law, 
 
 " mcnts to regulate the rights jj. 168, and ante, Chap. I.
 
 IN THE SEA. 399 
 
 sea, save siich. as are chargeable for the formation of har- 
 bours, and the maintenance of buoys, lights, and beacons, 
 which are a good consideration for a toll ; ^ — " It being re- 
 " quired," 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.^ 
 
 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 provisions of a treaty,^ or by the tacit ac- 
 quiescence of such other nation in its appropriation of 
 certain portions for navigation.^ (Similarly, though the 
 soil of the bed of the sea cannot be the exclusive property 
 of one nation, the beneficial occupation thereof for a suffi- 
 cient 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 pro- 
 perty for a certain time by a State excludes the claim of 
 every other.'' 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, har- 
 bours and breakwaters become, in such cases, permissible, 
 and, being for the benefit of navigation, are readily ac- 
 quiesced in.^ 
 
 A harbour or haven is a place naturally or artificially Ports and 
 made for the safe riding of ships.^ A port is a haven, ^'" °^""^' 
 and something more, — it is a harbour where customs 
 officers are established, and where goods are either im- 
 ported or exported to foreign countries,^ and comprehends 
 
 ^ Hale de Portibus Maris, Harg. ^ Vattel, Droit des Gens, t. 1, 
 
 Tr.51; Ganny. Free Fishers of Whit- c. xxiii. 
 
 stable, 11 H. L. 193. " Wheaton's International Law, 
 
 ••i 1 Mod. 105. by Bojd, p. 220. 
 
 3 Gann v. Free Fishers of Whit- ' Cockburn, C. J., Iteff. v. Keyn, 
 
 stable, supra. See on this subject, 2 Ex. D. 198. 
 
 a>ite, Chap. I. p. 45, and 2}ost, Chap. * Hale de Portibus Maris, c. 2. 
 
 IX. 3 Houck's Navigable Rivers, p. 
 
 ^ Phillunore, International Law, 175. 
 vol. 1, pp. 210, 211.
 
 400 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 a city or boroiigli, called cajyut 2)orfus, with a market and 
 accommodation for sailors.^ 
 
 In virtue of its prerogative, the Crown is conservator of 
 all ports and liavens, creeks and arms of the sea, and pro- 
 tector of the navigation thereof,- and may grant to a sub- 
 ject 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.^ 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 Sf 11 Vict. c. 27 (T/ie Harbours, 
 DocJxS, and Piers Clauses Act, 1847), consohdated the pro- 
 visions usually embodied in local Acts for the construction 
 of harbours and piers ; and by 24 ^ 25 Vict. c. 45, the 
 Board of Trade may make provisional orders authorizing 
 the erection of such works ; while 25 8^ 26 Vict. c. 69 
 transferred to that body various duties and powers relative 
 to harbours and navigation which were formerly vested in 
 - ^ the Admiralty. 
 
 The Public Works Loan Commissioners are authorized 
 by sect. 9, Schedule 1, of 38 8^ 39 Vict. c. 89,^ to make 
 loans to any person authorized, for the purpose of the con- 
 struction and improvement of docks, harbours, and piers, 
 under The Harhonrs and Passing Tolls Act, 1861.^ 
 
 By 40 ^" 41 Vict. c. 16," s. 4, harbour and conservancy 
 
 1 Hale, c. 11. For the law re- 
 lating to ports and harbours, see 
 further aiitc, Chap. I. 
 
 2 Hale de Jure Maris, Harg. Tr. 
 23. 
 
 2 Mar/or of Exeter v. Warren, 5 
 Q. B. 773. 
 
 ■* The Public Works Loans Act. 
 
 5 24 & 25 Vict. c. 47. 
 
 ^ "An Act to facilitate the re- 
 " moval of Wrecks obstructing' 
 
 perly so called, whether natural 
 or artificial, and estuaries, navi- 
 gable rivers, piers, jetties, and 
 other works, in or at which, ships 
 can obtain shelter, or ship and 
 unship goods or passengers; and 
 ' tidal icater^ means any part of 
 the sea and any part of a river 
 within the ebb and flow of the 
 tide at ordinary spring tides, and 
 not being- a harbour. 
 
 "Navigation." By sect.3, " 'i/^r/;-- '■'■'■ llarhour authority'' includes 
 
 boiir'' includes harbours pro- " all persons or bodies of persons, 
 
 (I (
 
 IN THE SEA. 401 
 
 authorities are empowered to remove vessels sunk, stranded, 
 or abandoned in tidal waters or harbours, where such wreck 
 is or is likely to become an obstruction to navigation, or to 
 destroy and, under certain conditions, to sell such wi'eck, 
 and thereout defray expenses incurred under the Act. 
 By sect. 5, 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. 7) . 
 
 The regulations respecting the ownership, measurement. The Mer- 
 and registry of British ships ;^ the law governing the pi^ngActs^ 
 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 light- 
 houses,^ for the appointment and super\dsion of pilots,'' and 
 for the administration of the Mercantile Marine Fund,^ are 
 all under the direction of the Board of Trade, and are pro- 
 vided for by The Merchant Shipping Acts, 1854 fo 1876.^ 
 
 " corporate or unincorporate, being " ' nutJiorifi/^ has the same mean- 
 
 " proprietors of or intrusted with " ing as the term has in the Mer- 
 
 " the duty, or invested with the " chant Shipping Act, 1854." 
 
 " power of constructing, improv- ^ 17 & 18 Vict. c. 104 (Merchant 
 
 " ing,managing, regulating, main- Shipping Act, 1854), Part II. 
 
 " taining or lighting a harbour; - lb., Part IX. 
 
 "and '■conservancy aiifJiorifi/' in- ^ lb., Part III. 
 
 " eludes all persons or bodies of ■■ lb., Part VIII. 
 
 " persons, corporate or unincorpo- ^ lb.. Part IV. 
 
 "rate, inti-usted with the duty ^ j^^ Part VI. 
 
 " and invested with the power of ' lb., Part V. 
 
 " conserving, maintaining or im- ^ lb., Part VII. See The Mer- 
 
 " proving the navigation of a tidal chant Shipping Laws (A. 0. Boyd) 
 
 " water; while '■general lighthouse (1876), p. 9. 
 
 3 The following are the Merchant Shipping Acts, 1854 — 1876 : 
 
 17 & 18 Vict. c. 104 (Merc. Shipping Act, 1854). 
 
 17 & 18 Vict. c. 120 ( ,, ,, ,, Eepeal Act, 1854). 
 
 18 & 19 Vict. c. 91 ( ,, ,, ,, Amendment Act, 1855). 
 25 & 26 Vict. c. 63 ( ,, ,, ,, ,, ,, 1862). 
 
 30 & 31 Vict. c. 124 ( ,, ,, ,, 1854, Amendment Act, 1867). 
 
 31 & 32 Vict. c. 129 (Colonial Shipping Act, 1868). 
 
 32 Vict. c. 11 (Merchant Shipping (Colonial) Act, 1869. 
 
 34 & 35 Vict. c. 110 (Merchant Shipping Act, 1871). 
 
 35 & 36 Vict. c. 73 ( ,, ,, ,, 1872). 
 
 36 & 37 Vict. c. 85 ( „ „ ,, 1873). 
 39 & 40 Vict. c. SO ( ,, ,, ,, 1876). 
 
 See for a full consideration of this branch of the law, Maude & 
 Pollock's Law of Merchant Shipping, Williams k Bruce's Admiralty 
 Practice, and Merchant Shipping Laws (A. C. Boyd) (1876). 
 
 C. D D
 
 402 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 17 & IS Vict. Of these the two most important are 17 ^ 18 VicL c. 104 
 39 &'4o''vict. (The Merchant Shipping Act, 1854), and 39 S^- 40 Vict. c. 80 
 ^' ^^- {The Merchant Shippinr/ Act, 187G), and it is enacted by 
 
 sect. 2 of the latter Act that it shall be construed as one 
 with The Merchant SJiipping Act, 1854, and the Acts 
 amending the same, and the said Acts and this Act may- 
 be cited collectively as Tite Merchant Shipping Acts, 1854 to 
 1876.1 
 17 & 18 Vict. The Act of 1854, which is the principal Act, is divided 
 into eleven parts (sect. 6), eight of which treat of the 
 various matters noticed above,- while of the remaining 
 three the frst relates to the general functions of the Board 
 of Trade, the tenth to legal procedure, and the eleventh to 
 miscellaneous matters. 
 
 By sect. 6 of Part I. the Board of Trade is constituted 
 " the department to undertake the superintendence of 
 matters relating to merchant ships and seamen, and carry 
 into execution this and all other Acts in force and relating 
 to the subject other than such Acts as relate to the 
 revenue." 
 
 Part IV. of the Act relates to " safety and the prevention 
 
 of accidents," and is stated by sect. 291 to apply "to all 
 
 " British ships ; and all foreign steamships carrying pas- 
 
 " sengers between places in the United Kingdom shall be 
 
 " subject to all the provisions with respect to the certificates 
 
 " of the masters and mates thereof to which British ships 
 
 " are subject." 
 
 Regulations The regulations for navigation on the high seas are 
 
 tioirTect^'''5 contained in sect. 25 of 25 ^ 26 Vict. c. 63 {The Merchant 
 
 of 2.5 & 26 Shipping Act Amendment Act, 1862), which enacts that, — 
 
 " On and after the 1st day of July, 1863, or such later 
 
 " day as may be fixed for the purpose by order in council, 
 
 " the regulations in the table marked (C) in the schedide 
 
 " hereto shall come into operation and be of the same force 
 
 " as if they were enacted in the body of this Act ; but Her 
 
 ^ Boyd's Merchaut Shipping " See p. 401, a>2te, and notes 
 
 Juayrs, passim, (') — (^).
 
 IN THE SEA. 
 
 403 
 
 " Majesty may from time to time, on the joint recom- 
 " meudation of the Admiralty and the Board of Trade, 
 " by order in council, annul or modify any of the said 
 " regidations, or make new regulations in addition thereto, 
 " or in substitution therefor, and any alterations in or 
 " additions to such regulations made in the manner afore- 
 " said shall be of the same force as the regulations in the 
 " said schedule."^ 
 
 1 The following- are the rules 
 made bj^ an order in council of 
 14th August, 1879, and which are 
 to be substituted for the rules for- 
 merly ui force, on and after the 
 1st of September, 1880:— 
 
 FIRST SCHEDULE. 
 
 Regulations foe Preventing Col- 
 lisions AT Sea. 
 Preriminanj. 
 
 Aet. 1. In the following rules 
 eveiy steam ship which is under 
 sail and not under steam is to be 
 considered a sailing ship ; and every 
 steam ship which is under steam, 
 whether under sail or not, is to be 
 considered a ship under steam. 
 Rules concerning Lights. 
 
 Aet. 2. The lights mentioned in 
 the following Articles, nvimbered 
 3, 4, 0, 6, 7, 8, 9, 10, and 11, and 
 no others, shall be carried in all 
 weathers, from sunset to sunrise. 
 
 Aet. 3. A seagoing steam ship 
 when under way shall carry: 
 
 (a) On or in front of the fore- 
 mast, at a height above the 
 hull of not less than twenty 
 feet, and if the breadth of the 
 ship exceeds twenty 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 un- 
 broken light over an arc of the 
 horizon of twenty points of the 
 compass ; so iixed 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 five miles: 
 
 (b) On the starboard side, a green 
 light so constructed as to show 
 an unif onn and unbroken light 
 over an arc of the horizon of 
 ten points of the compass ; so 
 fixed as to tkrow the light 
 
 D D 
 
 from right ahead to two points 
 abaft the beam on the star- 
 board side ; and of such a cha- 
 racter as to be visible on a 
 dark night, with a clear atmo- 
 sphere, at a distance of at least 
 two miles : 
 
 (c) On the port side, a red light, 
 so constructed as to show an 
 unifoiTQ 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 two miles : 
 
 (d) The said green and red side 
 lights shall be fitted with in- 
 board screens projecting at 
 least three feet forward from 
 the light, so as to prevent these 
 lights from being seen across 
 the bow. 
 
 Aet. 4. A steam ship, when tow- 
 ing another ship shall, in addition 
 to her side lights, cany two bright 
 white lights in a vertical line one 
 over the other, not less than thi'ee 
 feet apart, so as to distinguish her 
 from other steam ships. Each of 
 these lights shall be of the same 
 construction and character, and 
 shall be carried in the same posi- 
 tion as the white light which other 
 steam ships are required to carry. 
 
 Aet. 5. A ship, whether a steam 
 ship or a sailing ship, when em- 
 ployed either in laying or in pick- 
 ing up a telegraph cable, or which 
 from any accident is not under 
 command, shall at night caiTy in 
 the same position as the white light 
 ■«'hich steam ships are required to 
 caiTy, and, if a steam ship, in place 
 of that light, three red lights in 
 globular lanterns, each not less 
 than ten inches in diameter, in a 
 vertical line one over the other, not 
 less than three feet apart : and shall 
 
 2
 
 404 
 
 OF NAVIGATIOM, AND THEREIN OF CONSERVANCY. 
 
 25 & 26 Vict. ^y s_ 26 of 25 ^ 26 Vict. c. 63, it is enacted that the 
 Publication Board of Trade shall cause these regulations and altera- 
 
 by day carry in a vertical line one 
 over the other, not less than tlii-ee 
 feet apart, in front of but not 
 lower than her foremast head, three 
 black balls or shapes, each two feet 
 in diameter. 
 
 These shapes and lights are to 
 be taken by approaching ships as 
 signals that the ship using them is 
 not under command, and cannot 
 therefore get out of the way. 
 
 The above ships, when not making 
 any way through the water, shall 
 not carry the side lights, but when 
 making way shall carry them. 
 
 Aet. 6. A sailing ship under 
 way, or being towed, shall carry 
 the same lights as are provided by 
 Article 3 for a steam ship under 
 way, with the exception of the 
 white light, which she shall never 
 carry. 
 
 Aet. 7. Whenever, as in the case 
 of small vessels during bad weather, 
 the green and red side lights can- 
 not be fixed, these lights shall be 
 kept on deck, on their respective 
 sides of the vessel, ready for use : 
 and shall, on the approach of or to 
 other vessels, be exhibited on their 
 respective sides in sufficient time 
 to prevent collision, in such man- 
 ner as to make them most visible, 
 and so that the green light shall 
 not be seen on the port side nor 
 the red light on the starboard side. 
 To make the use of these port- 
 able lights more certain and easy, 
 the lanterns containing them shall 
 each be painted outside with the 
 coloiu- of the light they respec- 
 tively contain, and shall be pro- 
 vided with proper screens. 
 
 Aet. 8. A ship, whether a steam 
 ship or a sailing ship, when at 
 anchor, shall carry, where it can 
 best be seen, but at a height not 
 exceeding twenty feet above the 
 hull, a white light, in a globular 
 lantern of not less than eight inches 
 in diameter, and so constructed as 
 to show a clear imiform and un- 
 broken light visible all round the 
 horizon, at a distance of at least 
 one mile. 
 
 Aet. 9. A pilot vessel, when 
 engaged on her station on pilotage 
 duty, shall not carry the lights re- 
 quired for other vessels, but shall 
 carry a white light at the mast 
 head, visible all round the horizon, 
 
 and shall also exhibit a flare-up 
 light or flare-up lights at short in- 
 tervals, which shall never exceed 
 fifteen minutes. 
 
 A pilot vessel, when not engaged 
 on her station on pilotage duty, 
 shall carry lig-hts similar to those 
 of other ships. 
 
 Aet. 10. (a) Open fishing boats 
 and other open boats when under 
 way shall not be obliged to cany 
 the side lights required for other 
 vessels ; but every such boat shall 
 in lieu thereof have ready at hand 
 a lantern with a green glass on the 
 one side and a red glass on the 
 other side ; and on the approach of 
 or to other vessels, such lantern 
 shall be exhibited in siiificient time 
 to prevent collision, so that the 
 green light shall not be seen on 
 the port side, nor the red light on 
 the starboard side. 
 
 (b) A fishing vessel, and an open 
 boat, when at anchor, shall exhibit 
 a bright white light. 
 
 (c) A fishing vessel, when em- 
 ployed in drift net fishing, shall 
 cany on one of her masts two red 
 lights in a vertical line one over 
 the other, not less than three feet 
 apart. 
 
 (d) A trawler at work shall carry 
 on one of her masts two lights in a 
 vertical line one over the other, not 
 less than three feet apart, the upper 
 light red, and the lower green, and 
 shall also either cany the side 
 lights required for other vessels, 
 or, if the side lights cannot be 
 carried, have ready at hand the 
 coloured lights as provided in Ar- 
 ticle 7, or a lantern with a red and 
 a green glass as described in para- 
 graph (a) of this Article. 
 
 (e) Fishing vessels and open boats 
 shall not be prevented from using 
 a flare-up in addition, if they desire 
 to do so. 
 
 (f ) The lights mentioned in this 
 Article are substituted for those 
 mentioned in the r2th, 13th, and 
 14th Articles of the Convention 
 between France and England sche- 
 duled to the British Sea Fisheries 
 Act, 1868. 
 
 (g) All lights required by this 
 Article, except side lights, shall be 
 in globular lanterns so constnicted 
 as to show all round the horizon. 
 
 Aet. 11. A shij^ which is being
 
 IN THE SEA. 
 
 405 
 
 tions of them to be published, aud that the Gazette con- and enforce- 
 tainins: them shall be evidence ; and sect. 27 provides P'^.^* ^^ i'^^"- 
 
 ° ^ lations. 
 
 overtaken by another shall show 
 from her stern to such last-men- 
 tioned ship a white light or a flare- 
 up light. 
 
 Sound Signals for Fog, (^-c. 
 
 Aet. 12. A steam ship shall be 
 provided with a steam whistle or 
 other efficient steam sound signal, 
 so placed that the sound may not 
 be intercepted by any obstructions, 
 and with an efficient fog horn to 
 be sounded by a bellows or other 
 mechanical means, and also with 
 an efficient bell. A sailing ship 
 shall be provided with a similar 
 fog horn and bell. 
 
 In fog-, mist, or falling snow, 
 whether by day or night, the sig- 
 nals described in this Article shall 
 be used as follows ; that is to say, 
 
 (a) A steam ship under way shall 
 make with her steam whistle, 
 or other steam sound signal, 
 at intervals of not more than 
 two minutes, a prolonged blast. 
 
 (b) A sailing ship under way 
 shall make with her fog horn, 
 at intervals of not more than 
 two minutes, 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. 
 
 (c) A steam ship and a sailing 
 ship when not under way shall, 
 at intervals of not more than 
 two minutes, ring the bell. 
 
 Speed of Ships to be moderate in 
 Fog, S;c._ 
 
 Aet. 13. Every ship, whether a 
 sailing ship or steam ship, shall in 
 a fog, mist, or falling snow, go at 
 a moderate speed. 
 
 Steering and Sailing Rules. 
 
 Aet. -14. When two sailing ships 
 are approaching one another, so as 
 to involve risk of collision, one of 
 them shall keep out of the way of 
 the other as follows, viz. : — 
 
 (a) A ship which is running free 
 shall keep out of the way of a 
 ship which is close-hauled. 
 
 (b) A ship which is close-hauled 
 on the port tack shall keep 
 out of the way of a ship which 
 is close-hauled on the star- 
 board tack. 
 
 (c) When both are running free 
 with the wind on different 
 
 sides, the ship which has the 
 wind on the port side shall 
 keep out of the way of the 
 other. 
 
 (d) When both are running free 
 with the wind on the same 
 side, the ship which is to wind- 
 ward shall keep out of the way 
 of the ship which is to leeward. 
 
 (e) A ship which has the wind 
 aft shall keep out of the way 
 of the other ship. 
 
 Aet. 15. If two ships under 
 steam are meeting end on, or 
 nearly end on, so as to involve 
 risk of collision, each shall alter 
 her course to starboard, so that 
 each may pass on the port side of 
 the other. 
 
 This Article only applies to cases 
 where ships are meeting end 
 on, or nearly end on, in such 
 a manner as to involve risk of 
 oollisiou, and does not apply 
 to two ships which must, if 
 both keep on their respective 
 courses, pass clear of each 
 other. 
 The only cases to wliich it does 
 apply are, when each of the 
 two ships is end on, or nearly 
 end on, to the other ; in other 
 words, to cases in which, by 
 day, each ship sees the masts 
 of the other in a line, or nearly 
 in a line, with her own ; and 
 by night, to cases in which 
 each ship is in such a position 
 as to see both the side lights 
 of the other. 
 It does not apply by day, to 
 cases in which a ship sees 
 another ahead crossing her 
 own coui'se ; or by night, to 
 cases where the red light of 
 one ship is opposed to the red 
 light of the other, or where 
 the green light of one ship is 
 opposed to the green light of 
 the other, or where a red light 
 without a green light, or a 
 gi'een light without a red 
 light, is seen ahead, or where 
 both green and red lights are 
 seen anywhere but ahead. 
 Aet. 16. If two ships under 
 steam are crossing, so as to involve 
 risk of collision, the ship which has 
 the other on her own starboard side 
 shall keep out of the way of the 
 other.
 
 406 
 
 OF NAVIGATION', AND THEREIN OF CONSERVANCY. 
 
 that all owners and masters shall be bound to obey them 
 SO long as they continue in force ; breaches thereof being 
 deemed to imply wilful default on the part of persons in 
 charge of vessels whenever any damage arises through 
 their non-observance (sect. 28).^ Sect. 30 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 
 
 Aet. 17. If two ships, one of 
 ■which is a sailing ship, and the 
 other a steam ship, are proceeding 
 in such directions as to involve risk 
 of collision, the steam ship shall 
 keep out of the vray of the sailing 
 ship. 
 
 Aet. 18. Every steam ship, when 
 approaching another ship, so as to 
 involveriskof collision, shall slacken 
 her speed or stop and reverse, if 
 necessary. 
 
 Aet. 19. In taking any course 
 authorized or requii-ed by these 
 regulations, a steam ship under 
 way may indicate that course to 
 any other ship which she has in 
 sight by the followiiig signals on 
 her steam whistle, viz. : — 
 
 One short blast to mean "I am 
 directing my course to star- 
 board:" 
 
 Two short blasts to mean ' ' I am 
 directing my course to port:" 
 
 Three short blasts to mean ' ' I am 
 going full speed astern : " 
 
 The use of these signals is o^j- 
 tional ; but if they are used, the 
 course of the ship must be in ac- 
 coi'dance with the signal made. 
 
 Aet. 20. Notwithstanding- any- 
 thing contained in any preceding 
 Article, every ship, whether a sail- 
 ing sldp or a steam ship, overtaking 
 any other, shall keep out of the 
 way of the overtaken ship. 
 
 Aet. 21. In narrow channels 
 every steam ship shall, when it is 
 safe and practicable, keep to that 
 side of the fairway or midchannel 
 which lies on the starboard side of 
 such ship. 
 
 Art. 22. Where by the above 
 rules one of two ships is to keep 
 out of the way, the other shall 
 keep her coiirse. 
 
 Aet. 23. In obeying and con- 
 struing these rules, due regard 
 shall be had to all dangers of navi- 
 gation, and to any special circum- 
 stances which may render a depar- 
 
 ture from the above rules necessary 
 in order to avoid immediate danger. 
 
 Ao Ship, under any Circumstances, to 
 neglect proper Precautions. 
 Aet. 24. Nothing in these rules 
 shall exonerate any ship, or the 
 owner, or master, or crew thereof, 
 from the consequences of any neg- 
 lect to carry lights or signals, or 
 of any neglect to keep a proper 
 look-out, or of the neglect of any 
 precaution which may be required 
 by the ordinary practice of seamen, 
 or by the special circumstances of 
 the case. 
 
 Reservation of Sales for Sarhours 
 and Inland Navigation. 
 Aet. 2o. Nothing in these rules 
 shall interfere with the operation 
 of a special rule, didy made by 
 local authority, relative to the 
 navigation of any harbour, river, 
 or inland navigation. 
 
 Special Lights for Squadrons and 
 Conrogs. 
 
 Aet. 26. Nothing in these rules 
 shall interfere with the operation 
 of any si^ecial iniles made by the 
 government of any nation with re- 
 sjject to additional station and sig- 
 nal lights for two or more ships 
 of war or for ships sailing under 
 convoy. 
 
 SECOND SCHEDULE. 
 
 FOEEIGN COTTNTEIES WHICH HAVE 
 ADOPTED THE ABOVE RlTlES. 
 
 Austiia-Hungary. 
 
 Italy. 
 
 Belgium. 
 
 Netherlands. 
 
 Chili. 
 
 Norway. 
 
 Denmark. 
 
 Portugal. 
 
 France. 
 
 Russia. 
 
 Germany. 
 
 Spain. 
 
 Great Britain. 
 
 Sweden. 
 
 Greece. 
 
 United States 
 
 ' Boyd's Merchant Shipping 
 Laws. p. 278.
 
 IN THE SEA. 
 
 407 
 
 provided with lights, and the means of making signals in 
 pursuance of the regulations, it being enacted that no 
 collectors of customs at any port shall clear any ship 
 outwards without such certificate. 
 
 In the case of collisions, it is provided by sect. 17 of Collisions. 
 3G Sf 37 Vict. c. 85, that the ship infringing any of the f gl^^^'^*' 
 regulations for preventing collisions contained in or made 
 in The Merchant Shippinej Acts, 1854—1873, shall be 
 deemed to be in fault unless it can be shown to the satis- 
 faction of the Court that the circumstances of the case 
 made departure from the regulation necessary.^ 
 
 ' The duties of masters of vessels 
 in case of collisions are regulated 
 by sect. 16 of 36 & 37 Vict. c. 85. 
 It may be useful to note hero some 
 of the main points of the law on 
 this subject as stated by Mr. Boj^d 
 (Merchant Shipping Laws, pp. 258, 
 262):— 
 
 Collisions. — Ships are held liable 
 for damage occasioned by collision, 
 cither on account of the culpable 
 neglect or complicity, direct or in- 
 dii-ect, of their owners, or on ac- 
 count of the negligence, unskil- 
 fulness or carelessness of those 
 employed in their control and navi- 
 gation. 'When employed in na-^d- 
 gation ships must be kept seawoi'thy 
 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 dis- 
 aster. {The Continental, 14 "Wallace, 
 Amer. Rep. 354; The Glannahanta, 
 1 P. D., C. A. 291.) 
 
 " There are four possibilities," 
 said Lord Stowell in the Woodrop 
 Sims (2 Dods. Ad. 85), "under 
 ' ' which an accident of this sort may 
 ' ' occiu". In the first place, it may 
 " happen without blame being im- 
 " putable 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 re- 
 ' sponsible 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 sufi'ering i^arty 
 ' only, and then the rule is that 
 ' the sufferer must bear his own 
 ' biu'den. Lastly, it may have 
 ' been the fault of the ship which 
 ' ran the other down, and in this 
 ' case the injured party would bo 
 ' entitled to an entire compensation 
 ' from the other." 
 
 The Court of Admiralty and the 
 common law Coiu'ts 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 da- 
 " mages arising out of a collision 
 " between two ships, if both ships 
 ' ' shall be f ovmd to be in fault, the 
 " rules hitherto in force in the 
 " Court of Admiralty, so far as 
 " they have been at variance with 
 " the iidesin force in the courts of 
 ' ' common law, shall prevail ' ' (The 
 Judicature Act, 1873, 36 & 37 Vict. 
 c. 66, s. 25, sub-s. 9). 
 
 " Most countries," says Mr. 
 Boyd (Merchant Shipping Laws, 
 pp. 258 — 260), * ' x^ossessing any
 
 408 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Pilots aud 
 pilotage. 
 
 17 & 18 Vict, 
 c. 104. 
 
 The law relating to pilotage is governed by Part V. of 
 17 ^ 18 Vict. c. 104 {The 3Icrchant Shippiucj Act, 1854). 
 
 " considerable mercantile marine, 
 ' ' have now adopted the same rules 
 ' ' of navigation, and when the case 
 ' ' is one within the rules there will 
 "be no difhculty in determining 
 ' ' by Avhat law it is to be decided. 
 ' ' But it may happen that the case 
 " is one not contemplated in the 
 " rules, or that the foreign vessel 
 ' ' is one not boimd by them. 
 
 ' ' The general rule respecting all 
 ' ' remedies seems well settled ' that 
 " 'whatever relates to the remedy 
 " 'to be enforced, must be deter- 
 " 'mined by the lex fori, the law 
 " ' of the country to the tribunals 
 " ' of which the appeal is made ' 
 " (per Lord Brougham in I)oii v. 
 " Lip]imann, 5 CI. & F. 13; British 
 " Linen Co. v. Druinmond, 10 B. & 
 " C. 903 ; De la Vega v. Tianna, 1 
 " B. & Ad. 284). But in regard 
 " to the rights and merits in- 
 " volved in actions, the law of the 
 " place where they originated is 
 " to govern (Story, on the Conflict 
 " of Laws, s. 588). ' The civil lia- 
 " 'bility,' said Willes, J., in a 
 " recent case {I'hiUips v. E>/re, 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 abi-oad should 
 " give a remedy in England, it is 
 " essential that the wrong should 
 "be of such a character, that it 
 " wovdd have given a cause of 
 ' ' action if committed in England 
 " {TheEalley, L. B., 2 P. C. 194 ; 
 " iimifh V. Condr>/, 1 Howard 
 " (Amer. Eep.) 28). Lord J. 
 " Mellish recently said, 'The law 
 "'respecting personal injxmes 
 ' ' ' and respecting wrongs to per- 
 " ' sonal property appears to me 
 " 'to be perfectly settled, that no 
 ' ' ' action can be maintained in the 
 " 'Courts of this country on ac- 
 " 'count of a wrongful act, either 
 " 'to a person or to personal pro- 
 "'perty committed within the 
 " ' j lU'isdiction of a foreign coimtry, 
 " ' 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, 1 P. D. (C. 
 " A.) Ill ; Fhillips v. Uf/re, L. K., 
 " 6 Q. B. 28). 
 
 " Thus, an English ship was 
 " compelled to take a pilot on 
 ' ' board off Flusliing, and through 
 " the negligence of the pilot a 
 " collision occurred. By the Bel- 
 " gian law the owners, though 
 " compelled to employ a pilot, are 
 " liable for his acts, whereas in 
 " England, when pilotage is com- 
 " pulsory, the pilot alone is re- 
 " sponsible. In a cause of collision 
 " instituted against the British 
 ' ' ship in this country, it was held 
 " that the party claiming repara- 
 " tion in a British Court was not 
 " entitled to the benefit of the 
 ' ' foreign law that made the owner 
 ' ' responsible against the provisions 
 ' ' of English statute law, by which 
 " no such liability as pro^'ided by 
 " the Belgian law existed. An. 
 " English Coiu-t will not enforce a 
 ' ' foreign municipal law, and give a 
 " remedy in the shape of damages 
 " in respect of an act which, ac- 
 " cording to its own princij)les, 
 " imposes no liability on the per- 
 ' ' son from whom the damages are 
 " claimed {The Halleij, L. E., 2 
 "P. C. 194; Smith v. Condry, 1 
 " HoAvard (Amer. Rep. 28) ). 
 " And on the other hand, where a 
 " cause of damage was instituted 
 " in this country against an Eng- 
 " lish 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 he could 
 ' ' not be made so in England, even 
 " though he would have been 
 ' ' liable had the damage been com- 
 " mitted in England {The M. 
 " Moxham, 1 P. D. (C. A.) 107). 
 
 " The same principles apply to 
 " torts committed on the high 
 " seas. No liability will attach
 
 IN THE SEA. 
 
 409 
 
 It is enacted by sect. 353, that, " Subject to any altera- 
 " tion to be made by any pilotage authority, in pursuance 
 " of the power hereinbefore in that behalf given, the 
 " employment of pilots shall continue to be compulsory in 
 " all districts in which the same was by law compulsory, 
 " immediately before the time when this Act comes into 
 " operation ; and all exemptions from compulsory pilotage 
 " then existing within such districts, shall also continue in 
 *' force ; and every master of any unexempted ship navi- 
 " gating within any such district, who, after a qualified 
 " pilot has offered to take charge of such ship, or has 
 " made a signal for that purpose, either himself pilots 
 " such ship without possessing a pilotage certificate en- 
 *' abling him so to do, or employs or continues to employ 
 " an unqualified person to pilot her, and every master 
 " of any exempted ship navigating within any such dis- 
 " trict, who, after a qualified pilot has offered to take 
 " charge of such ship, or has made a signal for that 
 " purpose, employs or continues to employ an unqualified 
 " pilot to pilot her, shall, for every such offence, incur a 
 " penalty of double the amount of pilotage demandable 
 " for the conduct of such ship." 
 
 The exemptions referred to in the first part of the Exemptions, 
 section are contained in G Geo. IV. c. 125, and still ^ ^^?- ^^\ 
 
 c. 12o, and 
 
 continue in force, though that Act is repealed hy 17 ^ 18 17&I8 Vict. 
 
 Vict. c. 120. "• ^20- 
 
 " A pilot is defined by sect. 2 to be any person not Definition of 
 
 " belonging to a ship, who has the conduct thereof ; and a << qualified 
 
 " ' qualified pilot ' shall mean any person duly licensed by pilot-" 
 
 ' ' in this country unless the act ' ' wrong according to British law, 
 
 " gives a remedy by English law, " but in the right by the maritime 
 
 ' ' and also by the laws of the sea ' ' law of the locality, she will then 
 
 " in force at the place where it "be free from liability, since, as 
 
 "was committed {TFilliams v. "the foreigner could not himself 
 
 " Gtitch {The Chancellor), 14 Moo. " be bound by British law, he 
 
 "P. C. 202). When the case does " cannot avail himself of the fact 
 
 " not fall within the rules, or the " that the British ship has violated 
 
 " foreigner is not bound by them, "that law {The Zollvcrcin, Swa. 
 
 " and the British ship is in the " 96 ; The Saxonia, Lush. 410)."
 
 410 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Sect. 2 of 
 17 & 18 Vict. 
 c. 104. 
 
 Sect. 368 of 
 17 & 18 Vict, 
 c. 104. 
 
 The Trinity 
 House. 
 
 Lighthouses, 
 buoys, and 
 beacous. 
 
 Part VI. of 
 17 & 18 Vict. 
 
 " any pilotage authority to conduct ships to which he does 
 " not belong. lie is excepted from the definition of a 
 " seaman. A pilot supersedes the master, and the master 
 " is bound to obey his directions in the management of 
 "the vessel. {The JuUa, Lush, P. C. 232.) If the 
 " master acts in any way contrary to the opinion of the 
 " pilot, he will be responsible for any damage that may 
 " occm' by reason of such acts, notwithstanding that the 
 " pilot has charge of the ship. [The Julia, Lush, P. C. 
 " 232 ; 14 Moo. P. C. 210.) " ^ 
 
 " Pilotage authority " is defined by the same section 
 (sect. 2), to include all bodies and persons authorized to 
 appoint or license pilots, or to fix or alter rates of pilotage, 
 or to exercise any jurisdiction in respect of pilotage. 
 The powers of such pilotage authorities are defined in 
 sects. 331 — 339; the regulations as to pilot boats in sects. 
 345 — 348 ; and those as to pilot licences in sects. 349 — 
 352. 
 
 By ^ect. 368, " The Trinity House may, in exercise of 
 " the general power hereinbefore given to all pilotage 
 " authorities, of doing certain things in relation to pilot- 
 " age matters, alter such of the provisions hereinafter 
 " contained as are expressed to be subject to alteration by 
 " them, in the same manner and to the same extent as 
 " they might have altered the same, if such provisions had 
 " been contained in any previous Act of Parliament, 
 " instead of this Act ; " and their powers in this respect 
 are set forth in sects. 369 — 386.- 
 
 Part YI. of 17 c^ 18 Vict. c. 104 {Ilerchant Shippino 
 Ad, 1854), regulates the management of lighthouses. 
 
 By sect. 389, the care of lighthouses, buoys, and 
 
 ' Boyd, Merchant Shipping 
 La"ws, p. 301, and cf. p. 4, and pp. 
 303—314 ; and see Maude & Pol- 
 lock, Chap. V. p. 17G. 
 
 - Boyd, Merchant Shipping 
 La-^vs, pp. 329—341. For regula- 
 
 tions concerning Cinque j^ort pilots 
 see pp. 341 — 344, and for those 
 with respect to the Trinity Hoiises 
 of Hull and Newcastle, see p. 
 344.
 
 IN THE SEA. 411 
 
 beacons, is vested in the Triuity House, as regards c. 104, s. 389. 
 
 England and Wales, the islands of Jersey, Gruernsey, The Trinity 
 
 Sark, and Alderney, and the adjacent seas and islands, as 
 
 well as in HeKgoland and Gribraltar. With respect to The Commis- 
 
 Scotland, and the adjacent seas and islands, and the isle of Northern 
 
 Man, it is placed under the control of the Commissioners Lighthouses. 
 
 of Northern Lighthouses ; and in Ireland, and the ad- The Commis- 
 
 jacent seas and islands, under that of the Commissioners irjsh Lights. 
 
 of Irish Lights. " Subject to the provisions hereinafter 
 
 " contained, the said Trinity House, and Commissioners 
 
 " (hereinafter termed Gfeneral Lighthouse Authorities), 
 
 " shall respectively continue to hold and maintain all 
 
 " property now vested in them in that behalf, in the same 
 
 " manner and for the same purposes as they have hitherto 
 
 " held and maintained the same." ^ 
 
 The construction of, and the dues for, new lighthouses, New light- 
 are governed by sects. 404 — 412 of The Jflerc/iant S/iipping 
 Act, 1854 (17 (!^ 18 Vict. c. 104),- and Colonial lighthouses lighthouses, 
 and dues by 18 ^ 19 VicL c. 91 (sects. 2— 8).^ 
 
 The rights and obligations of passengers are set forth in The Passen- 
 T/te Passengers Acts, 1855 and 1870.^ ^"'' '^^*'- 
 
 In Inland Waters. 
 By sect. 31 of 25 (^' 26 Vict. c. 63,= it is provided that Sect. 3i of 
 any rules under local Acts concerning the lights or signals ^^^ ^3 o-enerai 
 to be carried by vessels navigating the waters of any enactment as 
 IT. • +1, • 1 1 • ^- • to lights, 
 
 harbour, river, or other inland navigation, or concerning signals, &c. to 
 
 the steps for avoiding collision to be taken by such vessels, he used m 
 
 gatiou. 
 
 1 The Commissioners of Northern '■ lb. pp. 352 — 354. 
 
 Lights are defined by sect. 390. * lb. p. 471 et seq. The acts 
 
 The Commissioners of Irish Lights are: — 18 & 19 Yict. c. 119 (Pas- 
 
 ■were formerly termed the Port of sengers Act, 1855) ; 26 & 27 Vict. 
 
 Dublin Corporation, -which was c. 51 (Passengers Act Amendment 
 
 divided into two separate corpora- Act, 1863) ; 33 & 34 Vict. c. 95 
 
 tions by sect. 2 of 30 Vict. c. 81 (Passengers Act Amendment Act, 
 
 (The Dublin Port Act, 1876) (local (1870). See Maude & Pollock, 
 
 and personal). See Boyd, pp. 3, Chap. XL p. 446. 
 
 346. 5 Tjie Merchant Shipping Act 
 
 - Boyd, Merchant Shipping Amendment Act, 1862. 
 Laws, pp. 354 — 358.
 
 412 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 are to continue in force ; but in tlie case of harboui'S and 
 rivers where no such rules exist, it shall be lawful for her 
 Majesty in council, upon application from the harbour 
 trust or body corporate, if any, owning or exercising 
 jmisdiction upon the waters of such harbour, river, or 
 inland navigation, or, if there is no such harbour trust or 
 body corporate, upon application from persons interested 
 in the navigation of such waters, to make rules concerning 
 the lights or signals to be carried, and concerning the steps 
 for avoiding collision to be taken by vessels navigating 
 such waters ; and such rules when so made shall, so far as 
 regards vessels na\'igating such waters, have the same 
 effect as if they were regulations contained in Table (C) 
 in the schedule to this Act, notwithstanding anything in 
 this Act or in the schedule thereto contained.^ 
 
 A consideration of the above general enactment will 
 show that the rules regarding inland navigation must 
 necessarily be of a more heterogeneous and complex 
 nature than those controlling 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 preservation of the 
 navigation of inland waters and its regulation, both of 
 which are now included under the term ^^ conservancy,^^ 
 are governed almost entirely by statute law, and may be 
 clearly distinguished from the general common Jaic rigid to 
 navigate upon such waters. 
 
 ^ BoycT, Merchant Shipping 5^(7., and for the rules of the Thames, 
 Laws, pp. 282, 283. For the see Order in Council of 5th Feb- 
 mles in Table C. see ante, p. 403 ct ruary, 1872, andfw*^. Appendix.
 
 IN INLAND WATERS. 413 
 
 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 Conservaney of Navigation and the Powers and 
 
 Duties of Conservators. 
 
 The bed of all navigable rivers, where the tide flows and The general 
 re-flows, and of all estuaries or arms of the sea, is by law ^^°}^^ °^ ^'^^'' 
 
 _ ' _ . gation lu 
 
 vested in the Crown. But this ownership of the Crown is tidal waters, 
 for the 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. ^ 
 
 These 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. - 
 
 Although the flux and reflux of ^eiidiQi?, prima facie Extends to all 
 evidence that a river is navigable, it does not necessarily ti^^l "paters 
 
 ■, . n ■which are 
 
 follow that because the tide flows and reflows in any parti- navigable at 
 cular place, that it is therefore a public navigation although thJtide**^ 
 of suflicient size. The 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 com- 
 merce, it mil 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 difScult to suppose that 
 
 1 Gann v. Free Fishers of Whif- ^ For definition of "navigable 
 
 stable, 11 H. L. 192. river," according to French law, 
 
 - Orr Fwhiff V. ColqiiJioiDi, 2 Ap-p. as existing in Canada, see Bell v. 
 
 Cas. 839 ; Abraham v. Great JS'or- Corporation of Quebec, 41 L. T., X. 
 
 them Bail. Co., IG Q. B. 596, per S. 451 (P. C), and for distinction 
 
 Patteson, J. between "navigable" and "boat-
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 it lias ever been a public navigable river, ^ The actual 
 user of a tidal river for the purposes of navigation is of 
 course the strongest evidence of its navigability.^ 
 
 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.^ 
 
 In the case of Maijor of Colchester v. Brooke, Lord 
 Denman, C. J., 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 a 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 upon principle 
 the matter seems clear. It cannot be disputed, 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 
 
 able*' in American law, see Angell 
 on "Watercourses, ch. 13. 
 
 1 Itcx T. Montncjuc, 4 B. & C. 
 598 ; Mayor of Lynii v. Ttirner, 1 
 Cowp. 36. 
 
 - Jllih's V. Sose, Taunt. 705 ; 
 and per Bavlcy, J., in Vooght v. 
 Winch, 2 B.\<c Aid. 662. 
 
 ^ Ecx T. Montague, 4 B. & C. 
 598 ; Meg. v. Bctt>!, 16 C. B. 1022.
 
 IN INLAND WATERS. 415 
 
 " 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 pui'pose, — 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 ap- 
 " peared 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 reason- 
 " able 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. Herherf^), but 
 " stands on this broad ground : The right of soil in arms 
 " of the sea and public navigable rivers, which the Cro\\Ti 
 " priind 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 inconsistent with a 
 
 1 3 T. R. 253.
 
 416 
 
 OF NAVIGATIOX, 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. 
 
 " permanent loss of such right, if, by accumulation of 
 " silt or any other natural cause, the channel becomes 
 " choked up {Rtw v. Montague^). The law has made no 
 " provision for the clearing of such a highway, and, in 
 " such case, the river 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,- the test being whether the river remains 
 tidal.^ 
 
 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.^ 
 
 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,^ at all times and 
 states of the tide,^ and in all species of vessels,^ indepen- 
 dently of any usage or prescription to that effect. It is a 
 right of free passage over the whole of the navigable 
 
 1 4 B. & C. 598. 
 
 ^ Mayor of Carlisle v. Graham, 
 L. R., 4 Ex. 366, ante, Ch. 11. 
 p. 62, and Ch. VI. p. 347. 
 
 2 Hale de Jiu-e Maris, p. 1, c. 6, 
 p. 34 ; 1 Roll. Abr 390 ; Eoscoe 
 on Crim. Evidence, 6th ed. p. 535. 
 
 * Eecj. V. Belts, 16 Q. B. 1022. 
 
 ^ Gann v. Free Fishers of TFhit- 
 stahle, 11 H. L. 192; Foreman v. 
 Free Fishers of Whitstable, L. E.., 4 
 H. L. 266. 
 
 •^ Mayor of Colchester v. Brooke, 7 
 Q. B. 339. 
 
 " Reg. V. Randall, Car. & M. 
 496.
 
 IN INLAND WATERS. 417 
 
 channel ;^ and it appears tliat a public river may be used 
 by the public as a highway whenever it suits their con- 
 venience, whether such navigation be valuable or not.- 
 
 The public right includes all such rights as, with rela- 
 tion 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.'^ 
 
 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 advan- 
 tage conferred upon them, or, at least, on the public,^ 
 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 dictimi is rather questioned 
 in Gann v. Free Fishers of Wliitstahle, Lord Chelmsford 
 sajdng, " It may be correct as applicable to a navigable 
 " river, because the 0"«Tier may have given a consideration 
 " for the payment by rendering the river navigable." 
 
 A claim to an anchorage due cannot, therefore, exist Consideration 
 merely in respect of the use of the soil, it must be founded ".^pport I ^° 
 on proof that the soil of the claimant was originally claim to toll. 
 mthin the precincts of a 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.'' 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, in- 
 
 1 A.-G. V. Tern/, L. R., 9 Ch. 3 Maijor of Colchester \. Broolce, 9 
 423, per Mellish, L. J. ; WUliams Q. B. 339. 
 
 V. Wilcox, 8 A. & E. 3U ; see Orr ^ Gann v. Free Fishers of Whit- 
 
 Fwing V. Colquhoun, 2 App. Cas. stable, per Lord Wensleydale ; and 
 
 839. _ see ante, Ch. I., p. 45 ei seq. 
 
 2 A.-G. V. Lonsdale, Li. E., 7 ^ Gann v. Free Fishers of Whit- 
 Eq. 377. stable, 11 H. L. 192. 
 
 C. E E
 
 418 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 the Crown 
 and its gran 
 tees in the 
 soil. 
 
 cident to a port, tlie uninterrupted payment of sucli 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.^ 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.2 
 Right of The right of navigation is paramount to the rights of 
 
 paramovmt, to property of the Crown and its grantees in the bed of the 
 property of rivcr, and such property cannot be used in any way so as 
 to derogate from, or interfere with, the public right of 
 navigation.^ 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.'* If, 
 therefore, the Crown grant part of the bed or soil ^ 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.^ 
 
 "It is perfectly clear," says Macdonald, C. B.," " 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) com- 
 " municated 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 highway. 
 " The private right of the Crown may be disposed of, but 
 
 1 Foreman v. F7-ee Fishers of 
 WhitstaUe, L. R., 4 H. L. 266. 
 
 2 Gann v. -Free Fishers of Whit- 
 stahle,^ 11 H. L. 192. See as to 
 tolls in ports, ante, Ch. I., p. 45 ct 
 seq., andjJost, Ch. IX. 
 
 ^ Gann v. Free Fishers of Whit- 
 stable, supra ; Foreman v. Free 
 Fishers of Whitstable ; Mayor of 
 Colchester y. Brooke, 7 Q- B. 339. " 
 
 * A.-G. V. Parmeter, 10 Price, 
 412. 
 
 ^ Bex V. Montague, 4 B. & C. 
 598. 
 
 " Gann v. Free Fishers of Whit- 
 stable, 11 H. L. 192 ; see also A.- 
 G. V. Far meter, 10 Price, 412— 
 H. L. 
 
 ' A.-G. Y. Farmeter, 10 Price, p. 
 400.
 
 IN INLAND WATERS. 419 
 
 " 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.^ 
 
 A navigable river is a public highway navigable by all A navigable 
 her Majesty's subjects, in a reasonable way and for a public high- 
 reasonable pui-pose.- " The right of the public on navig- ^;Yi ^'•^^^" 
 " able rivers is not confined to the passage ; trade and reasonable 
 " commerce are the chief objects, and the right of passage j^asonabie^'' ^ 
 " is chiefly subservient to those ends."^ purpose. 
 
 For traffic there are rights cundo et redciindo et commo- 
 rando, so far as reasonable for loading, and for a wind."* 
 " A navigable river," says Wood, B.,^ "is a public high- 
 " way, 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." 
 
 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 neighbom''s premises, if 
 used as a dock by vessels." 
 
 The banks of navigable rivers are, as has been before No public 
 explained, not pubh'cl Juris, but are private property; and in^^moorkio-' 
 there is, therefore, no common law right in the public to ^v towing ou 
 
 the banks. 
 
 I Vooffht V. JTuich, 2 B. & Aid. ^ Per Holroyd, J., in Sex v. 
 
 G62. HiisseU, 6 B. & C. 566. 
 
 - Oriffinal Hartlepool Colliers v. ° Anon., Dui-ham Assizes, 1808 ; 
 
 Gilb, 5 Ch. D. 713, per Jessel, 1 Camp. 517, note. 
 
 M. E. ^ Original HartUpool Colliers v. • 
 
 ■* Per Bayley, J., in Rex v. Gihh, 5 Ch. D. 713. 
 RusHell, 6 B. & C. 566. 
 
 E E 2
 
 420 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 land tliemselves or tlieir 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.^ The right of towing does exist 
 by custom on most navigable rivers ; and in the case of 
 Wyatt V. Thompson,^ 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." 
 
 Private rights Riparian owners on the banks of a tidal navigable river 
 the* pifbUc* °^ have similar rights and natural easements to those which 
 right. belong to a riparian owner above the flow of the tide 
 
 subject to the public right of navigation.^ 
 Right of The right to navigate a tidal river is common to the 
 
 ' subjects of the realm, but it may be connected with a 
 
 right to the exclusive access to particular land on the 
 bank of the river ; and the latter is a private right to the 
 enjoyment of land, the invasion of which may form 
 ground for an action of damages or for an injunction, for 
 the right of a riparian 0"\vner to the use of the stream 
 does not depend on the ownership of the soil of such 
 stream, but of the soil bounding it.** 
 
 " 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 ^cr 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 
 
 ' Ball V. Herbert, 3 T. E,. 262 ; = l^^Qn ^^ Fishmongers' Co., I 
 
 see ante, Ch. II., p. 78. App. C. 662. See ante, Ch. II., 
 
 2 1 Esp. 252. p. 86. 
 
 * lb.
 
 IN INLAND WATERS. 421 
 
 " 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 injunc- 
 " tion. 
 
 " I cannot entertain any doubt that the riparian owner 
 " on a navigable river, in addition to the right connected 
 " with navigation 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." ^ 
 
 This right of access would seem to include the right of includes right 
 landing in the ordinary manner, and of passing over the aucTcrossmo- 
 soil of the bed of the river at low water for that purpose, tlie shore for 
 even where the soil is not in the Crown, but in a private 
 owner, as it is necessary for the full enjoyment of the 
 right of navigation,- and as the right of navigation exists 
 at all states of the tide.^ 
 
 Any interference with the right of access is an injury to 
 private property, and as such actionable without proof of 
 special damage.'* 
 
 The obstruction of the navigation of a public navigable Ob.st.ruction 
 river is a public nuisance, and the subject of indictment' rio-hti.sa 
 and information,'' or of an action ' on proof of special P^iblic mu- 
 damage. Obstructions can also be abated by decree.^ 
 
 The Cro-svn cannot interfere with the public right by 
 grant ; ° it can only be abridged by Act of Parliament, 
 writ ad quod damnum, or natural causes."^*^ 
 
 ' Lord Cairns in Lyon v. Fish- ' RobC v. Miles, 4 M. & S. 101 ; 
 
 mongers^ Co., 1 App. Cas. 662. of. remarks of Parke, J., io. Duke of 
 
 • Marshall v. Ullesicatcr Co., L. Xcuxastlc v. Clark, Moore, Rep. 
 R., 7 Q. B. 172 ; see ante, Ch. I. 666. 
 
 p. 33. ^ A.-G. V. Farmeter, 10 Price, 
 
 3 Mayor of Colchester \. Brooke, 7 412. 
 Q. B. 639. 9 A.-G. v. Farmeter, 10 Price, 
 
 * Eose V. Groves, 5 M. & G. 412 (H. L.) ; A.-G. \. Johnson, 1 
 613 ; and see ante, Ch. II», p. 28. Wils. Ch. C. 87. 
 
 3 i?. V. Grosrenor, 2 Stark. 511. '" R. v. Montague, 6 D. & R. 610; 
 
 ^ A.-G. V. Richards, 6 Anst. 4 B. & C. 89. 
 613.-
 
 422 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Thus in the case of A.-G. v. Parntefer,^ buildings, 
 erections, and inclosures, between 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." 
 
 Building locks on the Thames to the obstruction of 
 navigation 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."- 
 
 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.^ 
 
 To divert the stream of a public river so as to affect its 
 force is an injury to navigation. Thus M. was fined 200/. 
 for diverting 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 
 
 1 10 Price, 378 ; see also A.-G. 2 jj_ .^ qj^^.j.^ 12 Mod. 615. 
 
 V. Bun-idgc, 10 Price, 350 ; A.-G. ^ Beg. v. Leach, G Mod. 145. 
 
 V. Jiicharch, 2 Anstr. 603. ^ Jliiicl v. Mansjidd, Noy, 103.
 
 IN INLAND WATERS. 423 
 
 workmen in carrying on the works, thougli done by tliem 
 without his knowledge, and contrary to his general orders.^ 
 
 It is not, however, every erection on the bed of tidal Erections on 
 waters which is per se illegal and a nuisance to the navi- \^\y\^Q fixers 
 gation, and so liable to be abated on indictment. Such uotiieces-_ 
 an erection, if made by the Crown or its grantees so as sance. 
 not to interfere mth any private or public rights, woidd 
 appear to be a legal use of their property, though covered 
 vnth water.2 Any erection on the bed or foreshore of 
 tidal waters by a person not the owner is a puiyresture^ 
 and is, probably, liable to be abated at suit of such private 
 owner ; ^ 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 indictment would not lie merely 
 " for erecting piers in a navigable river, — it must be 
 " laid ' nd commune nocumenfum.' "* 
 
 In the case of A.-G. v. Terry, ^ an information was filed ^--G- v. 
 against 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, extend- 
 ing 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 Eolls, that this was such a tangible and substantial 
 interference with the navigation as ought to be restrained 
 by the Court. The Master of the Eolls (Sir G. Jessel) 
 was of opinion that, independent of any proof of actual 
 obstruction, an injunction ought to be granted, on the 
 
 1 Reg. V. Stephens, L. E., 1 Q. F.ex x. Ward, 4 A. & E. 3G4, per 
 
 B. 702 ; for statutory prohibitions Lord Tenterden in -Rex x. Rzissell, 
 
 against throwing ballast into navi- 6 B. & C. 566. See as to the right 
 
 gable rivers, sec post, p. 474. of the Crown and its grantees to 
 
 - On- Eiiing v. Colrjuhotm, 2 App. build on thebed of navigable rivers, 
 
 Gas. 839. ante, Ch. II. p. 73; and as to rights 
 
 3 lb. of riparian owners to build r'qicc 
 
 * Beg. V. Beits, 16 Q. B. 1022 ; mnnienda'. eaiisd, Ch. III. p. 147. 
 li. v. RaiuMl, Car. & M. 496 ; ^ l. E., Ch. 423.
 
 424 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 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 encroachment of so trifling a nature that the 
 *' Com-t would not interfere;"^ 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 inter- 
 " fere ; 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 highway on water. It is no answer to say that 
 " there is room for the ships, and that if they are navi- 
 " gated 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 advantage 
 " of one person cannot be set off against the disadvantage 
 " of another. If this is an indictable nuisance there must 
 " be a remedy in the Court of Chancery, and that remedy 
 " is by injunction." 
 
 1 See Eerj.Y. Russell, 3 E. & B. 942; R. v. Tindal, 6 A. & E. 143.
 
 IN INLAND WATERS. 425 
 
 In A.-G. V. Lonsdale,^ Malins, Y.-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 Blackbiu-n 
 in Or r E icing v. Colquhoun,- iQinoikm^ 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 ^ there was an actual occu- 
 " pation, by the piles put in by the defendant, of part of 
 *' what was used for the navigation and wanted for navi- 
 " gation. 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 navi- 
 *' gation, 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 pro- 
 " perty is injured, or of the Crown in respect of some 
 " injuiy to a public right, there is no power to prevent 
 " a man making an erection on his own land, though 
 " covered ^^ith water, merely on speculation that some 
 " change might occm* 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 
 " accident, and that the defenders are as much at liberty to 
 " build on the bed of the 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 inter- 
 ference with the navigation is proved, and that no antici- 
 
 1 L. E., 7 Eq. 377. ^ 2 App. Cas. p. 61. ^ L. R., 9 Ch. 423.
 
 426 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 pated injury is sufficient to maintain an action ; but that 
 an erection wliicli, at tlie time of creation, was harmless, 
 may, owing to the change of bed or other causes, become 
 at some future time a nuisance ; and as soon as that is the 
 case, it may be abated by indictment or decree. 
 Where Where, hov/ever, there is any actual obstruction to the 
 
 destruction"'^^ navigation, it would appear that the question whether 
 how justifi- such obstructions are a nuisance or not will depend on 
 this, — Whether upon the whole they produce pubKc benefit 
 or not ; not giving to the terms public benefit too extended 
 a sense, but applying them to the public frequenting the 
 place or port where the erection is, — any private benefit to 
 the trade of the person who causes the obstruction being 
 too remote to be held to the advantage of the public 
 generally so as to justify the erection.^ 
 Ft. V. EusscU. In the case of E. v. Mussell,^ which was the trial of an 
 indictment 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 con- 
 sequence 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. 
 lie.c V. Ward. In Ecx V. Ward, Lord Denman, delivering the judgment 
 of the Court, thought E. v. Russell not well decided ; and 
 lays down the law that it is no defence to such an indict- 
 ment (/. 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^ (or river). In Heg. v. Randall, at nisi prius, Wight- 
 
 1 A.-G. V. Teny, supra; E. \. - 6 B. & C. 566. 
 
 Ward, 4 A. & E. 384 ; Eex v. 34^,^. E_ 384, 
 
 Grosi'Oior, 2 Stark. 511.
 
 IN INLAND WATERS, . 427 
 
 man, J., held that the question for the jury was, whether 
 the wharf occasioned any hindrance to the navigation of 
 the river by vessels of any description, and not whether 
 a benefit resulted to the general navigation, — /. 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. ^ 
 
 Referring to B. v. Grosvenor'^ in JRe.v v. Ward, Lord 
 Denman further says: "Lord Tenterden in R. v. Grosveuor 
 " only submitted to the juiy whether the public had bene- 
 " fited 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."^ 
 
 In A.-G. v. Tevnj,^ Jessel, M. R., disapproves in 
 strong terms 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 Re.v v. 
 " Rnssell (6 B. & C. 566). In my opinion that case is 
 " not law, and it is right to say so in the clearest teiTUS ; 
 " 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 (6 B. & C. 570) 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 
 
 ^ Car. & M. 496. -which produces inconvenience to 
 
 - 2 Stark. 511, at nisi priits. (A the public ia the use of the river 
 
 coi-poration being conservators of a for navigation.) 
 
 river and owners of the soil cannot •* 4 A. & E. 384. 
 
 authorize a lessee to erect a wharf * L. E., 9 Ch. 423.
 
 428 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 to tlieir 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 in- 
 ' dividuals ?' The jury said that in consequence of this 
 direction they found the defendants not guilty. 
 " The case was brought before the full Court, con- 
 sisting 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. 
 
 " That case came under discussion in the case of Rex v. 
 JVard (4 A. & E. 384), where Sir William FoUett, 
 whose interest it was to support Rex v. Russell as far as 
 he could, thus speaks of it (4 A. & E. 395) : ' The 
 ' doctrine of Rex v. Russell need not come under dis- 
 ' cussion ; 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 Su' 
 William Follett was a correct statement of the law. 
 Lord Denman, in giving the opinion of the full Court 
 of Queen's Bench, says (4 A. & E. 402) : * The greatest 
 ' weight is due to the authority of Mr. Justice Bayley,
 
 IN INLAND WATERS. 429 
 
 " ' who thus charged the jury, and afterwards upheld his 
 " 'opinion in this Coiu-t; 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 
 " ' defendant'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 
 " ' Hoboyd, 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 foimer 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 in- 
 " ' dieted 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, 
 a i ii Whether the navigation and passage of vessels over 
 "'"this 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 Denman 
 " said was this (4 A. & E. 400) : ' My imderstanding at 
 " ' the trial certainly was, that the question was much the 
 " ' same as that in Bex v. Eussell (6 B. & C. 566), 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.
 
 430 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 " 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 
 " navigation ; 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, then, I think, the public 
 " benefit gained at the particular point where the navi- 
 " gable water is narrow overbalances the public injury.
 
 IN INLAND WATERS. 431 
 
 and, in that sense, that improvement of the harbour 
 would not be a nuisance ; and that is what I under- 
 stand Lord Hale intends to say in the passage which 
 has been referred to.^ Another case is this, which also 
 appears in reported cases : Suppose you have a navi- 
 gable river, and it is necessary to cross it by a bridge, 
 and the river is too v/ide 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 diminish the water- 
 way, and to some extent, perhaps to a more or less 
 material extent, obstruct the navigation.- But it is for 
 the public benefit at that spot that a public road should 
 be carried over the river b}^ 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 in- 
 sertion of the piers into the bed of the river. In that 
 case, also, it would be a pubKc benefit that would 
 counterbalance the public injury. I give those as illus- 
 trations, but I think it must be confined, as put by Sir 
 William FoUett 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." ^ 
 
 "Weirs or other fixed engines for taking fish, which Weh-s ob- 
 obstruct the whole or part of the navigation of a public iiavio-atioii 
 na\dgable river, are illegal, and a nuisance, unless granted illegal. 
 
 1 Hale de Portibus Maris, Harg. - See Rcq. v. Beits, IC C. B. 
 
 Tract. 85 ; The Sutton Pool case, 1022. 
 
 cited 6 B. & C. p. 572; The Ports- ^ For statement of the above 
 
 mouth Harbour case, cited ib. case, see ante, p. 423.
 
 432 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 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 
 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 remain- 
 ing ; 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. 
 WiUiams v. The abovc propositions were laid down by the Court of 
 
 WUcox. Queen's Bench in the case of WiUiams v. Wikox} " If," 
 
 says Lord 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 con- 
 " ceive 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 vinm, 
 " in the case of a channel being choked, and the want of 
 " definite obligation to repair, only render it more impor- 
 " tant that the right of passage should extend to all parts 
 " of the channel. If, subject to this right, the Crown had 
 " the prerogative of raising weirs in such parts as were 
 " not required by the subject for the purposes of naviga- 
 " tion, 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 
 
 1 8 A. & E. 314. For the law 5 C. P. 657, ante, Ch. VT., p. 367; 
 
 as to weirs in non-navigable rivers, and as to weirs obstnicting fishery 
 
 see Piolle v. Whyte, L. R., 3 Q. B. in tidal waters, p. 358. 
 280; Leconfeld v. Lonsdale, L. R.,
 
 IN INLAND AVATERS. 433 
 
 " other hand, there is nothing unreasonable in supposing 
 " the right to erect the weii', 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 (/. c. 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 legalit}^ of the weu" 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 v\-as not legal at first, may have been subsequently 
 " legalized. If, upon examination of the stats. 23 Edic. 
 " ///. c. 4, &c. relied on by the plaintiff, such a grant, 
 " whether valid or 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 bo the true 
 " construction of the statutes." ^ 
 
 Though it would appear that a public nuisance may be A private in- 
 abated in a peaceable manner, a private individual cannot cannot abate 
 abate a public nuisance, unless it does him some special ^ public 
 injury beyond that which is sufi^ered by the rest of the 
 public- Thus, in Maijov of Colchester v. Broolce,^ 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 pro- 
 perty, by running his vessel against it, if he has room to 
 pa-ss without so doing. So, in Dimes v. Petleij,- the de- 
 fendant, under similar circumstances, was held not jus- 
 tified 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 
 
 1 Per Lord Demnan, C. J., in 3 7 q, £. 339. 
 
 Williams v. WUcox, 8 A. & E. 314. ^ 15 Q. B. 283. 
 
 - See post, Cbap. X. 
 
 C. r F 
 
 nuisance.
 
 434 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Obstruction 
 of navig-ation 
 actionable on 
 proof of 
 special 
 damaore. 
 
 Obstiiiction 
 of right of 
 access action- 
 able without 
 giving proof. 
 
 Responsibility 
 for damage 
 caused by 
 obstructions. 
 
 property of the person who lias improperly placed tlie 
 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 navigating his barge on a public navigable 
 creek, and defendant wrongfully moored his barge across 
 it, and kept the same so moored, and jorevented the plain- 
 tiff 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.^ 
 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.^ 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.^ 
 
 Any person who erects or keeps in a navigable river an 
 obstruction to the navigation is responsible for all injury 
 caused thereby. Thus, in Bron-nlow v. Mctropollian Board 
 of Worlcs,^ the defendants were held liable at the suit of 
 the owner of a vessel which sustained damage by ground- 
 ing on a pile negligently placed on the foreshore by a 
 contractor employed by them. So, the owners of struc- 
 tures 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,^ 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 
 
 1 Rose V. Miles, 4 IM. & S. 101 ; 
 see Chicesfer v. Lethbridije, AVilles, 
 71; Williams' case, 5 Coke, 115. 
 
 - L>jon V. Fishmongers^ Co., I 
 App. C. G62 ; Ease v. Groves, 5 
 M. & G-. 613; see ante, p. 420, 
 
 and Chap. II., p. 88. 
 
 ■* Bell V. Corporation of Quebec, 4 1 
 L. T., N. S. 451 (P. C). 
 
 1 IG C. B., N. S. 54G. 
 
 ^ 15 C. B., K S. 245.
 
 IN INLAND WATERS. 435 
 
 properly constructed, but was suffered to be out of repair. 
 The Coiu't 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.^ Thus, where a 
 declaration stated that the defendants were possessed of a 
 mooring anchor, kept and fixed by them in a known part 
 of a navigable 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 plain- 
 tiff'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.- 
 
 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 how, is not stated. 
 " The circumstances of the anchor being defendants' pro- 
 " perty, will not, of itself, render them liable. To have 
 " this effect, it must amount to a public nuisance or a 
 " private injury hy 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 
 
 ' See Hirer Wear Commissioners - llandcock v. York and Xeiccastle 
 
 V. Adamson, 2 App. Cas. 771, 2}0st, TuiiUcay, 10 C. B. 348. 
 p. 439. 
 
 F F 2
 
 436 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Obstructions 
 authorized by 
 statute. 
 
 " it stated tliat somebody beat the plaintiff witli tlie de- 
 " fendants' stick. The case falls within TJtc King v. 
 " irr^^/s/ and Broini v. Mallet:' - 
 
 In Curling v. Wood,^ the defendant, a whaifmger, was 
 held liable for negligently mooring the plaintiff's vessel, 
 which was alongside his v/harf, " 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 dis- 
 closed, whereby the action could be maintained ; but the 
 Court held, that v/hatever 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. 
 
 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 negligence in carr^dng out their 
 works, they will be responsible for damage so occasioned.^ 
 In Kcarns v. The Cordtcaincr^i' Co.,^ the conservators of 
 the Thames were authorized by their Act (sect. 53 of 20 ^' 21 
 Vief. c. cxlvii.) to grant licences to owners and occupiers of 
 land fronting 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 navigate 
 the river, the effect of the statute being to license buildings 
 
 1 2 Esp. N. P. C. 675. 
 
 2 5 C. B. 599. 
 
 3 IG M. & W. 62S (Ex. Ch.). 
 
 * As to this, see CrachncUx.Tlici- 
 ford, L. R., 4 C. P. 529, and ante, 
 
 Cliap. v., p. 266. 
 
 ^ 6 C. B., K S. 388; see A.-G. 
 V. Cojiscnr/tors of the Tliamcs, 1 Hem. 
 & M. 1.
 
 IN INLAKD WATERS. 437 
 
 which interfered with the navigation of the river. But in 
 Li/on V. FisJimongo's' Co.^ 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. 
 
 In Abraham v. Great Northern Bailira//,- to an action 
 brought for obstructing the navigation of a river, it was 
 pleaded that the works complained of were authorized by 
 the Railways Clauses Consolidation Act, and the Court held 
 that the Act applied as well to navigable as to non-navigablo 
 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 JoU{ffe 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 ad- 
 miralty. They also made a floating landing-stage attached 
 by chains to the land, and also by anchors fixed by per- 
 mission 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 bond 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 posi- 
 tion ; and the Court held upon this finding that they were 
 guilty of negligence, and responsible for the doomage. 
 
 In Broicnlow v. MetropoUtan Board,^ it was held, that the 
 Metropolitan Board of Works have no power under the 
 Metropolis Management Act (18 8f 19 Vict. 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 con- 
 servators of the river, and that they were liable for 
 
 1 1 App. Cas. G62 ; see ante, ^ L. R., 9 0. P. 62. 
 
 Chap. II., p. 86. * 16 C. B., N. S. 546. 
 
 - 16 Q. B. 586.
 
 438 
 
 or NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 damnge done to a vessel from grounding on a pile negli- 
 gently placed on the foreshore by a contractor in their 
 employment. 
 
 Duties aud 
 liabilities of 
 persons 
 navitjratiDn:. 
 
 Arises out of 
 control of 
 vessel. 
 
 Vessels sunk 
 by accident. 
 
 It is the duty of a person using a public navigable river, 
 with a vessel of which he is possessed, and has the control 
 and management, to use reasonable skill and care to pre- 
 vent mischief to others ; and in the case of collision he 
 must sustain, without compensation, the damage occasioned 
 to his own vessel, and is liable to pay compensation for 
 that sustained by another navigated 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.^ 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,- 
 
 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.^ It was 
 said by Lord Ellenborough at Nisi Prius,^ 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 sub- 
 sequent cases of Broioi v. Mallet and White v. Cvkp, Lord 
 Ellenborough is said to go too far, and to assume in all 
 cases that the OAvner 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 pre- 
 vent 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 Bron-n v. 2Mkt, 5 C. B. 599. 
 For Rules of the Sea as to lights, 
 signals, sailing, steering and col- 
 lisions, see ante, pp. 403 — 411. 
 
 .51.5. 
 
 White V. CW.^^, 10 Ex. 312. 
 R. V. Watts, 1 Esp. 675. 
 llaniwnd v. Pcarso)), 1 Camp.
 
 IN INLAND WATEES. 439 
 
 The law on this question of liability is thus stated by ^'*'^'' J^f">' 
 Lord Blackburn in the House of Lords in the case of the v. Adamson. 
 Hirer Wear CoDiiJiissioncrsY. Adauisoii.^ 
 
 " 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 resj^ect there is no difference between a 
 " shop, the railings or windows of which maybe 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 in- 
 " jured by a ship. In either case the owner of the injiu-ed 
 " 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 hj 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; .... but there is also concurrent liabilit}^ in the 
 " servant, who is not discharged 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." 
 
 i 2 App. Cas. 767.
 
 440 OF NAVIGATION, AND THEREIN OF CONSEUVANCY. 
 
 In tlie above case ^ tlieii- lorclsliips 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 Harbours Act, 1847 (10 Vicf. c. 27) 
 (overruling Beitnis v. Torcll, L. E., 8 Q. B. 10), 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 construction of the section of the statute im- 
 posing 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 v/as navigating the ship, 
 v/ithout showing that they were his servants, and that it 
 proceeded on the assumption that damage had been done 
 for v/hich compensation could be recovered at common law 
 against some person — /. c. damage occasioned by negligent 
 or wilful conduct, and not by the act of Grod. 
 
 Lord Hatherley agreed with the opinion of the Lord 
 Chancellor with extreme doubt and hesitation. 
 
 Lord O'Hagan held tha,t the section pointed to some- 
 thing 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 legislatm'e 
 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- — /. e. that the accident 
 was occasioned by ris major and the act of Cod, and there- 
 fore the defendant was not responsible — Lord Caii'us say- 
 1 2 App. Cas. 743. - 1 Q. B. D. bi6.
 
 IN INLAND WATERS. 441 
 
 ing : "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 Gfod."^ 
 
 The public right of navigation may exist in non-tidal Right of 
 as y>Tll as in tidal waters ; and where it does so exist, the prh^te*'^'' ^'^ 
 principles of law which have been stated with regard to waters. 
 tidal waters vvill ec^ually apply. 
 
 But in the case of non-tidal rivers, the right of passage Not a public 
 does not exist as a public franchise paramount to all rights acq^red^'by^ 
 
 of property in the bed, but can only be acquired by pre- grant or 
 
 ■ ,■ ^ IT 1 , r. .1 prescription, 
 
 scnption, founded on a presumed grant irom the owners 
 
 of the soil over which the water passes. It would not, 
 
 therefore, appear to extend jjrimd 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 Boicer v. /////,- it was held that a right of v/ay Bower v. Eiii. 
 
 claimed by the plaintiif 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 re-pass 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 entu-e 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 Eiciiig On- Eu-big t. 
 
 V. CoJquhoun^ says: "The river Leven is an inland stream, Coiquhomi. 
 
 " and the tide does not flow up to the spot where the piers 
 
 " arc erected, and, as is pointed out by the Lord President, 
 
 " the rights of the Crown as regards the soil of the alvcus, 
 
 1 2 App. Cas. 750. Di/so>i, 1 Taunt. 279. 
 
 - 2 Scott, 535 ; see Ballard v. » o App. Cas. 847.
 
 442 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 " and of the public to navigcate, are not the same in sucli 
 '* a river as they are in the sea or in a tidal cstuar3^ In 
 " the present case, however, there is ample evidence that 
 " there had been, at least as long as living memory ex- 
 " tended, 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^ 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 iitjtir/d, the foundation of 
 " the right to have the thing removed fails." 
 Obstruction The obstruction, therefore, of the navigation of iion- 
 
 a uuisance!'"' ^idal watcrs is illegal and a nuisance. " Above the point 
 " reached by the flow of the tides," says Lord Denman in 
 WiUi(i)Jis V. Wilcox,- "whether the soil at common law was 
 " in the Crown or in the owners of the adjacent lands 
 " (a point not free from doubt), there was at least a juris- 
 " diction in the Crown, according to Sir Mathew Hale,^ 
 
 1 Pago Sol. Cl scq. 
 
 2 8 A. & E. 333; sec aiih; p. 421 ^ Dc Jure Maris, part 1, c. 2, p. 8.
 
 IN INLAND WATERS. 443 
 
 " to reform and punish nuisances in all rivers, whether 
 " fresh or salt, that are a common passage, not only for 
 " ships and greater vessels, hut also for smaller, as barges 
 " and boats." 
 
 With regard to large inland navigable lakes, it would Liikes. 
 seem to be doubtful where such lakes are navigable by the ^ 
 
 public at common law.^ However, there is no doubt but 
 that such rights of navigation may be acquired and have 
 practically been acquu-ed, even where the soil of them is 
 private property. - 
 
 The Coiiscrvcnioj of Narigrdion. 
 
 Lord Hale says,^ that the office of conservancy is of two Origin of 
 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. e. 17, and founded on 
 the Statute of JFestiin'nster 2, e. 47, for the protection of 
 salmon."* 
 
 The duty of the conservancy of navigation appears to Foi-merly in 
 have been entrusted to the Crown as representative of the ^ ^owa. 
 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;^ 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 
 
 ^ As to this, see Bristoirc v. ■* lb. By 17 Ric. II. c. 9, also, it 
 
 Cormlcaii, Ir. E., 10 C. L. 432, per is enacted that "justices of the 
 
 Whiteside, C. J.; 3 App. Cas. 641 ; "peace be conservators of the 
 
 Blomjield v. Johnson, Ir. E., 8 C. " statutes touching salmons," the 
 
 L. C. 8. statutes there named being 13 Edw. 
 
 - Marshall v. Ullesivater Co., 3 I. c. 47, and 13 Eic. II. c. 19. 
 
 B. & S. 732; L. E., 7 Q. B. ^ Hale, de Jure Maris, Harg. Tr. 
 
 582. p. 23. It was the custom and duty 
 
 ^ Hale, de Jure Maris, Harg. of the kings of England to defend 
 
 Tracts, p. 23. the realm against the sea, as well
 
 444 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Commissions 
 of sewers. 
 
 Meaning of 
 the -word 
 sewer. 
 
 barges and boats.^ The wording of the early statutes as 
 to weirs — such as the 22nd chapter of Magna Chart a, 
 " that all weirs from henceforth shall be utterly put down 
 " by Thames and Medwa}^ and through all England, but 
 " only b}^ the sea coasts" — is evidence of the nature of 
 this prerogative,- which was, however, delegated to various 
 subordinate authorities, of which the commissioners of 
 sewers were the most important. 
 
 The origin of commissions of cewers, and the principal 
 points relating to them, so far as they deal with matters 
 connected with tlie law relating to water, have been treated 
 of in a former chapter.^ It will be necessary, however, 
 again briefly to refer to the subject. 
 
 The term ''senrr " is uncertain as regards its derivation, 
 some maintaining that it is compounded of scoir, to sit, 
 and cau, water ;^ others that it means merely to sue or 
 issue, whence suera,^ while some again derive it from sea 
 and u'cre.^ Mr. Serjeant Callis" holds it to be diminutive 
 of river, it being a fresh Avater trench compassed in on 
 both sides with a bank, whilo in modern Acts it is treated 
 as a general term comprising s(;wers and drains of every 
 description, except drains connecting houses with cess- 
 pools,^ and includes also a marsh wall or embankment.^ 
 Its application seems to be equally wide. Lord Coke states 
 that " There are three manner of statutes which concern 
 " sewers. The first consists in maintaining and repairing 
 " walls, sewers, &c. The second, in destrojdng and re- 
 " moving nuisances. The third, Avhich concerns both 
 
 as against enemies ; Wcolrycli, 
 12; Callis, 80; Iludnoii v. Tabor, 
 2 C. P. D. 290 (C. A.) ; sec ante, 
 Chap. I., p. 24 et sen. 
 
 ' lb.; Lord Dccman in WlUiams 
 T. Wilcox, 8 A. & E. 333. Lord 
 Hale says, "The king has an in- 
 " tereat of jurisdiction iuriA"ers ;" De 
 Jnro Maris, 8 ; Wooli-ych, 3. 
 
 ^ Cf. chapters xv. and xvi. of 
 Magna Charta, which relate to the 
 reijairing of banks and bridges, 
 and 12 Edw. I. c. 7 ; 1 Hen. IV. 
 c. 12 ; 25 Edw. III. stat. 4, c. 4, 
 (Sec. ; see as to weirs, ante, p. 432. 
 
 ■^ Ante, Chap. I., p. 24 ct scq. 
 
 * Termes de la Ley ; Wookj^ch, 
 Law of Sewers, 3rd ed. p. 1. 
 
 ^ 4 Inst. 275 ; Woolrych, Law 
 of Sewers, 3rd cd. p. 1. 
 
 6 Callis, 80; Wooliych, Law of 
 Sewers, 3rd ed. jx 1. 
 
 ' lb. 
 
 s 11 & 12 Vict. c. 63, s. 2; 18 k 
 19 Vict. c. 120, s. 250 ; 38 & 39 
 Vict. c. 55, s. 4. 
 
 'J Foiilar Board v. Kniglit, 28 L. 
 J., M. C. 37; cf. r.ccj. T. Local 
 Hoard of Godmanchciter, L. E., 1 
 Q. B. 328.
 
 THE CONSERVANCY OF NAVIGATION. 445 
 
 " tliese points, as well in destroying as in maintaining."^ 
 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.^ 
 
 It was pointed out in the chapter already alluded to,^ Duties and 
 that the powers of commissioners of sewers are derived commis- 
 from the statutes 6 Hen. YI. c. 5, and, more particularly, s^o^^^^s- 
 from the Act of 23 Hen. YIII. 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,^ were — 1. Sea walls 
 and such like defences ; 2. Bridges, trenches, mills, and 
 other things incident to river conservancy, which might 
 in some case prove obstructions ; 3. Navigable rivers ; 
 4. "Watercourses, streams and pools : and 5. Sewers and 
 gutters. "With regard to these, their duty was to main- 
 tain 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 incon- 
 venience 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 superseded by the Crown, and their ordinances made 
 indefea,sible, until set aside by subsequent Courts of 
 Sewers f 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 Now vested 
 word in its ordinary sense), dra,ins and nuisances, has been authorities 
 
 ' 10 Eep. 143; Wooliych, o. ^ g^g Qj^^p^ j^ p_ 94. 
 
 - 27ic J'ill of Shandrli/iou/ v. The ■* luier alia of such amending 
 
 rUl of Sholcdam, 12 Mod. 331; Acts mav be noted— 13 Eliz. c. 9; 
 
 Holt's Cases, 643 ; Wooliych, 3 ; 3 & 4 Will. IV. c. 22 ; 24 & 2o Vict, 
 
 cf. Iluchon V. Tabor, 2 C. P. D. 290 c. 133, s. 14. 
 
 (C. A.) ; and see ante, Chap. I., ^ Se(-.t_ 14 of 24 & 25 Vict. c. 
 
 p. 24. 133.
 
 446 
 
 OF NAVIGATION, ANT) THEREIN OF CONSERVANCY. 
 
 or inclosures 
 commis- 
 sioners, 
 
 transferred Ly a series of enactments ^ to the Metropolitan 
 Board of Works 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 drainage and the improvement of land are 
 connected therewith, in the inclosuro commissioners,^ who, 
 in addition to their functions imder other statutes, are 
 appointed commissioners ^ for carrying into execution The 
 Improvement of Land Act, 1864 (27 Sf 28 Vicf. c. 114), 
 in which the term improvement of land, for which the 
 commissioners are authorized to advance money, is defined^ 
 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. 
 
 ' The principal Acts relating to 
 sanitari/ matters in the metropolis, 
 .ire— li & 12 Vict. c. 112; 12 & 13 
 Vict. c. 93 ; 18 & 19 Vict. c. 120 ; 
 21 & 22 Vict. c. 104; 2.5 & 2G 
 Vict. c. 102 ; 3o & 36 Vict. c. 79 
 (Public Health Act, 1872), s. ,57 ; 
 38 & 39 Vict. c. 55 (Public Health 
 Act, 1875), ss. 108, 115, 291. The 
 principal Acts relating to sanitari/ 
 matters in England, exchisirc of the 
 metropolis, are — 11 & 12 Vict. c. 63; 
 18 & 19 Vict. c. 116 ; 21 & 22 Vict, 
 c. 97 ; 21 & 22 Vict. c. 98 ; 28 & 29 
 Vict. c. 75 ; 30 & 31 Vict. c. 113 ; 
 34 & 35 Vict. c. 70 (The Local 
 Government Board Act, 1871); 38 
 & 39 Vict. c. 55 (Public Health 
 Act, 1875; 38 & 39 Vict. c. 31, 
 and 39 k 40 Vict. c. 31 (The Public 
 
 WorksLoans Acts, 1875 and 1876). 
 
 - The principal statutes on this 
 point are — 10 & 11 Vict. c. 38 
 (Drainage Act, 1847), which in- 
 corporates the powers of 8 & 9 
 Vict. c. 118 (An Act to facilitate 
 the Improvement and Inclosui-e of 
 Commons) ; 24 & 25 Vict. c. 133 
 (Land Drainage Act, 1861) ; 27 & 
 28 Vict. c. 114 (Improvement of 
 Land Act, 1864), which refers to 
 .lud recites 12 & 13 Vict. c. 100 
 (Private Money Drainage Act, 
 1849); 19 & 20 Vict. c. 9, as well 
 as 1 & 2 Will. 4, c. 33 ; and 
 5 & 6 Vict. c. 89, which relate to 
 land improvement in Ireland. 
 
 ■* By sect. 2. 
 
 ■* By sect. 9.
 
 THE CONSERVANCY OF NAVIGATION. 447 
 
 "u-eii'S, sluices, flood-gates, &c. wliicli will increase the 
 value of lands for agricultural purposes : 
 
 11. The construction or improvement of Jetties or land 
 places on the sea coast, or on the banks of navigable rivers 
 or lakes, for the transport of cattle, sheep and other agri- 
 cultural stock and produce, of lime, manui'e and other 
 articles and things for agricultural 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 judg- 
 ment 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 or in conser- 
 ,,. , J 1 1 ^ L J.- 1 vancv boards, 
 
 navigable nvers have now devolved almost entirely on 
 
 various conservancy boards created by statute for each 
 
 particular river.^ 
 
 Since, therefore, commissioners of sewers may be created 
 by Act of Parliament, independently of any general com- 
 mission,- it may be apparently laid down, that whenever 
 the legislature authorizes a body of persons, and consti- 
 tutes 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. 
 
 Thus the Bristol Dock Company were not only author- Conservancy 
 ized to make sewers, but had also considerable powers alTthe powers 
 entrusted to them to enable them to carry out the duties of commis- 
 imposed on them ; ^ and it appears to be customary to sewers. 
 
 1 See 21 Jac. I. e. 32 ; 24 Geo. " the directors of the Bristol Dock 
 
 III. c. 8, and more fvilly posf, " Company, and they were thereby 
 
 p. 450 and p. 459, note ('). " authorized and required to make 
 
 - Wooliych, 49. "a common sewer in a certain 
 
 •' 6 B. k C. 181. The company " dii-ection therein specified, and 
 
 were empowered by their Act to " also to alter and reconstruct all 
 
 make a floating harbour at Bristol, " or any of the sewers of the said 
 
 and it was also enacted "that it " city at the mouth thereof, so and 
 
 " should and might be lawful for " in such manner that the sewers
 
 448 
 
 OF NAYIGATIOX, AND THEREIN OF CONSERVANCY. 
 
 Conservancy 
 of the 
 Thames. 
 
 insert clauses iu modern Acts of I'arliamcnt to preserve 
 entire the rights of various commissions of sewers. So 
 sect. 61 of 3 ct 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 commis- 
 sioners, trustees, or proprietors by virtue of any local or 
 private Act of Parliament; sect. 72 of 21 l^ 22 Vicf. 
 c. 08, empowers any corporation, &c., authorized under 
 an Act of Parliament to navigate on any river, canal, or 
 harbour, cvC, and to alter sewers, providing others at their 
 own expense ; and sect. 68 of the same Act [The Local 
 Goveriuiicnt 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, 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.^ 
 
 As early as the reign of Pic. II. the conservancy of 
 tlie Thames w^as entrusted to the mayor and corporation 
 of London by the statute 17 Ric. II. c. 9,- and by 9 Hen. VI. 
 
 " might be discharged considerably 
 " imder the surface of the -water 
 " in the floating harbour, and 
 " also to make such other cilfcra- 
 " tio)is and ameitdincnts in the sewers 
 ' ' of the said city as might or should 
 " be necessary in consequence of 
 ' ' the floating of the said harbour. ' ' 
 The directors altered several sewers 
 so as to discharge them consider- 
 ably under the surface of the water 
 inthefloatingharbour ; butthe sew- 
 age there discharged was so offen- 
 sive as to be a nuisance to the neigh- 
 bourhood. Held that under the 
 latter part of the clause above set 
 forth, the directors were authorized 
 and required to make a new sewer 
 if necessary to remove the nuisance. 
 It was also held that a writ of man- 
 damus commanding the directors 
 
 " to make such alterations and 
 " amendments in the sewers as 
 " were necessary in consequence 
 " of the floating of the said har- 
 " hour," was in the proper fonn ; 
 and that it was neither requisite 
 nor proper to call upon the com- 
 pany to make any specific altera- 
 tion, the mode of remedying the 
 evil being left to theii- discretion 
 by the Act of Parliament. 
 
 ' See AYoolrych, Law of Sewers, 
 3rd ed. (1864), pp. 49—53. See, 
 too, sect. 62 of 3 & 4 Will. 4, c. 22 ; 
 sects. 15, 16, 17, and 18 of 4 & 5 
 Vict. c. 45; sect. 18 of 10 & 11 
 Viet. c. 38; sect. 43 of 11 & 12 
 Vict. c. 63 ; and sects. .54, 55, 57, 
 GO of 24 & 25 Vict. e. 133. 
 
 - Hale, de Jure Maris, Harg. 
 Tracts, p. 23.
 
 THE CONSERVANCY OF NAVIGATION. 449 
 
 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 Middle- 
 sex.^ 
 
 The obstruction of water channels made from time to Powers of 
 time, for public or private convenience, was a grievous g^J^^^of 
 offence punishable by action or indictment, according to sewers aud 
 the nature of the ^^Tong ;'- and, among the reasons assigned boardTto^^^ 
 by sect. 1 of 23 Hen. VIII. c. 5, for the appointment of remove ob- 
 the commissioners of sewers, are "the overflowings .... 
 " of land waters and springs upon meadows, pastures and 
 " other places," and " the obstructions created by mills, 
 " mill-dams, weirs, &c. . . upon rivers and watercourses."'^ 
 The Commissioners of Sewers had, therefore, powers of 
 removing obstructions in navigable rivers ; though it 
 aj)pears 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."^ 
 
 1 This Act recites 23 Edw. 3, mon law (sect. 4). Fui-ther pro- 
 
 stat. 4 ; 1 Hen. 5, c. 2, and 3 Hen. visions on the same subject is made 
 
 6, c. 5, the latter statute being by 19 Hen. 7, e. IS ; and 23 Hen. 
 
 enacted for the improvement of the 8, c. 12. 
 
 na^^gation of the sea. Ey an Act - Woolrych on Sewers, 1, 2; 
 
 of tlie same reign, 9 Hen. 6, c. 5, Callis, 80; cf. Hudson v. Tabor, 2 
 
 " all men .shall have free passage C. P. .D. 290 (C. A.). 
 " in Severn with goods, chattels, -^ See ante, Chap. I. p. 2-5. 
 
 " &c." — a slightly different species * Woolrych on Sewers, p. 125. 
 
 of conservancy. It recites that the Rivers are placed under the juris- 
 
 river of Severn is common to all diction of the commissioners by 
 
 the king's liege people, &c.; that sects. 2, 3, and, according to the 
 
 divers Welshmen and others per- definition of a river given by Ser- 
 
 sons " arrayed in manner of war," jeant Callis (p. 77) in his work on 
 
 have destroyed boats, &c., and Sewers, nil rivers would seem to 
 
 thereby injui-ed navigation ; and be meant. Modern decisions how- 
 
 that, therefore, it is ordained (s. 3) ever appear to have limited the 
 
 by authority of Parliament that term to such as ' ' are necessary to 
 
 the said liege people of the king " or useful iu navigation" {Yeaw 
 
 may have and enjoy their free v. Holland, 2 Sir W. Blackstone, 
 
 passage in the said rivei-, &c., 717; and per Buller, J., in i)o;-e v. 
 
 without disturbance of any, &c.; Grai/, 2 T. R. 305. See ante, 
 
 parties aggi'ieved to have action, Chap. I. p. 25. 
 according to the coiu'se of the com- 
 
 C. G G
 
 450 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 In progress of time, we find tliat tlie 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 Parliament, and exercising the 
 functions of permanent commissions of sewers ; though it 
 would appear that the authority of the Commissioners 
 of Sewers over such bodies may still be retained, if pro- 
 vision to that effect is expressly made in the Act incor- 
 porating them.^ The conservators of the various rivers of 
 this country, therefore, perform in a fuller manner a 
 portion of the duties originally devolving on the Com- 
 missioners 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. Brisfoice :^ " The 
 " conservators of the Thames, under the Act of 1857,^ 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 navi- 
 " gation, — they have powers to make piers and landing 
 " places for the accommodation of the public, — they have 
 " powers to authorize 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." 
 statutes rela- The statutes relating to inland water navigation are of 
 gatlou of three kinds : — 1st, such as restore or improve the navi- 
 mland waters ry^^ion of rivcrs formerly navigable ; 2nd, such as make 
 
 are oi three o_ ^ ... 
 
 kinds. rivers na\dgable which originally were not so ; and, 3rd, 
 
 such as provide for the construction of an inland navi- 
 gation 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 
 
 1 See Woolrych on Sewers, p. 49, - L. E., 2 App. Cas. 262. 
 
 and anlf, Chap. I. p. 26. 3 20 & 21 Vict. c. 147.
 
 THE CONSERVANCY OF NAVIGATION. 451 
 
 scour the bed of the stream, and generally to keep it navi- 
 gable ; to make and enforce bye-laws regulating the navi- 
 gation ; to remove obstructions, and, where necessary, to 
 enter on to lands, making compensation for interests 
 injured by their acts.^ 
 
 By the Thames Conservancy Acts, the soil of the bed of Soil of rivers 
 that river up to high water mark, which had long been yested^ln con- 
 the subject of dispute between the Crown and the Corpo- servatorsby 
 ration of the City of 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.- 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 
 applicable to the acquisition by the conservators of the 
 right or easement of passage only, and where the ac- 
 quisition 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.^ Where the words of the Act amount to a 
 statutable conveyance of the soil upon which the navi- 
 
 1 16 & 17 Car. 2, c. 12 (Avon 486 ; Eeg. v. BeUs, 16 Q. B. 1022). 
 (Hampshire) Navigation) ; 24 Geo. - 20 & 21 Vict. c. cxlvii ; see 
 
 2, e. 39 (Avon (Warwickshire) Cory v. Bristoiv, 2 App. Cas. 262, 
 
 navigation) ; 24 Geo. 2, c. 19 (Nar and cases ante, Chap. II. p. 80. 
 navigation); 21 Jac. 1, c. 3; 24 ^ River Lee Conservancy y. Button, 
 
 Geo. 2, c. 28; 15 Geo. 3, c. 4 12 Ch. D. 383 ; Badr/er v. Yorkshire 
 
 (Upper Thames navigation) ; 23 liaitii-ay, 5 Jiu'., N. S. 409 ; HoUis v. 
 
 Geo. 3, c. 48 (Trent navigation) ; Goldfinch, 1 B. & C. 206 ; see also 
 
 2 & 3 Vict. c. 61 (Shannon naviga- M. v. Aire and Caldcr, 9 B. & C. 820 ; 
 
 tion); 31 & 32 Vict. c. cliv. (Lee B. v. Mersey and Iriccll, 9 B. & C. 
 
 navigation). The only difference 95; R. v. 'Thomas, 9 B. & C. 114; 
 
 between rivers of which the navi- Chehea Water Co. v. Boivley, 17 
 
 gation is restored, and those Q. B. 358 ; Doe d. T]te Queen v. 
 
 which are made navigable for the Archbishop of York, 14 Q. B. 81 ; 
 
 first time, is, that in the latter Doe d. Butriek v. Bccnfort, 6 Ex. 
 
 the rights of the conservators, 498 ; Somerset Canal v. Jlarcoiirt, 2 
 
 as against the public are greater, De G. & J. 596 ; Robinson v. War- 
 
 owing to the fact that none of the u-iek, 2 Bing. N. C. 488 ; Ilar- 
 
 rights subsisting in a navigable broitgh v. Shadlow, 7 M. & W. 37; 
 
 river can attach thereto {Uarf/reares Dimes v. Grand Dmction Canal, 3 
 
 V. Diddams, L. E., 10 Q. B. 582; H. L. 794; SintjJsonY. Staffordshire 
 Musset V. Burch, 35 L. T., N. S. Water Co., 4 De G. & J. 679. 
 
 G G 2
 
 452 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 gation is constructed, the land used for the works has been 
 held to vest in the navigation company without any con- 
 veyance.^ 
 
 "Wliere an Act for making the river Tone navigable 
 named 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 suc- 
 cession, 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 theii' real property.- 
 Conservators There appears to be no liability at common law on the 
 dama^e^*^ ^°^ owner of the bed of a navigable river to keep the channel 
 caused to ad- dear of natural obstructions, such as the silting up of the 
 in the'absenco channel, or the growth of weeds.'^ It has, moreover, been 
 of negligence. ]^gjj ^]^g^^ where the navigation of a river is vested in a 
 body of conservators for the purposes of navigation only, 
 no action will lie against them for damage done by over- 
 iiow 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 navi- 
 gation, and they are not charged with any liability in 
 respect of matters not essential to the improvement of the 
 navigation. Thus, in TJie Parrdt Navigation Co. v. 
 Hohins,^ a navigation company was held not liable to the 
 Court of Sewers for not cutting weeds in the river, which 
 were beneficial to the navigation, though injurious to the 
 adjoining landowners — although they took tolls for the 
 navigation. So in Hodgson v. Magor of YorJc,^ where the 
 plaintiffs were authorised to abandon a river navigation, 
 and did so, making alterations authorized by the Act, the 
 
 1 Bruce v.TFillis, 11 A. & E.463; ^ jroch/son v. Mai/or of Tori; 28 
 
 see also -S. v. Merseij and Inrell, L. T., N. S. S3G ; liridf/e^s case, 13 
 
 9 B. & C. 95 ; E. v. Thomas, 9 B. Rep. 33 ; see also Forbes v. Lee 
 
 & C. 114. Conserrancy, 4 Ex. D. 116. 
 
 - Conservators of the Tone v. ■* 10 M. & W. 593. 
 
 Somerset, 10 B. & C. 349. » 28 L. T.,N. S. S3G.
 
 THE CO^'SERVA^•CY OF NAVIGATIOX. 453 
 
 effect of wliicli was that if tlie channel remained in the 
 state they left it in, due provision was made for the escape 
 of the water — hut they took no measures to prevent the 
 channel from silting up, — it w'as 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 Crachncll v. Mayor and Corporation of Thetford^ the 
 defendants were empowered by a private Act of Parlia- 
 ment 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 natui-al 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 com- 
 pensation under the Act. 
 
 In support of the plaintiff the cases of Whit chouse v. 
 FcUoiccs,- Mersey Dock Trustees v. Gibhs,^ and Bagnal v, 
 Loudon and North Western Hoilu-ay,^ were cited as well as 
 Fletcher v. Eylauds^ and Groucott v. Witliams.^ 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. Bohins^' and distin- 
 " guishable 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 
 
 1 L. R., 4 C. P. G29. See re- ^ L. E., 1 H. L. 93. 
 
 marks on this case by Lord * 7 H. & N. 423; 31 L. J., Ex. 
 
 Hatherley in Geddis v. Ban)! Iteser- 480. 
 
 voir, 3 App. Cas. 430, ante, Ch. V. = Ti.'R.,! Ex. 265. 
 
 p. 267. « 4 B. & S. 149 ; 32 L. J., Q. B. 
 
 = 10 C. B., N. S. 765 ; 30 L. J., 237. 
 
 C. P. 305. ' 10 M. k W. 593.
 
 454 
 
 OF NAVIGATIOX, AND THEREIN OF CONSERVANCY. 
 
 Consei'vators 
 not bound at 
 common law 
 to keep the 
 navigation 
 in proper 
 repair, 
 
 but so long as 
 they keep it 
 open and take 
 toUs, they 
 are boimd to 
 use reason- 
 able care. 
 
 Toruahij v. 
 
 Lancaster 
 
 Canal. 
 
 " 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 compensation 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 hav-o omitted 
 " or neglected, or in the performance of which they mis- 
 " conducted 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."^ 
 
 It would seem, also, that at common law, independent 
 of statute, neither the owners of a navigation or board of 
 conservators are bound to keep the navigation open or in 
 a proper state of repair, but that so long as they 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 main- 
 tenance of the navigation, they are under an obligation to 
 take reasonable care that persons using it are exposed 
 to no undue danger,- Thus, in Parnahy v. Lancaster Canal^ 
 the Court of Exchequer Chamber held, affirming the Court 
 of Uueen's 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, 
 
 1 Under the river Weaver Navi- 
 gation Acts, persons who sustain 
 damage by reason of the naviga- 
 tion are entitled to compensation. 
 In Hcg. V. Dclamcrc (13 W. R. 757), 
 the defendants had under their 
 control a lock, weu' and clows, 
 through which, when raised, the 
 water could be let off. During a 
 flood they kept down the clows, 
 and by so penning back the water 
 caused the premises of plaintiff to 
 be damaged, and the plaintiff was 
 held entitled to compensation ; for 
 although it was not shown that 
 his premises would not have been 
 flooded in the same way if the 
 river had never been altered, still 
 
 the proximate cause of the damage, 
 viz., the penning back, being a 
 thing done on account of the 
 navigation — the trustees were as 
 much liable as if it had been a 
 breach of duty, and it was no excuse 
 that it was done skilfully, and that 
 unless it had been done, other 
 lands would have been damaged. 
 
 - Farnaly v. Lancaster Canal, 11 
 A. &E. 223 ; &eeantc, Ch. V.p.299; 
 Mersey Doeks v. Gibbs, L. R., 1 H. 
 L. 93 ; Wineh v. Conservators of 
 Thames, L. R.,9 C. P. 378; L. R., 
 7 C. P. 4.58 ; see also Broicnlow v. 
 Metropolitan Board of Works, 13 
 C. B.,N. S. 768. 
 
 2 11 A. &E. 223.
 
 THE CONSERVANCY OF NAVIGATION. 455 
 
 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. Gibbs,^ the House of Lords held Mosoj Bocks 
 that this principle applied to a private person or company 
 taking tolls 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 Docks Company were 
 responsible for damage caused to a ship which, on entering 
 the dock, 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 exist- 
 ence is not known to them. 
 
 In the case of Winch v. The Conservators of the Thames,^ Winch v. The 
 an action was brought by the plaintiff for damages for the thT'Thamcs. 
 loss of some horses which were drowned while towing a 
 barge on the river Thames above high water mark, in con- 
 sequence 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 Navi- 
 gation Act, 1866 (29 (^ 30 Vict. 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 de- 
 fendants had acquired powers of supervising and controlling 
 the towing paths and regulating the tolls. They subse- 
 c[uently acquired powers to purchase and take lands com- 
 pulsorily, 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 
 
 ' L. R., 1 H. L. 93. - L. R., 9 C. P. 378; L. R., 7 
 
 C. P. 456.
 
 456 OF NAVIGATION, AND THEUEIN OF CONSERVANCY. 
 
 funds to the repair of the works vested in or acquired or 
 constructed by them under their various Acts. The de- 
 fendants 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 remain- 
 der 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 decision of the Court of Com- 
 mon Pleas, that the defendants were liable. 
 
 The judgment of the Court, read by Bramwell, B., 
 is as follows^: — "The defendants' rule in this case 
 " was to enter a verdict for them on the ground ' that 
 " 'there was no evidence that they were bound to re- 
 " ' pair the spot where the accident happened.' If this 
 " were the C[uestion 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 unprofitable expense of repairing 
 " long extents of towing paths where there was scarcely 
 " any traffic, there is no power of 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 
 " Afcrse// Bocks v. Gibhsr But we think it is enough to 
 
 ^ L. R., 9 C. P. p. 387 ; see also statutes and cases are discussed at 
 the judgment of the Court below, length. 
 L. K., 7 C. P. p. 462, where the - L. E., 1 H. L. 93.
 
 THE CONSERVANCY OF NA^■IGATION. 457 
 
 " 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 Merscij 
 " Dockn V. Gibbs,^ we must hold the funds of this corpora- 
 " tion (although established for public purposes) liable to 
 " make good the damages sustained by a private person 
 " from any breach of duty on their part,- 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 navigation, and 
 " levied tolls for its use. And we think that Faniab// v. 
 " Lancaster Canal Co. and Mosey Docks v. Gibbs establish 
 " that 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 
 
 1 L. R., 1 H. L. 93. V. Williams, 3 H. & N. 308; Whilc- 
 
 - As to this, see also Itchin v. Iiouse v. Fellows, 10 C. B., N. S. 
 
 Southampton, ^ 'El. Sc'B. 2)Ql; Ward 765; Brownhw v. Metropolitan 
 
 V. Lee, 7 E. & B. 426; Clothier v. Boird, 16 C. B.,N. S. 546; 13C.B., 
 
 Webster, 12 C. B.,N. S. 790; Rack N. S. 768.
 
 458 
 
 OF XAVIGATIOX, AND THEREIN OF CONSERVANCY. 
 
 Forbes V. Lee 
 Conscrvaneif. 
 
 Canals. 
 
 " as canals, or docks, or bridges. Wo wisli to guard 
 " against being supposed to decide tliat in every case 
 " wliere 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 v/e 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 reasonable 
 *' 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 ease,^ 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 na- 
 vigable 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 compensation to persons injured by their works, are 
 concerned, but the undertakers are bound, in most cases, 
 
 1 Tories v. Lee Consereaneu, 4 Ex. D. 116.
 
 THE CONSERVANCY OF NAVIGATION. 
 
 459 
 
 to construct the canal in 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.^ 
 
 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.- 
 
 It is hardly necessary to say, that it would be impossible 
 to state at length the provisions of the numerous River 
 Conservancy Acts ^ now in force, and on which the rights 
 
 1 See 43 Geo. Til. c. 102 (Cale- 
 donian Canal) ; 33 Geo. III. c. 80 
 (Grand Junction Canal) ; 32 Geo. 
 III. 0. 102 (Canal from Pont 
 Newydd to the Usk) . 
 
 • Ante, Ch. V. 
 
 3 A consideration of the follow- 
 ing extracts from a few of the Acts 
 relating- to conservancy, will serve 
 to indicate the general nature of 
 their provisions. 
 
 I. Rivers (made navigable). 
 IG ^- 17 Car. II. c. 12. 
 
 ' ' An Act for making the river 
 " of Avon na\-igable from Christ - 
 " church in the city of New 
 " Sarum." 
 
 Conmiissioners to be appointed 
 for making the river navigable. 
 Satisfaction to parties endamaged 
 in any of their lands. Commis- 
 sioners empowered to compound 
 with persons so damnified. The 
 powers of the said commissioners 
 defined. How commissioners dy- 
 ing or renouncing may be sup- 
 plied. The powers to make orders 
 and constitutions, and to impose 
 penalties on the breakers. Per- 
 sons grieved may apply to the 
 justices of assize. The undertakers 
 to have the taxes upon carts, car- 
 riages, &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 sur- 
 vey of the undertakers and com- 
 missioners. Persons sued for action 
 upon this Act may plead the gene- 
 ral issue. 
 
 Among the private Acts of the 
 same year are : — * ' An Act to 
 " enable Henry Lord Lough - 
 " borough to make the river and 
 " sewer navigable from or near 
 " Bristoice Causcij, in the county 
 ' ' of SuiTey, to the river Thames ; ' ' 
 ' ' An Act for making the river of 
 " Medway navigable in the coun- 
 " ties 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 navigable from the town 
 ' ' of Midhiu-st, in a certain meadow 
 " called the Railed Pieces or Stop- 
 " ham meadow in the parish of 
 " Stopham, and a navigable cut 
 " from the said river to the river 
 ' ' LTsk, at or near Stopham bridge, 
 ' ' in the county of Essex, and for 
 " other pui'poses."
 
 460 
 
 OF NAVIGATIOX, AND THEREIN OF CONSERVANCY. 
 
 II. Mivers (uavigation improved). 
 23 Geo. 3, c. 48. 
 
 An Act for improving the navi- 
 gation of the river Trent from a 
 place called Wilden Hay, in the 
 counties of Derby and Leicester or 
 one of them, to Gainsboroiigh, in 
 the coimty 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 bo expedited if po-wer -were 
 given to "hale with horses boats, 
 " barges, keels, and other vessels 
 " navigated upon the said river," 
 ■ft-hich now are haled on by men ; 
 and that several persons, herein- 
 after particularly named, are de- 
 sirous of making and maiutaining 
 the navigation at theii- own costs. 
 
 It therefore appoints and in- 
 corporates the undertakers, and 
 describes the manner in which the 
 navigation shall be made. 
 
 No weirs or dams to be made 
 across or in the river, so as to pre- 
 judice fisheries, or obstruct the 
 passages of salmon or other fish. 
 Communications between the river 
 Trent and other navigations to be 
 preserved. Ijauds may be entered 
 to take surveys. Commissioners 
 may lower fords to 24 inches 
 if necessary, and feny boats are to 
 be provided at the fords. Haling 
 jjaths to be made pursuant to the 
 plans. Bodies politic empowered 
 to sell lands. Conveyances to be en- 
 rolled, and tme 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 arc 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, kc. committing any 
 trespass to be subject to penal- 
 ties. 
 
 2^-3 Vict. c. CI. 
 
 " An Act for the improvement 
 " of the na%agation of the river 
 " Shannon "(1839). 
 
 Sect. 1 recites 5 & 6 Will. IV. c. 
 G7, whereby it w\as enacted, that 
 commissioners should be appointed 
 by her Majesty's Treasury for the 
 purpose of ascertaining the works 
 necessary for the improvement of 
 the said na^-igation, and for mak- 
 ing an estimate of the expense 
 thereof ; and enacts, the works de- 
 scribed in the plans and reports of 
 the commissioners shall be car- 
 ried into effect. 
 
 Commissioners may make con- 
 tracts for works (sect. 16) ; and 
 are to lay their accounts before 
 Parliament (sect. 18). Where they 
 have doubts as to the legality of 
 mUls, &c., they may apply to Court 
 of Chancery or Exchequer to direct 
 proceedings to ascertain legality 
 (sect. 21), and may abate nuisances, 
 such as mUls, milldams, weirs, kc. 
 By sect. 37, the care and con- 
 servancy 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 uavigation 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. 4 0) . They may erect beacons 
 and lighthouses (sect. 41). By sect. 
 42 it is enacted, "That the com- 
 " missiouers for the execution of 
 ' ' this Act shall have f idl jjower to 
 " widen or deepen, cleanse, clear 
 " or scour, open or straighten, and 
 " to remove all obstructions in tho 
 ' ' opinion of the said commissioners 
 " injui'ious to the navigation 
 " thereof respectively, from the 
 " said 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
 
 THE CONSERVANCY OF NAVIGATION. 
 
 461 
 
 " and so many weirs, dams or on- 
 " gines, 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." Theymay 
 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. 50), copies of which 
 are to be evidence. 
 
 [37 i5- 38 Vict. c. 60 (1874), in 
 some respects amends this Act, and 
 is incorporated with it. By sect. 
 1, the Acts of 1835, 1839, 1846 
 and 1874, may be cited as the 
 Shannon Acts, 1835 to 1874.] 
 
 13 S; 14 Vict. c. Ixiii. 
 
 ' ' The Tyne Improvement Act, 
 1850." 
 
 Sect. 34. "The commissioners 
 " from time to time, if and when 
 " they deem it necessary or ex- 
 " pedient, may build, purchase, 
 " hire, and employ such vessels to 
 " be worked by steam or other- 
 " wise, at their discretion, for 
 " di-edging, scouring, cleansing 
 " and deepening the bed of the 
 " river as far as they lawfully 
 ' ' can or niay , and such other ves- 
 " scls and machinery to be used 
 ' ' for any other of the purjjoses of 
 ' ' this Act as they think lit, 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, wharfs, to be made and de- 
 posited in their office, and open to 
 inspection. 
 
 31 ^- 32 Vict. c. cUv. 
 " Lee Conservancy Act, 1868." 
 Recites that a large proportion 
 of the water supplied to the metro- 
 polis is drawn from the Lee, and 
 the Lee is extensively used for 
 purposes of navigation, and for 
 these and other reasons the preser- 
 vation 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 naviga- 
 tion works on the Lee, are objects 
 of great public and local unport- 
 ance ; that there is not any exist- 
 ing authority with sufficient 
 powers for effecting such preser- 
 vation, maintenance, and imi)rove- 
 ment in all respects, and it is 
 exjjedient that a new body of con- 
 servators, with adequate powers, 
 be constituted for that pm-pose, 
 and that under the Lee Naviga- 
 tion Improvement Act, 1850 (13 & 
 14 Vict. 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 Middlesex ; and to enable the 
 trustees further to improve the 
 navigation, and to disjioso of the 
 surplus water, and for other pur- 
 poses), and the Acts therein re- 
 cited, the management of the Lee, 
 from the tow^n of Hertford down- 
 wards (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 conseiwators to be consti- 
 tuted, the trustees being foi-med 
 into a constituency, and being 
 represented in the new body by 
 members tiiereof elected by them 
 as in this Act provided ; and that 
 the new body should comprise 
 representatives of the New Kiver 
 Company and the Last London 
 Waterworks Company (both which 
 companies draw water for the 
 metropolis from the Lee), and 
 representatives of traders inter- 
 ested 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 incor- 
 jiorates the Lee Conservancy 
 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 discon- 
 tinuance of existing sewerage 
 works (sect. 92).
 
 463 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 III. Canah. 
 
 33 Geo. 3, c. 80 (Grand Junction 
 Canal). 
 
 " An Act for making and main- 
 " tainiug a navigable canal, from 
 " the Oxford Canal navigation at 
 " Brauusston, 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 
 expediency of making the canal, 
 and names the projjrietors, and 
 emiDOwers them to carry out the 
 ■work, which is to be styled The 
 Grand Junction Canal. The 
 groimds 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, reser- 
 voirs, or pens of water shall be 
 made, &c., iSrc. Line of canal to 
 be graded 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 laud owners. Bodies politic 
 empowered to sell and convey 
 lands. Contracts and sales to be 
 made at the expense of the com- 
 pany. Persons qualified, as re- 
 quired by the Act, appointed com- 
 missioners for settling and adjust- 
 ing all questions and differences 
 which may arise between the com- 
 pany of proprietors and the several 
 persons interested in lands, tene- 
 ments, mills, mines, waters, or 
 premises which may be taken, 
 used, affected, or prejudiced by 
 tlie execution of the powers hereby 
 granted. Powers of commission- 
 ers defined. They are to settle 
 proportion of money to be paid to 
 persons interested. Millers not 
 unnecessarily to draw down the 
 water of their mill streams, to the 
 prejudice of the na\ngation. 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 exemjitions from payment 
 thereof being made in certain 
 cases. Comjjany 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 obstruct- 
 ing the navigation, opening the 
 locks, destroying the works, or 
 doing other damage to the naviga- 
 tion. Vessels obstructing the na- 
 vigation are to be removed, and 
 vessels sunk to be weighed up. 
 
 The Act is amended and ex- 
 tended 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 
 lauds akeady purchased 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 20,000/., 
 towards defraying the expense of 
 making an inland navigation 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, iS:c. tide 
 locks, piers, jetties, &c. (sect. G) ; 
 may fix the line of navigation, and 
 contract for the purchase of lands 
 necessary (sects. 6, 7). Bodies 
 politic emjjowered to contract for 
 the sale and conveyance of lands 
 (sect. 8). Commissioners may set
 
 THE CONSERVANCY OF NAVIGATION. 463 
 
 and duties of each particular board depend/ and a fuller 
 idea of their nature may perhaps be gained by a conside- 
 ration of the Acts relating to the Thames, which may be 
 presumed to offer the best example of a complete system of 
 conservancy. 
 
 These Acts are— 20 ^ 21 Vicf. c. clxru {The Thames Thames Con- 
 Conserrancij Act, 1857) ; 22 (^ 23 Vict. c. cxxxUi {The a™'^ 
 Watermen'' s and Lightermen'' s Amendment Act, 1859) ; 27 Sf 
 28 Vict. c. 113 {The Thames Conservanci/ Act, 1864) ; 29 
 ^ 30 Vict. c. 89 {The Thames Navigation Act, 1866) ; 30 Sf 
 31 Vict. c. ci {The Thames Conservancy Act, 1867) ; and 
 33 (^ 34 Vict. c. cji'Ux {The Thames Navigation Act, 1870). 
 
 By the Thames Conservancy Act, 20 c^ 21 Vict. c. cxlvii 
 (amended by 27 S^ 28 Vict. 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.2 In the case of Lyon v. Fishmongers' Co.,^ Lord 
 Chancellor 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 guardians, as it were, of the naviga- 
 
 out and make contracts for, and ' As to the number of boards, 
 
 purchase lands, &c. necessary for see the Duke of Richmond's 
 
 harboiu's, &c. (sects. 10, 12), and speech in the House of Lords, at 
 
 may levy rates and duties (sect. the first reading of the Rivers 
 
 23), and may lease the same. Conservancy Bill, 7th March, 1879. 
 
 [Additional powers were given - The conservancy of the river 
 
 to the commissioners by 44 Geo. Thames was vested in the Mayor 
 
 ///. c. G2, and other Acts. By 39 and Corporation of London by 17 
 
 Geo. III. c. xxvii, the Crinan Rio. II. c. 9. 
 
 Canal was authorized to be con- ^ i App. Cas. 662. 
 
 structed ; and by 11 S; 12 Vict. c. ^ As to liability of Corporation 
 
 51, the commissioners of the Cale- of London for money borrowed by 
 
 donian Canal are newly incor- them as conservators, after the 
 
 porated (sects. 1, 2), and both the passing of 20 & 21 Vict. c. 147, 
 
 Caledonian and Crinan Canals aae Brown \. 3layor of London, Q Q. 
 
 united and vested in them (sects. B., N. S. 726 ; 7 Jur., N. S. 729 : 
 
 4, .'))]. affirmed on appeal, 13 C. B., N. 
 
 S. 828.
 
 4G4 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 " tion 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 navigation ; 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." By sects. 36 to 47 
 (amended by s. 31 of 27 & 28 Vict. c. 113), powers are 
 given to conservators to make bye-laws for regulation of 
 navigation.^ The 53rd section of the Act of 20 8f 21 
 Vict. c. cxh-'n gives the conservators the power to license 
 erections interfering with the navigation of the river, and 
 owners of land on the banks have no right to complain if 
 such erections do not deprive them of access to their land, 
 but only interferes with the public right of navigation.^ 
 Where, however, such erections interfere with the right of 
 access to or from a particular wharf, it is an unauthorized 
 distm-bance of the rights of property in the banks, which 
 may be vindicated in damages or restrained by injunction.' 
 
 By sect. 45, penalties not exceeding 5/. may be imposed 
 by bye-laws, and recovered before justices. 
 
 By sect. 105, no works on the bed or shores of the river 
 below high water mark are to be executed under the direc- 
 tion of, or with the sanction of, the conservators, without 
 the same having been approved of by the admiralty. 
 This section is repeated by sects. 27 and 28 of the 
 Metropolis Main Drainage Act,-* and it has been held that 
 the Metropolitan Board of Works have no power under 
 sect. 135 of the Metropolis Management Act,^ to erect any 
 
 1 See;mY, p. 471. ^21 & 22 Vict. c. 104; cf. 
 
 2 Kcarns v. Conlwahiers'' Co., 28 Broioilow v. Mctrop<jUtun Board of 
 L. J., N. S. 285. Works, 13 C. B., N. S. 768. 
 
 3 Lifon V. FishmoHgcn' Co., L. * 18 & 19 Vict. c. 120. 
 R., 1 App. 662.
 
 THE CONSERVANCY OF NAVIGATION. 465 
 
 works on the bed or soil of the Thames without such 
 leave, and that, therefore, they were liable for damage 
 done to a vessel which grounded on a pile negligently 
 placed on the foreshore by their contractor.^ 
 
 By sect. 65, amended by sects. 68 and 69 of 27 ^ 28 
 Vicf. c. 113, tolls may be taken for use of piers and 
 moorings. 
 
 By sect. 88, harbour masters may be appointed, to be 
 approved by the Trinity House, who may regulate 
 mooring and loading of vessels.^ 
 
 By sect. 86, amended by sect. 27 of 33 8f 31 Vicf. c. 
 cxlix, vessels sunk or stranded in the river, in case the 
 master neglects to remove them, may after notice be raised 
 and sold by the conservators to pay expenses. 
 
 By sect. 87, any obstruction may be removed. 
 
 By sect. 88, amended by sects. 50, 51 and 53 of 27 Sf 
 28 Vid. c. 113, the conservators are authorized exclusively 
 to lay down buoys and beacons. 
 
 By sect. 96, owners are made accountable for damage 
 done by vessels to the property of the conservators. 
 
 By sect. 98, amended by sects. 6 and 7 of 30 Sf 31 Vicf. 
 c. ci, and by sect. 29 of 33 8f 34 Vicf. c. cxlix, the conser- 
 vators alone may dredge and cleanse the river, and remove 
 mud banks, &c. 
 
 By sect. 101, no ballast, and by sect. 102, amended by 
 sect. 74 of 27 S^ 28 Vicf. c. 113, and by sects. 30—32 of 
 33 ^ 34 Vicf. c. cxlix, no rubbish, earth, ashes, dirt, mud, 
 soil, or other offensive matter, is to be thrown or allowed 
 to flow into the river. 
 
 By sect. Ill, extended by sect. 1 of 33 8f 34 Vicf. c. 
 cxlix, The Lcuuh Clauses Consolidafion Acfs, 1845 — 1869, 
 are incorporated to enable the conservators to purchase 
 lands. 
 
 ^ Brownlow v. Metropolitan Board Part VI. of the Merchant Ship- 
 
 of Works, 16 C. B., N. S. 546. ping Act, 1854, or in any other 
 
 - This power vested in the con- Act, or in any charter or grant, 
 
 servators exclusively, anything in notwithstanding. 
 
 C. H H
 
 Acts. 
 
 466 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 By sect. 136, amended by sect. 33 of 33 ^ 34 Vict. c. 
 cxlix, all tolls, tonnage, port and harbour dues, given or 
 granted by Act of Parliament or otherwise to the Mayor 
 and Commonalty of London, are to form a fund, called 
 the Conservancy Fund, and to be applicable to the carrying 
 out of the Act. 
 
 By later sections, nothing in the Act is to apply to her 
 Majesty's ships, or to affect the rights of the Trinity 
 House, Commissioners of Sewers, Metropolitan Board of 
 Works, dock companies, &c., or the riglits of the Crown in 
 the Medway, or the trustees of the river Lee, and various 
 private owners. 
 "Watermen's The rules governing the large class of persons entitled 
 to manage the navigation of barges and boats on the 
 Thames are framed by the " Company of Watermen and 
 " Lightermen," incorporated by sect. 4 of 7 c^ 8 Geo. IV. 
 c. lxxi\ which recites the various Acts relating to water- 
 men, 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 River 
 " Thames." 
 
 The above statute was repealed by sect. 6 of " The 
 " Watermen'' s and Lightermen'' s Amendment Ad, 1859" (22 
 ^ 23 Vict. 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 obliga- 
 tions as a body corporate, except as altered by this Act. 
 
 2. Any penalty, forfeiture, or other punishment in- 
 curred 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. 
 
 ' In Doick V. Thclps (9 "W. R. favour of western barges con- 
 70), it was held that this section tained in sect. 101 of 7 & 8 Geo. IV. 
 does not preserve the exemption in c. 75.
 
 THE CONSERVANCY OF NAVIGATION. 
 
 Bj sect. 3, the term " Ughtcrman " shall mean any 
 person working or navigating 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 to extend to all 
 parts of the river Thames from and opposite to and in- 
 cluding Teddington Lock in the counties of Middlesex 
 and Surrey, to and opposite to and including Lower 
 Hope Point near Grravesend, 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, " icaternuni " is defined to mean any person 
 navigating, rowing, or working for hire a " passenger 
 " boat," unless there is something in the context incon- 
 sistent with such meaning ; and, by sect. 2, ^'passenger 
 " boat " is defined 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 to 28 regulate the constitution and election of 
 the company. 
 
 Sects. 29 to 41 regulate the plying of w^atermen on 
 Sundays. 
 
 By sect. 43, amended by sect. 13 of 33 Sf 34 Vicf. c. 
 cxlix, and by sect. 44, all owners of barges and lighters 
 are to be registered. 
 
 By sects. 46 to 53, amended by sect. 53 of 27 ^ 28 Vict. 
 c. 113, freemen of the company may employ apprentices 
 on certain conditions. 
 
 By sect. 54, amended by sect. 59 of 27 c^ 28 Vict. c. 113, 
 any person^ not being a freeman licensed according to the 
 
 ^ This section, and sections 68 making any charge therefor ; the 
 
 and 70, have been held not to -whole sections being overridden by 
 
 apply to the case of a person con- the words " for hire or gain ; " 
 
 veying for his own purposes his Todhuiiter v. Bucklcij, 7 L. T., X. 
 
 servants and workpeople, and not S. 273. 
 
 H 11 2
 
 468 OF NAVIGATIOX, AND THEREIN OF CONSERVANCY. 
 
 Act, or a duly qualified apprentice to a freeman, wlio shall 
 navigate any wherry, passenger boat, lighter, vessel, or 
 other craft ^ uj)on the river within the limits^ of the Act for 
 hire or gain is made liable to a fine of 40.s. 
 
 Sects. 56 and 57 regulate the qualifications of water- 
 men and lightermen's licences. 
 
 By sect. ij6, amended by sects. 59 and 62 of 27 ^ 28 
 Vicf. c. 113, no barge, lighter, or boat for goods or mer- 
 chandise 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 5/.3 
 
 By sect. 67, 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 51. for each 
 offence. 
 
 By sects. 68 — 70, no passenger boat may carry more 
 passengers than it is licensed to carry under penalty of 
 40.S. for each extra passenger. 
 
 Sects. 71 — 79 regulate the prices which may be charged 
 
 ' Sect. 57 of 7 & 8 G-eo. IV. c. 75, was not "a wheny, lighter, or 
 
 empowered the making of bye-laws " other craft" under this section, 
 
 for regulating "the boats, vessels, and that a person navigating her, 
 
 " and other craft to be rowed or not being a freeman, did not incur 
 
 " worked mthin the limits of the a i^enaltj-; Heed v. Iitgham, 3 E. & 
 
 "Act:"— Held, this section ap- B. 889. 
 
 plied to a steamboat of 187 tons, - Under a similar section of 
 
 navigatiug at a speed forbidden 7 & 8 Geo. lY. c. 75, it has been 
 
 by the bye-laws ; Tisdell v. Combe, held that the navigation of a 
 
 7 A. & E. 788 ; see Blandford v. barge falls within the Act, al- 
 
 Morrisoii, 15 Q. B. 724. though the voyage commence 
 
 Sect. 37 of 7 & 8 Geo. IV. c. 75 without the limits ; and that an 
 
 (Watermen's Act), imposes a pe- unauthorized person is liable to 
 
 nalty on any pei'son who, not being the penalty, although he is jjaid, 
 
 a freeman of the Watermen's Com- not for the particular job, but by 
 
 pauy, or an aj^prentice to a free- the week; licff. v. Dibble, 4 E. & 
 
 man, or to the widow of a freeman, B. 888. 
 
 shall act as a waterman or lighter- ^ Six barges, fastened together 
 man, or ply, or work, or navigate, in pairs, were towed by a steam 
 or cause to be worked or na\'i- tug on the river. Four lighter- 
 gated, any wherry, lighter, or other men were in charge, but no one 
 craft upon the Thames from or to was on board either of the last 
 any place or ship within the limits two barges : — Held, that the two 
 of the Act for hire or gain : — barges were navigated in contra- 
 Held, that a steam tug of 87 tons, vention of the Act ; Umlore v. 
 employed in moving another vessel, Hunter, 3 C. P. D. 116.
 
 THE CONSERVANCY OF NAVIGATION. 
 
 469 
 
 for passenger boats. By sect. 75, the company are to 
 keep a register of licensed watermen and lightermen. 
 
 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 Con- 
 servators of the river Thames.^ No bye-laws to be valid 
 until approved by the Conservators of the Thames. 
 
 The remaining sections regulate proceedings for penal- 
 ties, and provide exceptions in favour of the rights of the 
 Trinity House, Mayor and Corporation of London, and 
 owners of ferries, and others. 
 
 27Sf28 Vict. c. 1132 {The Thames Conservancy Act, 1864) 
 
 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-free- 
 man. A freeman who had em- 
 ployed a non-freeman to assist in 
 navigating his barge was convicted 
 under the bye-law : — Held, the 
 bye-law was good, as it only ap- 
 plied to employment of persons 
 for ordinary rowing, &c., and was 
 not inconsistent with the Act ; 
 Edmojuls V. Watermen'' s Co., 1 Jur., 
 N. S. 727. 
 
 - The following provisions are 
 noteworthy : 
 
 Sect. 39 provides for the appoint- 
 ment of a trustee and of a deputy 
 chaiiinan ; and sect. 40 regulates the 
 remuneration of the conservators. 
 
 By sect. 40, the rights of the 
 Trinity House under 6 & 7 Vict, 
 c. Ivii (for the regulation of lastage 
 and ballastage in the river Thames), 
 are to cease, and the supply of bal- 
 last is made free, any act, charter, 
 or grant notwithstanding. The 
 conservators are empowered to 
 supply ballast (sect. 42), and to 
 undertake ballast heaving (sect. 4 3) 
 (to place or unload ballast on or 
 from vessels), one -third of the net 
 profits only of the ballastage being 
 paid to her Majesty. The provi- 
 sions of sect. 109 of the principal 
 Act are repealed from and after 
 the expiration of 6 & 7 Vict. c. Ivii 
 (sect. 45), and the Trinity House is 
 
 forbidden to license dredging after 
 the same period (sect. 46), power 
 being given to the conservators to 
 dredge for ballast (sect. 47). 
 
 The powers of the Trinity House 
 as to watermen (under 8 Eliz. 
 c. 13) (sect. 49) are repealed, and 
 considerable amendments are made 
 in the Watermen's Company's Act 
 (sects. 53 — 63), which by sect. 58 
 is to be read and construed with 
 this Act as one Act. 
 
 By sect. 53, it shall be lawful 
 for any male person above the 
 age of twenty, who has not pre- 
 viously been bound an apprentice 
 under the Watermen's Company's 
 Act, to contract in writing with 
 any person authorized to take ap- 
 prentices under the Watermen's 
 Company's Act, to serve such 
 person in assisting to navigate a 
 lighter, or in assisting to work or 
 na^dg-ate a steamboat upon the 
 river Thames. 
 
 By sect. 59, nothing in sect. 54 
 or sect. 66 of the Watermen's Com- 
 pany's Act is to apply to any craft 
 passing entu-ely through the limits 
 of that Act, or to any barges navi- 
 gating the Grand Junction Canal, 
 passing into or out of the said 
 canal from or to the river Thames, 
 and not navigated up or down the 
 said rivers. 
 
 By sect. 60, sect. 87 of the Water- 
 men's Company's Act shall be read 
 and construed as if after the words 
 " apprentice of," in the beginning
 
 470 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 amends both 22 ^^ 23 Vicf. c. .rx.riii, and 20 ^ 21 Vict. c. 
 cxh-iii, therein called the Principal Act. 
 
 By sect. 1, the Principal Act and this Act may be cited 
 as The Thames Conservancy Acts, 1857 and 1864, and by 
 sect. 2, the provisions of the Principal Act, save so far as 
 expressly repealed or varied by or inconsistent with the 
 
 of the section, were inserted the 
 words "a freeman or of," so as 
 to make the provisions thereiu 
 contained applicable to the ap- 
 prentice of a freeman ; and by 
 sect. 61, widows of freemen on 
 taking apprentices are to employ 
 freemen of the company or licensed 
 wateiinen to instiiict them. 
 
 Sect. 62. Notwithstanding any- 
 thing contaiaed in the Water- 
 men's Company's Act, all barges 
 duly registered from any places 
 on the river Thames above Ted- 
 din gton Lock may be navigated 
 on the river as far as London 
 Bridge without being compelled 
 to employ a freeman, apprentice, 
 or other person licensed by the 
 Watermen's Company in manner 
 required by the Watennen's Com- 
 pany's Act or this Act ; and by 
 sect. 63, the rights of owners of 
 barges or other craft passing along 
 the river Lee and its branches into 
 or from or along- the Thames are 
 preserved. By sect. 64, the con- 
 servators are empowered to make 
 bye-laws for the regulation of bum- 
 boats. 
 
 By sect. 68, sect. 65 of the 
 principal Act is amended, the con- 
 servators being empowered to alter 
 steamboat tolls, and to take tolls 
 for moorings; while injuries to the 
 river by throwing in ballast, or 
 allowing offensive matter to flow 
 into it, are prohibited by sect. 74. 
 
 Sect. 75 enacts a penalty on those 
 assaulting constables and a water 
 bailiff in the discharge of his duty ; 
 sections 76 — 78 deal with the pro- 
 cedui'c under the Act. 
 
 Savings. 
 Sect. 79. This Act, or any power 
 conferred by this Act, or any bye- 
 
 law made or thing done under any 
 such power, shall not — 
 (1.) Take away, alter, interfere 
 with, abridge, prejudice, or de- 
 rogate from any right, title, 
 claim, privilege, franchise, ex- 
 emption, immunity, jjossession, 
 profit, power, jurisdiction or 
 authority saved or intended to 
 be saved from or out of the 
 operation of the princii^al Act 
 by the following sections thereof, 
 — viz. sections 51, 52, SO, 164, 
 166—168, and 170—179 (all in- 
 clusive) , or any of them ; 
 (2.) Repeal, alter, or prejudicially 
 affect the same sections, or any 
 of them, or any enactment saved 
 or intended to be saved from or 
 out of the operation of the prin- 
 cipal Act by the same sections, 
 or any of them, or take away 
 or alter any restriction imposed 
 on the conservators by the same 
 sections, or any of them; 
 (3.) Take away, alter, interfere 
 with, abridge, prejudice, or de- 
 rogate from any right, title, 
 claim, privilege, franchise, ex- 
 emption, immunity, possession, 
 profit, power, jiu-isdiction or 
 authority saved or intended to 
 be saved from or out of the 
 operation of the principal Act 
 by sections 165 and 169 thereof, 
 or either of them, further or 
 otherwise than is expressly pro- 
 vided by this Act. 
 Sect. 80 saves rights of Canary 
 Island Commissioners under 32 
 Geo. III. c. xxxi ; sect. 81, those 
 of the Inner and Middle Temple 
 under 25 & 26 Vict. c. 93; and 
 sect. 82, those of the Metropolitan 
 Board of Works under the Thames 
 Embankment Acts, 1862 and 1863. 
 See also sect. 36 of 33 & 34 Vict, 
 c. cxlix.
 
 THE CONSERVANCY OF NAVIGATION. 471 
 
 provisions of this Act, shall be iucorporated therewith, and 
 be read as one Act. 
 
 Sects. 5 to 30 vary the provisions as to election of con- 
 servators. 
 
 By sect. 31, from and after 31st December, 1864, sect. 
 47 of the Principal Act shall be repealed (but not so as to 
 affect any bye-laws made before the commencement of 
 such repeal), and in lieu thereof fresh provisions are 
 made for the publication of proposed bye-laws, which are 
 not to have any force until allowed by the Queen in 
 council.^ 
 
 By sects. Go — 67, conservators may make bye-laws 
 regulating the fishery. - 
 
 Various Acts have been passed for the regulation of the Upper 
 navigation on the Upper Thames above the flow of the ^ayi'^ation 
 tide, where there has been an immemorial right of naviga- Acts. 
 tion. These Acts regulate the rights and duties of owners 
 of towing paths and locks ; and provides compensation in 
 many cases for interference with their rights, and afford 
 protection to the public from their exactions. 
 
 Thus, by 21 Jac. I. c. 33, the Thames is to be made 
 navigable between the village of Bercott and Oxford, and 
 the commissioners empowered for the purpose are directed 
 to agree with the adjoining landowners for compensation 
 before interfering with their lands. 
 
 By 24 Geo. II. c. 8, which recites that the rivers of 
 Thames and Isis have been navigable time out of mind 
 from the city of London to the village of Bercott in 
 Oxfordshire, and from the city of Oxford northwards 
 beyond Lechlade in Gloucestershii'e, and that by the Act 
 of 21 Jac. I, the said rivers were made navigable from 
 Bercott to Oxford, the Conservancy of the Thames from 
 Staines to Cricklade is vested in Navigation Commis- 
 sioners for the prevention of abuses and exactions. 
 
 ^ For bye-laws regulating uavi- 24tli October, 1875; 20th January, 
 
 gation, see 2}nst, Appendix. 1860; and Orders in Council, 1869; 
 
 - For bye-la-ws as to Fishing in and 30th of September, 1873. 
 the Thames, see Rules and Orders,
 
 472 OF NAVIGATIOX, AND THEREIN OF CONSERVANCY. 
 
 By sect. 2, they are empowered to settle rates to be 
 taken from owners of boats, barges, &c., by owners of 
 towing paths, locks, weirs, &c., and fix size and draught 
 of barges, and make other regulation for the navigation 
 and behaviour of bargemen, &c. 
 
 By sect. 3, no alterations are to be made in towing 
 paths without leave of owners. 
 
 By sect. 5, the commissioners may hear complaints and 
 levy fines, appeal being given to quarter sessions. 
 
 By sect. 8, they may view locks and inquire into their 
 state. 
 
 They are empowered by sect. 9 to assess rates for 
 carriage of goods. 
 
 By sect. 14, barge masters are made responsible for 
 damages done by their men. 
 
 By sect. 16, owners of locks may be compelled to open 
 them when water runs over high water mark, and to make 
 compensation for injury caused by such overflow. 
 
 •By sects. 17 — 20, powers are given to prevent and 
 remove obstructions, and to order the cleansing of the 
 rivers, rates being imposed on barges to defray expenses 
 thereof. 
 
 By 11 Geo. III. c. 45, sect. 7, powers are given to the 
 commissioners to purchase lands, &c. for making neces- 
 sary works and towing paths, and to make further regula- 
 tions as to traflic. 
 
 By sect. 9, they may oblige proprietors to keep up locks, 
 weirs, &c,, and to keep the water at a proper height ; and 
 they are bound by sect. 11 to keep a proj^er head of water 
 for working mills. 
 
 By sect. 12, compensation is given to owners of locks 
 for diversion of traffic caused by alterations. 
 The whole of By 29 Sf 30 Vicf. c. 89,i the whole of the navigable part 
 
 the navigable j. , . rn . 
 
 part of the 01 the nver Thames, from Cricklade to Yantlet Creek, is 
 
 Thames now 
 placed under 
 
 one manage- ^ The Acts recited in the sche- c. 11 ; 28 Geo. III. c. 51; 35 Geo. 
 
 nient. dulo to this Act are 24 Geo. II. III. c. 106 ; 52 Geo. III. c. 47. 
 
 C.8; 11 Geo. III. c. 45; 15 Geo. III.
 
 THE CONSERVANCY OF NAVIGATION. 473 
 
 placed under one management, and the works, powers, &c. 
 of the Upper Thames Commissioners are transferred, by 
 sects. 24 and 25, to the Conservators of the river Thames 
 under 20 8f 21 Vict. p. 113, five additional conservators being 
 appointed. 
 
 Sects. 3 to 24 regulate the election, &c. of the new con- 
 servators. 
 
 By sect. 28, various provisions of the Upper Navigation 
 Acts are repealed. 
 
 By sect. 41, the conservators are to have the same 
 powers in the Thames from Staines to Cricklade as they 
 have below Staines, and the Conservancy Acts are to 
 extend mutatis mutandis to the upper river. 
 
 By sect. 43, the property in all locks, dams and weirs, is 
 vested in the conservators, who are to repair them instead 
 of the mill owners, liberty being given to them, however, 
 to disclaim any dam, &c. 
 
 By sect. 44, compensation is to be given for such weirs, 
 &c. 
 
 By sect. 45, provision is made as to disused portions of 
 the navigation.^ 
 
 By sect. 48, the conservators may regulate the opening 
 and shutting of locks, and keeping back of water, provided 
 they do not interfere with a sufficient head of water for mills ; 
 mill-owners, subject to future bye-laws, may draw down 
 water for reasonable repair of mills. 
 
 By sect. 51, the five water companies may complain of 
 works likely to injure the flow or purity of the water 
 above their works. 
 
 By sects. 55 — 59, tolls are regulated. 
 
 By sects. 59 — 61, the water companies are to contribute 
 to the expenses of the conservators. 
 
 By sects. 63 — 69, amended by sects. 3 and 4 of 30 ^ 31 
 
 ' As to compensation for divei't- c. 106, see Rex v. Commissioners of 
 
 ing traffic under statutes 11 Geo. Thames and Isis, 5 Ad. & E. 804; 
 
 III. c. 47 ; 15 Geo. III. c. 11 ; 28 8 Ad. & E. 901. 
 Geo. III. c. 51: and 35 Geo. III.
 
 474 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Vict. c. ci, aud by sect. 7 of 33 l^* 34 J^icf. c. avlu; the pol- 
 lution of the river between Cricklade and the Avestern 
 boundary of the metropolis, and of any water-coui'se within 
 five miles communicating with the river, by sewage is pro- 
 hibited ; and by sect. 18 of the last-mentioned Act, the 
 same provisions are to apply from the eastern boundary of 
 the metropolis to Yantlet Creek, and to all streams within 
 tin-ee miles. Nothing, however, is to interfere with or 
 prejudice the rights of the Metropolitan Board of Works.^ 
 
 By sect. 11 of 30 ^ 31 Vict. c. ci, the commissioner of 
 police for the metropolis may regidate the traffic within 
 his jurisdiction on occasions of boat races, regattas, &c. ; 
 and by sect. 12, the conservators may make bye-laws to 
 regulate the traffic on such occasions.^ 
 
 By sect. 9 of 33 Sf 34 Vict. c. cxlix, bye-laws may be 
 made for the regulation and registration of pleasure boats. 
 
 General 
 enactments as 
 to inland 
 navigation. 
 Prohibition of 
 casting rub- 
 bish, itc. into 
 navigable 
 rivers, <S:c. 
 
 We will conclude this chapter by noticing a few general 
 enactments relating to inland navigation. 
 
 Sect. 11 of 54 Geo. III. c. 159, prohibits the casting 
 " of ballast, stone, slate, gravel, earth, rubbish, wreck or 
 " filth," into ports, roads, roadsteads, havens, harbours, 
 or navigable rivers, so as to tend to the injury or obstruc- 
 tion of the navigation thereof ; all persons so offending to 
 pay a penalty not exceeding 10/., " over and besides all 
 " expenses which may be incurred in removing to a proper 
 " place the said matters which may have been dej)osited 
 " contrary to the provisions of this Act, such expenses to 
 " be recoverable in such manner, and with such power of 
 " commitment on non-payment thereof, as in cases of 
 " penalties or forfeitures under this Act." Provided that 
 
 ' As to the di-ainage of the 
 metropolis, see 18 &. 19 Vict. c. 
 120 ; 21 & 22 Vict. c. 104, and see 
 also the Elvers PoUution Act (39 
 k 40 Vict. c. 75), ante, Chap. III. 
 p. 174. As to the Thames Em- 
 bankments, see 2o «& 26 Vict. c. 93; 
 26 & 27 Vict. cc. 4.5 and 7-5 ; 30 & 
 
 31 Vict. c. 40; 32 & 33 Vict. c. 
 102 ; 33 & 34 Vict. c. 24 ; and 36 
 & 37 Vict. c. 40. 
 
 - As to bye-laws regulating 
 boat-races, see Order in Council, 
 17th March, 1875, and 11th No- 
 vember, 1869.
 
 THE CONSERVANCY OF NAVIGATION. 475 
 
 nothing contaiuecl in this section extends to the unloading 
 of materials necessary for keeping havens in repair. 
 
 " The Malicious Injuries to Property Act" (24(^ 25 Vict. 24 & 2.5 Vict. 
 c. 97), sect. 30, pro^ddes that — Persons nnlawfidly and and '3/^ 
 maliciously breaking down or cutting down, or otherwise injuries to 
 destroying any sea bank, or sea w^alls, or the bank, dam or ^^^^^' walls, 
 Avail of or belonging to any river, canal, drain, reservoir, bited. 
 pool or marsh, whereby any land or building shall be, 
 or shall be in danger of being, overflowed or damaged, or 
 shall unlawfully or maliciously throw, break, or cut down, 
 level, undermine or otherNvise destroy any quay, wharf, 
 jetty, lock, sluice, floodgate, weir, tunnel, towing path, 
 drain, watercourse or other work belonging to any port, 
 harbour, dock or reservoir, or on or belonging to any 
 navigable river or canal, 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, mth or without hard 
 labour, and with or without solitary confinement ; and, if 
 a male under the age of sixteen years, with or without 
 whipping. 
 
 And by sect. 31, it is enacted that — Whosoever shall 
 unlawfully and maliciously cut off, draw up, or remove 
 any piles, chalk, or other materials fixed in the ground 
 and used for seeming any sea bank, or sea wall, or the 
 bank, dam, or wall of any river, canal, drain, aqueduct, 
 marsh, reservoir, pool, port, harbom-, dock, quay, wharf, 
 jetty, or lock, or shall unlaw^fully and maliciously open or 
 draw up any floodgate or sluice, or do any other injury or 
 inischief to any navigable river or canal with intent, and 
 so as thereby to obstruct or prevent the canying on, com- 
 pleting, or maintaining the navigation thereof, 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 a term not exceeding seven years, and not 
 less than three years ; or to be imprisoned for any term
 
 476 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Railwaj'S 
 Clauses Act. 
 
 Sect. 11. 
 
 Tlie con- 
 struction of 
 bridges. 
 
 Sect. 15. 
 
 Barges, 
 vessels, or 
 boats must 
 not be de- 
 tained at 
 bridges. 
 
 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. 
 
 " The Railways C/auses Act, 1863 " (26 Sf 27 Vicf. c. 
 92),^ contains in Part I. the following provisions for the 
 protection of navigation : — 
 
 By sect. 13, where the company is authorized by the 
 special Act to construct, alter, or extend any work on, 
 in, over, through, or across tidal lands, or a tidal water, 
 the company shall on or near the work, during the whole 
 time of constructing, altering or extending thereof, exhibit 
 and keep burning at their own expense every night, from 
 sunset to sunrise, such lights, if any, as the Board of 
 Trade from time to time requires or approves ; and (not- 
 withstanding the enactments for the time being in force 
 respecting lighthouses) shall also, on or near the work when 
 completed, always maintain, exhibit, and keep burning at 
 their own expense every night, from sunset to sunrise, 
 such lights (if any) for the guidance of ships as the Board 
 of Trade from time to time requires or approves. 
 
 If the company fails to comply in any respect with the 
 provisions of the present section, they shall, for each night 
 in which they so fail, be liable to a penalty not exceeding 
 twenty pounds. 
 
 By sect. 14, where the company is authorized or re- 
 quired by the special Act to construct a bridge over a 
 navigable tidal water, and the special Act does not make 
 express provision respecting the span or spans thereof, 
 then the company shall construct the same with a span 
 or spans of such headway and waterway, and with such 
 opening span or spans (if any), and according to such 
 plans as the Board of Trade directs or approves. 
 
 By sect. 15, where the company constructs a bridge 
 with an opening span, it shall not be lawful for the 
 company to detain any vessel, barge, or boat at the bridge 
 
 ^ "An Act for consolidating in 
 one certain pro\"isions frequently 
 
 inserted in Acts relating to rail- 
 ways."
 
 THE CONSERVANCY OF NAVIGATION. 477 
 
 for a longer time than may be necessary for admitting a 
 carriage or engine traversing the railway and approaching 
 the bridge to cross the bridge, and for opening the 
 bridge to admit the vessel, boat, or barge to pass ; and 
 the company shall be subject to, and shall abide by, such 
 regulations with regard to the user of the bridge, as may 
 from time to time be made by the Board of Trade. 
 
 If the company detains a vessel, barge, or boat longer 
 than the time aforesaid, or fails in any respect to abide by 
 any such regulation as aforesaid, they shall for every such 
 offence be liable to a penalty not exceeding twenty pounds, 
 without prejudice to any remedy against them for any loss 
 or damage sustained by any person.^ 
 
 By sect. 16, where the railway cuts off access between Sect. 16. 
 the land and a tidal water or tidal lands, then, and in Access to 
 every such case, the company shall, during the construction and tidal 
 of the railway, and from time to time thereafter, make '"''^.ters. 
 and shall permanently maintain and allow to be used by 
 all persons and at all times, free of toll or other charge, all 
 such footways and carriage ways over, under or across the 
 railway, or on a level therewith, as the Board of Trade 
 from time to time directs or approves : provided always as 
 follows : — 
 
 (1) The company shall not be obliged to make a foot- 
 way or carriage way over lands for the use of an owner or 
 occupier who has agreed to receive, and has been paid 
 compensation for the severance thereof from the tidal 
 waters or tidal lands. 
 
 (2) The company shall not be obliged to make, or to 
 allow to be made, a footway or carriage way in such 
 manner as would interfere with the working or using of 
 the railway. 
 
 (3) The expense of the making and maintenance of a 
 
 ' See as to liabilities of com- u-aij, 38 L. T., N. S. 555; see 
 panics with regard to construction post, Chap. VIII. 
 of bridges, A.-G. v. Furness Ball-
 
 478 
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 Sect. 17. 
 
 .skirting navi- 
 gable tidal 
 river.s, &c. 
 
 Sect. 18. 
 
 Abandon- 
 ment of 
 works on, in, 
 across, kc. 
 tidal land.s or 
 tidal waters. 
 
 footway or carriago way required to bo made after the 
 construction of the railway, shall bo defrayed by the 
 persons or body interested in the tidal water or tidal 
 lands, for whose benefit or convenience the same is 
 required. 
 
 Where the footway or carriage way is made across the 
 railway on the level, then the manner of making and 
 watching the level crossing shall be subject to the approval 
 of the Board of Trade ; and where the level crossing is 
 made after the construction of the railway, then all 
 expenses attending the watching thereof shall be defrayed 
 by the persons or body interested in the tidal water or 
 tidal lands, for whose benefit or convenience the same is 
 requu-ed. 
 
 By sect. 17, where the company is authorized by the 
 special Act to construct a railway skirting a public navig- 
 able tidal river or channel, the company shall not make 
 any deviation of the railway from the continuous centre 
 line thereof, marked on the plan deposited by them at the 
 Board of Trade, even within the limits of deviation shown 
 on that plan, in such manner as to diminish the navigable 
 space, without the previous consent of the Board of Trade 
 or otherwise than in such manner as is expressly autho- 
 rized by the Board of Trade. 
 
 If any deviation is made in contravention of the present 
 section, the Board of Trade may abate and remove the 
 work in the construction whereof the deviation is made or 
 any part thereof, and restore the site thereof to its former 
 condition at the expense of the company ; and the amount 
 of such expense shall be a debt due from the company to 
 the Crown, and be recoverable accordingly with costs, or 
 the same may be recovered with costs, as a penalty is 
 recoverable from the company. 
 
 By sect. 18, if a work constructed by the company on, 
 in, over, through, or across tidal lands or a tidal water, is 
 abandoned or suffered to fall into decay, the Board of
 
 THE CONSERVANCY OF NAVIGATION. 479 
 
 Trade may abate and remove the work, or any part of it, 
 and restore the site thereof to its former condition, at the 
 expense of the company ; and the amount of such expense 
 shall be a debt due from the company to the Crown, and 
 be recoverable accordingly with costs, or the same may be 
 recovered with costs, as a penalty is recoverable from the 
 company. 
 
 By sect. 19, if at any time the Board of Trade deems it Sect. 19. 
 expedient for the pm'poses of the special Act, or of this Surveys of 
 part of this Act, to order a survey and examination of a tidal waters 
 work constructed by the company on, in, over, through, or "^' t"^l ^^'^^•^ 
 across tidal lands or tidal waters, or of the intended site of dered by the 
 any such work, the company shall defray the expense of ^ra^e 
 the survey and examination, and the amount thereof shall 
 be a debt due from the company to the Crown, and be 
 recoverable accordingly with costs, or the same may be 
 recovered with costs, as a penalty is recoverable from the 
 company. 
 
 "7Y(/a/mw" is defined by sect. 3 to mean any part of Sect. 3. 
 a river within the flow and ebb of the tide at ordinary Definitions, 
 spring tides ; ^^ tidal urifer'' to mean any part of the sea or 
 any part of a river within the flow and ebb of the tide at 
 ordinary spring tides ; and ^^ tidal lands'^ to mean such 
 parts of the bed, shore or banks of a tidal water as are 
 covered and uncovered by the flow and ebb of the tide at 
 ordinary spring tides. 
 
 By 5 Geo. IV. c. 83, s. 4, a suspected person or reputed Police regu- 
 thief, frequenting any river, canal, or navigable stream, ^^^^o^^- 
 dock or basin, or any quay, wharf or warehouse, near or 
 adjoining thereto, or any place of public resort, or any 
 avenue leading thereto, or any street, highway, or place 
 adjacent, with intent to commit felony, shall be deemed a 
 rogue and vagabond, and may be convicted.^ 
 
 1 This has been held not to ap- the character mentioned in the 
 
 ply to all streets and highways, Act ; Ex parte Tinam, 39 L. J., 
 
 but only to streets and highways M. C. 129. 
 leading or adjacent to places of
 
 480 OF ISAYIGATION, AND THEREIN OF CONSERVANCY. 
 
 By '6 8f 4 Vict. c. 50/ provision is made for keeping the 
 peace on canals and navigable rivers. The preamble of 
 the Act takes note of the outrages committed on canals 
 and navigable rivers through England and Wales; and 
 sect. 1 provides for the appointment of constables on the 
 application of the committee of the Board of Trade, who 
 are to be paid out of the monies of the proprietors 
 (sect. 3). 
 
 By sect. 13, it is provided, that nothing in local Acts 
 
 containing penalties shall be thereby repealed. 
 
 Tolls, 8 (^ 9 Vict. c. 28, authorizes canal companies, and the 
 
 commissioners of navigable rivers, to vary their tolls or 
 
 rates on different portions of their canals, and to reduce 
 
 or advance them (sect, 1), charging the tolls equally on all 
 
 persons under the like circumstances (sect. 2). The Act is 
 
 not to apply, however, to existing companies until a 
 
 meeting of the shareholders have determined thereupon, 
 
 nor in other cases till approved by trustees or proprietors, 
 
 and notices thereof published.- 
 
 Regulation Ample provision, however, has now been made with 
 
 navig-able regard to the regulation of traffic on navigable rivers and 
 
 rivere and canals. 
 
 By 8 (^ 9 Vict. c. 42,^ canal companies are empowered 
 
 ^ "An Act to provide for keep- panies by divers Acts ; and whereas 
 
 " ing peace on canals and uavi- greater competition for the public 
 
 " gable rivers" (1840). advantage would be obtained if 
 
 - "An Act to empower canal similar powers were granted to 
 
 ' ' companies and commissioners of canal and navigation companies 
 
 " navigable rivers to vary their which have from time to time 
 
 " tolls, rates and charges on dif- been incorporated or established 
 
 " fcrent parts of their naviga- imder authority of Parliament; 
 
 " tion" (1845). Sect. 4 saves rights but such beneficial purpose cannot 
 
 of existing commissioners specifi- be effected without the authority 
 
 cally reserved by their Acts ; and of ParUamont, &c. The Act, how- 
 
 by sect. 5, canal companies are ever, is not to apply to canals 
 
 subject to a limitation of profits vested in shareholders xxntil ap- 
 
 not to raise their dues so as to proved of at a meeting, or, in 
 
 exceed the maxim of profits. other cases, by the proprietors, 
 
 3 "An Act to enable canal com- and notice of the determination 
 
 " panies to become carriers of to adopt the Act shall have been 
 
 " goods upon tlicu- canals." The fully advei-tised (sect. 12). The 
 
 preamble notices the powers of Act was amended by 21 & 22 Vict. 
 
 carrying given to railway com- c. 75, entitled " An Act to amend
 
 THE CONSERVANCY OF NAVIGATION. 
 
 to carry goods on their canals, or canals communicating 
 therewith (sect. 1) ; but a company is to be subject to the 
 bye laws of any other company upon whose canal they 
 may act as carriers (sect. 2). Boats and power for 
 hauling and towing vessels of other persons may be 
 provided by companies, who may sue and be sued as 
 carriers, and prefer indictments, and are to be subject 
 to the provisions in force relating to common carriers 
 (sect. 6). Tolls are to be charged equally on all persons, and 
 may be leased by a company (sect. 8) ; the lessees being 
 deemed collectors of tolls during the lease (sect. 9) ; which 
 is to be void on their making default (sect. 10) ; and may 
 in such case be relet. By sect. 7, companies may con- 
 tract with other companies to facilitate the conveyance of 
 goods. 
 
 This statute was amended by 10 4* H Vicf. c. 94,^ 
 which is incorporated with it (sect. 1) ; and by sect. 2, 
 canal companies were empowered to borrow money in the 
 manner prescribed by 8 ^ 9 Vict. cc. 16, 17,- and to apply 
 the same to the purposes of the recited Act. The 8 (^- 9 
 Vict. cc. 16, 17, are incorporated by sect. 3, and the rights 
 of existing companies are saved by sect. 2. 
 
 Another important enactment in this respect is T/ie 
 Baihcay and Canal Traffic Act, 1854 (17 8^ 18 Vict. c. 
 31),^ which requires companies to make arrangements and 
 
 " the law relating to cheap trains, " lation of the traffic on railways 
 " and to restrain the exercise of " and canals" (1854). By sect. 1, 
 " certain powers of canal com- "<>y(^c" iucludes "not only pas- 
 " panics being also railway com- " sengers and their luggage, and 
 " panics." Sects. 1 «& 2 amends the " goods, animals, and other things 
 law as to charges; and sect. 3 " conveyed by any railway corn- 
 prohibits canal companies who are " pany or canal company, or rail- 
 also railway companies from taking ' ' way and canal company, but 
 a lease of canals unless specifically " also carriages, waggons, trucks, 
 authorized, notwithstanding any- " and vehicles of every description 
 thing to the contrary in the re- " adapted for running or passing 
 cited Act. " on the railway or canal of any 
 
 * "An Act to amend an Act to " such company;" and '■'■canal'''' 
 "enable canal companies to be- includes " any navigation whereon 
 " come carriers of goods." 1847. " tolls are levied by authority of 
 
 * The Companies Clauses Con- " Parliament, and also the whaiwes 
 solidation Acts, 1845. "and landing-places of and be- 
 
 ' "An Act for the better regu- " longing to such canal ornaviga- 
 
 C. II
 
 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 afPord all reasonable facilities for receiving and forwarding 
 traffic, without unreasonable delay, and without partiality 
 (sect. 2) ; and enables parties injured in this respect to 
 apply by motion or summons to a superior Court (sect. 3). 
 By sect. 7, companies are to be liable for neglect or 
 default in the carriage of goods, notwithstanding notice to 
 the contrary, though not beyond a limited amount in 
 certain cases, unless the value be declared at the time of 
 delivery, and extra payment made. 
 
 The BaUn-ay and Canal Traffic Act, 1854, was amended 
 in 1873 by The Rcrjulations of RaUu-ayn Act, 1873 ;i by 
 sect. 4 of which the Railway Commissioners are appointed 
 for the purpose of " carrying out the provisions of The 
 " Ecdhcay Traffic Act, 1854, and of this Act." To them - 
 is transferred, bj sect. 6, the jurisdiction established under 
 17 ^' 18 Vict. c. 31, s. 3, together with certain powers and 
 duties of the Board of Trade under 26 ^ 27 Vict. c. 92 
 (sect. 10). Sect. 2 of 17 (1^ 18 Vict. c. 31, is explained by 
 sect. 11, and to it are added several important provisions 
 as to affording facilities for the transfer of traffic. Sect. 
 16 regulates the arrangements between railway companies 
 and canal companies ; and sect. 17 provides for the 
 maintenance and due repair of canals or parts of canals by 
 railway companies owning them, or having them under 
 their management. 
 
 The above enactment, together with The Board of Trade 
 
 " tion and used for the purposes of ' 36 & 37 Vict. c. 48 (1873), 
 
 " public traffic." The expression " An Act to make better provision 
 
 " idilicai/ company,'''' '■^ canal com- " for carrying into effect the RaU- 
 
 '■'■ pany,^'' or "railway and canal " way and Caual Traffic Act, 1854, 
 
 ' ' company, ' ' includes ' ' any per- ' ' and for other purposes connected 
 
 " son being owner or lessee of or " therewith." 
 
 ' ' any contractor working any rail- - Thej^ are to be three in number, 
 
 " way or canal or navigation con- " one of whom to be oxj^erienced 
 
 " structed or carried on under the " in the law, and one of experience 
 
 "powers of any Act of Parlia- " in railway business," and to have 
 
 " mcnt." It has been held that the two assistant commissioners (sect. 
 
 Railways Clauses Consolidation 4). By sect. 5, no commissioner is 
 
 Act, recited by 8 & 9 Vict. c. 28, to be interested in railway or canal 
 
 are in pari niaicr'id with this Act. stock. Tor regulations as to their 
 
 See Stride v. Sicansea Canal, 16 C. powers, kc, see ss. 21 — 37. 
 B., N. S. 24o; see post, Chap. IX.
 
 THE CONSERVANCY OF NAVIGATION. 483 
 
 Arbitrations Act, 1874,^ constitute The Regulations of Rail- 
 ways Acts, 1873 and 1874. By sect. 6 of the latter Act, 
 the Board of Trade is empowered to appoint the Eailway 
 Commissioners arbitrators or umpires, where any differ- 
 ence arises to which a railway company or canal company 
 is a party, and is required or authorized, under the provi- 
 sions of any general or special Act, passed either before or 
 after this Act, to be referred to the arbitration or determi- 
 nation of the Board of Trade. By sect. 7, the Commis- 
 sioners are to have the same powers of decision, of rescind- 
 ing, or varying, or adding to any award or decision 
 previously made by any arbitrator as the original arbi- 
 trator. 
 
 The provisions of The Explosives Act, 1875 (38 l^ 39 Carriage of 
 Vict. c. 17),- concern navigable rivers and canals. Sect. 35 ^^^ osives. 
 (part 1), empowers railway and canal companies, with the 
 sanction of the Board of Trade, to make bye-laws^ for the 
 conveyance, loading, and unloading of gunpowder ; and 
 by sect. 39 (part 2), the regulations as to gunpowder are 
 applied to other explosives.^ 
 
 By sect. 108, '^carrier'' is defined as including all 
 persons carrying goods or passengers for hire, by land or 
 water; and ''canal compamj" to mean "any person or 
 " body of persons corporate or unineorporate, being owner 
 " or lessee, or owners or lessees, of, or working, or entitled 
 " to charge tolls for the use of any canal in the United 
 " Kingdom, constituted or carried on under powers of any 
 
 » 37 ifc 38 Vict. c. 40 (1874), "An and 1874. 
 " Act to amend the powers of the - "An Act to amend the law 
 " Board of Trade with respect to " with respect to manufacturing-, 
 " inquiries, arbitrations, appoint- " keeping, selling, carrying, and 
 " ments, and other matters rmder " importing gunpowder, nitrogly- 
 " special Acts, and to amend the " cerine and other explosives." 
 " regulation of Railways Act, 1873, '■^ See also Rules and Bye-laws 
 " so far as regards the reference of on this subject for the River 
 " disputes to the railway commis- Thames of 1875 and 1878. 
 " sioners in lieu of arbitrators." ^ Part III. deals with the ad- 
 Sect. 8 enacts, the Act be read as ministration of the law ; theSecre- 
 one with 36 & 37 Vict. c. 48, and tary of State being emj^owered by 
 the two be cited together as the sect. 53, and the Board of Trade 
 Railways Regulation Acts, 1873 by sect. 58, to appoint inspectors. 
 
 I I 
 
 O
 
 484 OF NAVIGATION, AND THEREIN OF CONSERVANCY. 
 
 " Act of Parliament, or intrusted witli the duty of con- 
 " serving, maintaining, or improving the navigation of 
 " any inland water ; and every such canal and inland 
 " water under the control of a canal company, as above 
 " defined, and any wharf, dock, pier, jetty, and work, in 
 " or at which barges do or can ship or unship goods or 
 " passengers, and other area, whether land or water, 
 "which belong to or are under the control of such canal 
 " company, are in the other portions of this Act included 
 " in the expression ' canal.' "^ 
 
 We will conclude this enumeration of the statutes touch- 
 ing navigation, by drawing attention to the most recent 
 on the subject — The Canal Boats Act, 1877 (40 ^ 41 Viet, 
 c. GO), which came into force on the 1st January, 1878. ^ 
 Canal Boats By scct. 1, Canal boats used as dwellings are to be 
 Act, 1877. registered as required by the Act ; and failure to comply 
 with its provisions renders the master and owner ^ each 
 liable to a fine not exceeding 1/. for each occasion on 
 which the boat is used as a dwelling. 
 
 The registration authority for the purpose is to be (s. 7) 
 such or more of the sanitary authorities having districts 
 abutting on a canal, as may from time to time be pre- 
 scribed by the regulation of the Local Grovernment Board; 
 and a canal boat shall be registered with some registration 
 authority having a district abutting on the canal on which 
 such boat is accustomed or intended to ply. Sect. 2 
 empowers the Local Grovernment Board to make regula- 
 tions for registration, fixing the number, age, and sex of 
 persons allowed to dwell on a canal boat ; and for promo- 
 
 1 " I/ihaul JFatos,^^ means" anj "otherwise." (Sect. 108). 
 
 " canal, river, navigation, or water ''' "An Act to provide for the 
 
 " which is not tidal water;" " registration and i-egulation of 
 
 " ship" includes " any description " canal boats used as dwellmgs." 
 
 " of vessel used in sea navigation, ^ Sect. 14 defines "owner''' as 
 
 " whether propelled by oars or "a person who, though only the 
 
 " otherwise;" and "io«<" means " hirer of a canal boat, appoints 
 
 " any vessel not a ship as above " the master and other persons 
 
 ' ' defined, which used in navigation ' ' working it ; " and ' ' master ' ' as 
 
 " in any inland water or harbour, " the person being for the time in 
 
 "whether propelled by oars or " command or charge of the boat."
 
 THE CONSERVAKCY OF NAVIGATION. 485 
 
 ting cleanliness, and preventing infectious disease. By 
 sect. 6, provision is made for enforcing the provisions of 
 The Education Ads of 1870, 1873, and 1876,^ with respect 
 to children dwelling on board canal boats. 
 
 "Canal" is defined by sect. 14 to mean "any river, 
 *' inland navigation, lake, or water being within the body 
 " of a county, whether it is or not within the ebb and flow 
 " of the tide;" and the expression 'Wom/ hoaV^ is stated by 
 the same section to mean " any vessel, however propelled, 
 " which is used for the conveyance of goods along a canal 
 " as above defined, and which is not a ship duly registered 
 " under The Merchant Shipping Act, 1854, and the Acts 
 " amending the same." 
 
 ^ 33 & 34 Vict. c. 75, 36 & 37 the "guardian and eveiy pei'son 
 Vict. c. 86, 39 & 40 Vict. c. 79 ; " liable to maintain, or who has 
 "_;jff;-c«i" is defined by sect. 14 as " the actual custody of, a child."
 
 ( 48G ) 
 
 CHAPTER VIII. 
 
 or FERRIES AND BRIDGES. 
 
 Incidents to The exei'cise of the various rights relating to water, which 
 rights of j^^ heen noticed in this volume, is connected with certain 
 
 "water. ^ _ ... 
 
 incidents accompanying their possession. Of these the 
 principal are — 1. The right to the franchise of a forry ; 
 2. Bridges, and the duties connected with their erection 
 and repair; 3. Tolh, and the liability thereto ; and 4. The 
 rateahility of certain species of the rights above noticed, 
 such as canals, waterworks, docks, &c. It is proposed 
 to consider in the present chapter the laws relating to 
 ferries and bridges, both of which arise from the interrup- 
 tion of a highway on land by a watercourse; and to 
 discuss in the following one those regulating the right to 
 take tolls, and the liability of various rights of water to be 
 rated to the poor. 
 
 Fernj. 
 
 Definition. A. feny is the right to keep a boat for the purpose of 
 
 carrying persons or their goods across a river, and to take 
 toll for such carriage.^ 
 
 How created. It may be created either by royal grant or licence, or by 
 prescription ;- but the latter case presupposes an Act of 
 Parliament granting such franchise, without which no 
 ferry can be lawfully set up save by a licence from the 
 Crown. ^ 
 
 "A man may, under such titles," says the editor of 
 
 Law of Waters, p. 36. 
 
 3 1 Stephen's JBlackstone, sup. ; 
 2 Inst. 220 ; E. v. Marsden, 3 Buit. 
 1812; Willes, 512 n.; Com. Dig. 
 Piscary, 3; Hale de Jure Maris, 
 pt. 1, c. 2; Huzzcy \. Field, 2 C. 
 M. & R. 432 ct seq. 
 
 ^ 1 Stephen's Blackstone, 6th ed. 
 pp. 682, 683; Wharton's Law 
 Lexicon, 4th ed. p. 391. 
 
 ^ Stephen's Blackstone, Tol. i. 
 p. 682; 2 Inst. 220: Trotter v. 
 Harris, 2 Y. & J. 285 ; Wharton's 
 Law Lexicon, p. 391; Woolrych,
 
 FERRY. 487 
 
 Stephen's Commentaries,^ " lawfully claim to be the pro- 
 " prietor of a feiTj,^ though he be not the 0"s\Tier, either 
 " of the water over which it is exercised,^ or of the soil on 
 " either side of the river ;* but he must possess over the 
 " soil such rights at least as will authorize him to embark 
 " and disembark his passengers thereon.^ . . . The right The right to 
 
 111,, • J p 7i *olls usually 
 
 " to take toll also from customers is usually a part ol the a part of the 
 
 " privilege. . , . But the right of the Crown to authorize Privilege, 
 
 " the collection of tolls is viewed by the law "svith a 
 
 " salutary jealousy ; so that no burthen of that kind can 
 
 " be imposed on the public, unless it have (in the language 
 
 " of the books) a reasonable commencement,^ that is, unless but it must 
 
 ,,.,■,»,, ^ , • 1 j^- 1 J. he founded on 
 
 " it be founded on an adequate consideration, as between ^^ adequate 
 
 *' the public and the grantee ; which consideration is (in consideration. 
 
 " the case of a ferry) to keep up a boat for the passage 
 
 " over a stream not otherwise fordable." And it is also 
 
 " essential that the burthen be reasonable in its amount,'"^ 
 
 " for where the tolls granted are outrageous, the franchise 
 
 " is illegal and void."^ 
 
 Where the franchise to a ferry exists, the party entitled Eights of 
 
 . , p . , ^ • J J 1 1 action of 
 
 to it has a right ot action, not only against those who parties en- 
 refuse or evade payment of toll when due, but also against *1*}^*^ *° ^^'^^' 
 
 i -^ ^ ' " cmse 01 a 
 
 such as disturb his franchise by setting up a new ferry, so ferry, 
 as to diminish his custom,^" though he is himself liable to 
 a criminal indictment, if, either wilfully or by his neglect 
 of duty, he obstructs the subjects of the realm in the 
 lawful use of such ferry.^^ 
 
 ' Vol. i. p. 682. 3 lb.; Stat. 1 'Westminster, c. 31; 
 
 2 Xetcton V. Cubitt, 12 C. B., N. 2 Inst. 219; Cro. Eliz., iibi sup.; 
 S. 32; and as to ancient femes, see 2 Bl. Com. 37; Vv^llcs, ubi sup. 
 Zcffon V. Goodai, Law Eep., 2 Eq. '" Stephen's Blackstone, vol. i. p. 
 Cas. 123. 683; 2 EoU. Abr. 140; Com. Dig. 
 
 3 Com. Dig. in tit. Pise. 13. Action on the Case for a Nuisance 
 * Feter v. Kendal, 6 B. & C. 703. (A.); BUsset v. Eart, Willes, 503; 
 5 Ibid. De Rutzcn v. Lloyd, 5 Ad. & E. 456 ; 
 ^ Stephen's Blackstone, vol. i. Bridgland v. Shapter, 5 M. & W. 
 
 p. 683; Mayor of Nottingham v. 375; Pirn v. Curcll, 6 M. & AY. 
 
 Lamhcrt, Willes, 116. 234. 
 
 ' lb.; Heddyy. Wheelhome, Cro. " Stephen's Blackstone, toI. i. 
 
 Ehz. 558, 592. p. 684; Willes, 512, n.; Faync v. 
 
 " lb.; 2 Inst. 219. Fartridyc, 1 Show. 231; see also
 
 488 
 
 OF FERRIES AND BRIDGES. 
 
 To compen- 
 sation under 
 8 & 9 Vict, 
 c. 20. 
 
 What will 
 pass a ferry, 
 
 Actions for 
 disturbance 
 of a ferry. 
 
 Thus Blackstone says,^ " If a ferry is erected on a river, 
 " so near another antient ferry as to draw away its custom, 
 " it is a nuisance to the owner of the old one. For where 
 " there is a ferry by prescription, the owner is bound to 
 " keep it always in repair and readiness for the ease of all 
 " the king's subjects; otherwise he may grievously be 
 " amerced ;- it would be, therefore, extremely hard if a 
 " new ferry were suffered to share his profits, which 
 " does not also share his burthen." 
 
 So a landowner, not the owner of the water or landing- 
 places, has been held ^ entitled to compensation under 8^9 
 Vict. e. 20, from a railway company for injuriously affecting 
 his land by obstructing the access to a ferry over the river 
 and appurtenant to the land in question, the ferry being 
 an ancient ferry which had always been attached to a 
 house and premises, the occupier of which had always 
 kept a ferry boat. In this case it was held that a grant 
 of the house and land with its " profits and commodities " 
 might pass the ferry, as there was evidence that they had 
 never been separated — had they ever been separated, plain- 
 tiff could not have recovered in respect of injury to his 
 land.^ 
 
 In an action ^ for disturbance of a ferry, the 1st count 
 of declaration stated that plaintiffs were possessed of a 
 ferry across the Tyne between North and South Shields 
 for conveyance of passengers, &c., and that defendant 
 disturbed it by carrying passengers for hire; 2nd count 
 stated a right to ancient ferry. Defendants pleaded, inter 
 alia, not guilty, not possessed, and that the boat was under 
 four tons burthen. The company was incorporated by 
 Act 10 Geo. IV. c. 98 ; sect. 85 of which enacts, that, after 
 
 Shep. Com., vol. iii. p. 529, n.; 
 Bl. Com. vol. iii. p. 219 ; Bracton, 
 1. iv., c. 46; 2 Inst. 567. 
 
 • Com. vol. iii. 16tli ed. p. 218. 
 
 ■ lb.; 2 Roll. Abr. 140. 
 
 ^ Reg. V. Gnat Xorthern Eailwaij 
 Co., 14 Q. B. 25. See, too, Reg. v. 
 Cambrian Raihvay, 6 L. E.., Q. E. 
 
 442, where a ferry was held to be 
 "lands," within sect. 3 of "The 
 Lands Clauses Act, 1845" (8 & 9 
 Vict. 0. 18). 
 
 * lb. 
 
 5 North and South Shields Ferry 
 Co. v. Barber, 2 Ex. 130.
 
 FERRY. 489 
 
 the ferry shall be established, no other ferry shall be set 
 up within the said limits ; and if any other person shall 
 use any boat or other vessel of the burthen of four tons 
 or upwards, in feiTying for hire across the river, he shall 
 forfeit 5/. At the time of passing the statute there was 
 an ancient ferry, which the company under the powers of 
 their Act purchased. It was held: — 
 
 1st. That the word "burthen" means not registered 
 admeasurement, but capacity of caiTying ; 
 
 2nd. That the 85th section did not limit the general 
 right of ferry, but only added a cumulative penalty for 
 persons using boats above four tons burthen ; 
 
 3rd. That there was no variance by reason of the first 
 count describing the ferry generally from North Shields 
 to South Shields, and not from one particular terminus to 
 another ; 
 
 4thly. That the mere act of ferrying passengers was a 
 disturbance of the franchise, although the franchise was 
 not a prescriptive ferry to the exclusion of all private 
 boats, but simply of a ferry; 
 
 othly. That on purchase of the ancient ferry, and com- 
 pletion of the new one, the former became extinct by 
 operation of the Act of Parliament. 
 
 Tlie owner of a ferry ^ obtained an Act of Parliament 
 enabling him to build a bridge instead of the ferry, and to 
 take tolls — and enacting that anyone evading payment 
 of tolls by conveying persons across the river within the 
 limits of the ferry otherwise than by the bridge should 
 forfeit and pay 405. On motion to restrain a railway 
 company, whose terminus was within the limits of the ferry, 
 from conveying passengers across river in steamboats ; it 
 was held, that though the Act gave the owner no right of 
 action against persons evading tolls, yet if he were entitled 
 to recover penalties de die in diem the Court could protect 
 him by injunction from the infringement of his right. ^ 
 
 ' Cory V, Yarmouth and Korickh and inconvenience relating to the 
 
 Raihvaij Co., 3 Hare, 593. granting of an injunction. See also 
 
 - Sceremarksof Wigram, V.-C, A.-G. v. Bmninfjham, 4 K. & J. 
 
 as to the balance of convenience 528, ante, p. 162.
 
 490 OF FERRIES AND BRIDGES. 
 
 Description In Pim V. CriicI,^ a declaration for infringement of a 
 
 ' lin ■ 
 
 a'feriT" "^ ^ fcrry described the ferry as being across the Mersey, 
 
 from the township, parish, chapehy, or place of Birken- 
 head in county Chester to the parish, township, or place of 
 Liverpool in county Lancaster: — Held, 1, That plaintiff 
 might recover on this declaration, although he proved a 
 feiTy both ways, for that under the lease of a ferry de- 
 scribing it as a ferry across a river both ways a ferry 
 across a river one way will pass ; 2nd. That the descrip- 
 tion did not import a feiTy from the whole township, &c. 
 of Birkenhead to the whole parish of Lancaster, but that 
 plaintiff might recover on proof of a ferry from any point 
 within Birkenhead to Lancaster. 
 
 If there be an exclusive ferry from A. to B., it does not 
 prevent persons from going by any other boat from A. 
 directly to C, though it lie near B., if it be not done 
 fraudulently, and is a pretence for avoiding the regular 
 ferry.- 
 
 Where^ an action by the farmer of a common ferry was 
 brought against another, a waterman, who had lands on 
 both sides of the river three-quarters of a mile from plain- 
 tiff's ferry, for ferrying over passengers' horses, &c., it was 
 held that the plaintiff's claim was uncertain and without 
 limits of distance, for by the same reason that defendant 
 may not use a ferry three-quarters of a mile from plain- 
 tiff's ferry, by the same he may not use one, two, three, 
 ten or twenty mile off.^ 
 
 In an action for disturbance of ferry a count alleging 
 that plaintiffs were entitled to a certain ferry across the 
 Thames, and that defendant conveyed passengers and 
 goods across the river near the plaintiffs' ferry, was held, 
 after verdict for the plaintiffs, to disclose a sufficient 
 ground of action.^ 
 
 It is sufficient for a plaintiff to prove that he was in 
 
 ' 6 M. & W. 234. subsequently in the case by Lord 
 
 = Tripp V. Fnnik, 4 T. R. 666. Hale ; see Jlnzzet/ v. Field, 2 C. M. 
 
 ^ Churchman v. Tunstall, Hard. «& E. 43'2. 
 162. ^ Blacl-eter v. Gillett, 9 C. B. 26 
 
 * Adecree was, however, granted (Potter's Ferry).
 
 FERRY. 
 
 possession of the ferry at the time the cause of action 
 accrued, to entitle him to maintain an action for disturb- 
 ance of it.^ From an user of thirty-five years, the jury 
 may presume that a ferry had legal origin.^ A variation 
 in the amount of ferryage will not avoid the franchise.^ 
 
 The owner of a ferry demised it by parol to A. at a 
 certain annual rent. A., at the end of a few weeks, pro- 
 posed to become the servant of the owner as boatman, and 
 to account to him for all money received. This was 
 assented to, and A. became such servant. It was held, 
 this was a surrender of A.'s interest in law ; and also, that 
 neglect of duty on part of owner of a ferry is no answer to 
 the action for disturbance, though the Crown may, on 
 that ground, repeal the grant by quo uarranto or scire 
 facias} 
 
 In Letton v. Gooden^ upon a bill, by the lessee of the Lctton v. 
 Watermen's Company of the right of plying on Sundays 
 from certain stairs to a certain point across the river, 
 claiming a right of ferry, and seeking to restrain a new 
 ferry which had been established fifteen yards from his 
 ferry ; it was proved that the company were licensed by 
 Act of Parliament to appoint watermen to ply on Sundays 
 from such common stairs on the Thames as might be 
 appointed ; and that any other person, except so appointed, 
 plying on Sundays from such places, was liable to a 
 penalty of 406\ for each offence. It was also shown that 
 the defendants had an ancient ferry from the Isle of Dogs 
 to Grreenwich, but not back again.* The Court were of 
 opinion that, if plaintiff had the right he claimed, he 
 might come to the Court for an injunction, and would not 
 be left constantly to insist on the penalties under the Act ; 
 and further, that the new ferry was so near the plaintiff's, 
 that the Court would have restrained it : but it was held 
 that since the plaintiff's right only related to Sundays, 
 and as he was licensed to ply by Act of Parliament, and 
 
 1 Trotter v. Barris, 2 Y. & J. ^ £,. E., 1 Eq. 123. 
 
 285. * See as to this, too, Giles v. 
 
 2 Tetcr V. Kendal, 6 B. & C. 703. Groves, 12 Q. B. 721. 
 
 491
 
 492 OF FERRIES AND BRIDGES. 
 
 was under no obligation to keep up the ferry, his right 
 did not stand upon the same footing as an ancient ferry. 
 Kindersley, Y.-C, remarked : " Such a right of ferry is 
 " an exclusive right or monopoly, and as such, it is in itself 
 " an evil, being in derogation of the common right, for by 
 " common right any person may carry persons across the 
 " river. But as a compensation for this, there is the great 
 " advantage to the public, that they have at all times at 
 " law, by reason of the ferry, the means of travelling on 
 " the king's highway, of which the ferry forms a part, for 
 " the owner of the ferry is always under the obligation to 
 " provide proper boats with a competent boatman." 
 Mathews y. g^^^^ 33 ^f Watermen's Act, 7 &' 8 Geo. IV. c. 75, 
 
 I each. _ ' -^ _ _ _ ' 
 
 imposes a penalty on owners of boats working boats within 
 the limits of the Act without a licence. 
 
 Sect. 99 exempts owners of ferries. It has been held, 
 that the owner of an ancient ferry might exercise the 
 right without a licence ; but that where a ferry appeared 
 to have been always exercised from a given landing place 
 in Middlesex to given landing places in Kent, the privi- 
 lege did not protect the owner of such ferry in working a 
 boat from another landing place in Middlesex distant 800 
 yards from the ancient one.^ 
 Huzzey v. Where there is an ancient ferry from A. to B. which 
 
 leads to a public highway, and another makes a landing 
 place a short way from B., and carries passengers over 
 from A. to C, from whence they pass to the same 
 highway, upon which the ancient ferry is established, 
 before it reaches any town or village — it is an injury to 
 the ancient ferry.- 
 
 But by the existence of an ancient ferry from one par- 
 ticular point to another, persons are not precluded from 
 using the river as a public highway from or to all the 
 towns or places on its banks, which are not in a line 
 leading from one terminus of the ferry to another.- 
 
 ' Mathcu-s V. Fiack, 5 Ell. & Bl. - Huzzey v. Field, 2 C. M. & E. 
 
 546. 432.
 
 FERRY. 493 
 
 "It is quite clear," said Lord Abinger, C, B.,^ "that 
 " a ferry is a franchise which none can set up with- 
 " out licence from the Crown, and in the case of a 
 " ferry by prescription, a grant or licence is presumed. 
 " As early as Year Book 22 Hen. VI. 146, it is thus 
 " laid down: ' If I have, of ancient time, a ferry in a town, 
 " ' and another sets up a ferry upon the same river near 
 " ' to my ferry, so that the profits of ,my ferry are im- 
 " ' paired, I shall have against him an action on the 
 " ' case ; ' and Newton says : ' The case of a ferry is 
 " ' different from the case of a mill, for you are bound to 
 " ' sustain the ferry to serve and repair it, in ease of the 
 " ' common people.' So far the authorities appear to be 
 " clear, that if a new ferry be set up without the king's 
 " licence to the prejudice of the old one, an action will 
 " lie, and there is no case which has the appearance of 
 " being to the contrary except Tripj) v. Firnik, hereafter 
 " mentioned. These old authorities proceed upon the 
 " ground — first, that the grant of the franchise is good in 
 " law, being of a sufficient consideration to the subject, 
 " who as he receives a benefit, may have by grant of the 
 " Crown a corresponding obligation imposed on him in 
 " return for the benefit received. A public ferry, then, is 
 " a public highway of a special description, and its termini 
 " must be places where the public have rights, as towns, or 
 " vills, or highways leading to towns or vills. The right 
 " of the grantee is in the one case an exclusive right of 
 " carrying from town to town, in the other from one point 
 " to the other." 
 
 In Newton v. Cubift,^ Willes, J., observed: "A ferry Mwionv. 
 " exists in respect of persons using a right of way where ^"*'"- 
 " the line of way is across water. There must be a line 
 " of way on land coming to a landing-place on the water's 
 " edge, or, where the ferry is from or to a vill, from or to 
 " one or more landing-places in the vill. The franchise 
 " is established to secure convenient passage ; and the ex- 
 
 » Suzzei/ V. Field, 2 C. M. & R. 432. • 12 C. B., N. S. 32.
 
 494 OF FERRIES AND BRIDGES. 
 
 " elusive right is given because in unpopulous places there 
 " might not be sufficient profit to maintain the boat if 
 " there was no monopoly. The ferry is unconnected with 
 " the occupation of land, and exists only in respect of the 
 " persons using the right of way. The questions whence 
 " they come and whither they go are irrelevant to the 
 " exercise of that right, and the ferryman has no inchoate 
 " right in respect of any of them unless they come to his 
 " passage. Such being the nature of a ferry, the notion 
 " that a large area of land should be subject to the servi- 
 " tude, that the owners and occupiers thereof should be 
 " prohibited from using the highway of the Thames as 
 " they may choose, and should be under an obligation to 
 " get to the highway leading from Potter's Stairs across 
 " to Grreenwich only therefrom, is anomalous." 
 
 That was an action for infringement of plaintiffs' ancient 
 ferry by carrying in the line of and near to it. The evi- 
 dence showed a right of ferry in plaintiffs from a point in 
 the Isle of Dogs, called Potter's Ferry, to Grreenwich, and 
 that down to 1812 there was only one public road across 
 the island — /. e. from Poplar to Potter's Ferry — but that 
 since then many houses, &c. had been built in the island. 
 Defendants erected a pier 1280 yards from Potter's Ferry 
 Stairs, and by means of a steamboat carried passengers 
 therefrom to Grreenwich without any intention of diverting 
 passengers from plaintiffs' ferry. There was no public 
 road from this new district to Potter's Ferry: — Held, that 
 the evidence only established a right of ferry from Potter's 
 Ferry to Greenwich, and not from the whole Isle of Dogs, 
 and did not show an actionable disturbance of plaintiffs' 
 ferry, though defendants might have occasionally carried 
 a person who came from Poplar. 
 
 The rights and privileges of owners of ferries are very 
 JiopJcins V. clearly stated by Mellish, L. J., in Hopkins v. Great Northern 
 
 GnatXortha-n J^^,lJ^^.„yl 
 Mad tea y Co. '^ 
 
 Rio-hts of There a railway company under an Act of Parliament 
 
 owners of 
 
 2 Q. B. Div. 230 d seq.
 
 FERUY. 495 
 
 constructed across a river, half a mile above an ancient ferries dis- 
 ferry, a railway bridge and foot bridge, the foot bridge "^^^^^ ' 
 being used by persons going to the railway station and 
 also to other places. The traffic across the ferry con- 
 sequently fell off, and the ferry was given up, and on 
 the claim for compensation by the owners under the Lands 
 and Eailways Clauses Compensation Acts (8 Vict. c. 18, 
 and 8 Vict. c. 20), it was held^ (reversing the decision of 
 the Queen's Bench Division), that no compensation could 
 be recovered, — since, 1st, An action could not have been 
 maintained for disturbance of the ferry in respect of the 
 traffic either by the railway or the foot bridge, if they 
 had been erected without the authority of an Act ; 2ud, On 
 the ground that, the injury to the ferry being occasioned, 
 not by the construction, but by the working of the rail- 
 way, the ferry had not been injuriously affected within 
 the Lands Clauses Act or the Hallways Clauses Act. 
 
 Mellish, L. J., who delivered the judgment of the Court,- 
 re vie wing the facts of the case, said : " We will consider 
 " first that which is by far the most important, — whether 
 " an action could have been maintained in respect of 
 " the diversion of traffic caused by the railway bridge. 
 " Now, in order that such an action may be maintained, 
 " it is clearly not sufficient for the owner of the ferry to 
 " prove that something has been done by which traffic 
 " has been diverted from his ferry. He must prove that 
 " his right has been violated. He is the owner of a par- Owner of a 
 " ticular description of monopoly,^ which the law allows o^^r of a' 
 "to be created from its being presumed to be for the particular 
 " public advantage ; and to maintain an action he must monopoly for 
 
 " prove that the defendants have in substance done that *H^ public 
 •'• . . advantage. 
 
 " which he has the sole right to do. Now we apprehend ^y^ has not a 
 " that the owner of a ferry has not a grant of an exclusive gi'ant of 
 " right of carrying passengers and goods across the stream am/ means 
 
 whatever. 
 
 1 lb. p. 225. 3 cf. Kindersley, V.-C, in Zet- 
 
 - Lord Coleridge, C. J., Mellish, ton v. Goudcn, L. R., 1 Eq. 123, 
 L. J., Brett and Araphlett, JJ. A. for which see ante, p. 491.
 
 496 
 
 OF FERRIES AND BRIDGES. 
 
 Conditions of 
 grants from 
 the Crown. 
 
 Extent of 
 protection 
 afforded by 
 the Crown to 
 its o'rantee. 
 
 No action for 
 violations of 
 right other- 
 wise than by 
 means of 
 boats. 
 
 by any means whatever, but only a grant of an exclu- 
 sive right to carry them across by means of a ferry. 
 In Payne v. Partridge,^ it was laid down that the owner 
 of a ferry could not himself build a bridge in substitu- 
 tion for the ferry, — which seems a clear decision that he 
 has not a grant of every mode of carrying goods and 
 passengers across ; for if he had, he would surely be 
 entitled, if not bound, to provide the best means of 
 crossing. The first grantee of the ferry is supposed to 
 have represented to the Crown that it would be for the 
 public advantage that a ferry should be established in 
 the particular locality, and then, in consideration of the 
 grantee undertaking perpetually to keep up the ferry, 
 the Crown has granted to him the exclusive right of 
 ferrying within certain limits. There is nothing in the 
 nature of this transaction which would lead me to believe 
 that the Crown intended to guarantee, or had power to 
 guarantee, the grantee of the ferry against changes of 
 circumstances and future discoveries of an entirely dif- 
 ferent description of transit, by which ferrying might be 
 superseded. The Crown professes to protect the grantee 
 against the competition of other persons who are in the 
 same line of business and do the same thing that he 
 does ; but he appears to run the risk of any change of 
 circumstances which may render ferrying at that place 
 
 ■ useless. 
 
 " There is no doubt, however, that the right of the 
 ' owner of a ferry does extend somewhat beyond a mere 
 ' right to bring an action against persons who have 
 ' carried goods or passengers for hire by boat, from one 
 ' terminus of his ferry to the other ; and it is necessary to 
 ' examine the authorities, for the purpose of seeing what 
 
 ■ the true limit of the right is. We have not been able 
 • to discover that any action has ever been brought by the 
 
 ■ owner of a ferry against any person for violating his 
 
 ■ right, otherwise than by means of boats. The authori- 
 
 1 1 Salk. 12.
 
 FERRY. 497 
 
 '' ties, both old and new, are all collected in Huzzoj v, 
 " FieM,'^ and Neuion v. Ciihift r but they all relate to 
 " alleged infringements of the rights of the owner of a 
 " ferry, by means of boats. They establish that, although 
 " it is laid down in a very early case,^ — ' If I have a ferry 
 " ' by prescription, and another erects another ferry on 
 " ' the same river near to it, by which my ferry is in- 
 " ' jured, that is a nuisance to me ; for I am bound to 
 " * sustain and repaii' the ferry for the ease of the lieges ; 
 " ' otherwise I shall be grievously amerced,' — and there 
 " are other authorities to the same effect ; yet it does 
 " not conclusively follow, as a matter of law, that, 
 " because a new ferry diverts some of the traffic from an 
 " old ferry, it is actionable ; and it may be that no action 
 " can be maintained in respect of the new ferry, if it has 
 " been set up hond fide, for the pui'pose of accommodating 
 " a new and different traffic from that which was accom- 
 " modated by the old ferry. In Neuion v. CicbiU,'^ there 
 " were two counts; the first complaining that the defen- 
 " dant had carried passengers in the line of the plaintiff's 
 " feny ; the second, that they had so done near the said 
 " ferry, for the purpose of evading it ; and Mr. Justice 
 " Willes, after showing that the defendants had not 
 " carried passengers in the line of the plaintiff's ferry, 
 " says : ' The second count, charging that the defendants 
 " ' carried near the line of ferry, for the purpose of 
 " ' evading it, raises another question. The owner of the 
 " ' ferry has a cause of action for carrying in the line of 
 " ' the feny, whether it be done directly or indirectly. 
 " ' He has a right to the transport of the passengers using 
 " ' the way ; and if the alleged wrongdoer makes a 
 " ' landing-place near to the ferry landing-place, so as to 
 " ' be in substance the same, making no material differ- 
 " ' ence to travellers, such a wrongdoer would be guilty of 
 
 1 2 C. M. & R. 432. 3 2 RoU. Abr. 110. 
 
 2 12 C. B., N. S. 32; 31 L. J., * 12 C. B., N. S. 32; 31 L. J., 
 C. P. 246. C. P. 246. 
 
 C. K K
 
 OF FERRIES AND BRIDGES. 
 
 ' ' the wrong complained of in the second count ; he 
 ' ' would indirectly carry in the line of the plaintiff's 
 ' ferry.' ^ Further on he says: 'The principle by which 
 ' to decide, whether the proximity of a new passage 
 ' across the water to an ancient ferry is actionable, has 
 ' not been clearly laid down. It seems reasonable to 
 ' infer that if the franchise of a ferry is established for 
 ' facility of passage, and if the monopoly is given to 
 ' secure convenient accommodation, a change of circum- 
 ' stances creating new highways on land would carry 
 ' with it a right to continue the line of those ways across 
 ' a water highway ; and it is obvious that the single 
 ' landing-place which sufficed for an uninhabited marsh, 
 ' would be utterly inadequate for several towns thronged 
 ' with industrial mechanics.' Now this being the result 
 of the authorities, it seems to us by no means clear that 
 a person building a bridge over a stream, even in the 
 line of a ferry, would be liable to an action by the 
 owner of a ferry. It is true that the opening a new 
 bridge might be as prejudicial, or indeed, much more 
 prejudicial, to the property of the owner of the ferry, 
 than the setting up of a rival ferry ; but one does, and 
 the other does not, involve the direct doing of the very 
 thing, the exclusive right to do which has been granted 
 to the owner of the ferry : and it seems to be extending 
 the principle of liability for an indirect violation of the 
 rights of the owner of a ferry to an unreasonable extent, 
 to hold that it extends to make a person liable to action, 
 who has not ferried or carried passengers by boat at 
 all." 
 
 After noticing that the railway bridge in question did 
 owt join the highway on which one terminus of the ferry 
 was situate to the highway on which the other terminus 
 was situate, and that the passengers and goods conveyed 
 over the railway bridge did not use the highway on each 
 
 1 12 C. B., N. S., at p. 59; 31 L. J., C. P. at p. 253.
 
 FERRY. 499 
 
 side of the river adjoining the ferry at all, his lordship 
 points out that the passages cited from Mr. Justice Willes' 
 judgment in Newton v. Cuhitt, seem strongly in the de- 
 fendant's favour, and continues : " From what is there 
 " said, it would follow that, even if the railway bridge 
 " had never been made, but the railway company had 
 " established a new ferry for the purpose of conveying 
 " goods and passengers from their railway on one side 
 " of the river, to their railway on the other side, it would 
 " not have been actionable, for the railway would have 
 " been a new highway on land, which a change of cir- 
 " cumstances had rendered necessary, and it would be 
 " reasonable that the new highway should be allowed to 
 " be continued over the water highway." 
 
 Further on his lordship thus comments on the question Question of 
 of compensation to the owners of ferries in such cases. to^wriersoT 
 " There is another consideration which seems to us to be ferries for 
 " in favour of the defendants. If owners of ferries are tion of new 
 
 " held entitled to compensation, they will certainly form ^ig^^ays 
 i- ^ ^ -J considered, 
 
 " a singular exception to all other persons who were the 
 " owners of highways or had a legal interest in the profits 
 " to be derived from the use of highways before railways 
 " were invented. It can hardly be necessary to enumerate 
 " the different classes of persons who had a legal interest 
 " in the old highways, and who have suffered loss from 
 " the diversion of traffic from those highways to railways ; 
 " proprietors of canals, turnpike trustees, holders of turn- 
 " pike bonds, trustees of river navigations, and holders of 
 " bonds secured on their tolls, have all suffered great losses 
 " from the diversion of traffic to railways, and have re- 
 " eeived no compensation. No doubt their rights have 
 " not been infringed, though their property has been 
 " affected. They were all in substance the o-\vners of par- 
 " ticular kinds of highway. If any person used their 
 " highway without their pennission, without paying their 
 '' toll, the law gave them a remedy ; but they had no 
 " remedy for a diversion of traffic caused by the invention 
 
 K K 2
 
 500 OF FERRIES AND BRIDGES. 
 
 " of a better kind of highway. Is the owner of a ferry in 
 
 " a different position ? We think he is not. We think 
 
 " he also is the owner of a particular description of high- 
 
 " way, who is entitled to his legal remedy if anybody 
 
 " infringes upon his right, or uses his highway, without 
 
 " paying his toll ; but that he, like the others, must bear 
 
 " the loss occasioned by the diversion of traffic caused by 
 
 Trerogative " the introduction of railways. Another class of persons 
 
 as respects " interested in highways may be referred to, more analo- 
 
 ownersof _ " wqus to the owncrs of fcrrics. The Crown had exactly the 
 
 bndges simi- ° . • i • i i -j i i /• 
 
 lar to that as " same prerogative respecting bridges that it had respecting 
 to femes. ^ ferries. Suppose that the Crown had, in consideration 
 " of a person undertaking to keep perpetually in repair a 
 " bridge over a stream carrying a highway, granted to 
 " such person and his heirs a reasonable toll in respect of 
 " all persons and goods jiassing over the bridge ; or, in 
 " other words, assume the existence of a good toll thorough 
 " in respect of a bridge. The owner of the toll would be 
 " possessed of a franchise exactly similar to that of the 
 " owner of a ferry, and would be liable to be indicted if 
 " he did not keep the bridge in repair ; but would he be 
 " entitled to compensation on account of traffic having 
 " been diverted from his bridge by a new railway ? It is 
 " difficult to suppose that he would, for his right to receive 
 " toll in respect of all persons and goods passing over his 
 " bridge has not been violated in the least. On the whole 
 " we are of opinion that no action could have been main- 
 " tained by the plaintiff in respect of the railway bridge if 
 " it had been opened without the authority of an Act of 
 " Parliament." Their lordships held, that Newton v. 
 Cuhitt governed also the question of the footbridge, and 
 ordered judgment with costs to be entered for the defen- 
 dants. 
 
 From the above remarks it will be evident that the 
 owner of a ferry enjoys a monopoly with respect to a 
 certain class of highway, and that though entitled to 
 maintain an action for infringement of his right, he
 
 FERRY. 501 
 
 cannot do so for loss of traffic caused hy a new higliway 
 hy bridge or ferry made to provide for a new traffic. 
 
 As was stated above, the owner of a ferry is liable for Liability of » 
 injury to the rights of subjects of the realm for wilful owners of 
 obstruction or neglect of duty.^ ferries for 
 
 iniiiry oy 
 
 In Willoufjhhij V. Horrklge,- the lessees of a ferry pro- negligence, 
 vided steam boats for the conveyance of passengers, goods, 
 and cattle, and also slips for landing and embarking them, 
 which were generally sufficient for that purpose. It was 
 held, that they were liable for an injury to a passenger's 
 horse in consequence of the side rail of the landing slip 
 (of the dangerous state of which they had been forewarned) 
 giving way, although the horse was at the time under the 
 owner's control and management. 
 
 A common carrier by water stands on the same footing A common 
 
 11 1 Q carrier by 
 
 as a common carrier by land.-^ water is on 
 
 The carrier does not insure against the irresistible act of t^^ same 
 nature, nor against defects in the thing carried itself, or on land, and 
 both taken together ; and if he can show that either tlie *^°^^ ^°* ."^', 
 
 o ' _ sxu'o against 
 
 act of nature or the defect of the thing itself, or both taken the irresistible 
 together, formed the sole, direct, and irresistible cause of 
 the loss, he is discharged."* 
 
 In Walker v. Jackaon, 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.^ 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 
 
 1 See ante, p. 487 ; Stephen's * Nugent v. Smith, 1 C. P. D. 
 
 Blackstone, vol. i. pp. G83, 684 ; 423 ; see the judgments in this 
 
 "Willes, 512, n.; Faynev. Partridge, case, in which the law as to the 
 
 1 Show. 231; 2 RoU. Abr. 140. liability of carriers was fiilly re- 
 
 - 12 C. B. 742. viewed. 
 
 3 Eirh V. Kneeland, Cro. Jac. MO M. & W. 161. 
 330; Hob. 17.
 
 502 OF FERRIES AND BRIDGES. 
 
 river and the jewellery was injured. It was held, that the 
 plaintifE 's right of action was not affected by his not having 
 communicated the fact that the jewellery was in the 
 carriage : that if a contract to land was established, it was 
 a question for the jury whether the landing was com- 
 plete 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 injmy, was not admissible. 
 Neglect of To an action on the case for disturbance of the plaintiff's 
 
 not justify ferry by the defendant plying a boat from and to the 
 disturbance, game places, from and to which the plaintiff's ferry plies, 
 it is no answer to prove that plaintiff had neglected his 
 ferry to the inconvenience of the public before the estab- 
 lishment of that of the defendant, or to show that 2d. had 
 been of late demanded and taken by the plaintiff, whereas 
 formerly only Id. was taken.^ 
 Ferry tolls. Ancjuish V. EhdcR- was an action for toll brought by the 
 
 owner of an ancient ferry, at the trial of which it tran- 
 spired 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 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^ defines "^;f/.s.sr/^e" as a ferry for the passage 
 of men and cattle over water, for which the owner has 
 
 1 Peter V. Kendal, 6 B. & C. 703; sety. Fogurll, 5 B. & C. 875; R. v. 
 
 see Gunning on Tolls, p. 110. See North Bufficld, 3 M. & S. 247; 
 
 also Anguish v. Ehden, Bury Sum- see Gunning, p. 111. 
 
 nicr Assizes, 1830, cor. Parke, .J. ^ In Jehu JehVs ease, 8 Rep. 46; 
 
 - Bury Summer Assizes, 1830, see Gunning, p. 106. 
 cor. Parke, J. Cf. Buhe of Somer-
 
 FERBY. 
 
 503 
 
 a toll ; but it has been said in an old case^ 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.- 
 
 The individuals or all the inhabitants of a particular 
 town may, by custom, 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 consideration 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 owTier 
 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.^ 
 
 Bridges. 
 
 Wharton-* defines a bridge to be "a building of brick, Definition. 
 " stone, 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 Repair at 
 part of the frinoda ncccssifas, to which, in accordance with i°^™iy times 
 feudal laws, every man's estate was subject, — viz. cxpeditio part of the 
 
 ' "^ . #• >i tnnoda nccessi- 
 
 contrd hostcm, arciiim const met io, et j^ontmm reparatioJ' tas. 
 
 According to Blackstone,° the reparation of bridges in- 
 cluded that of roads; and hence every parish is bound 
 to keep the high roads passing through it, and, con- 
 
 ' Inhabitants of l2)suich\.Broii-nc, ^ Stephen's Blackstone, vol. iii. 
 
 Saville, 11; see Gunning on ToUs, 6th ed. p. 242; Bl. Com. 16th ed. 
 
 p. 106. vol. i. p. 357. 
 
 2 Gunning, p. 106. ^ Bl. Com. vol. i. p. 357. As in 
 
 3 Fayne v. Partrulge, Carth. 191 ; the Roman law: " ad instructiones 
 1 Show. 243, 255; 3 Mod. 289; 1 " reparationesque itinerum et pon- 
 Salk. 12; Comb. 180; Holt, 6; " tium nullum genus hominum, 
 see Gunning, p. 107. " nulliusque dignitatis ac venera- 
 
 ^ TVTiarton's Law Lexicon, 4 th " tionis mentis cessare oportet ; " 
 cd. p. 144. c. 11, 74, 4.
 
 504 
 
 OF FERRIES AND BRIDGES. 
 
 Statutory 
 j)ro\dsions. 
 Magna, 
 Charta, 
 
 sequently, the bridges, in good and sufficient repair. But 
 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.^ 
 
 By Magna Charta,^ 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 grand- 
 " father;" — and the liability of individuals or particular 
 places to repair ratione teiiune^ was thus fixed, and the 
 feudal burthen somewhat alleviated. The liability of the 
 county at common law to repair was fully affirmed* by 
 
 22 Hen. VIII. the passing of 22 Hen. VIII. c. 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 use commonly to do, or as 
 " it shall seem by their discretion to be necessary and 
 " convenient for the speedy amendment of such bridges" 
 
 Sect. 2. (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;" and 3rd, "If part of any such bridges 
 " decayed haj)pen 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 corj)orate, and part with- 
 " out or part within one riding and part within another, 
 
 1 Stephen's Blackstone, 6th ed. 
 vol. iii. p. 242; Viner's Abridg- 
 ment, Bridges; and see Re Newport 
 Bridr/c, 2 Ell. & EU. 377. 
 
 • 9 Hen. III. c. 15 (Ruff.). 
 
 3 See Baker v. Greenhill, 3 Q. B. 
 148; Heg. v. Bedfordshire, 4 EU. 
 & Bl. 535 ; Stephen's Blackstone, 
 
 vol. iii. p. 242; see j^ost, p. 527; 
 Mag. Car. c. 15, applies only to 
 the making and not to the repairing 
 of Bridges ; Bex v. ircst Ridbuj of 
 Yorkshire, 5 Burr. 2594. 
 
 * 1 Bl. Com. p. 357, n. 15. 
 
 •'' An Act concerning the amend- 
 ment of bridges in highways.
 
 BRIDGES. 
 
 505 
 
 " 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 cor- 
 
 " porate wherein they be inhabited at the time of the same 
 
 *' decays." 
 
 Sect. 7 makes provision for the repairing of highways 22 Hen. VIlI. 
 
 at the end, making the liability for repair extend to " such °* ' ^" 
 
 " part and 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."^ 
 
 Of the numerous important statutes relating to bridges,^ 5 & 6 Will. 
 
 IV. c. 50, s. 
 
 1 Cf. S. V. IF. Riding, Yorkshire, 
 2 East, 342 ; R. v. Inhabitants of 
 the County of Kent, 2 M. & S. 513; 
 Rex v. West Riding of Yorkshire, 
 7 East, 588 ; Bl. Com. vol. i. p. 357, 
 note 15. See Oi\so post, p. 526. 
 
 - The following are some of the 
 principal : — 
 
 1 Ann. St. 1, c. 12 (in Ruff. e. 18). 
 
 ' ' An Act to explain and alter 
 " the Act made in the 22 Hen. 
 " VIII. conceming repairing and 
 " amending of bridges in the 
 " highwaj'S, and for repealing an 
 " Actmadein 23 Q. Eliz. for the re- 
 " edifying of Cardiff Bridge in the 
 " county of Glamorgan, and also 
 " for changing the day of election 
 " of the wardens and assistants of 
 " Rochester Bridge." 
 
 Sect. 1 recites 22 Hen. VIII. c. 
 5, and states that the mode of 
 collecting and taking money for 
 the repair of bridges established 
 thereby (viz. through constable or 
 two honest inhabitants) had been 
 found very troublesome, burden- 
 some and chargeable to the several 
 counties, cities, towns corporate, 
 ridings and divisions. 
 
 Sect. 3 therefore proceeds to 
 enact, that the justices at general 
 or quarter sessions may assess 
 
 towns for repair and maintenance 
 of bridges, but that such assess- 
 ments are to be levied by the con- 
 stable of each parish, township, 
 hamlet, or vill in such manner as 
 the said justices may direct, and 
 are then to be paid to the high 
 constables of hundreds, who are in 
 their turn to pay the same to such 
 person and persons as the said 
 justices by their order at sessions 
 shall appoint to be treasurers and 
 receivers of the same. The assess- 
 ments are to be levied by distress 
 and the sale of goods of every 
 person so assessed not paying the 
 same within ten days after de- 
 mand, rendering the overplus of the 
 value of the goods so distrained to 
 the owner and owTiers thereof, the 
 necessary charges of making and 
 selling such distress being first de- 
 ducted. 
 
 By sect. 3, high constables, 
 churchwardens, &:c. neglecting to 
 assess, &c. are subject to a penalty 
 of 40s., and every treasurer, un- 
 duly paying money, to a penalty of 
 bl. 
 
 Fines, &c. are to be returned into 
 the Exchequer, paid to treasiu'era 
 appointed by quarter sessions, and 
 applied in repair of bridges, &c. 
 (sect. 4). 
 
 21.
 
 506 
 
 OF FERRIES AND BRIDGES. 
 
 the 5 (^ 6 JVm. IV. c. 50 {The HigJmwjs Act, 1835), 
 requires to be noticed. By sect. 21 it is enacted, " That if 
 
 Sect. 5 provides that matters 
 concerning such repaii-s are to be 
 determined in the county "where 
 they lie, and not elsewhere; and 
 that no presentment or indictment 
 for not repairing such bridges or 
 the highways at the end of such 
 bridges shall be removed by ccr- 
 tiorari out of the said county into 
 any other court. 
 
 Sect. 6 regulates the allowance 
 made to persons executing the Act, 
 and sect. 7 permits parties in 
 actions under the Act to plead the 
 general issue. 
 
 Sect. 8 provides that neither this 
 Act nor anything therein contained, 
 shall excuse or discharge any par- 
 ticular persons, estates or places 
 from repairing any bridge which 
 they have heretofore usually re- 
 pau-ed. 
 
 43 Geo. III. c. 59. 
 
 ' ' An Act for remedying certain 
 " defects in the laws relative to 
 " the building and repairing of 
 " county bridges and other 
 " works maintained at the ex- 
 " pense of the inhabitants of the 
 " counties in England " (1803). 
 
 This Act, called Lord Ellen- 
 borough's Act, Avas passed in con- 
 sequence of the decision of the 
 Court of Queen's Bench in Rex v. 
 West Ridinff, Yorlcshirc (2 East, 
 342). 
 
 Sect. 1 empowers surveyors of 
 county bridges to get materials 
 for the repair of bi-idges in the 
 same manner as surveyors of turn- 
 pike roads, and to remove obstnic- 
 tions and annoyances therefrom in 
 the same manner as surveyors are en- 
 titled to do under 13 Geo. III. c. 78. 
 
 By sect. 2, the justices at quarter 
 sessions may make orders for the 
 widening and altering the situation 
 of county bridges, and may pur- 
 chase land for such pui'poses. 
 
 By sect. 3, it is enacted that the 
 right and property of all tools, 
 implements, timber, bricks, stones, 
 gravel, and other materials piu'- 
 chased, gotten, or had, or to be 
 
 purchased, gotten, or had, by the 
 order of the justices in counties, or 
 the surveyor of county bridges, 
 shall be vested in the said sur- 
 veyor. 
 
 The inhabitants of counties shall 
 and may, by sect. 4, sue for 
 damages done to bridges, &c. in 
 the name of their surveyor, and 
 shall and may be sued in his name ; 
 provided always that eveiy sucli 
 surveyor in whose name any action 
 or siut shall be commenced, prose- 
 cuted, or defended in pursuance of 
 this Act shall always be re-im- 
 bursed and paid out of the monies 
 in the hands of the treasirrer of the 
 public stock of such coimty re- 
 spectively all such costs and charges 
 as he shall be put imto or become 
 chargeable with by reason of his 
 being so made plaintiff or defen- 
 dant therein, and also all the costs 
 and charges of prosecuting any 
 indictment or indictments, or other 
 proceedings against any person or 
 persons whomsoever. 
 
 Sect. 5 describes the bridges 
 which inhabitants of counties shall 
 be liable to repair and maintain, it 
 being provided that such bridge 
 miTst be erected in a substantial 
 and commodious manner, under 
 the direction or to the satisfaction 
 of the county surveyor, or persons 
 appointed by the justices of the 
 peace at the general cjuarter ses- 
 sions assembled, or by the justices 
 of the peace of the coimty of Lan- 
 caster at their annual general ses- 
 sions ; see Ecx v. Derby, 3 B. & 
 Ad. 147 ; Itex v. Lancashire, 2 B. 
 & Ad. 813 ; Rex v. Devon, 2 N. & 
 M. 412 ; Reg. v. Gloucester, Car. & 
 M. 516 ; Reg. v. Southampton, 18 
 Q. B. 841. 
 
 Sect. 6 regixlates the orders, &c. 
 respecting coimty bridges in the 
 county of York, and 
 
 Sect. 7 provides that the Act 
 shall not extend to bridges re- 
 paii'ed by reason of tenure or by 
 prescription. 
 
 Other enactments are : — 5 "M^^Ul. 
 & M. c. 11, s. 6; 12 Geo. II. c.
 
 BRIDGES. 
 
 6or 
 
 " any bridge shall hereafter be built, which bridge shall 
 " be liable by law to be repaired by and at the expense of 
 " any county or part of a county, then and in such case all 
 " highways leading to, passing over, and next adjoining 
 " to such bridge shall be from time to time repaired by the 
 " parish, person, or body politic or corporate, or trustees of 
 " a turnpike road who were by law before the erection of 
 " the said bridge bound to repair the said highways : 
 " provided, nevertheless, that nothing herein contained 
 " shall extend or be construed to extend to exonerate or 
 " discharge any county or any part of any county from 
 " repairing or keeping in repair the walls, banks, or fences 
 " of the raised causeways, and raised approaches to any 
 " such bridge or the land arches thereof." ^ 
 
 By sect. 5 of the same Act, the word "highway" shall 
 be understood to mean all roads, bridges {not beiiiff county 
 bridges), carriage ways, cart ways, horse ways, bridle ways, 
 foot ways, cause ways, church ways, and pavements ; and 
 by sect. 22, it is enacted "that the several powers and 
 " authorities hereby vested in the surveyor of highways, as 
 " well for the getting of materials as the preventing and 
 " removing of all nuisances and annoyances, 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 sur- 
 " veyor 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." 
 
 29, s. 14; 14 Geo. II. c. 33; 13 passim, for a digest of statutes and 
 
 Geo. III. c. 78 ; 52 Geo. III. c. cases on this subject. 
 
 110; 54 Geo. III. c. 90; 55 Geo. ' See, too, Stephen's Blackstone, 
 
 III. c. 143. See Chambers' "Law vol. iii. p. 243. 
 
 rclatin g to Highways and Bridges, ' '
 
 508 OF FERRIES AND BRIDGES. 
 
 Passing over 4 4' 5 Vict. c. 49, a statute enabling money 
 for tlie repair of county bridges to be borrowed on credit 
 of the county rate;^ and 13 Sf 14 Vid. c. G4, which 
 regulates the repair of bridges in cases where a borough, 
 and not a county, is liable f the next statute of import- 
 ance is 24 4' 25 Vid. c. 97,^ sect. 33 of which provides 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.^ 
 33 & 34 Vict. By sect. 12 of 33 8^' 34 Vid. c. 73, it is provided that 
 where a turnpike road shall 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.^ 
 
 Provided that, for the purposes of this Act, such bridges 
 
 1 " An Act to provide for re- and sects. 65 — 67. 
 " pairing, impro\'ing, and rebuild- ^ "An Act to consolidate and 
 
 " ing- county bridges" (1841), " amend the statute law of England 
 
 sect. 42 (repealed in part). See " and Ireland relating to malicioua 
 
 Steph. Com. vol. iii. p. 242, n. [h). " injuries to property. 
 
 - " An Act to provide for more * As to the punishment of penal 
 
 " effectually maintaining, repair-- servitude, see sect. 2 of 27 & 28 
 
 " ing, improving, and rebuilding Vict. c. 47. 
 
 " bridges in cities and boroughs" ^ "An Act to continue certain 
 
 (1856), (repealed in part). See " Tm-npike Acts in Great Britain, 
 
 Steph. Com. vol. iii. p. 242, n. (/(). " to repeal certain other Turnpike 
 
 The construction of railway bridges ' ' Acts, and to make further provi- 
 
 is regulated by 8 & 9 Vict. c. 20 " sions concerning turnpike roads " 
 
 (The Railways Clauses Cousoli- (1870). 
 dation Act, 1845), sects. 46 — 52,
 
 BRIDGES. 509 
 
 sliall be treated as if they were bridges built subsequently 
 to the passing of the Act of the fifth and sixth years of his 
 late Majesty King William the Fourth, chapter fifty, in- 
 tituled "An Act to consolidate and amend the laws re- 
 " lating to highways in that part of Great Britain called 
 " England." 
 
 By sect. 144 of 38 ^ 39 Vict. c. 55,^ the powers of sur- Sect. 144 of 
 veyors of highways and of vestries under the last-named ^ 55 
 Act are vested in the urban authority of the district within 
 such district ; and sect. 147 empowers such authority to 
 construct or adopt public bridges, &c. over canals, railways, 
 and by agreement with the proprietor. 
 
 It may be noted in concluding this brief enimieration of 40 & 41 Vict, 
 statutes relating to bridges, that by sect. 1 of 40 l^' 41 ^' ^^' 
 Vict. c. 142 it is enacted that on the trial of any indict- 
 ment or other proceeding for the non-repair of any public 
 highway or bridge, or for a nuisance to any public high- 
 way, river, or bridge, and of any other indictment or 
 proceeding instituted for the purpose of trying or en- 
 forcing a civil right only, every defendant to such indict- 
 ment or proceeding, and the wife or husband of any such 
 defendant, shall be admissible witnesses, and compellable 
 to give evidence. 
 
 Sect. 21 of 41 8f 42 Vict. 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 Geo. III. c. 
 59.3 
 
 The general mode in which the common law liability 
 with regard to bridges has been confirmed and amj^lified 
 by statutes having been thus briefly indicated, it will be 
 
 ^ The Public Health Act, 1875 ; " cases of misdemeanour." 
 
 see sects. 145 and 148; and as to ^ "An Act to amend the law 
 
 highway board meetings, sect. 343, "relating to highways in Eng- 
 
 and sched. 5, part 3. " land, and the Acts relating to 
 
 - " An Act for the amendment " locomotives in roads, and for 
 
 ' ' of the law of evidence in certain ' ' other purposes. ' '
 
 510 OF FERRIES AND BRIDGES. 
 
 necessary to examine more particularly some points as to 
 such UahiUtij to repair. 
 
 A bridge of public utility is to be repaired at tbe 
 public expense;^ for, "if a man builds a bridge, and it 
 " becomes useful to tbe county, the county in general shall 
 " repair it."^ 
 
 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 lia' 
 hUitij of the county to repair; (ii.) The liability to repair 
 ratione tenurcB ; and (iii.) The liability to repair by prescrij}- 
 tion. 
 
 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 autho- 
 rity, and the statutory provisions as to public liability. 
 
 Liability of As a general rule the county is liable to repair bridges 
 comity to re- |^^^.^^ by private individuals before 43 Geo. III. c. 59, if 
 
 the public use such bridges.-^ 
 Bridges of But where a bridge has been rendered necessary in 
 
 public utility, consequence of an authorized interference for private pur- 
 poses with a public 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 
 liighway, and not the county, are bound to keep the bridge 
 in repair.'* 
 
 ' Rex V. W. II. Yorkshire, 5 indictment against the inhabitants 
 
 Burr. 2594; 2 SirW. Bl. 685; Lofft. of a county for non-repair of a 
 
 238 ; 2 East, 342. bridge, the plea showed that cer- 
 
 - lb. Per Mr. Justice Aston. tain adventurers had, for the pur- 
 
 2 If no man, by reason of tenure pose of draining lands for their 
 
 or otherwise, ought to repair a own benefit, and under certain 
 
 bridge, the county ought to do it ; powers vested in them, cut an 
 
 County of Huntingdon ease, Pop. artiticial drain or river, which 
 
 192 ; Reg. v. Elij, 4 New Sess. intersected and obstructed an im- 
 
 Cas. 222 ; 15 Q. B. 827 ; 14 Jur. memorial highway, and that they 
 
 956; 19 L. J., M. C. 223; Reg. had erected the bridge in question 
 
 V. Saiutif, 6 Mod. 255. over the said drain, in the line of 
 
 * lb. Where, therefore, to an the former highway, ?.nd not upon
 
 BRIDGES. 
 
 511 
 
 This principle is confirmed by the remarks of Black- 
 bum, J., in Reg. v. Kitchener} " At common law the 
 " highways within a parish or township were repairable 
 
 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 and bridge 
 and large quantities of land, for 
 the purpose of di-aining which tlio 
 said drain was made, were vested 
 by Act of Parliament in a certain 
 corporation 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 
 adventirrers and to the corpora- 
 tion, and had been always main- 
 tained for their benefit, and that 
 since the passing of the said Act 
 the drain and bridge had always 
 been vested in the corporation, and 
 retained by them for their own 
 benefit, and for that of the said 
 lands vested in them, and for fur- 
 thering the purposes of the said 
 corporation, and that the said cor- 
 poration were liable to repair, and 
 of right ought to repair, the said 
 bridge ; it was held that the plea 
 showed a liability in the corpora- 
 tion to repair the bridge, by reason 
 of such bridge having been ren- 
 dered necessary through the inter- 
 ference for private purposes with a 
 public highway, and that it fur- 
 nished a defence to the indict- 
 ment : — Held, also, that the alle- 
 gation that the bridge and drain 
 were vested in the corporation did 
 not make the plea double ; Iter/, v. 
 Ely, 4 New Sess. Cas. 222. Cf. as 
 to this. Rex v. Kent (13 East, 220), 
 and Rex v. Lindsey (14 East, 317) ; 
 and see also decision mentioned in 1 
 Roll. Abr. 368, tit. "Bridges," 
 pi. 2 ; 2 Inst. 761 ; Rex v. Salop, 
 13 East, 9') ; Reg. v. Kerrison, 3 
 M. & C. 526 ; Reg. v. Ely, 4 New 
 Sess. Cas. 222 ; Rex v. Oxfordshire, 
 6 D. & R, 321 ; 4 B. & C. 194 ; 
 Rex v. W. R. Yorlcshire, 2 East, 
 342 ; Rex v. Kent, 2 M. & S. 573. 
 The dictum in the case 1 Roll. 
 Abr. is : — If a man erects a mill 
 
 for his ow it 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 count}', because he erected it 
 for his own benefit. Patteson, J., 
 in Reg. v. Ely, observes with re- 
 ference to the judgment of Lord 
 Ellenborough in Rex v. Kent 
 (2 M. & S. 513), that—" Lord 
 Ellenborough in delivering judg- 
 ment seems to admit that it was 
 a decision contrary to the case, 1 
 Roll. Abr. 368, Bridges, pi. 2 ; 
 but states that, in reference to the 
 record, Rolle appeared not to 
 have been warranted in the ab- 
 stract 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 Ellenborough' s time, so en- 
 tire 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 in 
 2 M. & S. 520, is of the 6 Edw. II.; 
 and the result of his industrious 
 research leaves it very c[uestionable 
 whether the Court in Rex v. Kent, 
 did successfully dispose of the 
 
 authority in Rolle, «fec 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 teiTU highway, cf. Reg. v. 
 Saintiff, 6 Mod. 255 ; Holt, 129 ; 
 and see post , p. 518.
 
 512 
 
 OF FERRIES AND BRIDGES. 
 
 What is a 
 public bridge. 
 
 ' by tlie 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 in- 
 ' habitants of the county. In the case of Reg. v. Ehj (19 
 ' L. J., M. C. 233), it was held that he who, under lawful 
 ' power, makes an artificial cut 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."^ 
 
 A bridge may be a public bridge which is used by the 
 public at all such times as are dangerous to pass through 
 the river ;^ but it is competent to a county, upon an in- 
 dictment for non-repair of a public bridge, to give evidence 
 of the bridge having been repaired by private individuals.- 
 Where a person forty-five years back erected a mill and 
 dam thereto for his own profit, ^^cr quod he deepened the 
 water of a ford through which there was a public high- 
 way, but the passage through which was, before the 
 deepening, very inconvenient 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.^ 
 
 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 f 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 
 
 1 Cf . post, p. 520. 
 
 262. 
 
 Ut. post, p. 520. 
 
 Eex V. Northampton, 2 IT. & S. 
 
 3 RexY. Kent, 2 M. & S. 513. 
 * Rex V. Devon, R. & M. 144 
 (Abbott).
 
 BRIDGES. 
 
 subjects " at tlieir free will and pleasm-e " the variance is 
 fatal.i 
 
 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.- Similarly, a 
 hundred bridge has been held to be a county bridge and 
 
 ' Eex v. Marquis of Buekbigham 
 and others, 4 Camp. 
 
 In Rex V. Devon, the bridge in 
 question was approached by a 
 causeway lying- alongside the naain 
 road, which led through a ford 
 close by and below the bridge. 
 The bridge and causeway were 
 oi^en at all times to carnages, &c., 
 but only used by the public in 
 cases of floods, which rendered the 
 ford impassable, and in high floods 
 the bridge itself was impassable. 
 There was, moreover, no evidence 
 that the bridge had ever been re- 
 paired, though its existence was 
 spoken to for sixty or seventy years 
 by old watnesses. 
 
 With regard to Rex v. Marquis 
 of BucJcingham, the indictment al- 
 leged that the bridge was ' ' used 
 ' for all the liege subjects of our 
 ' lord the king and his prede- 
 ' cessors, with their horses, carts 
 ' and carriages, to go, return, 
 ' pass, ride and laboixr at their 
 ' free will and pleasui-e." Lord 
 Ellenborough observed — "A bar 
 ' kept shut and opened as this is 
 ' I think conclusively shows that 
 ' the public have only a right to 
 ' use the bridge at times of flood. 
 ' It is easy to see how such a 
 ' qualified right might be created, 
 ' and there is no objection to its 
 ' legality. But the indictment 
 ' sets out a right ■without limit or 
 ' qualification. . . . Therefore, 
 ' though the defendants may be 
 ' bound, ratione Unurce, to main- 
 ' tain tills bridge to be used in 
 ' times of flood, they must be ac- 
 ' quitted upon the present indict - 
 ' mcnt." 
 
 The case of Rex v. Glamorgan- 
 shire, given in a note on Rex v. 
 
 C. 
 
 W. R. Yorkshire (2 East, 356, n.), 
 is instructive on this point. 
 
 An indictment having been re- 
 moved in Hilaiy Tenn 1788, by 
 writ of certiorari into the Court of 
 King's Bench against defendants 
 for not repairing a certain public 
 bridge called Ynispenlwih bridge, 
 erected in the king's highway, 
 across the river Tave ; the defen- 
 dants pleaded, that in the year 
 1745 Herbert Mackworth, Esq., 
 being seised of certain tin works, 
 for his private benefit and utility, 
 and for making a commodious way 
 to his tin works, erected the bridge ; 
 and that he and Sir Herbert Mack- 
 worth his son, and their tenants of 
 tin works, enjoyed a way over the 
 bridge for their private benefit and 
 advantage ; and, therefore, that 
 Sir H. Mackworth ought to repair 
 and absque hoc that the inhabitants 
 of the county ought not to repair. 
 The prosecutor replied that the in- 
 habitants of the county ought to 
 repair. And upon the trial at the 
 summer assizes for the county of 
 Hereford before Lord Kenyon, the 
 facts alleged in the plea were 
 proved, and also that the business 
 of the tin works could not be car- 
 ried on without the use of the 
 bridge. But it also appearing that 
 the public had constantly used the 
 bridge from the time of its being 
 built, his lordship directed the jury 
 to find a verdict for the Crown, 
 viz., that the inhabitants of the 
 county were bound to repair — 
 which they did accordingly, and 
 no motion was ever made for a new 
 trial ; vide Bac. Abr. 535, C. 
 
 ' Reg. V. Ebj, 4 New Sess. Cas. 
 222. 
 
 L L
 
 014 OF FERRIES AND BRIDGES. 
 
 not a liigliway, under 5 Sf 6 Will. IV. c. 50, and there- 
 fore not repaii-able by a parish.^ 
 County only The inhabitants of a county are bound by common law 
 repair brido-es ^0 repair bridges erected over such water only as answers 
 erected over a ^he description ol flwuen velcursus aqim {i. e. water flowing 
 eursns aqu(c. between banks more or less defined), although such channel 
 may occasionally 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 cursus aqiicc is such a bridge or not,^ 
 and the decision wHl depend on the evidence brought to 
 prove the repair of the structure, and the nature of the 
 Jlumen aqiice.'^ 
 
 ^ Beg. V. Chart, Ijihahitants of, 
 39 L. J., M. C. 107; 8 L. R., 1 C. 
 C. 237. 
 
 " Rex V. Oxfordshire, 1 B. & Ad. 
 289; Rex v. herbijshire, 2 G. & D. 
 97; 2 Q. B. 745; 6 Jur. 483; Rex 
 V. TFhUnei/, 4 N. & M. 594 ; 3 A. 
 & E. 69 ; 7 C. & P. 208 ; 1 H. & 
 N. 147. 
 
 3 Rex V. Whitneij, 4 N. & M. 
 594. Per Patteson, J.: "With 
 " regard to Rex v. Oxfordshire (1 
 " B. & Ad. 289), I do not under- 
 " stand that case as laying down 
 " that every areh thrown over a 
 '■■ eursus aqua; is a bridge, but only 
 " as deciding that in order to con- 
 " stitute a bridge there must be a 
 " cursus aqiuey 
 
 ^ "The question, "said Lord Ten - 
 terden, C. J., in Rex v. Oxfordshire, 
 B. & Ad. 289), "therefore, seems 
 " to turn upon the meaning of the 
 " words Jlumcn vel eursus aquee* 
 ' ' Now if these words be considered 
 " to denote waters flowing in a 
 " channel between banks more or 
 " less defined, although such 
 " channel may be occasionally 
 
 " dry — a rule will be established 
 " of general and easy application. 
 ' ' If any other sense be put upon 
 " the words, great uncertainty and 
 " confusion Avill be introduced. 
 " It is of great importance to 
 " avoid uncertainty by the estab- 
 " lishment of general rules. "We 
 " think no better or more certain 
 " rule can be laid down than that 
 ' ' which will be given by the sense 
 " thus attributed to the words, 
 " and, therefore, that such ought 
 "to be considered as the general 
 " rule of law. And consequently 
 " the verdict should be entered for 
 " the defendants, the county not 
 " being in our opinion bound to re- 
 " pair the structures in question." 
 In tlie 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 or cul- 
 verts at intervals for the passage 
 of the flood water, which were 
 equally necessary to the safety of 
 
 * In 2 Inst. 701, Lord Coke, in commenting 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 via super flumen 
 " sen cursum aqupe, &c.;" see 1 B. & Ad. 294, 301. 
 
 In Rex v. Oxfordshire, Inhabitants of, a case of a similar nature (1827), 
 Bayley, J. , says, ' ' By the Stat, 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 highway."
 
 BRIDGES. 
 
 515 
 
 A floating bridge wliicli consists of a vessel propelled by A floating 
 steam from one side of the river to the other, and is kept gu^^f ^ ^^ ^ 
 
 ^stance a 
 
 the main bridge and the causeway ; 
 and it was held, as has been stated, 
 that the inhabitants of the county 
 were not bound to repair such 
 arches, being at the distance of 
 more than 300 feet from the end of 
 the maiu bridge. 
 
 This case may be usefully con- 
 trasted with Jiex V. Derbyshire 
 (2 G. & D. 97). There a struc- 
 tiire, called Swarkestone Bridge, 
 was 1,275 yard-s along, and at the 
 eastern end were five arches under 
 which the river Trent flowed, whUe 
 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 diti'erent 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. Tlie county 
 of Derby had immemorially re- 
 paired the whole structure. On 
 an indictment against the inhabi- 
 tants 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 deliver- 
 ing judgment, said: — "The pre- 
 ' ' sent case differs from that of Hex 
 *' v. Inhabitants of Oxfordshire (1 
 " B. & Ad. 289, 297), in tv/o re- 
 " spects — Ist. That it is here found 
 ' ' by the case that the ' county of 
 " ' Derby have from time imme- 
 " ' morial repaired the whole struc- 
 " ' ture, the road and battlements, 
 " ' from beginning to end, includ- 
 " ' ing the whole forty-two arches, 
 " ' as also 300 feet at the eastern 
 ' ' ' extremity of the same, and have 
 " ' at different times, and at a great 
 " ' expense, rebuilt and widened 
 " ' twenty-two of the twenty-nine 
 " ' arches between the eight and 
 "'five arches;' also, 'that from 
 
 ' the year 1750 various parts of 
 ' the said structure, otherthan the 
 ' said five arches over the Trent, 
 ' have been frequently presented 
 ' under the name of Swarkestone 
 ' Bridge by the grand jurj' as out 
 ' of repair, and such parts have 
 ' been repaired accordingly : ' " 
 whereas in the case of Rex v. In - 
 habitants of Oxfordshire, \i wasnot 
 shown that the disputed arches 
 had been repaired 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 con- 
 nection with the arches over 
 the Trent ; and also that most 
 of the other twenty-nine arches 
 are over water continually tliere, 
 though stagnant, whereas in Bex 
 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 nimiber of arches constructed 
 across stagnant water, ought to 
 be treated as constituting a 
 bridge, or whether it is neces- 
 sary that there should be ^ flume n 
 vel eursus aquec ' for that pur- 
 pose, because we think that the 
 first difference is sufficient to take 
 this case out of the authority of 
 Bex v. Inhabitants of Oxfordshire, 
 and to entitle the Cro^vn to our 
 judgment. 
 
 " That case was tried twice. 
 Upon the first occasion the in- 
 dictment treated each of the 
 arches as a separate bridge, and 
 the Court held that to be wrong ; 
 but Mr. Justice Bayley, in giv- 
 ing his judgment, used these 
 words (1 B. & Ad. 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 
 
 L L 2
 
 OF FERRIES AND BRIDGES. 
 
 in its course by chains laid clown across tlie bed of the 
 stream, is in substance a ferry, and is not a " bridge " within 
 
 ' ' ' erected at the same time as the 
 " ' main bridge, or if the iuhabi- 
 " ' tants 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 neces- 
 ' ' ' sarily are part of the bridge ; 
 " ' and upon a special verdict wo 
 " ' can only draw necessaiy con- 
 " ' elusions.' 
 
 " Upon the second occasion (1 
 " B. & Adol. 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 those circumstances 
 " which Mr. Justice Bayley had 
 "mentioned in his foi-mer judg- 
 " ment as forming strong ground 
 ' ' for coming to the conclusion that 
 " the arches were part of the 
 " 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 bridge ; that the whole of it 
 " from beginning to end has been 
 " immemorially repaired by the 
 " county ; and indeed that twenty - 
 ' ' two out of the twenty-nine arches 
 " in dispiite have actually been re- 
 ' ' built by the county. The facts, 
 ' ' therefore, of this case are conclu- 
 " sive against the defendants to 
 *' show that the whole structure is 
 ' ' one bridge, unless there be some 
 " rule of law which, under all and 
 " any circumstances, prohibits every 
 " part of a structure from being 
 " treated as a bridge under which 
 " water does not flow at all times. 
 ' ' No such rule of law is to be found 
 " imless it can be deduced from the 
 " decision in Hex v. Oxfonlahire. 
 " Looking at all the circumstances 
 
 of that case, we do not think that 
 any such rule can properly be 
 deduced from that decision, not- 
 withstanding the language used 
 in the latter part of the judgment 
 and the importance attached to the 
 passage from 2 Inst. 701, and to 
 the use of the words * super Jiuinen 
 ' rel c/irsHin aqua'' in ancient in- 
 dictments. Indeed, the confining 
 of these words to a constant stream 
 or coirrse of water flowing at all 
 tunes to the exclusion of flood 
 waters, whether rarely or fre- 
 ' quently occurring, is not alto- 
 
 ■ gcther consistent with the doc- 
 ' trine laid down in a case in the 
 
 ■ same volume of reports, Rex v. 
 ' Trafford and others (1 B. & Ad. 
 • 87-1). In that case the ancient 
 
 ■ course and outlet of flood water 
 ' had been obstructed by certain 
 ' fenders or banks, aud the Court in 
 ' gi\dng judgment said, 'Now it has 
 ' ' long been established that the 
 ' ' ordinary course of water cannot 
 ' ' be lawfully changed or obstruc- 
 ' ' ted for the benefit of one class of 
 ' ' persons to the injury of another. 
 ' ' Unless, therefore, a sound dis- 
 ' ' tinction 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 par- 
 ' ' ticular seasons the erection and 
 ' ' continuance of these fenders' 
 ' ' cannot be justified. No case 
 ' ' was cited or has been found 
 ' ' that will support such a dis- 
 ' ' tinction.' This view of the law 
 ' was agreed to by the Court of 
 ' Exchequer Chamber as is reported 
 ' in Bing. 210, though the judg- 
 
 ' ment 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 occasion- 
 ' ally, it is difficult to see why a 
 ' structure of arches made to carry 
 ' a highway in such a manner as to
 
 BRIDGES. 517 
 
 the meaning of sect. 72 of the Mutiny Act (27 Vicf. c. 3), 
 which exempts from the payment of any duties or tolls on 
 embarking or disembarking from or upon any pier, wharf, 
 quay, or tm-npike, or other roads or bridges, otherwise 
 demandable by virtue of any Act already passed or here- 
 after to be passed.^ 
 
 Sect. 7 of 24 Sf 2o Vict. c. 70 {T/ie Locomotive Act), 
 enacts that where any bridge on a turnj)ike or other road, 
 carried across any stream, watercourse, or navigable river, 
 canal or railwa}^, shall be damaged by reason of any locomo- 
 tive passing over the same, or coming into contact therewith, 
 none of the proprietors, undertakers, 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 pro- 
 prietors, &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.- 
 
 A bridge may be so situate as to be a street within the A bridge may 
 meanmg of a statute.' ^ithfoTcan- 
 
 An indictment does not lie for not repairing: a bridge ^^s of a 
 
 ■^ ° '^ statute. 
 
 " permit flood waters to flow in ' Ward v. Graij, 13 W. R. 653; 
 
 " their accustomed course should II Jur., N. S. 738; 34 L. J.,M. 0. 
 
 " not be treated as a bridge, though 146 ; 6 B. & S. 345. 
 
 " at ordinary times there maj' be - Meg. v. Kitchener, 29 L. T., N. 
 
 " no water under them. At any S. 697. 
 
 *' rate, where, as in the present ^ Beaver y. Manchester, Matjor of , 
 
 *' case, such arches are contiguous 26 L. J.,Q. B. 311 ; 8 E. & B. 44 ; 
 
 " to, and, as it were, the continua- 29 L. T., O. S. 226. Declaration, 
 
 " tion of, an acknowledged county that plaintiff was possessed of cer- 
 
 " bridge, and have been immemo- tain land forming part of the bed 
 
 " rially treated by the county as of a canal, and that defendants 
 
 " part of the bridge, no rule of erected a bridge across the canal, 
 
 •'law prevents our saj-ing that and caused it and the walls ad join - 
 
 " they are so in point of law, as it ing to be so constiiicted that parts 
 
 " is obvious that they are in point of the same extended and projected 
 
 " of fact. over parts of the canal. Plea, that 
 
 " For these reasons we are of several and all the matters and 
 
 "opinion that the whole of this things complained of were lawfully 
 
 " structure must be taken to be one done by the defendants under and 
 
 " county bridge, and that the ver- by virtue of powers given to them 
 
 " diet entered for the Crown must by an Act made, kc. Held, plea in 
 
 " stand." these general terms was good.
 
 518 
 
 OF FERRIES AND BRIDGES. 
 
 Persons 
 building 
 bridges under 
 special autho- 
 rity for their 
 own benefit 
 primarily 
 liable to re- 
 pair and 
 maintain 
 them. 
 
 unless it be in a liighway.^ " i?/r//^;w//" is a general 
 term for all public ways, as well cart, borse and footways,^ 
 common to all tbe Queen's subjects. 
 
 As bas been remarked above, if a bridge be of public 
 utility,- 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 in- 
 dividuals has obstructed, then the latter, and not the 
 public, will be liable for the repair of such bridge.^ 
 
 Thus, in the case of Mauley v. St. Helen'' s Canal and 
 Rail. Company,^ a canal company empowered to make 
 bridges {Inter alia) were held bound to maintain a bridge 
 sufficient for the present state of circumstances of the 
 county and places through which their canal passed, and 
 consequently liable for the death of a person drowned in 
 their canal owing to the insufficient nature of the bridge. 
 
 Similarly, a dock company having a swing bridge on a 
 public highway are bound in the passing of vessels to use 
 all reasonable means (both as to the number of men 
 employed, and the number of ships passed at a time) to 
 prevent unnecessary delay ; and if they do not do all that 
 can be expected of reasonable men, and any one is ob- 
 structed in consequence, such obstruction will make them 
 liable to damages for the injmy sustained.^ 
 
 So, too, a railway company which is by Act of Par- 
 
 1 Reg. V. Saintif, 6 Mod. 255 ; 
 Holt. 129 ; Hex v. Salop, 13 East, 
 95. 
 
 - A bridge built in a public way 
 without public utility is a nui- 
 sance, and so it is if built colour- 
 ably in an imperfect or incon- 
 venient manner, with a view to 
 throw the onus of rebuilding and 
 repaii'ing it immediately on the 
 county: Hex v. West Riding of York- 
 shire, 2 East, 342. 
 
 ^ Rex V. West Riding of York- 
 shire, 2 East, 342; Rcxy.Kerrison, 
 
 3 M. & S. 526 ; Rex v. Zindsai/, U 
 East, 317; Rex v. Kent, 13 East, 
 220; Rex v. Somerset, 16 East, 
 305 ; Manlcy v. St. Helen'' s Canal, 
 
 4 H. & N. 840 ; 27 L. J., Exch. 
 159 ; Wiggins v. Boddington, 3 C. & 
 P. 544 ; Nieholl v. Allen, 31 L. J., 
 Q. B. 283; 10 W. R. 741; 1 B. & 
 S. 934; 6 L. T., Exch. 699. 
 
 4 2H. &N.840; 27 L. J., Exch. 
 159. 
 
 *> Wiggins v. Boddington, 3 C. & 
 P. 544.
 
 BRIDGES. 519 
 
 liament authorized to construct any works is bound to 
 construct tliem in such a way as not to cause a public 
 nuisance, and if the company fails to do so, it will be 
 compelled to alter the works so as to abate the nuisance 
 caused, if it is not the necessary consequence of the exercise 
 of the company's privileges. 
 
 The Fm'ness Eailway Company was by a special Act 
 authorized (infer alia) to divert a road and to cany it 
 under the railway by means of a bridge. The bridge was 
 not constructed of the width and height prescribed by 
 T/ie Raihcaij Clauses Consolidation Act, 1845, sect. 49 ; and 
 the road beneath the bridge was made of so low a level 
 that it was often flooded, and the passage of foot pas- 
 sengers and the trafiic of goods thereby much impeded : — 
 Held, that a mandatory injunction must issue to compel 
 the company to construct a bridge of the prescribed width 
 and height from the surface of the road, such road being 
 of a proper level, so as not to be subject to frequent inun- 
 dations.^ 
 
 Still though corporate bodies or individuals making But not where 
 bridges under special authority (or by Act of Parliament) authority is to 
 primarily for their onii benefit, will be bound to repair ^° works for 
 them, though the public use them ;- they will not be so the public. 
 liable where such body or individual is specially authorized 
 to do works for tJie public benefit only,^ or where it can be 
 sho^Ti that the particular liability has been by statute, or 
 otherwise shifted on to the public.^ 
 
 Hence, in Bex v. Oxfords/iire,^ where a county indicted 
 for non-repair of a bridge in a public highway pleaded 
 that such bridge was erected by trustees under an Act of 
 
 ^ A.-G. y. Fitniess liaihcai/ Com- Hex v. Kerrison, 3 M. & S. 526; 
 
 pamj^ 38 L. T., N. S. 555 ; see, too, Jtcx v. Lindsay, 14 East, 317. 
 on this point. Smith v. Midland ^ Eex v. Oxfordshire, 4 B. & C 
 
 Maihcay Company, 37 L. T., N. S. 194; Eeq. v. Middle Level Commis- 
 
 224 ; Manser v. North Eastern sioners, 10 L. T., N. S. 375, Q. B. 
 
 Counties Railway, 2 Bail. Cas. 380 
 A.-G. V. Mid Kent Railuay Com 
 pany, L. E.., 3 Ch. App. 100. 
 
 Seff. V. My, 4 New Sess. Cas 
 
 * Eer/. V. Southampton, 18 Q. B. 
 841 ; 17 Jur. 254 ; 2 L. J., M. C. 
 201 ; Meholl v. Allen, 31 L. J., Q. 
 B. 283. 
 
 222 ; Hex v. Kent, 13 East, 220 ; ^ 4 B. & C. 194 ; G D. & K. 231.
 
 520 OF FERRIES AND BRIDGES. 
 
 Parliament, dii-ecting tliem to repair the said road, and 
 empowering them to make and repair bridges, and there- 
 fore the said trustees, and not the county, were liable 
 to repair; it was held that the bridge being built for 
 public purposes, in a public highway, the common law 
 liability to repair attached upon the inhabitants of 
 the county as soon as it was built ; and that the plea 
 was clearly insufficient to exonerate, as it did not aver 
 that the trustees had funds adequate to the repair of the 
 bridge.^ Bayley, J., remarked, " Rex v. Inhabitants of 
 " Kent,- and Bex v. Inhabitants of Lindsay,^ are dis- 
 *' tinguishable. In each of those cases power was given 
 " to a canal company to destroy fords, and make, repair, 
 " and alter bridges, in each a ford had been rendered 
 " impassable, and a bridge erected by the company. The 
 " bridges so erected were for the private benefit of the 
 " company, and it was properly held that the county was 
 " never liable to repair."^ 
 
 So, too, where a private individual was empowered 
 under an Act to build a bridge useful for the public, and 
 to take tolls for the same, and when the said bridge 
 should be out of repair was authorized to amend and 
 repair the same, and to substitute a ferry for the bridge 
 during the time of such repair ; and where the said private 
 individual was also by a subsequent Act empowered to 
 take increased tolls on account of the increased burden of 
 repair ; though it was held by the Court that the builder 
 of the bridge, so long as he remained proprietor and re- 
 ceived tolls was liable to an action at suit of a person who 
 suffered special damage from its being impassable, and was 
 bound to repair it, still they refused to grant a mandamus 
 
 1 Semble, that if that fact had ^ 14 East, 37. 
 
 been averred and proved, still the * In Eeg. v. Ehj, 4 New Sess. 
 
 county would have been primarily Cas. 222 ; and Rcrj. v. Kerrison, 3 
 
 liable, and must have taken their M. & S. 526, defendants cut 
 
 remedy against the trustees. See, through a highway, and having 
 
 too, Reg v. Kitchener^ 29 L. T., N. rendered it thus impassable, built 
 
 S. 697, atite, p. 513. a bridge to continue the highway. 
 
 ' 13 East, 220.
 
 BRIDGES. 
 
 521 
 
 to compel Hm to repair the bridge and maintain it in a fit 
 state for passage.^ 
 
 By sect. 5 of 43 Geo. III. c. 59,- it is enacted that " no Statutory 
 " bridge hereafter to be built in any county by or at the to public 
 " expense of any individual or prirafe person, body politic liability. 
 
 43 Geo. III. 
 
 c. 59, s. 5. 
 
 1 XichoU Y.AlIai, 31 L. J., Q. B. 
 283; 10 W. R. 761; 1 B. ic S. 
 934 ; 6 L. T., N. S., Exch. 699. 
 
 The liability to repair, which 
 vests in certain special authorities, 
 may be transferred by statute. 
 This point may be illustrated by 
 Jirff. V. Southampton (18 Q. B. 841 ; 
 17 Jur. 254 ; 2 L. J., M. C. 201). 
 This was a case of indictment for 
 non-repair of three public bridges 
 in the Isle of "Wight, in the county 
 of Southampton. The Isle of 
 Wight is a (ii\'ision of the county 
 of Southampton, but has no sepa- 
 rate commission of the peace. 
 Before 1842, all public bridges in 
 the island, not repairable by tenure, 
 were repaired either by the tith- 
 ings, parishes or townships in 
 which they were situate, or from 
 ratesl e\Tied on all the parishes in 
 the island under the following 
 circumstances. — The i.sland having 
 been assessed to the general county 
 rate, and appeals against such 
 asses.smcnt having been entered, 
 an arrangement was made, iu 1774, 
 by consent under an order of 
 quarter sessions, fixing certain 
 proportions to be paid by the 
 parishes in the island towards the 
 general county rate, but leaving 
 the expense of bridges and the 
 house of correction in the island to 
 be raised by a local rate ; the island 
 being adjudged and declared not 
 to be liable to pay to the county 
 bridge rate or county house of 
 correction, and the inhabitants 
 agreeing to erect and maintain 
 hou.ses of correction and bridges in 
 the island at their own sole ex- 
 pense. After this aiTangement, 
 the practice was for the county 
 quarter sessions, on application of 
 the justices for the Isle of Wight 
 division, to lay a rate in the nature 
 of a county rate on every parish in 
 
 the island, for the repair of the 
 island bridges and bridewells. Till 
 1842, there had been no instance 
 of the general county rate being 
 applied to the repaii- of the island 
 bridges. In 1813, 53 Geo. III. c. 
 cxcii, appointed commissioners for 
 the repair of the highways in the 
 island, with power to make assess- 
 ments, and enacted that all bridges 
 previously repaired by any parishes, 
 tithings, di%-isions or townships iu 
 the island should, for the future, 
 be repaired ' ' iu such and the same 
 " manner, and by such and the 
 " same ways and means," as other 
 bridges, "usually called county 
 " bridges," witliin the island had 
 been accustomed to be repaired. 
 In 1842, and since, the island was 
 assessed generally with the county, 
 and no separate island rate made. 
 Application for the repair of 
 bridges and bridewells in the 
 island had been, since that time, 
 made to county quarter sessions : — 
 Held, that all bridges, which at 
 the time of the passing of the Act 
 were repairable by the tithings, 
 &c. in which they were situate, 
 were for the future repairable by 
 the county generally, and that the 
 arrangement of 1774 did not affect 
 the legal liability of the county, 
 and was no answer to an indict- 
 :uent against it for non-repair of 
 such bridges. 
 
 A foot-bridge formed of three 
 planks, nine or ten feet long, and a 
 handrail, and which carried a pub- 
 lic footpath across a small stream, 
 was held not to be repairable as a 
 coimty bridge, though it had been 
 repaired by the commissioners 
 under the above-mentioned local 
 Act. See, too, Reg. v. Middle Level 
 Commissioners, 10 L. T., N. S. 375. 
 
 " See ante, p. 506, note (').
 
 522 OF FERRIES AND BRIDGES. 
 
 " 0)- corporate, shall be deemed a county bridge unless 
 " erected in a substantial and commodious manner under 
 " the direction or to the satisfaction of the county sur- 
 " veyor." 
 
 Trustees appointed by a local Turnpike Act are in- 
 dividuals or private persons within the meaning of the 
 statute ; and a bridge built by them not under the direc- 
 tion or to the satisfaction of the county surveyor, &c., is 
 not a bridge which the inhabitants of the county are liable 
 to repair.^ 
 
 The section applies only to bridges newly built, and not 
 to a bridge merely widened or repaired since the passing of 
 the Act.- 
 
 Trustees under a Turnpike Act having built a bridge 
 across a stream where a culvert would have been sufficient, 
 but a bridge was better for the public, the county cannot 
 refuse to repair such bridge on the ground that it was not 
 absolutely necessary. - 
 
 But a bridge having been washed away, and after the 
 passing of the Act been rebuilt, wider than before, by the 
 parish, partly with the old materials, and in the same 
 line of passage over the river, but without notice being 
 given to the county surveyor, has been held not to be a 
 new bridge within the meaning of the Act, and that the 
 county were consequently liable to repair it.^ 
 
 In Ecg, V. Gloucestershire,^ a bridge had been built 
 before the Act over a stream of water never known to be 
 dry, though its depth in winter only averaged two and a 
 half feet ; it was part of a sheet of w^ater crossing low 
 land at the place where the bridge crossed it, being con- 
 fined by embankments to prevent it from overflowing the 
 adjoining meadows; and the judge left it to the jury 
 whether this structure were a bridge over a stream of 
 water, for if so, it was not necessary that it should be for 
 
 1 Rex V. Dcrhj, 3 B. & Ad. 147. ^ Rex v. Devonshire, 2 M. & N. 
 
 - Rex V. Lomashire, 2 B. & Ad. 212; 5 B. & Ad. 383. 
 813. * 2 Car. k M. 506.
 
 BRIDGES. 
 
 523 
 
 the convenience of the public under sect. 5 of 43 Geo. III. 
 c. 59, but the county were liable to repair it.^ 
 
 The inhabitants of a county are not liable to widen a Couuty not 
 public bridge by force of their obligation to repair it.- -s\°ideu 
 
 " A similar question to this," said Abbott, C. J., in Rex bridges by 
 V. DeroH,^ " came lately before the Court in a case from gation to 
 " the county of Lincoln,^ and we then expressed a strong ^^pair them. 
 
 ' A bridge in the Isle of "Wight, 
 originally repaired by the tithings, 
 •was, after the passing of 53 Geo. 
 III. c. cxcii (by which commis- 
 sioners for the repair of highways 
 were appointed, and bridges pre- 
 viously repaired by the tithings 
 were made repaii'able by the 
 county) wholly rebiiilt by order of 
 the justices of the island division 
 of the county of Southampton. 
 The new bridge was larger than 
 the old, and different in fonn, and 
 stood higher up the stream. The 
 expense of the building and repairs 
 were defrayed out of the island 
 rate, imposed under a prevdous ar- 
 rangement of 1774, under Avhich 
 bridges in the island were re^jair- 
 able by the tithings. The condi- 
 tions 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 licff. V. Soiifliampfon, 18 Q. B. 
 841; 17 Jut. 254; 2 L. J., M. C. 
 201.) 
 
 By a local Act of 1807, a road 
 passing over a bridge was made 
 repairable by trustees ; but at no 
 time was the bridge or its ap- 
 proaches actually repaired by 
 them. The road became an ordi- 
 nary highwaj-. By another local 
 Act of the same j'ear, a canal 
 company was empowered to sup- 
 port bridges across their naviga- 
 tion, 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 Vict. c. 73, s. 12, where 
 a turnpike road shall have become 
 an ordinary highway, all bridges 
 which were pre\'iously repaii-ed by 
 the trustees of such turnpike road 
 shall become county bridges, and 
 shall be kept in repair accord- 
 ingly : — Held, that by this altera- 
 tion the bridge had become repair- 
 able by the canal companj^, 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 : 
 JUff. V. -Somerset, 38 L. T., N. S. 
 452, Q. B. Div. 
 
 ^ Hex v. Inhabitants of Devon, 7 
 D. & R. 147 ; 4 B. & C. 670, over- 
 ruling Rex V. Cionbevland, 6 T. R. 
 194, where Lord Kenyon, C. J., 
 laid down that an indictment for 
 not repairing a county bridge may 
 be removed by certiorari, notwith- 
 standing 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 ; 
 Bay ley, J., commented on AVy. v. 
 Stratford, 2 lid. Raym. 1169, which 
 had been cited by counsel for the 
 Crown. 
 
 ^ Hex V. Inhabitants 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 inclination 
 of opinion that such a liability did 
 not attach as an incident to the 
 obligation of repair. In Mcx v. 
 TFest Ridinr/ of Yorkshire (2 East, 
 353, note {a) ), where to an indict-
 
 524 
 
 OF FERRIES AND BRIDGES. 
 
 " opinion tliat a county was not bound to make a bridge 
 
 " wider than ever it bad been before The 
 
 " question now is, what extent of charge can by law bo 
 
 " east upon the inhabitants of a county Now, 
 
 " if we should lay down the law to be, that the inhabi- 
 *' tants of a county may be compelled to widen a bridge, 
 " I am utterly unable to say 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 to repair an old wooden foot bridge (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 im- 
 memorially repaired, and still ought to repair, the said 
 bridge, was not supported by evidence of the above facts; 
 and that the burthen of rej^airing the new bridge must be 
 borne by the county at large.^ 
 43 Geo. III. Sect. 2 of 43 Geo. III. c. 59, enacts that, " Where any 
 
 c. 59 s. 2 as 
 
 to widening " bridge or bridges, or roads at the end thereof, repaired 
 n ges. a ^j^ j^^iq 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 
 
 ment against a riding for not re- toAmships hare so enlarged a 
 
 paiiing a public carriage bridge, bridge, which they were before 
 
 the plea alleged that certain town- bound to repair as a foot-bridge, 
 
 ships had immoiioriaUy used to they shall still be liable ^^ro raid. 
 
 repair the said bridge ; CA-idence Where an individual builds a 
 
 that the township had enlarged bridge, which he dedicates to the 
 
 the bridge to a carriage bridge, public, by whom it is iised, the 
 
 which they had before been bound county are bound to repair it. 
 to repair as a foot-bridge, was held ^ Eex v. Surj-etj, 2 Camp. 455. 
 
 not to support the plea. Where
 
 BRIDGES. 525 
 
 " alteration of any such bridge or bridges until present- 
 " ment shall have been made of the insufficiency, incon- 
 " veniency, or want of reparation of such bridge or 
 *' bridges, in pui'suance 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.^ 
 
 By the common law declared and defined by the statute County liable 
 22 Hen. VIII. c 5, and the subsequent Bridge Acts, apprSes^L 
 where the inhabitants of a county are liable to the repair bridges to ex- 
 of a public bridge, they are liable also to the repair of the feet. 
 highway at the ends of the bridge, to the extent of 300 
 feet ; 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.^ 
 
 So, too, 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.^ 
 
 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 coui'se 
 under the statute 22 Hen. VIII. c. 5, to maintain such 
 300 feet of road, though lying in the other county.'* In 
 such a case, each is a substantive bridge in a different 
 county, and the bridge cannot be considered as an appen- 
 dage to the other. The statute of Henry YIII. attaches 
 
 1 Be Newport Bridge, 2 El. & El. Ecfjem (in error for King's Bench), 
 
 377 ; 6 Jur., N. S. 97 ; 29 L. J., 2 Dow, 1 ; 5 Taunt. 284 ; 7 East, 
 
 M.C. 52 ; 1 L. T., N. S. 1131; cf. 588 ; 3 Smith, 437. 
 
 Reg. V. Addcrbim/ East, 1 D. & M. ^ ^g^_ y_ Lincoln, 3 N. & P. 
 
 324 ; 5 Q. B. 187; 7 Jur. 1035 ; 13 273 ; 8 A. & E. 65 ; 1 W., W. Sc 
 
 L. J., M. C. 91. H. 260 ; 2 Jur. 615, 807. 
 
 ^ fVcst Riding of Yorkshire v. * Rex v. Devon, 14 East, 477.
 
 526 
 
 OF FERRIES AND BRIDGES. 
 
 Where the 
 parts of 
 bridges are 
 in dilfereut 
 counties 
 liability divi- 
 ded between 
 the two. 
 
 equally on tlie inhabitants of each county in respect to its 
 own bridge.^ 
 
 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 Raihcai/ Clauses 
 Consolidation Act, 1845,^ even though the company have 
 lowered the level of the old highway in making those 
 approaches.^ 
 
 It may sometimes happen that the two parts of a bridge 
 may be situate in different counties,^ in which case the 
 liability to repair would be naturally divided between the 
 two counties. 
 
 The statute 5 (^ 6 WiU. IV. c 76, enlarging the 
 boundaries of certain cities and boroughs in England and 
 "Wales, for the purposes 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.^ 
 
 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 L^ 8 Vict. f. 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. 
 
 1 lb., per Lord. Ellenborough. 
 
 2 8 Vict. c. 20, ss 46—65. 
 
 2 London and North Western 
 Eaihcay v. Skerton, 33 L. J., M. 
 C. 158 ; 5 B. & S. 559. Cf. 
 Waterford and Lbnerlch Rail. Co. 
 V. Kearney, 12 Ir. Com. Law Rep. 
 224, and Fosberri/ v. 27ie (Vaterford 
 and Limerick Rail. Co., 13 Ir. Com. 
 Law Rep. 494. 
 
 * Req. V. New Sarum, 2 New 
 Sess. Cas. 133; 7 Q. B. 241; 10 
 Jur. 176 ; 15 L. J., M. C. 15 ; 
 Reg. V. Breeon, 4 New Sess. Cas. 
 272; 15 Q. B. 813; 19 L. J., M. 
 
 C. 203. Cf. Rex v. Devon, 14 East, 
 477 ; ante, p. 504. 
 
 ^ Reg. V. New Sarum, 2 New 
 Sess. Cas. 133. Referring to this 
 case, Patteson, J., in Reg. 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 maintain 
 any bridges, and it would be 
 strange to say, that, in such a 
 case, a new liability was cast 
 where none had existed be- 
 fore."
 
 BRIDGES. 527 
 
 tlie ordinaiy rule of medium fihim aqme must apply, and 
 that the middle of the river continuously was such boun- 
 dary line.^ 
 
 " "With respect to the liability at common law for the Liability to 
 " repair of bridges rat hue fennra'," said Lord Denman, ^,v^,^,^-^.'* ''"'^ 
 C. J., in Bako' v. Green/ti//,^ " the result of the authorities The owner of 
 " seems to be to throw the charge ultimately upon the mately Hable 
 " owner, though primarily, as far as the public are con- though 
 " cerned, the occupier may be the person chargeable by occupier may 
 " indictment in case of non-repair ; ^ {T/ie Queen v. Buck- ^^• 
 " nell, 7 Mod. 55, 98; Hawk. P. C. b. 1, c. 77, s. 3, vol. 
 " 2, p. 258, 7th ed., and the cases there cited) ; and it 
 " would seem from those authorities, that, if the owner of 
 " land charged with the repair of a bridge rat tone teniirce 
 " suffer it to be out of repair, and the occupier of the land 
 " be indicted and fined, he would be entitled to look for 
 " re-imbursement to the owner who ought to have it re- 
 " paired, and who holds the land by the service of repair- 
 " ing the bridge." ^ 
 
 ^ Meg. V. Brecon, 4 New Sess. liable as above, should repair, and 
 
 Cas. 272 ; 15 Q. B. 813 ; 19 L. J., keep in repair, the said parts 
 
 M. C. 203. during the continuance of the Act. 
 
 2 3 Q. B. 148; 2 G. & D. 435. On their default, road trustees 
 
 3 Rvx V. Sutton, 5 N. & M. 353 ; appointed under the Act were to 
 and also^6'.r v. Kcrrimn, 1 M. & S. do the repairs, and recover against 
 435 ; Jiix V. Oxfordshire, 16 East, o\\Tiers ; a power of distress under 
 223 ; Jiex v. Hai/man, M. & M. a justice's waiTant being given to 
 401 ; Bex v. Middlesex, 3 B. & Ad. enforce payment; while, for rais- 
 261. ing the sums required, a power 
 
 * In this case, — Baker v. Green- was also given to the landowners, 
 
 hill, 3 Q. B. 148, — a landowner, to call meetings, and to meet and 
 
 liable, amongst others, to repair a make rates according to the value 
 
 bridge ratione tenurcc, demised of the chargeable land ; such rates 
 
 land ; and the lessee covenanted to to be levied by distress, if neces- 
 
 pay the rent char of land tax, and sary. A subsequent Act, reciting 
 
 all other taxes and deductions what- the above-mentioned liability, 
 
 soever, either parliamentary or paro- made further pro'visions as to the 
 
 chial, taxed or imposed, or to be taxed holding of such meetings, and 
 
 or imposed, upon the premises, or levying rates for the said repairs : 
 
 upon the kssor, in respect thereof, — Held, that the original liability 
 
 the landlord's property tax only for contribution to repairs did not, 
 
 excepted. A statute, reciting the by these enactments, become a 
 
 liability ratione tiniircc, and that parliamentary tax or deduction 
 
 part of the bridge was out of within the lessee's covenant ; and, 
 
 repair, enacted that landowners therefore (the Court finding no
 
 528 
 
 OF FERRIES AND BRIDGES. 
 
 Liability of 
 an infant 
 seised of lands 
 in socage. 
 
 Of proprietor 
 of a naAnga- 
 tion. 
 
 Covenant to 
 build and 
 repair a 
 bridge, how 
 far binding 
 ■when damage 
 is done by an 
 extraordiiiary 
 flood. 
 
 Sucli appears to be the general rule respecting liability 
 rat tone tenurce. Some illustrations of, and exceptions to it, 
 require, However, to be noted. 
 
 An infant seised of lands in the actual possession of the 
 guardian in socage,^ is not indictable for the non-repair of 
 a bridge rat tone tenurce, and the guardian in socage, if in 
 possession of the lands charged with the repairs, is indiet- 
 able.i 
 
 An indictment, charging an individual with the repair 
 of a bridge, b// reason of his being oicner and 2^>W^''^^<^^^ 
 of a certain navigation, is not equivalent to charging him 
 ratione tenurcv, but is erroneous; and if judgment be given 
 thereon, upon error brought it mil be reversed.^ 
 
 A count, it appears, charging such an individual, by- 
 reason of his being owner of a navigation, under a private 
 Act of Parliament, must set forth the Act. 
 
 On a covenant to build a bridge in a substantial 
 manner, and to keep it in repair for a certain time, the 
 party is bound to rebuild the bridge, though broken by an 
 extraordinary flood. ^ 
 
 " It has been usual," remarked Lord Kenyon, C. J.,'* 
 " for many years past, to insert covenants of this kind in 
 " contracts for building bridges. . . . The principle 
 " stated by the counsel for the plaintiffs ^ is the true one ; 
 
 clause in the above statutes which 
 extended the ultimate liability to 
 lessees and occupiers, as well as 
 owners), that the lessee, having 
 been compelled, in the lessor's 
 default, to pay a rate made as 
 above, and charged upon him as 
 lessee and occupier, might (in the 
 manner pointed out by one of the 
 statutes) recover the amount from 
 the lessor. 
 
 ^ Guardian in socage is the next 
 friend in blood to whom the in- 
 heritance cannot descend ; Rex v. 
 Sutton, 5 N. & M. note («), p. 553; 
 Lit. 123 ; Park. 65 ; Dyer, 359 b ; 
 2 Roll. Abr. 40, 1, 10, citing 27 
 Edw. III. 79 b of the 1st ed. 
 of the Year Books, being 27 Edw. 
 III. fo. 3, pi. 26, of the 2nd ed. ; 
 
 U Vin. 78, pi. 2. 
 
 - Hex V. Sutton, 5 N. & M. 353 ; 
 3 A. & E. 597 ; 1 H. & W. 428. 
 So any occupier of the lands 
 charged. Quaere, whether the 
 guardian in socage or other owner 
 of the lands charged not in possession 
 would also be indictable. 
 
 •'' Eex V. Kerrison, 1 M. & S. 
 435 ; cf. Rex v. Pcnegocs and 
 Machxjnlcth, 3 D. & R. 388. 
 
 ■* Brecknock Navigation v. Trit- 
 cliard, 7 T. E. 750. 
 
 ^ Per counsel for the plaintiffs : — 
 " The distinction taken in the 
 ' ' books is this : When the law 
 ' ' creates a duty, and the party is 
 " disabled to perform it -without 
 " any default in him, and he has 
 " no remedy over, the law will
 
 BRIDGES. 529 
 
 " if the defendants had chosen to except any loss of any 
 " kind, it should have been introduced into the contract 
 " by way of exception. It is sufficient to say here that 
 " the contract of the defendants extends to this case ; that 
 " they have not fulfilled it ; and, therefore, that they are 
 " answerable," 
 
 If A. grants liberty, licence, power, and authority to B. if bridge be 
 and his heirs to build a brido:e on his land, and B. ^"^!^VT 
 
 o _ ' individual 
 
 covenants to build the bridge for public use, and to repair and dedicated 
 it, and not to demand toll, the property in the materials ownership of' 
 of the bridge, when built and dedicated to the public, still fabric remains 
 
 • T. 1 • 1 -1 1 1 ill builder, 
 
 continues m B., subject to the right oi passage by the 
 
 public ; and when severed and taken away by a wrong- 
 doer, he may maintain trespass for the asportation.^ 
 " They [the materials] were dedicated by him to the 
 " public for given purposes ; but a scintilla of property 
 " still remained in him." - 
 
 An indictment for not repairing a bridge, described as Form of in- 
 situate within the parishes of Penegoes and Machynleth, ^^'J^epair"'' 
 and averring that the inhabitants of Penegoes, and the rationetemcrco 
 inhabitants of the township of Machynleth, were liable to 
 repair, by reason of the tenure of certain lands, without 
 going on to state what part of the bridge was situate 
 within the township of Machynleth, and that the in- 
 habitants thereof were liable to repair ; is erroneous.^ 
 
 To an indictment against a county for not repairing a 
 bridge, it was pleaded, that J. S. is liable rat tone tenurce : 
 — Held, that this plea was not supported by evidence that 
 
 ' excuse him ; but when the party " Com. Rep. 627 ; and Bulloch v. 
 
 ' by his own contract creates a " BomvUle, 6 T. R. 651.) And 
 
 ' duty or charge upon himself, he " here a loss by a flood must have 
 
 ' is bound to make it good if he " been the very loss in contempla- 
 
 ' may, notwithstanding any acci- " tion of the parties." Hee River 
 
 ' dent by ine\'itable necessity' Wear Commissioners v. Adamson, 2 
 
 ' because he might have provided App. Cas. 743, ante, Chap. III. 
 
 ' against it by his contract. And p. 142. 
 
 ' therefore if a lessee covenant to ' Harrison v. Farler, 6 East, 
 
 ' repair a house, though it should 154 ; 2 Smith, 262. 
 
 ' be burned by lightning, or thrown - lb. per Lord Ellenborough. 
 
 ' down by enemies, yet he ought ^ Itex v. Fener/oes and Machynleth, 
 
 ' to repair. (All. 27 ; Dy. 33 a ; 3 D. & R. 388"; 2 B. & C. 106. 
 
 C. M M
 
 530 OF FERRIES AND BRIDGES. 
 
 the estate of J. S. was part of a larger estate, whicli part 
 J. S. purcliased of tlie former owner, who retained the rest 
 in hisown hands, and, as well before the purchase as since, 
 had repau-ed the bridge.^ 
 
 If a manor be held by the service of tenure of repairing 
 a common bridge or highway, and the manor be divided, 
 the tenant of any parcel, either of the demesnes or 
 services, is liable to the whole charge, but may recover 
 contribution.^ An agreement by the lord to discharge the 
 purchasers, would only bind him and those who claim 
 under him, and will not affect the remedy of the public. 
 Though the manor comes into the hands of the Crown, 
 yet the duty continues as against every person claiming 
 under the Crown,- 
 Liability to An indictment for non-repair of a road or bridge on 
 
 immemorial^^ ^ liabiKty raf 10)16 tcHurce, cannot be sustained where it 
 appears that the tenement on which the liability is charged 
 originated within time of legal memory.^ On such an in- 
 dictment parishioners are admissible witnesses for the pro- 
 secution.'* 
 
 In Hex v. Middlesex,^ it was pleaded to an indictment 
 against the inhabitants of the county for non-repair of 
 
 ' Eex V. Oxford shire, 16 East, by reason of the tenure of which 
 
 223. But where in this case the the obligation was alleged, did not 
 
 county was found guilty, the Court exist before that time ; and it was 
 
 gave leave to stay judgment upon contended that this disjjroved the 
 
 payment of costs until another liability. 
 
 indictment was preferred, in order Per Tindal, C. J., it is essential 
 
 to try the liability. Lord Ellen- to prove the liability from time 
 
 borough, C. J., saying, "But I out of memory. This is disproved, 
 
 " should be sorry to conclude the and the defendant must be ac- 
 
 " county from bringing forward quitted. See, too, note at p. 403 
 
 " thcii" case, as it is clear they have of report, and Rex v. Stoughton, 2 
 
 " never repaired." Saund. 158. 
 
 - IiCff. V. Bucektich, Duchess of, * See 54 Geo. III. c. 170, s. 9. 
 
 1 SaliJ. 358. 5 3 B. & Ad. 201 ; of. Jiex v. 
 
 3 Jiex V. Hayman, M. & M. 401. West Miding of Yorkshire, 2 East, 
 
 There the indictment alleged that 359; per Littledale, J., "I think 
 
 defendant and those whose estate ' ' the footbridge which was erected 
 
 he had of and in a certain mill, " in comparatively modern times 
 
 from time whereof the memory of " cannot be considered as having 
 
 man runneth not to the contrary, ' ' become parcel of the old caiTiage 
 
 had repaired, and of right ought " bridge repairable by the owners 
 
 to repair, &c. Certain documents " of the abbey lands, but was a 
 
 of the reign of Hen. VIII. were " distinct structure, and, therefore, 
 
 put in for the defendants, which " that the verdict must stand for 
 
 showed conclusively that the mill, " the Crown."
 
 BRIDGES. 531 
 
 a foot bridge, that it was parcel of a carriage bridge which 
 A. B. was bound to repair ratione tennrce. 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 foot bridge was part of the same, and it 
 was proved that the latter had been constructed in 1763 by 
 trustees of a turnpike road "svith the consent of a certain 
 number of the proprietors of the abbey lands : — Held, that 
 this (being the foot bridge 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 foot bridge. — 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 What is evi- 
 fenurce : — Held, that a record of 18 Fd/r. III., setting out negative an 
 a presentment of the Bishop of Lincoln for non-repair of immeniorial 
 the bridge and his acquittal by the jmy, which was shortly ratioue tamrce. 
 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} 
 
 Where, in an answer to an indictment, it is pleaded that Evidence of 
 one A. is liable to repair ratione tenurce, evidence of re- adm&^iblein 
 putation is admissible in proof of such liability.^ P™of of lia- 
 
 The principle as to prescriptive Liability is discussed by Liability to 
 Lord Ellenborough in Rex v. Ecelesfield.^ Eeferring to ''description 
 the Statute of Bridges and Magna Charta, he says :* — 
 
 " From both which statutes it appears that towns or 
 
 ^ Beg. V. Sutton, 3 N. «& P. 569. iheMahiliij to re-^axv ratione tcmira. 
 
 The jury, after finding a verdict of - Reg. v. Bedfordshire, 4 El. & 
 
 acquittal, also found that the bridge Bl. 535; 1 Jur., N. S. 208; 24 L. 
 
 had been recently built, and that J., Q. B. 81. 
 
 no one was liable to repair it. ^ 1 B. & A. 348 ; Rex v. Hendon, 
 
 Semble, that such finding by a 4 B. k. Ad. G2S, note(c). 
 
 jury in ancient times is admissible ^ Page 359. 
 as reputation on questions as to 
 
 M M 2
 
 532 OF FERRIES AND BRIDGES. 
 
 " districts smaller than a county had been accustomed in 
 " some cases to make bridges ; and so, in fact, they con- 
 " tinue to do until this 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 usage 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. ^ 
 
 As stated above,^ the repair of bridges by tenure or 
 prescription is a remnant of the trinoda )iccessifas, the com- 
 mon law liability of the county not being established fully 
 till the passing of the Statute of Bridges in 22 Hen. VIII. 
 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.^ 
 A parisli may Hence, a parish may be indicted for non-repair of a 
 be indictable. ]3i.i(jge without stating any other ground of liability than 
 
 immemorial usage.'* 
 So, too, a So, too, a hundi'ed may be charged by prescription with 
 
 hundred. ^t^q reparation of a bridge ; and this, although it appears 
 
 that by a statute within time of legal memory one of the 
 townships, parcel of the hundred, was then annexed to it.* 
 In such a case the proper way would be to allege that the 
 corporation had immemorially repaired ; and then, how- 
 ever constituted the corporate body may have been at 
 different periods, the allegation would be sustained.*" 
 
 ' Cf. Blackstone's Com. vol. i. ^ Rex v. Ilendon, 4 B. & Ad. 
 
 p. 357; 9 Hen. III. c. 15 (RufE.) ; G28. 
 
 22 Hen. VIII. c. 75 ; sec ante, ^ Bex v. Oswestry, G M. & S. 
 
 p. 503. 361. 
 
 Page 29. « Holroyd, J., in Rex v. 
 
 3 Rex V. Stratford-on-Avon, 14 tri/, 6 M. & S. 361. See note (a) 
 
 East, 348; Rex v. Osicestri/, 6 M. p. 361 of the report, for form of 
 
 & S. 361; Rex v. Ilendon, 4 B. & an indictment against the corpo- 
 
 Ad. 628 ; and cf . Reg. v. Surrey, 2 ration of Kingston for the non- 
 
 C. & M. 455 ; Reg. v. Adderbury, repair of Kingston Bridge. 
 1 D. & M. 324.
 
 BRIDGES. 533 
 
 A charter of Edward VI., granted upon the recited Oraprescrip- 
 prayer of the inhabitants of the borough of Stratford- tion.'^°^^°^*" 
 upon-Avon, recited that a guild in an ancient borough 
 was founded and endowed with lands, out of the rents and 
 revenues and profits of which a scliool and an almshouse 
 were maintained and a bridge repaired. That on the dis- 
 solution 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 its government would fall into a worse state 
 W'ithout 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 " icith the 
 " same hounds and limits as the borough and the Jurisdictions 
 " thereof from 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 corporation had always repaired 
 the bridge : — Held, taking the whole of the charter and 
 the parol testimony together, the preponderance of the 
 evidence was,/;-*-^, that this was a eorjwration by preseription, 
 though "words of creation only were used in the incorpo- 
 rating part of the charter of Edw^ard YL; 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 tenurm ; and that the cor- 
 poration were still bound by prescription, and not merely 
 by tenure ; and, therefore, that a verdict against them upon
 
 534 or FERRIES AND BRIDGES. 
 
 an indictment for the non-repair of the bridge charging 
 them as immemoriaUy bound to repair was sustainable.^ 
 
 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.^ 
 
 1 Rex V. Stratford-on-Avon, 14 '2 Jur. 615, 807. See remarks of 
 
 East, 348; cf. Itcx v. Oswestry, 6 Lord Denman, C. J., therein on 
 
 M. & S. 361, note («). the Abbot of Combers case, 43 Assis. 
 
 ■■^ Beg. V. Lincoln, 3 N. & P. 273; pi. 37; and on Rex v. West Riding 
 
 S A. & E. 65; 1 "W. W. & H. 260; of Yorkshire, 7 East, 598.
 
 ( 535 ) 
 
 CHAPTER IX. 
 
 OF TOLLS AND RATES. 
 
 Of tlie incidents mentioned in the previous chapter, two Tolls and _ 
 — vi^. tolls and rates — remain to be noticed. Of these the cident to 
 first named is naturally connected with the rio-ht of navi- "ght« of 
 
 *' _ . ° water. 
 
 gation, and has been already incidentally alluded to.^ The 
 second, that of rateability, arises from the improvement 
 of land in value by water which either arises on it in the 
 form of springs, or passes over it in the form of a natural 
 watercourse, or is conveyed over it ai'tificially, — as by open 
 channels or pipes. 
 
 Toll, tohictiim, or iclcKjium are all of them terms of the Tolls, 
 same import, and signify, in a general sense, a sum of I^efinition. 
 money paid by the buyer for exporting or importing 
 goods and merchandise.^ Toll has also been defined as 
 "a tribute or custom paid for passage ;"■' while in the 
 Tcrmes de la Ley^ it is described as " a payment used in 
 " cities, towns, markets, or fail's 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."^ 
 
 Such definitions are, however, as is stated in the autho- 
 rity above quoted, too general for practical purposes ; and 
 the nature of toll "svill be better understood if we briefly 
 examine the distinction between toll tlwrough and toll 
 
 ' See Chap. I., Chap. V., and ^ Wharton's Law Lex. (Cowel), 
 
 Chap. VII., and as to Ferries p. 937; Brown's New Law Diet. 
 
 Chap. VIII. 362. 
 
 - Gunning on Tolls, p. 1; 2 * See, too, Gunning, p. 1. 
 
 Inst. 58. ^ Gunning, p. 1.
 
 536 
 
 OF TOLLS AND RATES. 
 
 Of tolls gene- 
 rally. 
 
 Toll tho- 
 rough, defini- 
 tion of. 
 
 Toll traverse, 
 definition of. 
 
 The distinc- 
 tion between 
 
 traverse, the two chief species of toll. This will be con- 
 veniently done here, since as the law relating to the 
 taking of tolls for passage on a highway or through a 
 street applies equally to that along the sea or navigable 
 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. ^ 
 
 Toll thorough is a sum paid for passage through a high- 
 way,2 or a toll taken from men for passing through a vill 
 in a street,^ 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.'* It cannot be 
 claimed unless the party demanding 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.'' 
 
 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.'' It 
 derives its name from the fact that it is a toll paid for 
 traversing the land of another,^ and has been defined as 
 " a sum demanded for passing over the private soil of 
 " another,"^ and also as "a duty which a man pays for 
 " passing over the soil of another in a way not a high 
 " street,^ though it may, under certain circumstances, be 
 " payable for passing over the common public highway."^" 
 
 The distinction between the two sj)ecies of toll was 
 
 ' Gunning, p. 214; Ilaspiirt v. 
 
 Wills, 4 Vent. 71; 1 Sid. 454; 1 
 Mod. 47 ; IFarren v. Pridcaux, 1 
 Mod. 104; Ma ijor of Nottingham \. 
 Lambert, Willes, 111; Truman v. 
 
 Walgham, 2 WUson, 296; Hill v. 
 Smith (in error), 4 Taunt, 520 ; 
 Rickards v. Bennett, 1 B. & C. 223, 
 &c., &c. 
 
 * Gunning, j). 2 ; Com. Dig. tit. 
 ToU (C). 
 
 3 lb. p. 2; Vin. Abr. tit. Toll 
 (A). 
 
 * lb.; Haspnrt v. Wills, 1 Vent. 
 71; I Sid. 454; 1 Mod. 47; War- 
 
 ren V. Prideaux, 1 Mod. 104; 2 
 Lev. 96; Mayor of Nottingham v. 
 Lambert, Willes, 111. 
 
 '•' Gunning, p. 3; Smith v. Shep- 
 herd, Moore, 574; Cro. Eliz. 710. 
 
 ^ Gunning, p. 27; Truman v. 
 Walgham, 2 Wils. 296. 
 
 " Gunning, p. 26; Crispe v. 
 Behvood, 3 Lev. 424. 
 
 ° lb.; Com. Dig. tit. ToU (D). 
 
 3 lb.; Vin. Abr. tit. Toll (A); 
 22 Ass. 58. 
 
 1" lb.; Pelham Y. Pickersgill, IT. 
 R. 660; Brett v. Beaks, 10 B. & C. 
 508.
 
 TOLLS. 537 
 
 exhaustively discussed in the judgment of Willes, C. J., the two 
 
 in Mayor of Nottingham v. Lambert, "^ which was a pre- species of toU. 
 
 scription to take a toll for passing on an ancient navigable Ungham v. 
 
 river. Zambcri. 
 
 " .... A difference has always been taken betwen 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 considera- 
 " tion. In the Book of Assize, 22 Ediv. III. c. 58, it is 
 " expressly laid down as a rule that toll thorough is 
 *' against common law and common right, and cannot be 
 " supported by usage. It is so likewise holden in Keilw. 
 " 148, 149, that such toll is not allowable without somo 
 " particular consideration. It is said in 1 Leon. 232, that 
 '' the king cannot 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 Yent. 71, in the case of The City of JVorivich,'^ such 
 " custom was holden to be illegal and unreasonable, unless 
 " for such vessels as unloaded at the quay there. In 
 " several books it is called malum tolnetum, or an out- 
 " rageous toll, and an oppression on all the subjects of 
 " England, which sort of tolls are condemned in Magna 
 " Charta (9 Hen. III. e. 30), and by the Statute of West- 
 
 ' Willes, 111 ct scq.; see also wharf paid a certain duty for 
 
 Woolrych, 382, and Gunning, 22. which the action was brought. 
 
 - Haspurt v. Wills (in error-), 1 The Court held the custom bad 
 
 Ventr. 71 ; 1 Mod. 47, 'S'. C. (re- and void as to all vessels which 
 
 ported by name of J/if«/(o<^ V. If 'ills), did not unload "at the wharf or 
 
 1 Sid. 4o4. See, too. Gunning, " any other place within the city," 
 
 p. 21, Woolrych, p. 302. This there being no benefit redoimding 
 
 was a special action on the case on to them from the maintenance of 
 
 a custom of wharfage in Norwich. the wharf, they oiJy passing by 
 
 Plaintiff stated in his declaration bound for another place, and they 
 
 that he had and maintained a com- could, therefore, have no imposition 
 
 mon wharf and crane thereto at- on them, but if they had received 
 
 taehed for unloading such goods their freight at the wharf, it might 
 
 as were brought up the river in extend to them. The reports of 
 
 vessels to the city, and custom this case in Vent, and Mod. differ; 
 
 alleged was that every vessel pas- on which point see Gunning, p. 22, 
 
 sing through the river by the and Woolrych, p. 301.
 
 538 OF TOLLS AND RATES. 
 
 " 9iii)ister 1 (3 JEdir. I. c. 31), wliere it is said that if any- 
 " one 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 sup- 
 " ported by reason as Avell 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. ^ Some cases have been 
 " cited to the contrary, but when looked into they either 
 " stand on some particular reason which plainly distin- 
 " guishes them from the common case, or it is only said 
 " obiter that such tolls may be supported by prescription 
 " without any consideration ; but the reasons given for it 
 " are such as make such dicta of no weight or authority.^ 
 "It is said, indeed, in some books, and particularly in 
 " the case of James v. Johnson,^ that if the prescription be 
 " found (as it is in the present case), it must have a reason- 
 " able 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 natm-e 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 com- 
 " mencement be presumed, it must be that it began by 
 " agreement, and that such an agreement, being so long 
 
 ' Mayor of Yariiwitth v. Eaton, 3 consideration ; bnt the Court were 
 
 BuiT. 1402. Mayor and coi-pora- of a different opinion. See, too, 
 
 tion of Yarmouth prescribed to Gunning, p. 23, and Woolrych, 
 
 have a toll called measurage from p. 301. 
 
 every merchant exporting corn or - His lordship then refeiTcd to 
 
 grain from the port of Great Yar- 21 Hen. VII. fol. 16; Smith v. 
 
 mouth to ports beyond the seas, tS/icphcard, Cro. Eliz. 711; Moor, 
 
 but the consideration was not set 576; James \. Johnson, 1 Mod. 232, 
 
 forth. There "was a demurrer, and and other authorities, 
 
 it was said that there could not be "1 Mod. 233. 
 any thorough toll without a special
 
 TOLLS. 
 
 539 
 
 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 Parlia- 
 ment, 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 landing 
 on the plaintiff's manor or quay, which distinguishes it 
 from toll thorough. So are the cases Haspioi v. WiUa,'^ 
 Mayor of London v. Ilioif,- Crispe v. Behcood,^ and several 
 other cases which were cited.^ 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 Par- 
 liament.^ In the case of Wilkes v. lurbi/,^ the duty was 
 
 1 1 Mod. 478. 
 
 - 3 Lev. 37. 
 
 3 3 Lev. 424 ; and cf. Colfon v. 
 Smith, Cowp. 47; Willes, 117, 
 note (rt). 
 
 ^ In The Mayor of London v. 
 Hunt, it was objected in assumpsit 
 for weighage of goods brought 
 into the Port of London 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 
 Avas resolved that the consideration 
 was implied (3 Lev. 37; see, too, 
 Gunning, pp. 29, 33, 115 ; and 
 Wooh-ych, p. 300). In Crispe v. 
 Bclicood, 3 Lev. 424 (see also 
 Grunning, p. 21 ; and Woolrj-ch, 
 p. 300), on the other hand, the Court 
 supported the claim of a lord of 
 the manor, to toll for all goods 
 landed with in the manor, though 
 not upon the wharf, which alone, 
 as appeared by the plea, the lord 
 repaired ; remarking that, origiu- 
 aUy the lord Avas o^vner of all the 
 soil in the manor, and that, there- 
 fore, the prescription was good in 
 respect of the easement in landing 
 goods on his soil. The case was 
 distinguished from that of Warroi 
 
 V. Prideaux, 1 Mod. 104, which see 
 post. 
 
 ^ Mayor of London v. Hunt, sup. 
 
 " 2 Lutw". 1519. This case (also 
 reported 1 Lutw. 490, and see Gim- 
 ning, pp. 19, 20 ; and AVoolrych, 
 p. 300), was an action of trespass 
 for taking plaintiff's goods at the 
 port of Iving's Lynn in Norfolk. 
 Defendant justified under a plea 
 of prescription for owners of the 
 port of King's L}Tin, to take a 
 certain toll for merchandise loaded 
 there, to be exported from thence 
 by foreigners not free of the 
 borough, and plea alleged that 
 " this was towards the neces- 
 " saiy reparation of the port," 
 and a right to distrain on refusal 
 to pay. On demurrer, it was 
 objected that this was not a 
 good plea, because it was stated 
 only that the toll was towards 
 the reparation of the port, and 
 not that the owners of the port 
 in fact repaii-ed, or were bovxnd 
 to repair, the port, and, in con- 
 sideration of such obligation, took 
 the toll. It was also objected 
 that the consideration itself was 
 insufficient in law, even if it 
 was well pleaded. The case Avas
 
 540 OF TOLLS AND RATES. 
 
 " expressly laid to be paid crga rcpamtioncm j)0)ius. It 
 " is best, tlierefore, to adhere to the old rule, which is 
 " founded upon the best reason, that toll thorough cannot 
 " be maintained without a particular consideration 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,^ that 
 the terms toll traverse and toll thorough are used pro- 
 miscuously. Though Woolrych seems not to dissent from 
 that doctrine,^ it appears to be satisfactorily 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 Gunning on 
 Tolls,^ the case of James v. Johnson is one of questionable 
 authority.'* 
 
 These authorities seem sufficient to support the distinc- 
 tion above given between toll thorough and toll traverse, 
 the former of which, being contrary to common right,''^ is 
 treated with great jealousy by the courts,'' which will re- 
 quire the person seeking to charge the public with it to 
 
 not decided ; but the Coui't (ac- " without any consideration, and 
 
 cording to Gunning) sti'ongly in- " payment time out of mind is 
 
 cliaed for the defendant, because " sufficient, and will support the 
 
 he might have been indicted for " prescription." Cf., too, the 
 
 not repaii'ing the port. remarks of Lord Tenterden, C. J., 
 
 1 1 Mod. 232, per Serjeant in Brett v. Beaks, 10 B. & C. 508 ; 
 
 Maynard. 1 M. & M. 416 ; Hill v. Smith, 4 
 
 - Woolrych, p. 303 ; and see Taunt. 520; Popham, J., ia Smith 
 
 Stciiison V. Heath, 3 Lev. 400. v. Shepherd, Cro. Eliz. 710 ; 
 
 ^ Gunning, p. 26. Moore, 574. See also Pelham v. 
 
 * In Truman v. Walgham (2 Fiekcrsgill, 1 T. H. 660, remarks 
 
 Wilson, 296), the Coiu't said : of Bidler, J. ; Brecon Markets Co. 
 
 " This is a prescription for toll for v. Keath and Brecon Rail. Co., 42 
 
 "passing through the King's L. J., C. P. 63, Exch. ; JRickards 
 
 "highway; . . . which cannot \. Bennett, 1 B. & C. 223; Zau- 
 
 " be taken unless a good considera- rencc v. Hitch, 9 B. & S. 467; 
 
 " tion be alleged: the reason is, Middlcton v. Lambert, 1 A. & E. 
 
 " because it is to de25rive the 401 ; Reg. v. Salislmry {Marquis), 3 
 
 " subject of his common right and N. & P. 476, Q. B. 
 
 " inheritance, to pass through the ^ Gunning, pp. 3, 25 ; Thorpe, 
 
 " King's highway, which right of J., 22 Ass. 58 ; 2 Roll. Abr. tit. 
 
 " passage was before all prescrip- Toll (B), pi. 1 ; Mayor of Xotting- 
 
 " tions \_Smith v. Stephen, Moore, ham v. Lambert, WiUes, 111 ; 
 
 " 574]. Toll traverse, or for Wooliycli, p. 299. 
 
 " going through a man's private " 'Trionan v. IFalgham, 2 WUs. 
 
 " land, may be prescribed for, 96.
 
 TOLLS. 541 
 
 prove to their satisfaction a good consideration for it, and 
 such consideration will not be implied even from a pre- 
 scriptive taking of toll.^ 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,- and the reservation of 
 which must be contemporaneous with the dedication of the 
 way to the public,^ is sometimes due for the private ferry, 
 bridge, &c., of another.^ 
 
 The right to take tolls exists only by Act of Parliament, 
 by express grant from the crown, or by immemorial usage, 
 which pre-supposes such a grant, and from which, if un- 
 contradicted, 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.^ 
 
 Previous to the Prescription Act,^' " it was necessary to Prescription 
 " show that the right prescribed for existed in the time JkiHty™"''"'''" 
 " of Eichard I., which was done either by positive j)roof of 
 " its existence at that remote period, or by the evidence 
 " of modern usage from which its existence at that time 
 " could be inferred."^ 
 
 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,'^ and this, says Lord Coke,^ is 
 "to be understood not only of the memory of anyone 
 
 ^ Mayor of Xottingham v. Lam- Free Fishers of Jf'hitsfable, 11 H. L. 
 
 Jf//, Willes, 111. 192; 3fa>/or of Kotti»(//uiiH y. Zam- 
 
 ■ Fitz. tit. Toll, pi. 3. bert, Willes, 111 ; Mai/or of Exeter 
 
 ^ Felham v. Fickersgill, 1 T. R. v. Warren, 5 Q. B. 773 ; see ante, 
 
 660. Chap. I. p. 46, andj^os;', p. 569. 
 
 * 1 Sid. 454. e 2 & 3 Will. IV. c. 71. 
 
 5 Jenkins v. Herveij, 1 C. M. & '' Guuning, pp. 27, 28. 
 
 E,. 877 ; Kingston-on-Hull Bocks v. ^ Com. Dig. tit. Prescript (E). 
 
 Lamarche, 8 B. & C. 42 ; Falmouth 9 Co. Litt. 115 a. 
 v. George, 5 Bing. 206 ; Gann v.
 
 542 
 
 OF TOLLS AND RATES. 
 
 " living, but also of proof of any record, writing or otlier- 
 " wise to the contrary."^ 
 
 Where rights arc claimed by prescription, the jury 
 ought to be directed that from modern usage they are 
 warranted in presuming that the right claimed is im- 
 memorial, unless they are satisfied of the contrary by 
 other evidence.- 
 
 No objection can be made on the ground of rank- 
 ness^ 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 consideration in respect of them.^ 
 
 " 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.,^ "to give some 
 evidence to show that the custom was really in question, 
 otherwise a verdict in iiidehitafiis assumpsit would prove 
 nothing." 
 
 " It is well known," said Best, C. J., " that many tolls 
 are good imder a custom of which a good grant could 
 not be made at the present time. A custom which is 
 proved to have existed immemorially 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 con- 
 trary to reason it may be supported ; for it might have 
 had its commencement from an Act of the legislature. 
 Custom is a local law which supersedes the general lav\', 
 and if the law gives us the maxim, ' Consueto ex ccrtd 
 causa rationahUi prkat communeni legem,'' the custom on 
 which the plaintiff rests his claim appears to us to be 
 reasonable and convenient, even to those who resist its 
 
 ^ Gunning, p. 27. 
 
 - Jenkins v.iraiiri/,1 Galc,Exch. 
 23. 
 
 ^ lb. ; 1 Gale, 4.)1 (Exch.) ; 5 
 Tyr. 187. 
 
 ■* Woohych, p. 305 ; jVai/or of 
 Exeter v. IFarren, 5 Q. B. 773 ; A'. 
 C, Dav. & M. 524. 
 
 5 Layhiim v. Crh}), 4 M. & W. 
 320, 325.
 
 TOLLS, 
 
 543 
 
 " establisliment ; advantageous to tlie public by en- 
 " couraging a valuable fishery ; and highly beneficial as 
 " tending to the preservation of human life 
 
 " Wherever customs are set up, judgments in cases be- 
 " tween parties are admissible to prove or disprove such 
 " customs."^ 
 
 A toll reasonable in amount, but varying from time to The right to 
 time according to the value of money, is valid in law.- ^'^^^ 
 
 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.^ 
 
 On this the case of llnngerford Marliet Co. v. City 
 Steamboat Co. is important.'* 
 
 By sect. 76 of 11 Geo. IV. c. hw^ the Hungerford 
 Market Company were empowered to take from the masters 
 of steamboats in respect of passengers landing on or em- 
 barking 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 i^ 7 Will. IV. c. cxxxiii, for building a 
 foot bridge over the Thames from Hungerford Market, 
 called " the Charing Cross bridge," reciting that it was 
 contemplated that the northern pier of the bridge should 
 be a landing place for passengers embarking or disem- 
 barking 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 
 
 ^ Lord Falmouth v. George, 5 s. 90) ; Harbours, Docks and Piers 
 
 Bin^h. 286 ; 2 M. & P. 457. Clauses Act, 1847 (10 Vict. c. 27, 
 
 "^^ Laurence v. mtch, 9 B. & S. s. 30). See also 8 & 9 Vict. c. 28, 
 
 467. ante, p. 480. 
 
 3 See Railways Clauses Con- * 7 Jur., N. S. 67 ; 30 L. J., Q. 
 
 solidation Act, 1845 (8 Vict. c. 20, B. 25 ; 3 L. T., N. S. 732.
 
 544 OF TOLLS AND RATES. 
 
 " modifications as may have been agreed on, or may liere- 
 " after be agreed upon in any particular cases, between 
 " this company and the owners or proprietors of steamboats 
 " or vessels." 
 
 By sect. 125 of G ^- 7 Will IV. c. cxxxiii, the tolls to be 
 taken by the Hungerford Bridge Company by virtue 
 of that Act were to be charged equally, and no reduc- 
 tion or advance in them was either directly or indirectly 
 to be made in favour of any particular person or com- 
 pany : — Held, 1st. That there was no obligation on the 
 plaintiffs to impose an equal toll on all persons or steam- 
 boat companies; and that sect. 76 of 11 Geo. IV. c. hx 
 did not restrain them from making agreements with 
 steamboat companies for a lower toll than that fixed and 
 appointed ; 2nd. That sect. 1 25 of 6 l^ 7 Will. IV. c. cxxxiii 
 applied only to tolls taken by the bridge company, and 
 not to the defendants.^ 
 
 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 bona fide claim, is 
 not sufficient to oust the justices of their jurisdiction to 
 convict for taking them improperly.^ 
 Power to take The power to take tolls entails on bodies incorporated 
 tolls entails ■]^„ statute the same liabilities as would exist in the case of 
 
 on bodies m- ... 
 
 corporated by individuals, and which liabilities form part of the con- 
 liability'ar*^ sidcration necessary to support a toll. " Where a body 
 would exist «« (such as the Mersey Docks and Harbour Board) is 
 duals. " 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 their 
 
 1 See remarks of Cockburn, C. 2 Jiexy.IIamps/nrcJusticcs,3'D.'P. 
 
 J., as to the power of the com- C. 47. See, too, as to the altera- 
 
 pany to vary tolls and on Lord tion and variability of tolls, Zcai- 
 
 Ellenborough's judgment in Zees cum v. Lovell, 6 C. & P. 463 ; 
 
 V. Manchester and As/iton-iinder- Barton v. Benctt, 12 W. R. 709 
 
 Lyme Canal, 11 East, 645. Q. P.
 
 TOLLS. 545 
 
 " liability to make good to the person using it any damage 
 " occasioned by their neglect in not keeping the works in 
 "proper repair."^ Therefore, such a corporation being Even where 
 empowered by Act of Parliament to make and maintain suphbodie&jc- 
 
 ■^ •' , ceive tolls tor 
 
 docks for the use of the public, and to take tolls from per- beneficial or 
 sons using them, was held liable to the owners of ships in poses!^^^ ^'"^ ' 
 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.^ 
 
 Tolls granted by statute may be extinguished either by Tolls, how 
 the act of God or by law.^ ° 
 
 It would appear that in order to pass any interest by a Lease of tolls. 
 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 occupa- 
 tion.^ 
 
 Sicafman v. Ambler^ was an action of debt on an in- 
 denture bearing date 27th December, 1849, and made be- 
 tween five commissioners of an inland navigation, imder 
 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 of 3470/. to- 
 gether with certain other payments, and the defendant cove- 
 nanted with them, and also with the whole body of the 
 commissioners, as a separate covenant for the payment of 
 
 1 Lord Cranworth, L. C, in 755: afiirmed on appeal, 13 C. B., 
 
 Ifersei/ Dock Co. v. Gibbs, 11 H. L. N. S. 82. 
 
 Cas. 686 ; 12 Jiir., N. S. 571. * Riv- v. Marquis of SaUsbury, 3 
 
 '- lb. (affirming the judgment of N. & P. 476, Q. B. ; 8 A. & E. 
 
 the Court of Exchequer Chamber, 716. 
 
 8 Jut., N. S. 486) ; Farnaby v. » 8 Exch. 72; 22 L. J., Exch. 
 
 Lancaster Canal Co., 11 Ad. & E. 81. Seethe judgment of Martin, 
 
 213 ; Mersey Dock and Harbour B. ; and cf. Fitman v. Woodbury, 3 
 
 Board v. Cameron, 11 Jur., N. S. Exch. Rep. 4 ; 22 L. J., Exch. 
 
 746. See ante, p. 271, and p. 455. 83 ; and the judgment of Parke, 
 
 3 Brou-n, v. Mayor of London, 9 B., therein. 
 C. B., N. S. 726; 17 Jur., N. S. 
 
 C. N N
 
 546 OF TOLLS A^■D RATES. 
 
 the rent. Breach, non-paj^ment of the rent. Plea that 
 the commissioners never executed the lease, and that the 
 entry and occupation was at the will of the commissioners 
 only, and not under the demise. Replication 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 per- 
 manent estate during the demise and under its terms, and 
 therefore that he was not liable to be sued on his covenant 
 on the lease. 
 
 Right of dis- A right of distress is incident to every toll,^ and the dis- 
 tress incident . 1 T J.1 11 • -i IP • J. (• 1 • 1 
 
 to tolls. tress may be made on the thmg itselt m respect oi which 
 
 the toll is 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.^ 
 
 Tolls incident Having thus indicated some of the points which it was 
 Tvater.^ ^ ° necessary to consider with regard to the general law of 
 
 tolls, we will proceed to consider those incident to the 
 
 rights of water, in the following order : ^ 
 
 Customary ) I. Tolls on the sea and navigable rivers. 
 Tolls, j which will be found to include port tolls.'^ 
 
 o; J i \ II. Tolls for harbours, lighthouses, docks, 
 
 ' Tolls.'^ ^^^ P^'^''- 
 
 J III. Tolls in canals. 
 
 ^ Gunning, p. 216 ; Bac. Abr. Lord Hale (see p. 564, post) terms 
 
 tit. Distress, pi. 6 ; Vin. Abr. tit. shore tolls, which sometimes are 
 
 Toll, I. ; Uiddji V. Whcelhoime, Cro. originated by custom and some- 
 
 Eliz. 558; andjyosY, p. 591. times by statute. The division, 
 
 - Gunning, p. 216. I'inhensterne therefore, of tolls customary, tolls 
 
 V. Ebden, 1 Eaym. 386 ; 1 Salk. partialhj statutable and partially 
 
 248 ; Garth. 357. customary, and toUs statutory, might 
 
 ^ While the first class of tolls have been adopted. It would not, 
 
 are created only by grant, custom, however, seem to be so convenient 
 
 or prescription, it Avill be fovmd in a work treating specially on tolls 
 
 that the second and third are for incident to water, and it has, 
 
 the most part levied on the autho- therefore, been deemed better to 
 
 rity of Acts of Parliament. There follow the method adopted by 
 
 are also certain species of tolls Woolrych. 
 
 closely connected though not en- * For fcny tolls see ante, Chap. 
 
 tirely identical with port tolls, which VIII.
 
 TOLLS. 547 
 
 " The rights of water," says Woohych/ " are not in Tolls on the 
 " general liable to tolls. Indeed, it may be laid down as ttblTxive"^?" 
 " a pi-inciple, 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 therefore 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 ;" - and there can be no 
 prescription to take toll on an ancient navigable river,^ 
 which is in the nature of a highway, and where, if the 
 water alters its course, the way alters also.^ 
 
 This freedom from toll, however, is subject to two ex- Biit to tliis 
 
 ; • -, 1 ii • ii p i-1 1 • 1 1 • there are two 
 
 ceptions,-" both m the case oi the sea and navigable rivers, exceptions. 
 
 As has been stated above, toll over a public highway is 
 
 usually toll thorough, and a prescription for toll thorough ^ 
 
 cannot be supported in law unless a good consideration be 
 
 shown for it, though toll traverse, where a consideration is 
 
 implied, may.^ Hence the exceptions referred to occur, i. where 
 
 1st, where benefits are done to the community at large, benefit is done 
 
 ] , , •^ o ' to the com- 
 
 whieh form a good consideration for a toll ; and 2nd, where munity. 
 
 a toll is created by the legislature.^ 2. Where toll 
 
 With regard to navigable rivers, as well as to tolls gene- f ^•^''j''^+^'^ ^^ 
 rally, the case of Mayor of Noit'uujlKDa v. Lambert,^ which has Ma>ior of Kot- 
 abeady been alluded to, is of great importance. thigham v. 
 
 -r -iT^-i.Ti ■,..«, Lambert. 
 
 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 
 
 1 Woolryeh, Law of Waters, p. Kirby, 1 Liitw. 490 ; 2 Lutw. 
 
 298. 1519. 
 
 • lb. p. 299. 5 Woolryeh, p. 299. 
 
 ^ Mayor of Nottingham v. Lam- " See ante, p. 536. 
 
 Zic)-;, Willes, 111; of . Lord Chelms- " Mayor of Nottingham v. Lam- 
 
 ford in Gann v. Free Fishers of hert, Willes, 111. 
 
 Whitsfable, 11 H. L. Cas. 223. » Woolryeh, p. 299. 
 
 ■* Gunning, p. 19. Com. Dig. ^ Willes, 111. The case was 
 
 tit. Chem. A. 1 ; citing Thorpe, twice argued, first, on 1st June, 
 
 J., 22 Ass. 93 ; and cf. Gunning, 1738, and ag-ain on the 2nd No- 
 
 p. 18 ; 10 Mod. 384 ; Wilkes v. vember of the same year. 
 
 N N 2
 
 OF TOLLS AND RATES. 
 
 manor of Nottingliam is an ancient manor, and tliat time 
 out of mind till 15th September, 28 Hen. VI., it was 
 parcel of the county of Nottingham, and from that time 
 and still is v/ithin the county of the town of Nottingham.^ 
 That the river Trent in and throughout the said manor is, 
 and time out of mind hath been, an ancient 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 mer- 
 chandize 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 con- 
 " sideration proved to them at the trial for the payment 
 " of the said duty or toll," and concluded as usual, sub- 
 mitting the matters of law to the judgment 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 prescription 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, 
 
 ^ WMcli was made a covmty of W. & M., incorporating the plain- 
 
 itself by the charter of loth Sep- tiffs by the name of the Mayor 
 
 tember, 28 Hen. VI., the last and Burgesses of the town of 
 
 charter that of October 19th, 4 Nottingham.
 
 TOLLS. 549 
 
 judgment must be given for tlie defendants. The plain- 
 tiffs did not claim as lords of the manor or owners of the 
 soil of the river ; but from the case of Gann v. Free Fis/iers 
 of WJiitstahlc,^ cited hereafter, which decides the point 
 with regard to tidal estuaries, it may be presumed that 
 such a claim could not be supported even in non-tidal 
 waters without consideration. 
 Commenting on this case, Woolrych - observes : " Hence There can bo 
 
 , . , . , uo toll on a 
 
 " it appears that there are two cases m which toll may be public river 
 " had upon a public river ; 1st. Where a suflficient con- thcrels^sr^- 
 " sideration appears, and 2nd. Where the nature of the cientconsider- 
 " benefit is such as to imply a consideration." As an benefit to' the 
 example of the first named instance, he cites an action for puWic imply- 
 
 111*^ sucii con* 
 
 toll ^ brought by the mayor and burgesses of Gloucester sideration. 
 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,'^ where quo 
 warranto was brought against the corporation for demand- 
 ing toll thorough, and they justified the demand by reason 
 of a consideration for repairing a bridge and a pavement, 
 and also a sea bank, when the Court held, that althougli 
 toll thorough could be claimed as such without more, yet 
 as here it was founded upon a consideration, it should be 
 deemed good.^ 
 
 ' 11 H. L. Cas. 192. See ante, wharf with a crane to it, and that 
 
 p. 48, audi post, 558. there was a cnstora for all goods 
 
 2 P. 303. brought down the river and j)assing 
 
 ' lb. 21 Hen. VII. 16. by to pay a duty. It was objected 
 
 * lb. Cro. Eliz. 11, by Popham, that this claim of toll was bad, 
 
 C.J. Sir W. Jones, 162. being for toll thorough. "If," 
 
 5 Cf. Haspurt v. Wills (1 Mod. said Mr. Justice Twisden, "they, 
 
 47 \ S. C. \ Ventr. 71 ; S. C. 8tli " the citizens, had unladed at the 
 
 ed. 454, nom. Heshod v. Wills ; S. " quay, they should have paid the 
 
 C. 2 Keb. 624, 665 ; and see " whole duty, or even had they 
 
 Woolrych, pp. 301, 302; and "done so at some other place 
 
 Gunning, pp. 624, 665) ; and " within the city, there might 
 
 Cotton V. Smith (1 Cowj). 47 ; and " have been some reason for the 
 
 see "Woolrych, p. 301; and Gim- "charge, or had they cleansed 
 
 ning, pp. 7,31, 33). The first was a " the river." The learned judge 
 
 special action upon the customs of added, ' ' that there had been a toll 
 
 wharfage and craneage in the city " claimed at Gravesend for boats 
 
 of Norwich. The declaration " lying in the river Thames, which 
 
 stated that there was a common " had been adjudged ill by Parlia-
 
 550 
 
 OF TOLLS AND RATES. 
 
 All tliG 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.^ 
 
 ToUs on the 
 sea only de- 
 mandable 
 where such 
 consideration 
 as a port can 
 be sho-\^Ti. 
 
 Ancient ports 
 of the reahn 
 free of toll to 
 all subjects of 
 the realm. 
 
 With regard to the sea, the rule laid down as to navi- 
 gable 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 f or where accommodation is made on the 
 land of any party demanding therefor a toll.^ 
 
 We will now, therefore, proceed to tolls relating to 
 ports. 
 
 Of common right the subjects of the king have the liberty 
 of using the ancient ports of the realm, and they are as 
 free to all as the king's highway ; and those who seek to 
 restrain them of this free liberty, ought to show a meri- 
 torious consideration — a quid pro quo.'^ 
 
 " If a man," said Lord Hale, C. J., in Warren v. 
 Pridcaif.r,^ " 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 
 
 " ment." 
 
 The second -named case was an 
 action for tolls for landing goods 
 on a wharf at Gainsborough. 
 Declaration stated that the plain- 
 tiff was lord of the manor of 
 Gainsborough, and that he and all 
 those, &c. had used to keep and 
 repair a icharf Avithin the manor, 
 and that in consideration thereof 
 they had been used to receive toll 
 for all goods landed icithin the 
 manor, not confining it to the 
 wharf, which alone the declaration 
 stated the plaintiff 1o have main- 
 tained. The plaintiff having re- 
 covered, the defendant afterwards 
 moved in arrest of judgment, on 
 the ground that the prescription 
 laid was too large for the con- 
 sideration alleged ; but the Court 
 thought otherwise, Lord Mansfield, 
 
 C. J., observing "that everybody 
 ' ' that i^aid had a benefit of it, and 
 " if they landed their goods else- 
 " where within the manor, they 
 " landed them on the private pro- 
 " perty of the plaintift', 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." 
 
 ' See post, 569. 
 
 - Wooh-ych, p. 299. 
 
 ^ lb. In the second case the 
 toll will be traverse, in the first 
 usixally thorough. 
 
 * Gunning, p. 3, &c. &c. 
 
 5 See Gunning, p. 20 (1 Mod. 
 104 ; -S'. C. 3 Keb. 249, 275 ; -S'. C. 
 Sir T. Raym. 232 ; -S'. C. 2 Lev. 
 96, reported as Prideaux v. JFame, 
 S. C. Freem. 355, under the same 
 name).
 
 TOLLS. 551 
 
 " come upon tlie 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 mamtaining 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 dis- 
 trained for toll. It was contended that the avowry could 
 not 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.^ 
 
 In The Manor of Yarmouth v. Eaton,- Lord Mansfield, 
 C. J., said: " The plaintiffs set out that they have a right 
 " by prescription 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 con- 
 " venience to the merchants ; it speaks for itself ; it may 
 " never require repair — therefore I do not know that it is 
 " necessary to show repau'. The ownership of tlie soU is 
 " out of the case." The plaintiffs, therefore, had judg- 
 ment. ^ 
 
 The law relating to the erection and creation of ports 
 has already been discussed in a previous chapter,^ and it 
 will, therefore, only be necessary to recapitulate some few 
 
 ^ See Woolrych, p. 300. Mayor of London v. Hunt, 3 Lev. 
 
 2 See Wooliych, p. 301, 3 Burr. 37 ; Exeter, Mayor of, v. Trimlett, 
 
 1402; and see Gunning, pp. 23, Trin. 32 Geo. II. were refeiTed to 
 
 24 ; and see a)ite, p. 538, n. 1. for the plaintiff. 
 
 '^ Topscll V. Ferrers, Hob. 175 ; * See a»te, Chap. I. p. 42 et seq.
 
 DO. 
 
 OF TOLLS AND RATES. 
 
 The erection 
 of ports is a 
 royal preroga- 
 tive. 
 
 Every public 
 port is a fran- 
 chise. 
 
 Title thereto 
 involves the 
 question of 1 , 
 caput jJortus, 
 and 2, that of 
 interest of 
 franchise. 
 
 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;^ and the Crown has therefore a special 
 interest in the franchise of a common port, and conse- 
 quently 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.^ 
 
 Lord Hale states^ that "Every public port is a fran- 
 " chise 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 merchandizes 
 " 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 3rdly, 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,'* two considerations, — " 1st, That of the in- 
 " tercst of the soil both of the shore and town, which is 
 " the ca2mt jyortiis, and also of the haven itself, ' wherein 
 " ' ships ride or apply;' and 2nd, That of the interest of 
 ^\franclu'se, or the liberty itself, — that civil signature which 
 " doth give the liberty of public arivage, which is in truth 
 " the formate const itncns of a port in a legal signification." 
 
 Both of these interests "may be acquired by prescrip- 
 " tion ; 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."^ 
 
 1 Ballx. Ilcrbcyt, 3 T. E. 261. 
 ' Gunning, p. IH. Hale, deP. 
 M., part 2, ch. 2, p. 51. 
 
 * Do Portibus Maris, part 2, ch. 
 
 2, p. 50. 
 
 * Do Port. Maris, part 2, ch. 2, 
 pp. 71, 72. 
 
 ^ Gunning, pp. 115, 116, 117.
 
 TOLLS. 553 
 
 There are two kinds of ownership of a port which the 
 Crown imma facie has, but which a subject may have, and 
 these are, — 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.^ 
 
 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 Hberty 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.^ 
 
 The second species of ownership gives the formality or 
 denomination of a public or lawful port for ships to lade 
 or unlade their merchandize 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 
 toalL2 
 
 " From this jm donunli of property or franchise, or of Port dues 
 " both, there arise several port duties, sometimes called T^^^iom^^i of 
 " poHatica, sometimes tolls, sometimes customs, — some of property or 
 " which are incident to the ownership of the port, while 
 " others are due only by special usage or prescription."^ 
 
 The dues incident to the ownership of a port are — 
 
 1. Anchoracje"^ — A toll for anchoring a vessel in the port. Anchorage. 
 
 ' See Gunning, pp. 116, 117 ; which see ante, p. 48 et seq., and 
 
 Hale, de Port. Maris, part 2, ch. 6, 2^ost, p. 558 et seq. 
 
 p. 72. But little is said of anchorage 
 
 - Gunning, p. 117. in the books, and it is not men- 
 
 ^ Cf. Gann v. Free Fishers of tioned in Comyn or Viner or 
 
 Whitstable, 11 H. L. Cas. 192 ; and Bacon. Lord Hale mentions Ply- 
 
 Free Fishers of Whitstable v. Fore- mouth as an instance where the 
 
 man, L. E,., 2 C. P. G88, both of shore of the harbour belongs to
 
 654 
 
 OF TOLLS AND RATES. 
 
 Ballaslaofc. 
 
 Duties due lo 
 owner of a 
 post by cus- 
 tom. 
 
 Busselag'e. 
 
 Keelao:e, &c. 
 
 AVJbicli jDroperly and prima facie arises from or in respect 
 of tlie soil, of which it is evidence, but sometimes it is due 
 to the owner of the franchise merely. 
 
 2. B((Unstarje^ of ships — A toll for the liberty of taking 
 up ballast from the bottom of the port, and arising out of 
 the property in the soil. In the Thames this liberty is 
 granted by the 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 re- 
 stricted by statute. 
 
 The duties due to the owner of a port hij custom or pre- 
 scription are various, and differ in various ports, but the 
 following may be enumerated :- — 
 
 1. Busselage,^ 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 A^essel coming within the port 
 " a certain toU."^ 
 
 Besides these, may be mentioned pettij custofns,^ average, 
 2)rimage,^ petty loading, lastage, prisage, — all of which may 
 lawfully be taken by prescription in a port.'' 
 
 These duties were sometimes called tolls, sometimes con- 
 suetudincs, 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 pre- 
 scription, he had no power to exempt anyone from pay- 
 
 one, and the anchorage to the lord 
 of the port in point of franchise. 
 Gunning, p. 117. 
 
 ^ Cf. Trinitij House v. Staples, 2 
 Chit. p. 689. 
 
 ^ Gunning, p. 117. 
 
 = Cf. Serjeant v. Reed, 2 Str. 
 1228 ; S. C. 1 WHs. 91 ; Wool- 
 rych, 301. 
 
 * lb. Hale, de Port. Maris, 
 part 2, ch. 6, p. 72 ; and see part 
 3, ch. 4, p. 132. 
 
 ° "In the king's grant of the 
 " fee farm of the port and city of 
 " Exeter are mentioned certain 
 
 ' ' duties called petfi/ customs, which 
 ' ' are small rates paid in respect of 
 "goods imported — e.g., those 
 " prizes and customs belonging to 
 ' ' the king in liis port of Newcastle, 
 " which are set forth in record, 
 " 20 Ed. I." Hale, dePort. MarLs, 
 part 3, ch. 4, p. 132 ; see Gun- 
 ning, p. 117. 
 
 " Cf. Bradler/v.Keiccastle-on-Tync, 
 2 El. & Bl."427. which see post, 
 p. 563. 
 
 ' Hale, de Port. Maris, part 2, 
 ch. 6, p. 74.
 
 TOLLS. 555 
 
 ment of. Tliey would pass under the words " Omncs 
 " consuetudines^^ or ^^ tolneta jyortus de A^^ 
 
 Lord Chelmsford, in his judgment in Gann v. The Free 
 Fis/iers of W/n'fsfable,'^ commenting on Hale's"^ account of 
 the port duties above mentioned, said : "It appears to me 
 " that the correct interpretation 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 Torts may be 
 receive a port duty from all who come within its limits, modern times 
 A port duty ex vi termini implies a consideration for it.^ —port duties. 
 
 " 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 rej)air, 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."^ 
 
 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. 
 
 1 Halo de Port. Maris, part 3, ch. 6, pp. 73, 74. 
 eh. 4, p. 132. * Jenkins Y. Harvey, 1 Gale, 23. 
 
 " The fullest account of this ^ lb. per Parke, B. p. 27. 
 
 " kind of dues is in an old book " Binnc v. Thomson, 4 Q. B. 
 
 "called ' Consuetudines et usus 543. Semble, that where the duty 
 
 " 'Sandaici,' mentioned by Lord is claimed under a grant from the 
 
 "Hale, (part 3, ch. 2, p. 118; Crown, which appears on the evi- 
 
 " ch. 4, p. 133), and there is a dence to be eni-olled of record, but 
 
 " long enumeration of them in is not produced by the plaintiff, 
 
 ^'- Maijor of iratcrfo)-d''s rase (D&yys, the juiy ought not to be directed 
 
 " Rep. C);" Gunning, p. 117. to presume such grant upon mere 
 
 - 11 H. L. Cas. pp. 219, 220. evidence of usage. 
 
 •> De Port. Maris, ch. 2, p. 4G;
 
 556 
 
 OF TOLLS AND RATES. 
 
 Customs by 
 virtue of 
 which toll is 
 claimed must 
 be well sup- 
 ported. 
 
 Lord Denman, C. J., said, inter alia, " We think the 
 juiy 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 Jen1d)tsv. 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 ex- 
 ceptions. 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 aj)plying 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 
 they claim toll. 
 
 In Vinliensterne v. Ehden - a custom was alleged that the 
 mayor and burgesses of Newcastle had been accustomed 
 from time immemorial to repair the port of their town, 
 and that they had used to have a toll of 2(1. 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 con- 
 sideration 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.^ 
 In Lord Falmouth v. George,^ it was held that keeping 
 
 ^ 1 Gale, 23 ; 1 C, M. & E. 
 849. 
 
 - 1 Ld. Raym. 384; S. C, 1 
 Salk. 248. See, too, Gunniug, 
 pp. 28, 62, 119, 216; Woolrych, 
 
 p. 300. 
 
 " Mayor of London v. Hunt, 3 
 Lev. 37 ; Gunning, pp. 29, 33, 
 118 ; Woolrych, p. 30. 
 
 * 5 Bingh. 286.
 
 TOLLS. 557 
 
 up a capstern 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 cap- 
 stern 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 pre- 
 decessors shown to have been such ; but he and they had 
 always been owners of the spot on which the capstern 
 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 
 toU.i 
 
 In that case the plaintiff sought under a custom to es- 
 tablish 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 i^ — "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 capstern to draw up their boats from the sea. Al- 
 " though it is not always necessary to use the capstern, 
 " yet if boats in certain seasons could not safely approach 
 " this place unless they were certain of having the assist- 
 " ance of the rope of the capstern to draw them out of the 
 " surf of the sea, we think that the keej)ing of the capstern 
 " 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. . . . 
 
 " 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 
 
 1 5 Bingh. 286. 2 5 5^10. 291, 292.
 
 658 OF TOLLS AND RATES. 
 
 " depends upon the necessity of tlio service and the reason- 
 " ableness 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 impossible to contend that this 
 " eapstern and rope is not of the greatest importance to 
 " these fishermen. And it was not suggested 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-plaee in 
 " this cove, had built a eapstern, provided a proper rope, 
 " and undertaken to keep the eapstern and rope in a proper 
 " state at all times for the use of the fishermen it would 
 " have been a suSicient consideration for the grant of such 
 " a toll by the Crown, as the jury have found was due to 
 
 " the plpintiff by virtue of a custom We have 
 
 " therefore no doubt that this is a valid custom. In the 
 " case of T/ic Earl of Falmouth v. Penrose^ the validity of 
 " the custom was never disputed; the objection then taken 
 " was that the pleadings were not applicable to the case 
 " proved." 
 Claim for an- A claim of anchorage dues cannot exist merely in resj^ect 
 
 canilll^o"^^ ^^ ^-^^ ^^® ^^ ^"^^ ^^^ ' ^^ ™-ust be founded on proof that 
 made merely the soil of the claimant was originally within the precincts 
 
 in respect of » i ^ ^ l^ i • • i j. 
 
 the use of the 01 a port or liarbour, or that some service or aid to naviga- 
 s*^^- tion was rendered by the owner of the soil who claimed 
 
 the anchorage dues.^ Evidence of mere immemorial usage 
 will not support such a claim.- A liability to make com- 
 pensation for actual injury done to certain oyster beds by 
 anchoring, is therefore not to be confounded with a liability 
 to toll for casting anchor in the soil itself.^ 
 
 Lord Chelmsford, in his judgment in Gann v. Free 
 Fishers of Whitsfahie,^ said: "My Lords, the principal 
 
 ' G B. & C. 385. of Whitdahk v. Foreman, L. R., 2 C. 
 
 2 Ganii V. Free Fishers of Whit- P. 688 ; 36 L. J., C. P. 173 ; L. 
 
 stable, 11 H. L. Cas. 192 ; 35 L. R., -1 H. L. 266. 
 
 J., C. P. 2'J ; 20 C. B., N. S. 1 ; ^ i\^ cf ][f„,,oy of Coleh ester v. 
 
 13 W. R. 589 ; and see a)ite, Broolce, 7 Q. B. 339. 
 
 Chap. I. p. 48 ct seq. ; Free Fishers ^ 11 H. L. Cas. 215, 222, 223.
 
 TOLLS. 559 
 
 " question intended to be raised between the parties in tliis 
 " aj)peal is, Whetber the respondents, the Company of 
 " Free Fishers and Dredgers of 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 payment 
 " 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 considering 
 " 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 con- 
 " sider this to be wholly insufficient to justify the demand 
 " in question, unless it can be held that the right of naviga- 
 " tion 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 dis- 
 " cover any ground upon which this claim of an anchorage 
 " due could have had a legal commencement, the case of 
 " The 3Iayor of NottingJiam v. Lambert^ is an authority 
 " for showing that no length of prescription can give it But in case of 
 
 "validity." a navigable 
 
 ■J _ arm oi the sea, 
 
 If, however, a claim for anchorage dues on a navigable if claim be pre - 
 ' AViUes, 111.
 
 560 OF TOLLS AND RATES. 
 
 sumablycapa- arm of tlie sea be presumably capable of a legal origin, 
 ori'<'-in,'\vcry ^^^ the payment of dues is shewn to have been uninter- 
 intendment ruptedlv received time out of mind, every intendment 
 
 will be made ■!, i , • ., . , 
 
 in its favour. Will be made m its lavour/ 
 
 In The Free Fisl/ers of Whitstahle v. Foreman,'^ an oyster 
 fishery had 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 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 appurtenances, 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 connected 
 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 Parliament, by which the plaintiffs 
 were incorporated and empowered to pui'chase 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 
 
 1 Free Fishers of Whitstable v. L. J., C. P. 173; L. R., 4 H. L. 
 Foreman, L. R., 2 C. P. 688 ; 3G 266.
 
 TOLLS. 561 
 
 and beacons, taken in connection witli tlie ownersliip of 
 the soil of the anchorage ground, and the benefit to the 
 public therefrom, afforded a sufficient consideration to 
 support the plaintiff's claim to the anchorage due. 
 
 Bovill, C. J., in delivering the judgment of the Court,i 
 contrasted this case with that of Gann v. The Free Fishers 
 of Whifsfable, noticed above. 
 
 " The right claimed by the plaintiffs in this case is 
 " similar to tliat which was questioned in the case of The 
 " Free Fishers of Wliitstahlc 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 plaintiff's ownership of the soil, upon which the 
 
 " anchors were cast The plaintiff's 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 owaiership 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 
 " suppoi"ted in respect of the ownership of the soil alone." 
 (His lordship then quoted the judgment of Lord Westbury, 
 L, C.).2 . . . 
 
 "In the former case no consideration whatever was 
 " attempted to be shown for the payment, no facts were 
 
 ' Bovill, C. J., AVilles, J., Keat- - 11 H. L. 208; 20 C. B., N. S. 
 
 ing, J., and Montague Smith, J. 14. 
 
 c. O
 
 562 
 
 OF TOLLS AND RATES. 
 
 ' proved from wLicli it could be inferred, . . . Upon 
 ' the statements in tlie case now before the court, 
 ' it seems to us tliat 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 re- 
 ' ceived 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 point- 
 ' ing 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.^ 
 ' Our judgment is, however, founded upon the ground 
 ' which we have already stated, viz., the maintenance of 
 ' the buoys and beacons for the purposes and under the 
 ' circumstances before mentioned, in connection with the 
 ' plaintiff's ownership of the soil and the uninterrupted 
 ' enjoyment of the anchorage due from time imme- 
 ' morial." 
 
 This case was affirmed on appeal by the Court of 
 Exchequer Chamber- and the House of Lords,^ 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 merchandize and anchorage ; for as anchorage 
 dues were almost, if not universally, incident to a port, 
 
 29. 
 
 1 11 H. L. 2IG; 20 C. B., N. S. 
 
 - 13 L. T., N. S. 734. 
 3 L. R., 4 H. L. 2GG.
 
 TOLLS. 563 
 
 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. Nenrastlc-on-Tyne,^ 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 New- 
 castle, 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 departed 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 tlioy 
 had theretofore lawfully had and enjoyed; and also 
 j^ro^dded, 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 
 c[uestion was raised in 1851; when in the case of Ncnccastle 
 Pilots, S^'c. V. Bradley ^ Potts, it was disputed whether the 
 charter permitted primage to be taken of all ships entering 
 Sunderland (a creek of Newcastle-upon-Tyne), or exempted 
 ships belonging to merchants of Sunderland.^ While 
 delivering judgment, making the rule for a new trial 
 
 1 2 El. & Bl. 427; 18 Jur. 246. - 2 El. & Bl. 428, note {a). 
 
 o 2
 
 Db4 OF TOLLS AND RATES. 
 
 absolute, Coleridge, J., said : " The rule has never been 
 " laid down in this matter more strongly than in Jcnhyns 
 " V. Harveij} It has been questioned whether it was not 
 " there laid down too strongly;- 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 ware- 
 housed goods for the owners, who resided in London, was 
 an " owner" within the meaning of the charter, and liable 
 to the dues.^ 
 
 Shore duties The varieties of tolls hitherto noticed have been purely 
 
 ■which depend <• i ^ l •!. •^^ ^ l • i 
 
 sometimes on lounded ou custom ; it Will now be necessary to consider 
 
 custom and briefly certain duties closely connected with ports, though 
 
 statute. 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 
 
 ^ 1 C. M. & R. 877; 1 Gale, 23. 3 Master Filots and Seamen of 
 
 - Urine V. ThoiHjjson, 4:0,. B. 04:3, Newcastle-npon-Tijne v. Hammond, 
 552. 4 Exch. 285.
 
 TOLLS. 565 
 
 places botli 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 
 M'harfs and c[uays and warehouses may be built for the 
 lading and unlading and safe custody of merchandizes; 
 but the interests may be and sometimes are divided, 
 and the duties arising by reason of the goods when un- 
 laden 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 w^hich arise by 
 the taking or landing the merchandize there.^ 
 Of these duties the most important are u-havfcujc and Wharfage 
 
 craneagc. " ^""^ craueage. 
 
 Wharfage is a toll or duty for the pitching or lodging 
 of goods upon a wharf,- or " money paid for landing 
 " goods on a wharf or quay, or for shipping or taking 
 " goods into a boat from thence.""^ 
 
 " A duty for wharfage and craneage," said Lord Mans- 
 field in Stephen v. Conter,^ " can not be due where the 
 " party has not had the use of the wharf or crane. 
 " AVharfage is due for landing on the wharf, and craneage 
 " for the assistance of the crane. Anchorage or moorage 
 " are very different things." 
 
 The owner of a wharf or quay is entitled at common Owner of a 
 law to remuneration for the use of them,^ and in Serjeant ^^craimon^*^*^ 
 V. Bead,'' the claim for w^harfage was compared to that for law to remu- 
 stallage, the party bringing his goods to the wharf or quay 
 having an easement, and the owner of the wharf or quay a 
 damage. 
 
 1 Hale dePortibus Maris, Pai-t 2, * 3 Burr. 1409; 1 W. Bl. 413, 
 Ch. 6, p. 76; see Gimmng, pp. 122, 423. 
 
 123. ^ Gunning, p. 123. 
 
 2 Gunning, p. 123. « 1 ^Yih. 91; 2 Stra. 1228; 
 •' lb.; Cunningliam's Law Diet. Wooliych, p. 301.] 
 
 tit. Wharfage.
 
 566 
 
 OF TOLLS AND RATES. 
 
 Amount may 
 be fixed by 
 prescription 
 or ffrant. 
 
 AVith regard to amounts payable for wharfage duty, in 
 many ports tliey are fixed by prescription, or by tke 
 grant under wliich the owner takes them ; or settled by 
 statute,^ and in both of these cases the amount so fixed 
 cannot be exceeded, for it is part of that jus publicum 
 which is vested in the community to have their access to 
 ports as freely as formerly was used,^ 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 lawful for every man to do, — viz. make the 
 most of his own ; and such are the coal, w^ood, and timber 
 wharves in the port of London, and some other ports.- In 
 such a case, however, where 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.^ 
 Lord EUenborough, C. J., in Allnutt v. Iiujlis,'^ 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 : there 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 
 " ' Avharves only licensed by the queen,^ or because there is 
 
 ^ E. g. the duties in Hull are 
 fixed by 27 Hen. VIII. c. 3, and 
 33 Hen. VIII. c. 33; see Gunning, 
 p. 123. 
 
 - Hale, pp. 77, 78. 
 
 3 Allnutt V. Inglis, 12 East, 527. 
 
 ■* 12 East, 627. 
 
 ° As to the prerogative of the 
 Crown to ascertain the limits of 
 ports and assign quays for the ex- 
 clusive landing of merchandize, see 
 antc^ Chap. I., p. 44.
 
 TOLLS. 567 
 
 " ' no other wharf iu 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 he Jan's privafi only.' " 
 
 In the above case the London Dock Comjiany having built 
 warehouses in which wines were deposited, upon payment 
 of such rent as they and the owners agreed upon, after- 
 wards accepted a certificate from the Board of the Treasury 
 under the General Warehouseing 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. 
 
 Wharfingers in London are entitled^ to wharfage for 
 goods unladed into lighters out of barges fastened to their 
 wharfs ; ^ 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 wharfs erected along the river ; but the 
 custom does not extend to allow them to be moored to the 
 wharf itself, except through distress.^ 
 
 The amount to which a party claims to be entitled for Amount 
 
 1 Under 22 Car. II. c. 11, and 1 W. Bl. 413, 423. 
 
 Order of Council of 1st March, ■' TFt/att v. Thomso)i, 1 Esp. 252; 
 
 1G74. see Gunning, p. 126. 
 
 * Stc2)heus V. Coster, 3Eurr. 1409;
 
 558 OF TOLLS AND RATES. 
 
 claimed must wharfage by prescription ouglit in a plea to be set forth 
 
 ^th cer°-'^*' with sufficient certainty.! 
 
 tainty. To an action of trespass for seizing the plaintiff's 
 
 barley, defendant pleaded that one R. 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 barley age), 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 un- 
 reasonable, as one fixed toll of varying quantities. But 
 the Court held the prescrijotion good; observing that the 
 word " cargo " was a mercantile word well understood.^ 
 
 So, again, where the Corporation of Newcastle claimed 
 6(1. for every chaldron of coals exported, and it was 
 contended that this was unreasonable and excessive, being 
 bd. duty for a quantity of coals which was only worth 2«. : 
 as the value of the coals did not aj)pear on the pleadings, 
 the Court observed that they could not say that the toll 
 was excessive.^ 
 
 Kingdon-upon-Hull Bock Co. v. La Marclie ^ was an 
 action of indehitatm assHnij)sif for wharfage, with the usual 
 money counts. Plea — the general issue. The facts 
 disclosed were that, by an Act of Parliament, certain 
 persons were incorporated as the Hull Dock Company; 
 
 1 Serjeant v. Ecad, 2 Stra. 1228; 3.39; Garth. 357. 
 
 1 WUa. 91. 3 8 j3_ &C.42; see, too, Guauiug, 
 
 2 Vinkensterne v. Ebclen, 1 Lord p. 126. 
 Raym. 384 ; 1 Salk. 238 ; 5 Mod.
 
 TOLLS. 569 
 
 that premises (before, the property of the Crown) were 
 given to them for the pui'poses of the Act ; and that 
 thej were authorized to make a dock, quays, wharfs, &c. 
 which, it was enacted, should be vested in them for the 
 purposes of the Act. Amongst other things it was pro- 
 vided that " All goods, &c. which should be landed or 
 " discharged upon any of the quays or wharfs 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 wharfs in the Port of London : " — 
 Held, that, as the premises were only vested in the 
 Company for the purposes of the Act, they had )w commo)i 
 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 : Lord Tenterden, 
 C. J., who delivered the judgment of the Court, saying : 
 " Two points w^ere made on behalf of the plaintiffs in this 
 " case — first, that they, as owners of the wharf, were at 
 " common law entitled to remuneration for the use of the 
 " wharf ; and secondly, that they had such right upon the 
 " Avords of the statute. Our opinion is against them on 
 " both points. On the first we think that, under the 
 " statute in question, the plaintiffs cannot claim anything 
 " that is not expressly given." ^ 
 
 The class of tolls now to be treated of, as well as those Tolls for 
 payable on canals, which it is proposed to consider in the l^'^v^.?^""^; 
 next section, are levied almost entirely by the authority of docks and 
 particular statutes; and all the decisions in both cases turn statutory 
 almost entirely on the construction of these special Acts, tolls. 
 It w'ill be therefore convenient to notice here two general 
 
 ^ Cf. as claims for wharfage, 665), and CoUon v. Smith (1 CoAvp. 
 
 JIaspurt V. Wills (1 Mod. 47; -S'. C, 47), both of which see niite, note, 
 
 1 Vent. 71 ; S. C, 1 Sid. 54, noni. p. 549. 
 Jleshodv. Wilh, 8. C, 2 Keb. 624,
 
 570 OF TOLLS AND RATES. 
 
 principles wliicli seem to apply in all sucli cases, before 
 
 proceeding to consider them in detail. 
 Exemption of It is to be observed, firstly, that the prerogatives of the 
 from tolL Crown cannot be affected except by express legislative 
 
 enactment — a rule which is very clearly explained by 
 
 Cockburn, C. J., in The Mayor of Weymouth v. Nnyenf,^ 
 
 with express reference to tolls. 
 Moaning of The other principle to bo noted may be best stated in 
 
 ture totax" ^^^ words of Lord Brougham in Stockton and Darlington 
 the subject Railicay V. Barrett." " It must be observed," said his 
 clearly ex- lordshij), " that, in duljio, you are always to lean against 
 pressed where a ^]^g construction which imposes a burthen on the subiect. 
 
 a bxu'then is _ -'■ ^ . '' 
 
 imposed. " The meaning of the Legislatm-e 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 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 
 " King's Bench in the case of a company claiming against 
 " the public. Grildart v. Gladstone ^ and other cases entii'ely 
 " 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, es- 
 " pecially 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 
 
 1 11 L. T., N. S. 672. See the Add. 509; see Woohych, p. 304; 
 
 judgment of Cockbum, C. J.; and Hamilton x. Stoic, o B. & A. 649; 
 
 cf. as to vessels employed in the see "Woolrych, p. 305 ; Gunning, 
 
 service of the Crown, Ilaster of p. 121. 
 
 Triniti/ House v. Clark, 4 M. & S. Ml C. & F. 590; 8 Scott, N. R. 
 
 288; see Woolrych, p. 304; VaUcffo 641. 
 V. Wheeler, Camp. 143 ; and R. v. ^ i -q ^ ^d. 43. 
 
 Jones, 8 East, 451; Trinitij Cor- * 11 East, 675; 12 East, 439 ; 2 
 
 Juration v. Staples, 2 Ch. Eep. Taixnt, 97. 
 689 ; Smithctt v. Blythe, 1 B. &
 
 TOLLS. 571 
 
 " restriction of tlie 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 exemp- 
 " tion from the special taxation." ^ 
 
 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 Lighthouses, 
 duties demanded by the corporation of the Trinity House 
 are authorized by Parliament by reason of their evident 
 utility,- but there must be some benefit accruing to the 
 vessels chargeable for the dues so demanded.^ 
 
 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,'* 
 and where a harbour Act^ gave the tnistees a duty of six- 
 pence 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 ; ^ 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 Ramsgate.' 
 
 1 Cf . as to this principle, Tindal, - Trinitij Souse v. Sorsbie, 3 T. 
 
 C. J., in Barrett v. Stockton and R. 768, note ((?). 
 
 Darlington Railway (2 Scott, N. R. ^ lb.; JIatson v. Scobell, 4 Burr. 
 
 337 ; 2 M. & G. 134), where, in 2258 ; Poole or Folc v. Johnnon, 2 
 
 addition to Gildart v. Gladstone, Sir W. BL 764. 
 
 Hull Dock Co. V. Browne (2 B. & * Trinity Houae v. Sorsbie, 3 T. 
 
 Ad. 58), Leeds and Liverpool Canal E.. 768; see "Wookych, p. 304. 
 
 V. Hustler (1 B. & C. 424 ; 2 D. & * 22 Geo. II. c. 40. 
 
 R. 556), and Britain v. Cromford " Matson v. Scobell, 4 Bun-. 2258. 
 
 Canal Co. (3 B. & Aid. 140), were ' Boole or Pole v. Joh)ison, 2 Sir 
 
 cited in support of it. See, too, W. Bl. 764. 
 CasJm- V. Holmes, 2 B. & Ad. 592.
 
 572 OF TOLLS AXD RATES. 
 
 Exemptions It lias been noted above that the Crown is, unless ex- 
 
 andVts^serT^ pressly charged, exempt from payment of tolls. Thus, 
 vants. the exception of her Majesty's ships of war in an Act em- 
 
 powering the promoters of a lighthouse to take tolls was 
 held not to warrant the inference that other shi23s belong- 
 ing to the Crown were chargeable. The exception might 
 be ex majori cauteld} 
 
 Where the owner of a ship chartered it to the commis- 
 sioners 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 employ- 
 ment, 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.- Similarly a vessel hired by the Post- 
 master-General to carry the mails and government de- 
 spatches to and from Dover to Calais, &c., the master of 
 which was permitted to carry passengers and theii' luggage, 
 and bullion upon freight, was held to be a vessel within 
 the exception of an Act 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.^ Abbott, C. J., said,^ " The statute 
 " contains two exemptions, — 1st, all vessels belonging to 
 " his Majesty; and, 2nd, all vessels employed in his ser- 
 " vice ; the case of Bex v. Jones^ 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 Post- 
 
 1 Smithctt V. Bhjthc, 1 B. & " EamUton v. Stow, 5 B. & A. 
 AdoL 509. 649 ; see, too, "Woolrych, p. 305 ; 
 
 2 Master of the Trinity House y . Gimning, p. 121. 
 
 Cto-A-, 4 M. & S. 288; cf. Yallcyo * 8 East, 451,— cited for the de- 
 
 V. jrAeffer, Cowp. 143; M. Y.Jones, fendant, the harbour master of 
 
 8 East, 451 ; Trinity House v. Dover. 
 Staples, 2 Chit. 689.
 
 TOLLS. 573 
 
 " master-Greneral. 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 employment 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 
 trustees will be found to depend, like the above, on the 
 construction of particular Acts. 
 
 Where an Act for keeping in repair a harbour imposed Piers and 
 certain duties on goods exported and imported, and under 
 the head "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 10/. 
 value 10(1. ; it was held, that the latter words did not 
 include gold and silver ; and, therefore, that the commis- 
 sioners were not entitled to demand for specie or bidlion 
 10^/. for every 10/. value.^ 
 
 In the case of Jones v. P/ii//ips and others,- certain harbour 
 commissioners under a local Act of Parliament^ 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, merchandize, &c. exported or 
 " imported over the bars of certain rivers ;" and the ques- 
 tion for the opinion of the Court was whether the commis- 
 sioners 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 \d. per ton : — Held, that they were entitled 
 
 1 Casher v. Holmes, 2 B. & Ad. - 7 Exch. 85; 21 L. J., Exch. 7. 
 
 592. ^ 55 Geo. III. c. cLxxxiii.
 
 574 OF TOLLS AND EATES. 
 
 to charge tlie former rate, and were not bound to cliarge 
 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.^ 
 
 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 cumidative but a substituted toll. 
 
 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 ; 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 tonnage is hereinbefore directed 
 " to be paid, which shall pass any inclined plane upon the 
 " said railway, such sum as the said proprietors shall 
 
 1 Stocldo)i and Barlbigton Rail- GSo), per Lord EUcnborougli ; 
 
 wffy \. Barrett, 11 C. & F. 590; Kingston - on - UiiU Dock Co. v. 
 
 8 Scott, N. R. G41 ; and cf. on this Browne (2 B. & Ad. 58), per Lord 
 
 point the remarks of Tiudal, C.J., Tenterden ; Bayley, J., in Leeds 
 
 in Barrett V. Stockton and Darlinq- and Liverpool Canal v. Hustler (1 
 
 ton Bailwa)/ (2 Scott, N. E. 337 ;" 2 B. & C. 424 ; 2 D. & R. 556) ; and 
 
 M. & G. 134), who there comments Holrojd, J., in Britain v. Crom- 
 
 on Gildart v. Gladstone (1 East, ford Canal (3 B. & Aid. 140).
 
 TOLLS. 575 
 
 " 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 har- 
 bour of Bcnvick-Kjwn-Tivced^ 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 pm-poses of the Act, and 
 commissioners were appointed for canying 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 navigation, and rendering the harbour more com- 
 modious, and for other works and conveniences, as they 
 should think fit ; and to make and repair" C[uays, wharfs, 
 and docks, for the better accommodation of shipping. 
 Duties, to be paid to the commissioners, were imposed, ac- 
 cording to a schedule, on goods " imported into or exported 
 " from the said harboiu-." 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 com- 
 missioners, and passed, without otherwise using the har- 
 bour, 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." ^ 
 
 In mbhle Narigation Company v. Hargreaves,^ which 
 was an action brought to recover from the defendant the 
 amount of certain tolls imposed by the 71st sect, of the 
 
 1 Wilson V. Eohertson, 4 El. &B1. bell, C. J., p. 931. 
 923; 1 Jur., N. S. 755. 3 27 c. B. 385; 25 L. J., C. P. 
 
 * See remarks of Lord Camp- 97.
 
 576 OF TOLLS AND HATES. 
 
 Ribble Navigation Act/ in respect of goods " carried or 
 " conveyed in or upon the river Eibble," for every time of 
 passing "the Eibble Sea Line" and "the Eibble Inner 
 Line" respectively. The point raised was the meaning of 
 the terms "owner," "shipper" as governed by sects. 3, 
 42 and 45 of TJie Harbours, Docks and Piers Clauses Act, 
 1847 (10 8f 11 Vict. 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 sect, 
 of the special Act. 
 
 Where^ 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 Mr. Gunning, in his work on Tol/s,^ points out that the 
 
 enth-ely on right to dock ducs depends in every case upon the par- 
 Act of Pallia- ticular Act of Parliament under which the docks are 
 the dock.' ° erected, and is quite distinct 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 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 ease they cannot be ex- 
 ceeded.^ Where the Act is silent on this point the public 
 have a right to enjoy the privilege of using the docks 
 
 i_ 16 & 17 Vict. c. clxx. 260 ; see remarks of Bramwell, B., 
 
 - llarveij v. Mayor and Corpora- as to the term '■^landed.'''' 
 Hon of Lyme Hegis, L. E,., 4 Exch. ^ Page 129.
 
 TOLLS. 577 
 
 upon "reasonable terms," and the owner cannot impose 
 what tolls or duties he pleases on them.^ 
 
 The question as to the reasonableness of a particular The reason - 
 toll is for the Court and not for the jmy to decide.- The toll is for tlie 
 jury are to give their verdict according to the invariable ^°"F* '^^^ ^ot 
 and reasonable custom, the judge alone can decide whether decide. 
 such tolls are reasonable or not.^ 
 
 The term " port " is used in its popular sense when the Meaning of 
 limits of a place liable to the burden of dock duties re- 
 quires a legal construction.'^ 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.^ 
 
 Dock duties, when assigned by virtue of an Act of Assignment 
 Parliament, 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.'' 
 
 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 on the West 
 India Dock Acts and the Liverpool Dock Acts such as 
 seem to embody important principles. 
 
 The case of Allnntt v. Inglin has already been alluded London 
 to" as turning on points relating to wharfage payable to Decisions as 
 the London Dock Company ; Harden v. Smith and *« <li'es. 
 Shrceder v. Smith were important cases with regard to the 
 West India Dock Acts.^ 
 
 1 Alhiutt V. Inglis, 12 East, 527. * Eingston-upon-Hull Bock Co. v. 
 
 2 2 Inst. 222 ; Vinlrnstenie v. Browne, 2 B. & Adol. 43 ; see 
 Ehden, 1 Lord Kavm. 384; 1 Salk. Woolrych, p. 318; and Gunning, 
 248; 5 Mod. 366;*Cartli. 357; Cor- p. 112, note 2. 
 
 poratlon of Stamford v. Paitlet, 1 C. ^ EuU Bock Co. v. Priestlei/, 
 
 & J. 57 ; -S". C. in error, 1 C. & J. -S'. C, 1 Nev. & M. 85; see Wool- 
 
 400. rych, note (c), p. 318. 
 
 3 Lou-den v. Hieroyxs, TLolt, N. P. " Hex v. Winstanleij, 8 Price, 180. 
 C. 647; 2 B. Moo. 102; 2 Inst. '' 2 East, 527; see ««<f, p. 566. 
 222; Wright v. Brewster, K. B., » 8 East, 16. 
 
 November, 1832. 
 
 C. P P
 
 OF TOLLS AND RATES. 
 
 These were actions for money liad and received, money 
 paid, &c., which were brought against the defendant as 
 treasurer of the West India Dock Company^ 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 the company's ware- 
 houses, and for which all the importation rates and duties 
 had been satisfied), to the officers of the company for 
 wharfage, and for shipping into lighters, sent into the 
 docks by the plaintiffs for that purpose, the same hogs- 
 heads of sugar, part for home consumption, part for ex- 
 portation. 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 ware- 
 houses by inland carriage ; the plaintiffs, on the other hand, 
 maintained, that they had a right, for the same compensa- 
 tion, to receive the goods from the warehouses 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 com- 
 pany's warehouses by land carriage. 
 
 The West India Dock Company is incorporated by Act 
 of Parliament, and sect. 137 of 39 Geo. 3, 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, wharfs 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 weigh- 
 " ing such goods, and of such cooperage as the same may 
 
 1 Cf. Blachett v. Smith, 11 East, and porterage against the same 
 533; and see Woolrych, p. 317, j)arty. 
 ■wHch was an action for wharfatre
 
 TOLLS. 
 
 " want after being imsliipped, and all rent for warehouse 
 " room for twelve weeks, and all charges of delivering the 
 " same from the said urirehouses.'^ 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 set- 
 tled by convention between the parties, as in other cases 
 out of the Act. 
 
 Blacliett V. Smith^ was a decision on another part of the 
 same section of this statute,- 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 un- 
 loading and assistance, without waiting her tm-n to be 
 unquayed and unloaded in rotation in the manner required 
 by 39 Geo. III. c. 69, is bound to bear the extra expenses 
 of labourers for pumping the ship after the crew are dis- 
 charged, 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 after- 
 wards 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. 
 Lord Ellenborough, C. J., in delivering judgment, re- 
 marked, " The law requires ships of this description to go 
 " into the docks ; and if they be in such a state when they 
 " arrive there that they cannot wait for their proper turn 
 
 1 12 East, 518; see Gunning, - 39 Geo. III. c. 69. 
 
 p. 133. 
 
 P P 2
 
 580 OF TOLLS AND RATES. 
 
 " to unload, tliey must discharge their cargo at once, and 
 " if any inconvenience or loss ensue to the owners from not 
 " being able to do this in the manner prescribed by the 
 " Acts, it must be attributed partly to regulations of the 
 " Acts and partly to the leaky condition of the ship itself. 
 "It is a grievance, however, which the Acts throw upon 
 " the owners, and not upon the company. This is one of 
 " the fairest cases of defence for the company which has 
 " come before us upon the construction of these Acts. The 
 " rate of 6s. 8d. per ton for ships required to be paid by the 
 " owners to the company for the charges and expenses of 
 " navigating, unmooring, removing, and management of 
 " such ships in the docks, and for the unloading their 
 " cargoes, &c. must be intended of the ordinary charges 
 " and expenses of navigating, &c. for such ships as are in 
 " a reasonably navigable, moorable, unmoorable, remove- 
 " able, and manageable condition, and capable of comply- 
 " ing with the requisitions of the Acts; and it could 
 " never have been intended by the legislature that the 
 " company should be obliged, in consideration of that 
 " rate, to take upon themselves all the extra expenses 
 " which ships, in the state of infirmity in which this ship 
 " presented itself to them, might require to enable her to 
 " discharge her cargo." 
 Liverpool The case of Giklart v. Gladstone,^ which turned on the 
 
 Decisions as construction of Certain statutes incorporating and regu- 
 to dues. lating 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 icitk cargoes outwards or 
 imcards, so as no ship shall be liable to pay more than 
 once /or t/ie same voyage out and home, if there be either an 
 
 1 In error, 11 East, 675; see Brougham's remarks in Stockton 
 too, Gunning, p. 135 ; 12 East, coid Darlington liaihcay v. Barrett, 
 439; 2 Taunt. 97; and cf. Lord U C. & F. 590.
 
 TOLLS, 581 
 
 outward or an inward cargo on sucli 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 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,^ 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, teas 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.- 
 
 Where, however, an Act provided that vessels trading 
 inwards to the port of Liverpool should pay dock rates 
 
 ' GUdart V. Gladstone ^- Glad- another, 5 M. & S. 328 ; see Gmh- 
 
 stone, 2 Taunt. 97 ; S. C. in eiTor, ning, p. 137 ; and Kingston-vjmn- 
 
 12 East, 439. Hull Dock Co. v. Huntbujdon, 2 
 
 ^ lb.; cf. on this point, Trustees Chit. Rep. 597 ; see Woolrych, p. 
 
 of Liverpool Docks v. Gladstone and 315.
 
 582 OF TOLLS AND 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 bal- 
 last 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 dock rates as a vessel trading inwards 
 from the port where she took on board such articles, and 
 not as a vessel arriving in ballast, icas a vessel arriving in 
 ballast within the meaning of the Acts.^ 
 Southampton The Southamj^ton Dock Company are empowered by 
 
 Hill "' ^' their Act, G Wi/L IV. c. xxix, s. 149, to charge for the 
 landing of goods in their docks the several sums men- 
 tioned 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 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.^ 
 Tync Kccimen By a local Act,^ a toU or tax of \d. per chaldron is 
 imposed 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 
 
 1 De Garte'uj v. Mersey Bocks and • Southampton Bock Co. v. Hill, 
 
 Harbour Board, 37 L. T., N. S. 14 C. B. 243; 11 W. K. 646. 
 411— C. P. D. 3 1 Oeo. IV. c. liii. 
 
 V. Baviion
 
 TOLLS. 583 
 
 " of siicli coals are usually made," in aid of the Tyne 
 Keelmen's Charitable Fund, created by 28 Geo. III. c. 59. 
 Since the formation of railways and docks, the services of 
 the keelmen in the shipment of coals on the Tyne have 
 become unnecessary, the coals being brought down to the 
 wharf or quay by railways and shipj)ed direct : — Held, 
 that coals shipped on the Tyne from collieries "near" to 
 the river were still liable to the payment ; and that a col- 
 liery 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 whicli they had been conveyed by private 
 tramways from the colHeries, were equally liable to the 
 keelmen's dues. ^ 
 
 The Commercial Dock Company was created by 50 l^^csser v. 
 Geo. III. c. 207 (local and personal declared public). 
 51 Geo. III. c. 66 (local and personal declared public), 
 empowered them to distrain and sell ships for non-pay- 
 ment of rates and charges due for dockage of ships, 
 receiving, warehousing, and storing goods ; and if any 
 consignor or consignee of any goods or merchandize 
 neglects or refuses to pay rates or charges, the company 
 may detain goods, &c. imtil 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 c^" 11 Vict. c. 27, s. 45, con- 
 tains similar provisions, which by 14 ^ 15 Vict. c. xUii, are 
 extended to the Commercial Dock Company. The plain- 
 tiff 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 com- 
 
 1 Society of Guardians of Keelmen Keelmen of the Tyne v. Elliott, 16 
 of the Tyne v. Davison, 16 C. B., C. B., N. S. 622. 
 N. S. 612 ; Society of Guardians of
 
 584 
 
 OF TOLLS AND RATES. 
 
 pany 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 stand- 
 ing in his name in the books of the company, although 
 the plaintiff tendered 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 company could not rely on 
 any general lien to that extent by the common law, sup- 
 posing that such existed, as the statutes must be taken to 
 displace such right.^ 
 
 Tolls on 
 canals. 
 
 Eight to de- 
 lived entirely 
 from the Act 
 of Parliament 
 creatins:. 
 
 No obliga- 
 tion on com- 
 l^auies to 
 impose equal 
 toUs. 
 
 " Those who seek to impose a burthen upon the public 
 " should take care that their claim rests upon plain and 
 " unambiguous language," said Bayley, J., in Leeds and 
 Liverpool Canal v. Hustler} This principle, which has 
 been confirmed by several important decisions,^ applies 
 very fully to canal tolls ; for where a canal is made by 
 Act of Parliament, the right to take tolls is derived en- 
 tirely from the Act, and is to be considered as a bargain 
 between the owner and the public; and where there is 
 any ambiguity, it must be constraed against the canal 
 proprietors, who can claim nothing which is not given 
 them by the Act.* 
 
 There appears to be no obligation on a company, how- 
 ever, to impose an equal toll on all persons, provided they 
 keep within the amount appointed by their Acts,^ though 
 on grounds of public policy such an equality may be 
 desirable for the public, who have an interest that the 
 
 ^ Dresser v. Bosanquet, 4 B. & S. 
 460; 34 L. J., Q. B. 374. 
 
 - 1 B. & C. 424; 2 D. & E. 556. 
 
 ^ Britain v. C'romford Canal, 3 B. 
 & Aid. 140 : mill Bock Co. v. 
 Browne, 2 B. & Ad. 58 ; GUdart v. 
 Gladstone, 1 East, 685 ; Barrett v. 
 Stockton and Darlington Bailwai/, 2 
 Scott, N. E. 337 ; 2 M. & G. 134 ; 
 
 Stockton and Darlington Eailway v. 
 Barrett, 11 C. & F. 590; 8 Scott, 
 N. E. 641. 
 
 * Stoiirbridge Canal v. Wheeley, 
 2 B. & A. 793; see, too, Woohrych, 
 p. 312. 
 
 * Cockbui-n, C. J., in Hungerford 
 Market Co. v. City Steamboat Co., 
 7 Jul-., N. S. 67 ; see ante, p. 544.
 
 TOLLS. 685 
 
 canal should be kept up, and the tolls consequently to be 
 kept as equal as possible.' 
 
 At common law tolls only become due at the end of a 
 voyage, since the contract is not completed till the port of 
 delivery is reached, and though this may be altered by 
 legislative enactments so as to make tolls payable at inter- 
 mediate distances, they must be demanded according to 
 the rules of law respecting the carriage of goods from one 
 place to another.- It is in accordance with these facts that, 
 as a general rule, the principle seems to be that Acts im- 
 posing a toll should be construed as strictly as possible,^ 
 since, as has been said by a learned judge, " though such 
 " construction may be perhaps inconvenient, the Court 
 cannot make a new toU."'^ 
 
 " No general rules or principles," says Gunning,^ " can No general 
 " be laid down apphcable to canals in general ;" and this is able\o^'^ ^^' 
 evident when it is remembered that in the case of canals, 
 as in that of dock companies and harbours, each is de- 
 pendent upon a particular act, and therefore that, since, as 
 is pointed out by Woolrych,*' " 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 T/w Stourhridge Qanal v. Wheehj,' the 
 plaintiffs made a canal on two levels, which were con- 
 nected by locks. On the upper level there was no lock. 
 
 1 Lees V. Manchester and Aston '" Page 102 ; cf. Wooliych, p. 
 
 Canal, 11 East, 645. 306. 
 
 - Buller, J., in Rex v. Tage, 4 ^ Woolrych, p. 306. A canal 
 
 T. R. 549; cf. Rex v. Aire and Act is not necessarily a public Act ; 
 
 Calder Navirjation, 2 T. E. 660. 1 Moo. & Malk. 421; Brett y.Beales, 
 
 3 Woolrych, p. 306. 10 B. & C. 508. 
 
 * lb.; Bayley, J., in Britain v. " 2 B. & A. 793. 
 Cromford Canal, 3 B. & A. 140.
 
 586 OF TOLLS AND RATES. 
 
 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 
 OY/ners 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 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 E-. 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 of 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.^ 
 
 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.- 
 
 ' Tamar Navigation v. Wagntaffe^ - Hex v. Glamorga>ishlrc, 7 B. & 
 
 4 B. & S. 288. C. 722.
 
 TOLLS. " 587 
 
 In another case^ 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 supporting the 
 navigation. The sessions were authorized under certain 
 cu'cumstances to reduce the canal rates. After the com- 
 pletion of the canal, and after 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 on 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 in dry seasons. This order being brought before 
 the Com't of King's Bench by certiorari, was quashed, it 
 being held that, though the works were new in specie, 
 yet, being for the maintenance 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 emj)ty 
 boats by the provision in a canal Act, that no boats 
 navigating thereon of less burthen than ticenty tons, 
 or which should not have a loading of ticentij tons 
 on board, should pass through any of the locks unless 
 
 1 Eexy. Glamoyf/ajishire, 12 East, 156; see Wooliych, p. 310.
 
 588 OF TOLLS AND RATES. 
 
 on payment of a tonnage equal to a boat of twenty 
 tons} 
 
 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 manm^e was entitled to navigate the canal, and 
 pass through the locks at any time without payment of 
 any toll whatever.^ 
 
 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 collaterally 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.^ 
 
 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 turn- 
 pike roads were held liable to toll.'* 
 
 Lees V. Manchester and AsJitun Canal Co.^ has been 
 already referred to with regard to the alteration of tolls. "^ 
 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 \d. per ton per mile), and also to 
 reduce rates at a general assembly, though not without 
 
 ^ Leeds and Liverpool Canal v. Canal Co., 13 M. & W. 114; 13 
 
 Hustler, 1 B. & C. 424 ; 2 D. & R. L. J., Exch. 203. 
 
 656. Since this decision, 59 Geo. ^ Monmouthshire Canal v. Kendal, 
 
 III. 0. 10, has imposed a simple 4 B. & Aid. 453. 
 
 lockage duty of 5s. upon empty ■• Coulton v. Ambler, 3 Rail. Cas. 
 
 boats; note [a], 1 B. & C. 424. 724. 
 
 - Grantham Canal Co. v. Hall, 14 Ml East, 645. 
 
 M. & W. 880 ; cf . Hall v. Grantham « See ante, pp. 480, 543.
 
 TOLLS. 589 
 
 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, and 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 legislature 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, i)iter 
 alia, " 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 shall be equal upon 
 ' all ; for if any are favoured the inducement to the com- 
 ' pany 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 gromid also void." 
 
 Cockbm'n, 0. J., commenting on these remarks in 
 Humjerford Market Co. v. City Steamboat Co.^ 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 proposition directly at variance 
 
 1 17 Jur., N. S. 67; 30 L. J., Q. B. 25; 3 El. & Bl. 365; 3 L. T., 
 N. S. 732.
 
 590 OF TOLLS AND RATES. 
 
 *' with the well-known axiom, that every one is at liberty 
 " to renounce a right established in his favour." 
 
 By sect. 103 of 3 Geo. IV. c. 126, the proprietors or 
 trustees of any canal, railway, or tramroad, on which any 
 materials for the repair of turnpike roads may be con- 
 veyed, may reduce the tolls imposed by any Act of Par- 
 liament on the carriage of such materials, and appoint 
 lower tolls, and reduced tolls may be collected and re- 
 covered in the same manner as the original tolls. ^ Also, 
 although an Act should authorize the reduction of tolls, 
 and provide for the appropriation of any sm-plus of rates, 
 commissioners may again raise the rates if it should be- 
 come necessary.- 
 
 The case of Tlic Mcdwaij Narigation v. Brool;,^ turned 
 upon the construction of a private Act relating to the 
 navigation of the Medway ; by sect. 23 of which the plain- 
 tiffs were empowered to take from persons conveying 
 goods upon the said river between Maidstone and Forest 
 liow, or any part thereof (which all person or persons 
 should and might lawfully do), certain rates and duties 
 for lockage and riverage, which were not to exceed a given 
 limit, and which, by sect. 28, the plaintiffs were from 
 time to time to publicly fix up. 
 
 By sect. 31, nothing in the Act is to be construed to 
 extend the plaintiffs' authority to the execution of any 
 works below Mr. Edmond's wharf in Maidstone ; and 
 
 By sect. 38, any action, suit, or information for any- 
 thing done in pui"suance of this Act, or in relation to the 
 premises, shall be commenced within three months after 
 the facts committed. 
 
 Maidstone extends along the river upwards, about three 
 furlongs from Mr. Edmond's wharf to the College lock 
 constructed by the plaintiffs, Maidstone Bridge being 
 
 1 See Woolrycli, p. 312. c. 28, ante, p. 480. 
 
 2 lb.; Good V. Penny, 9 Mees. & ^ 33 l, t., N. S. 843. 
 W. G87. See also 8 & 9 Vict.
 
 TOLLS. 591 
 
 between the two. Plaintiffs, besides other works on the 
 river, had scoured a shoal between the said bridge and 
 Mr. Edmond's wharf, and on their annual survey they 
 always disembarked at that wharf. 
 
 In 1874, the plaintiffs having amended their toll list so 
 as to charge for the first time tolls proportioned to a frac- 
 tional part of a mile traversed, the defendant who was 
 owner of oil mills situate on the Medway less than a mile 
 above the College Lock, but more than a mile above 
 Mr. Edmond's wharf, refused to pay any toll upon barges 
 coming up the river to his mills. 
 
 , Held, that the plaintiffs were entitled to charge tolls 
 proportioned to a fractional part of a mile traversed since the 
 amendment of their list, without reference to the three 
 months' limitation provided by sect. 38. 
 
 In Fis/ier v. Lee,^ it was held, that blocks cut with 
 wedges from the quarry, and, therefore, reduced to certain 
 dimensions according to order, and squared with a pickaxe, 
 to be used as railway sleepers, each being after such pre- 
 paration worth ninepence more than unwrought stone of 
 the same weight, — were liable to the toll as stones only, 
 and not as merchandize under a Navigation Act,^ which 
 imposed a toll on " every ton of butter or other goods, 
 " wares, merchandizes, and commodities," and a lower 
 toll on " every ton of coals, cinders, lime, and limestone, 
 " stone, gravel, and manure." 
 
 Tame v. Grand Junction Canal Co? also tui^ned on the 
 construction of certain canal Acts. 
 
 By 33 Geo. III. c. Ixxx, the Grand Junction Canal 
 Company were empowered to take tolls for the passage of 
 manure between Braunston and Brentford. By sect. 97, 
 persons occupying lands through which the canal passed 
 might carry manure without payment. By 34 Geo. III. 
 
 1 12 A. & E. 622 ; 4 p. & D. Ml Excli. 786; 26 L. J., Exch. 
 447. 222. 
 
 2 7 Geo. III. c. 96.
 
 592 
 
 OF TOLLS AND RATES. 
 
 Beueficial 
 interest in 
 tolls renders 
 a company 
 liable for 
 negligence in 
 works. 
 
 Distress 
 incident to 
 
 tolls. 
 
 c. xociv, for making a cut to Buckingham, the powers 
 and authorities mentioned in the former Act were to be 
 exercised by the company and by the owners of land on 
 the new cut as if re-enacted, and the like exemptions were 
 to be allowed. By 35 Geo. III. c. xUii, reciting the first- 
 mentioned Act, the company were empowered to make 
 a cut to Paddington ; and the several powers, authorities, 
 matters, and things in the recited Act contained, except 
 the rates, were to be used and exercised by the company, and 
 applied for making the cut and for ascertaining tolls, and 
 in all respects as if re-enacted, and as if the cut had 
 been part of the works authorized to be made by the first 
 Act. 
 
 By 35 Geo. III. c. Ixxxv, for making a cut from Watford 
 to St. Albans, reciting the before-mentioned Acts, the 
 powers granted thereby were to be exercised by the com- 
 pany and by the owners of lands as if re-enacted ; and the 
 like exemptions were allowed : — Held, first, that on the 
 construction of 35 Geo. III. c. xliii, persons occupying 
 land on the Paddington Cut could not carry manure on 
 the canal free from toll ; secondly, that the provisions of the 
 several public local Acts with respect to tolls on different 
 cuts, part of the same canal, might be compared in order 
 to ascertain the meaning of a clause in the Paddington 
 Act, alleged to create exemptions from tolls upon the 
 Paddington Cut. 
 
 As has been noted above, the possession of a beneficial in- 
 terest in the tolls of a canal renders a company liable to 
 actions for nuisance where damage is caused by negligence 
 with regard to their works.^ 
 
 A right of distress is incident to every toll.^ Where a 
 canal company was empowered by its Act to take tolls for 
 goods, and in case of nonpayment to distrain any carriage 
 
 1 Pages 25, 79. Ifauki/ v. St. 
 Helen's Canal, 2 H. & iST. 840; 
 Farnaby v. Lancaster Canal Co., 11 
 Ad. & E. 213 ; Mersey Bock v. 
 
 Gibbs, 11 H. L. Cas. 686, &c. ; 
 ante, pp. 271, 455, 544. 
 - See ante, p. 546.
 
 RATES. 593 
 
 or goods in respect of which such tolls ought to be paid ; 
 it was held, that trams could not be distrained for arrears 
 of tolls due from the owners for goods carried in them if 
 they were not carrying goods of such owners at the time 
 of distress.^ Similarly, in Fraser v. Siransecf Canal Co.,"^ 
 it was held, that where a canal company were authorized to 
 impose rates of toll for carriage of goods ; and in case of 
 nonpayment to seize the goods and the boats laden there- 
 with, and if such goods were not redeemed within seven 
 days to sell the same ; this clause did not empower them 
 to distrain goods when no longer on the canal or to .9^// the 
 boats. 
 
 Hafes. 
 
 It is proposed now to consider the liabiKty of the various Rates, 
 rights of water that have been treated of to be assessed for 
 the payment of poor rates. 
 
 The present system of parochial relief is based upon the 43 Eliz. c. 2, 
 stat. 43 Fliz. c. 2,^ the last important measure of a series of ^ '. 
 enactments on the subject, which provides for the appoint- system of 
 ment of " the churchwardens of every parish, and four, ^"'''-^'^o- 
 " three or two substantial householders," under " the hand 
 *' and seal of two or more justices of the peace in the same 
 " county," as overseers of the poor of the same parish, 
 and directs the said overseers to " take order" with con- 
 sent of the justices " for setting to work the children of 
 " all such whose parents" they shall deem unable to main- 
 tain them, as well as " all such persons, married or un- 
 " married," who are unable to maintain themselves and 
 
 1 Jenkins V. Cooke, 1 A. & E. Ric. II. c. 5 ; 12 Ric. II. c. 7 ; 15 
 872. Ric. II. c. 6 ; 11 Hen. VII. e. 2 ; 
 
 2 1 A. & E. 354 ; see too Wool- 19 Hen. VII. c. 12 ; 22 Hen. VIII. 
 rych, 61. c. 12 ; 27 Hen. VIII. c. 25 ; 3 & 4 
 
 ^ See the remarks on the history Edw. VI. c. 16 ; 2 & 3 Philip and 
 
 and development of this branch of Mary, c. 5 ; 5 Eliz. c. 3 ; 18 Eliz. 
 
 law in Castle on the Law of Rating, c. 3; 39 Eliz. c. 3; 43 Eliz. c. 2; 
 
 p. 1. The principal authoiities and 3 Car. I. c. 4 ; see Castle, -pp. 1 — 25. 
 
 statutes to be noted are : — The Mir- See too for the statutes dealing with 
 
 ror of Justice, sect. 3 ; Bl. Comm. the subject, and for a digest of the 
 
 vol. i.e. ix. sect. 6; Dalton's Justine decisions thereon, Chamber's Law 
 
 of the Peace ; 5 Edw. III. c. 14 ; 7 relating to Rates and Rating. 
 
 C. Q Q
 
 OF TOLLS AND EATES. 
 
 " use no ordinary and daily trade of life to get their living 
 " by;" and, Jmthj^ empowers them "to raise, weekly or 
 " otherwise, (Jiij taxation of everij inhabitant, parson, vicar, 
 " and other, and of every occupier of lands, houses, tithes im- 
 " 2^>Wif(f^> iirojmations of tithes, coal mines, or saleable 
 " underwoods in the said parish, in such competent sum or 
 " sums of money as they shall think fit), a convenient 
 " stock of flax, hemp, wool, thread, iron and other neces- 
 " sary ware and stuff to set the poor on work. And also 
 " competent sums of money for and towards the necessary 
 " relief of the lame, impotent, old, blind, and such other 
 " among them being poor and not able to work, and also 
 " for the putting out of such children to be apprentices, to 
 " be gathered out of the same parish according to the abilitt/ 
 " of the same parish, and to do and execute all other things 
 '' as well for the disposing of the said stock, as other- 
 " wise concerning the premises, as to them shall seem 
 " convenient."^ 
 
 1 43 Eliz. c. 2, s. 1— This statute 
 referred to personal as well as real 
 property, but the custom of not 
 rating the former early arose, and 
 was soon universally followed ; 
 and by 3 & 4 Vict. c. 89, it was 
 hually exempted from assessment. 
 The princij)les now governing the 
 law of assessment were laid down 
 in Sir A)itliony Earbtfs case (3 Bul- 
 strode, 34 ; cf. Dalton's Justice of 
 the Peace ; and see Castle's Law of 
 Rating, pp. 17- — 23), and are now 
 regulated by the 6 & 7 Will. IV. 
 c. 96; s. 1. of which provides: 
 " Whereas it is desirable to estab- 
 " lish one uniform mode of rating 
 " for the relief of the poor through- 
 ' ' out England and Wales, and to 
 " lessen the cost of appeals against 
 " an unfaii- rate," it shall be en- 
 acted " that from and after such 
 " period, being not earher than 
 " the twenty-hrst day of March 
 " next after the passing of this Act 
 " as the Poor Law Commissioners 
 " shall by any order under their 
 " seal of office direct; no rate for 
 ' ' the relief of the poor in England 
 
 " and Wales shall be allowed by 
 " any justices, or be of any force, 
 " which shall not be made upon 
 " an estimate of the net annual 
 " value of the several heredita- 
 " ments rated thereunto, that is to 
 " say, of the rent at ivliich the same 
 " mifjht rcasonahhj be expected to let 
 ' ' from year to year, free of all usual 
 " tenants rates and taxes, and tithe 
 " commutation, rent-charge, if any, 
 " and deducting therefrom the pro- 
 " bable average annual cost of the re- 
 " pairs, insurance and other expenses, 
 " if any, necessary to maintain them 
 " in a state to command such rent: Pi'o- 
 ' ' vided always, that nothing herein 
 " contained shall be construed to 
 " alter or affect the principles, ordif- 
 ^' feirnt relative liabilities, if any, ac- 
 " cording to which flifferent kind 
 " of hereditaments are now by law 
 ' ' rateable' ' (cf . Castle' s Law of Rat- 
 ing, 350 — 358, where the learned 
 author says that : ' ' The principal 
 " difference between the law before 
 ' ' and after the passing of the Paro- 
 " cliial Act, is, that formerly the 
 ' ' rate might be on any proportion
 
 RATES. 595 
 
 It is proposed to consider the rateability of rights con- 
 nected with water in the following order : — 
 
 I. Piers, Harbom-s, Docks and Marine Property. 
 II. Rivers and Ferries. 
 III. Fisheries. 
 ly. Canals. 
 
 Y. "Water Companies ; and 
 YI. Bridges. 
 
 An estuary or arm of the sea is prima Jacic extra-paro- Tiers, liar- 
 chial ; but this presumption may be rebutted,^ and, with ^^'T*' ^^°':^^^ 
 
 ' . '''''" marine 
 
 respect to the presumption of extra-parochialit}', there is property. 
 no distinction between the sea shore and the shore of a Estuaries aud 
 
 tidal river.- . arms of the 
 
 Where a wet dock was constructed on a portion of land fade extra- 
 reclaimed from the ooze or bed of a navigable tidal river, P^'ioc^ial. 
 and in order to prove that it was not part of the adjoining 
 parish, evidence of perambulations of that parish, and of 
 others abutting 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, out- 
 weighed the contrary presumption arising from the per- 
 ambulations.^ 
 
 ' ' of the net profit, provided, ynih - ' ' pected to let must be based on 
 
 "in the parish, all lands 'were "an average of past years; se- 
 
 " rated on the same proportion, " condly, the entire value of the 
 
 " whereas after the Act the net " property occupied within the 
 
 " value is made the basis that is " yearistobe taken" (Castle's Law 
 
 " to be universally adopted) ;" cf. of Rating-, p. 472; and see p. 460 
 
 ]iex v. Adaiites, 4 13. & Ad. 61 ; and et seq.). 
 
 Reg. v. Capel, 12 A. & E. 382. ' Ipswich Bock Commissioners v. 
 
 With regard to the question for St. Feters\ Ipswich, 7 B. & S. 310. 
 and over what period of time the ^ Trustees of Duke of Bridgewater 
 
 value of property is to be ascer- \. Surveyors of Highways for Bootle- 
 
 tained, it must be noted, "first cum-Linacre, 7 B. & S. 348. 
 " that property must be valued in ^ Ipsicich Bock Commissioners v. 
 
 ' communibus annis, for the rent at St. Teters\ Ipswich, supra. 
 
 ' which the property may be ex- 
 
 Q Q 2
 
 596 OF TOLLS AXD RATES. 
 
 The main sea Bla.ckburn, J., intcv alia, remarked:^ "In Reg. v. 3Ins- 
 chic-il.^'^'^^^™' " '^^^^^ i^ '^^'^ rightly decided that what Lord Hale terms 
 Ecg.vJlitsson. " the main sea is prhjid facie extra-parochial, and in the 
 " absence of evidence that it forms part of a parish, it 
 " must be taken that it does not ; and the same reason that 
 " it is part of the waste and demesnes and dominions of the 
 " Crown, would apply to an estuary or arm of the sea ; it 
 " is a part of the great waste, both land and water, of 
 " which the king is lord. This seems to be so pritnd facie, 
 " whatever evidence there may be to rebut it. Lord Hale, 
 " in the first part of the same chapter^ (Harg. Law Tracts, 
 "p. 10), says: 'Thus much concerning freshwater or 
 " ' inland rivers, which, though they empty themselves 
 " ' immediately into the sea, are not called arms of the 
 " ' sea, either in respect of the distance or smallness of 
 " ' them.' The distance from the sea, and the small size 
 " of the stream, are two of the elements for determining 
 " how far the river extends, and when the arm of the sea 
 *' begins ; upon which depends prima, facie whether it is to 
 McC(i)»io>i V " l3e considered parochial or not. In McCaiuwn v. Sinclair,'^ 
 
 Sinclair. / i • i i 
 
 which bears very much on the present case, and where 
 " the question was as to the parochiality of the bed of the 
 " Thames, in a part much farther from the main sea than 
 " the dock here in question, and much more like an arm 
 '' of the sea than the channel of the Orwell at this point, 
 " the Court decided, according to the report in 2 E. & E. 
 " 53, that the presumption was against parochiality, but 
 " that it might be proved by evidence, and it was proved 
 " that the bed of the river was not extra-parochial. So 
 " in the river Orwell, looking at the distance of the dock 
 " from the sea, and the size of the stream, inasmuch as the 
 " tide flows and reflows, and the channel is navigable, the 
 ^^ prima facie presumption seems to be that it is extra- 
 " parochial."^ 
 
 ^ Ipswich Bock Conimissioners v. * 2 E. & E. 53 ; cf. Triidees of 
 
 Overseers of St. Peters, 7 B. & S. 311. Duke of Bridgewater v. Surveyors of 
 
 2 8 E. & B. 900. lliqluraiis for Bootle-cum-Linacre, 
 
 3 Pars Prima, Ch. 4. 7 B. & S. 349.
 
 RATES. 
 
 597 
 
 Bj sect. 55 of The Local Government Act, 1858, "the Land covered 
 '' occupier of any land covered with water, or used only ^^'^^'^ water. 
 " 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 pay- 
 ment of tolls, was a railway within the provision, although 
 it was not constructed to carry passengers.^ 
 
 Where two companies, incorporated under The Companies Piers. 
 Act, 1864, received tolls for the use of a pier which ex- 
 tended from 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 alteration 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 <^ 32 Vict. 
 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.^ 
 
 1 Hcg. V. Xcirport, 31 L. J., M. 
 C. 267. 
 
 ^ Blackpool Pier Co.v.FyldeUiiioii, 
 46 L. J., M. C. 189 ; 36 L. T. 251 ; 
 41 J. P. 344. Sect. 27 of 31 # 32 
 J^ict. c. 122, is as folloM\s : — " Froin 
 " the 25tli day of December next, 
 " every place ■which was or is re- 
 " piited to be extra-parochial, 
 ' ' whether entered by name in the 
 " report upon the census for the 
 " year 1851, or not, for which an 
 " overseer has not been then ap- 
 " jDointed, or for which no overseer 
 " shall then be acting, or which 
 " has not been then annexed or 
 
 ' incorporated with the next ad- 
 ' joining parish, shall, for all civil 
 ' and parochial purposes, be an- 
 ' nexed to and incorporated with 
 ' the next adjoining parish with 
 ' which it has the largest common 
 ' boundary ; and in case there 
 ' shall be two or more parishes, 
 ' with which it shall have boun- 
 ' daries of equal extent, then with 
 ' that parish which noAv contains 
 ' the lowest amoiint of rateable 
 ' value ; and every accumulation 
 ' from the sea, whether natural or 
 ' artificial, and the part of the sea 
 ' shore to the low water mark,
 
 598 OF TOLLS AMD RATES. 
 
 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. 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 commis- 
 sioners 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 occu- 
 pation 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 from the harbour ; and, therefore, that the appel- 
 lants were not liable to be rated to the poor rates, the 
 piers themselves being worth nothing.^ 
 Parish ex- Where, in beating the boundaries of the parish of 
 
 the 8hore^s of'^' Eothcrhithe, it was shown that the authorities proceed 
 a river. along the embankments, wharves, or other shore of the 
 
 " aud the bauk of every river to " adjoins, in proi^ortion to the ex- 
 
 " the middle of the stream, which " tent of the common boundary." 
 
 " on the said 25th day of Decern- See remarks of Lord Coleridge, 
 
 " ber next shall not be included C. J., on the construction of this 
 
 " within the boundaries of, or an- section; 46 L. J., M. C. 191. See, 
 
 " nexed to and incorporated with, too, a>itc, Chap. I. p. 13. 
 " any parish, shall, for the same ' Xcw Shoreham Sarboiir Com- 
 
 " purpose be annexed to and incor- miasioners v. Lanciiiq, 39 L. J., 
 
 " porated with the parish to which M. C. 121; L. K., 5 Q. B. 489; 
 
 *' such accretion part or bank 22 L. T. 434.
 
 RATES. 591. 
 
 river, while in the adjoining parish of Bermondsey the 
 authorities go along the middle of the river — and that the 
 parish of Eotherhithe has never done or exercised any 
 parochial act or authority beyond the embankments, &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.^ 
 
 By sect. 33 of 3 d^- 4 JFilL IV. c. 90,^ the owners and Wet docks, 
 occupiers 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,^ where certain appellants were the occupiers of cer- 
 tain docks, covering an area of 165 acres, 95 of which 
 formed a wet dock or tidal basin, that this dock or basin 
 was property cjio^doii 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 Profits of 
 
 14 docks must b< 
 
 eamea. ^^^^^ ^^-^eve 
 
 In jReg. v. Bristol Dock Co.,^ the question of the rate- they are 
 ability of dock dues, and of the profits of such under- 
 takings as water companies and canals, was raised. 
 
 By 43 Geo. III. c. cxl (" An Act for improving the Port 
 " of Bristol"), a dock company was formed with power to 
 convert a portion of a navigable river within the city into 
 
 ^ McCannon v. Sinclair, 28 L. J., at the lower amount, as the area of 
 
 M. C. 247 ; 2 E. & E. 53 ; 33 L.T., ninety-five acres was hmd. 
 
 0. S. 226. * Jicff. V. Bristol Dock Co., 10 
 
 - The "Watching and Lighting L. J.,M.C. 105 ; see Castle, p. 415 ; 
 
 Act. cf. Hex V. mdl Dock Co., 7 T. R. 
 
 ^ Fetox. JFest B'am, 28 Ij. J., 'N. 219; Bex v. Sun Dock Co., 5 
 
 S., M. C. 240 ; 2 E. & E. 144 ; M. & S. 394. 
 
 per Lord CampbeU, C. J., Wight- ^ iq L. J., M. C. 105 ; 1 Q. B. 
 
 man, J., and Crompton, J.; Erie, 335 ; 1 G. & D. 76. 
 J., holding that they were rateable
 
 600 OF TOLLS AND RATES. 
 
 a floating harbour, and to make a new course for the 
 river, and a basin, to form a passage from the new course 
 into the floating harbour, and to execute divers other 
 works. The port is entered in the river Severn, nearly 
 thirty miles from the parish in which the basin is situate. 
 
 By sect. 74, certain dues were payable to the company 
 for every ship entering the port, which dues, after defray- 
 ing the expenses of repairing the basin and the other 
 works, were to be divided among the shareholders of the 
 company. 
 
 By sect. 64, reciting that the lands which the company 
 were authorized to take for the execution of the above 
 works would, during the time the said intended Avorks 
 were carrying on, and for many years afterwards, be 
 rendered unproductive, and be incapable of being rated 
 in aid of the land and parochial taxes, the company were 
 made chargeable from the time of their taking possession 
 of such lands with all such land and parochial taxes as the 
 same lands were then or might thereafter be subject to. 
 
 It was held that no portion of the dues payable by ships 
 on entering the port was a profit arising from the basin ; 
 and that the basin was rateable to the relief of the poor as 
 ordinary land, and not in respect of such dues.^ 
 Jicg. V. Hull The doctrine laid do"\vn in Reg. v. Bristol Dock Co.^^ that 
 no portion of the dues payable by ships on entering that 
 port was a profit arising from the land, and that the land 
 was rateable as ordinary land, came under consideration in 
 Bc[/. V. Hull Bock Co.^ There the company constructed a 
 harbour and docks under provisions of 14 Geo. III. c. 56, 
 but the former was distinct from the latter, and they had 
 no property in the harbour, though the soil of the docks 
 was vested in them. They were, however, empowered to 
 take toll on all vessels, whether they used the docks or not, 
 
 1 See judgment of Lord Den- 2; 9 J. P. 405 ; see Castle on Law 
 man, C. J., and the cases there of Rating-, p. 215; cf. Hex v. Dock 
 cited, 10 L. J., M. C. 111. Conipcoii/ of Hull, 1 T. R. 219; 
 
 2 10 L. J., M. C. 105. Rex v. Eull Bock Co., 5 M. & S. 
 
 3 14 L. J., M. C. 114; 7 Q. B. 394. 
 
 Dock Co.
 
 RATES. 601 
 
 coming into the harbour, and the Court held that the 
 company were rateable for such dues as were paid by ships 
 using the docks, and drew a distinction between the tolls 
 paid by ships merely entering the harbour, and those paid 
 by ships afterwards using the docks. " To those which 
 " come into the docks," said Lord Denman, C. J., " the 
 " benefit is conferred by the docks, and in the docks, and 
 " therefore the toll paid for that benefit must be held to be 
 " earned there, in the docks, and be profits arising there. 
 " As to those ships which do not come into the docks, and 
 " which never are on the property of the company at all, 
 " the case is very different. The toll given to the com- 
 *' pany, 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." 
 
 Mr. Castle points out^ that the view of the law taken in 
 the Bristol Dock Co.'s case, does not now obtain, since 
 railways and other properties are now habitually rated 
 parochially for earnings collected elsewhere. 
 
 The question of the apportionment of the earnings Apportion- 
 of docks was raised in the case of The Hull Bock Co., ^f^oido^s. 
 who are the owners and occupiers of several docks and 
 basins communicating with each other, formed under 
 various statutes at different times, and which are situate in 
 several parishes. They are entitled to tonnage duties for 
 every ship coming into or going out of the harbour, docks 
 or basins, or unloading or lading any of their cargo within 
 the port, such duties being payable as soon as the vessels 
 enter any of the docks or the harbour. By one of their 
 Acts, no vessel passing up or down the rivers Hull or 
 Humber without entering any of the docks or basins, is to 
 be subject to toll, unless it shall land or discharge part of 
 its cargo in the old harbour, or within that part of the 
 1 Page 215.
 
 G02 OF TOLLS AND RATES. 
 
 Humber which is in the port of Hull, in which event 
 tonnage rates are to be paid only in respect of goods so 
 landed or discharged. No separate accounts are kept for the 
 several docks, and there is only one set of officers for the 
 whole establishment. No distinct or separate rates or duties 
 are payable for the use of any particular dock or docks, nor 
 any accumulative rates for the use of all or any number of 
 them, but the same rates are payable into whatever dock 
 vessels go, and whether they use only one or more of the 
 docks they pay only one single toll ; and no additional 
 charge can be made for a vessel lading her cargo outwards 
 in one dock, and discharging her cargo inwards in another 
 of the docks. The further tonnage dues payable for 
 vessels remaining above ten months have always been 
 paid generally, and without regard to their remaining in 
 one particular dock. 
 
 The net rateable value of the whole of the docks having 
 been ascertained by making the proper deductions from 
 the gross receipts from the tonnage dues received by the 
 company in respect to all the docks : — Held, that their 
 entire rateable value ought to be apportioned among the 
 several parishes within which the docks, &c. were situate, 
 in proportion to the areas of the docks, &c. resjDectively 
 within such parishes.^ 
 
 ^ 21 L. J., M. C. 153 ; see too into a dock according to an Act of 
 
 Castle's Law of Rating, p. 417. Parliament, declaring the shares 
 
 Lord Campbell, C. J., said: "I of the proprietors should be cou- 
 
 ' ' am of opinion that our decision sidered personal property, were 
 
 " should bo in favour of the ap- rateable to the poor in proportion 
 
 ' ' pellants, and I have little to add to the annual profit. 
 
 " to what is stated in the case. The In Reg. Y.Hull Loek Co. (7 Q. B. 
 
 " Kimj Y. Doek Comixnii/ of Hull, audi 2 ; S. C, 14 L. J., M. C. 114), the 
 
 " The Queen v. Hull Dock Co., do company in accordance with their 
 
 " not assist ixs, becaiise in both Act, 14 Geo. III. c. 56, made a 
 
 "those cases the sole question dock in the parish of T., communi- 
 
 " raised was as to the rateabilitj^ eating with the harbour or river Hull 
 
 ' ' and not as to the mode of appor- and the river Humber. The dock is 
 
 ' ' tioning the rateable value among in their own land, granted under 
 
 " the parishes in which the profits sect. 18 of the Act. They have no 
 
 " were made." right of property in the harbotu-, 
 
 In Rex V. Hill Bock Co. (1 T. R. and occupynothing on the shores of 
 
 219), it was held, that lands pur- the Humber, except the entrance 
 
 chased by a company, and converted basin of the dock. The port of HuU,
 
 HATES. 603 
 
 A somewhat similar case is that of TIic Mcrscij Dochs Mersey Docks 
 and Harbour Board v. Orerscers of Lirerpool,^ where the ap- Yivcrpod'^ 
 pellants occupied docks in several parishes and townships on 
 the Lancashire and Cheshii'e sides of the Mersey. By the 
 Act of Parliament relating to these docks, it is provided, 
 that they shall be held and administered as one estate 
 under one management. The rates for using the dock 
 property are for the most part uniform, and any vessel 
 having once paid the dock rate is entitled to use all docks 
 where the rates are not larger, and to use any other docks 
 on paying the difference. The docks on the Lancashire side 
 of the Mersey are by far the most profitable part of the 
 undertaking, which is carried on at a loss on the Cheshii'e 
 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 : — Held, that the parochial 
 principle must always, except in cases of insuperable 
 difficulty,- be preferred ; that no such difficulty was shown 
 in the present case, and that the assessment was accord- 
 ingly right. 
 
 Cockburn, C. J., said: "We need not call upon Sir John 
 " Karslake to argue for the respondents, as we are of 
 " opinion that our judgment should be in their favour. 
 
 in the poj)ular sense (adopted in this ing the port, whether they came 
 
 case), includes the Humber to the into the dock or not, still that the 
 
 mid stream, and all ships using company were rateable for the 
 
 these docks pass through this portion duties on ships which actually did 
 
 of the Humber. Some discharge enter the dock, those duties being 
 
 and load their cargoes in the Hum- profits of the company's land in 
 
 ber or the liarbour without using T. accruing there ; but held, 2nd, 
 
 the dock or entering upon any That they were not rateable in T. 
 
 property of the company ; but for the dock in resj^ect of duties 
 
 these, as well as the ships entering wliich wore j^aid by ships not en- 
 
 the dock, pay the tonnage duties : teriug or using it. 
 ■ — Held, on appeal against a poor ^ 41 L. J., M. C. 161 ; L. R. , 7 
 
 rate for the parish of T., 1st. That Q. B. 643 ; 26 L. T. (N. S.) 868 ; 
 
 even assuming the word harbour 37 J. P. 165. 
 
 in sect. 42 of the Act to be syno- - As in The Queen v. Kiiiffston- 
 
 nymous with "port," so that the upon -Hull Dock Co., 21 L. J., M. 
 
 duties attached on all ships enter- C. 155; S. C, 18 Q. B. Rep. 325.
 
 604 
 
 OF TOLLS AND RATES. 
 
 AUaii V. Over- 
 seers of Liver- 
 2)00 1. 
 
 Jj/maii V. 
 Overseers of 
 ZiverjMol. 
 
 The Hull Dock case ^ establishes, that where a series of 
 docks are contiguous to each other, forming a part of an 
 entire system with tolls so fixed that each vessel, after 
 paying one toll, is entitled to the benefit of any one or 
 more of the series of docks, the principle of parochial 
 rating cannot be applied, but recoui'se must be had to 
 the acreage principle. Nevertheless, the language of the 
 judges in that case, shows that the acreage system must 
 not be resorted to except ex necessitate rei. The present 
 case, however, is distinguishable from the facts before 
 the Court in the Hull Dock case, because the docks now 
 in question do not appear to constitute one entire series. 
 Some are on one side of the river, and others on the 
 opposite side of the river Mersey, and they do not come 
 within the description of an entire system of docks. It 
 is true, that by several local Acts they are united in one 
 undertaking. Under the Act of Parliament, they are 
 united for the purpose of general management and 
 pecuniary operations ; but the fact remains, that they 
 are two distinct estates, which are considered as one 
 property for the purposes of general management. . . . 
 This property must be rated according to the existing 
 state of things, and our judgment must be for the 
 respondents." 
 
 " The difference between this case and the Hull Dock 
 case," says Mr. Castle,- " seems to be one of distance 
 only. In the latter case the docks all lay in close 
 connection with one another, so that a vessel might pass 
 from one to the other, whereas in the former the river 
 Mersey divided the two harbours, which were, therefore, 
 in fact separate and divided properties. - 
 Allan V. Orerseers of Livei-pool, and Inman v. Overseers 
 of Kirlcdalc,^ raised the question as to whether certain 
 
 1 18 Q. B. 325; S. C, 21 L. J. 
 Rep., N. S., M. C. 153. 
 
 - Castle's Law of Rating-, p. 
 418. 
 
 3 43 L. J., M. C. G9; L. R., 9 
 Q. B. 180; 30 L. T. 93; 38 J. P. 
 
 260.
 
 RATES. 605 
 
 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. The cases were stated 
 under sect. 11 of 12^13 Vicf. c. 45, on appeal from certain 
 poor-rates, in which was included the name of the Mersey 
 Dock and Harbour Board as co-respondents, they manag- 
 ing the docks under the provisions of a Local Act, section 
 64 of which enacted that the board might from time to 
 time, upon payment of such rents or other sums of money, 
 and subject to such restrictions or regulations as they 
 should think proper, set aj^art and appropriate any par- 
 ticular position, or any dock, shed, or any other works to 
 the exclusive accommodation and use of any company, &c. 
 engaged in carrying on any trade, who should be de- 
 sirous of having such exclusive accommodation for the 
 reception of the vessels and goods belonging to or con- 
 veyed by them, provided that every company, &c. to 
 whom such exclusive accommodation should be afforded, 
 and their vessels, crews, servants, &c., should be subject to 
 the general rules and regulations of the board applicable 
 to their docks, sheds, &c., and the vessels entering the 
 same, and the crews and other persons employed in and 
 about such vessels. 
 
 By sect. 82, the board might construct such depots and 
 sheds for the reception of goods, and might provide such 
 other conveniences upon or near the quays as they should 
 think expedient for the accommodation of the trade of the 
 port of Liverpool, and might let any such sheds, and also 
 any portion of the quays which, with or without such 
 sheds, they might think fit to appropriate. 
 
 It was held, that the board had not parted with the 
 occupation of any part of such sheds so as to render the 
 appellants rateable in respect of such occupation. 
 
 It is to be noted that " a rate is not always imposed on
 
 606 OF TOLLS AND RATES. 
 
 " properly in that particular year in wliieli it makes a pro- 
 " ductive return,"^ but, as has been stated above, must be 
 valued in communibus annis} Thus, in the case of Rex v. 
 Hull Dock Co.,^ the company were held rateable in respect 
 of the tonnage duties received by virtue of 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 the duties received. 
 Exemption of Dockyards in the occupation of the Crown, or occupied 
 
 the Crown p , jipji l p 
 
 from rates. f ^r government purposes, are exempted irom the payment ot 
 rates.^ But tenants of the Crown holding for their private 
 benefit are rateable.'* 
 The 3fersc!/ These two points were thus decided by the House of 
 
 Dock cases. Lords in the Mersey Dock cases,^ where it was held, that the 
 Crown not being named in 43 Eliz. 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. Their lordships moreover were of 
 opinion that the statute is in its provisions general and 
 inclusive, and no other principle applying to create an 
 exemption from those provisions, all property capable of 
 beneficial occupation, and which, if left to a tenant, would 
 be capable of producing rent, is liable to be rated, though 
 in the hands of trustees who occupy it under Acts of Par- 
 liament for the maintenance of works declared to be bene- 
 ficial to the public, though such trustees derive no benefit 
 from the occupation, and though the revenues arising from 
 such occupation are applied exclusively to the maintenance 
 of the works.' 
 
 In each of these cases the Mersey Docks and Harbour 
 
 1 Lord EUenborough in Rex v. ^ lb. See opinion of the judges 
 
 Hull Dock Co., 5 M. & S. 400; Rex per Blackburn, J.; see Castle, p. 
 
 V. Mirfeld, 10 East, 219. 102. 
 
 - Ante, p. 595, note; see Castle, '' Jones v. Mersey Dock and Har- 
 
 p. 460 et seq. lour Board, Mersei/ Dock and Uar- 
 
 3 5 M. & S. 394. hour Board v. Cameron, 11 H. L, 
 
 * Merset/ Dock cases, 11 H. L. Cas. 443: 35 L. J., M. C. 1. 
 
 C. 443 ; 35 L. J., M. C. 1 ; see ' lb. 
 Castle, p. 95.
 
 RATES. 607 
 
 trustees had brought an action of replevin in the Court of 
 Common Pleas to try the question of their liability to a 
 rate for the relief of the poor. In the case of Jones, where 
 the question of rateability only was raised, judgment was 
 given in favour of the Mersey Dock trustees in conformity 
 with The King v. Inhabitants of Liverpool} In the case, 
 however, of Cameron, where, in addition to the question of 
 liability to the rate, the point at issue was, whether an 
 action of replevin was maintainable, the Court were of 
 opinion that there ought to be judgment for the defen- 
 dants. Appeals were brought in both cases, and after 
 hearing the opinion of the judges on three points raised as 
 to the construction of 43 Eliz., and of the special Acts con- 
 stituting the trustees the '■^Mersey Docks Board,'^ and 
 appointing them to have the control of certain docks, &c. 
 vested in them as such trustees in order to maintain these 
 docks for the benefit of the shipping frequenting the port 
 of Liverpool, it was held by the House of Lords (over- 
 ruling the cases of Rex v. Salter's Load Sluice'^ and Rex v. 
 Liverpool) , that the trustees were liable to be rated as 
 occupiers, though they occupied such docks, &c. only for 
 the purposes of their Acts and derived no benefit from the 
 occupation. 
 
 Recent Acts had expressly declared that certain ware- 
 houses and parts of the docks, then for the first time erected 
 and put under the control of the trustees, were to be liable 
 to rates. Per Lord Chelmsford : these Acts did not, by im- 
 plication, declare that the other parts of the docks were 
 not liable to rates."^ 
 
 We will conclude this notice of the rateabilitv of docks Deductions 
 
 11 • Vil ■ 
 
 by pointing out the class of deductions allowed in assessing asseiment ^f 
 them. docks. 
 
 Reg. V. Southampton Dock^ is noteworthy on this head. 
 
 1 7 B. & C. 61. law as to the rateability of bodies 
 
 - 4 T. R. 730. holding for charitable or seini- 
 
 ^ 7 B. & C. 61. pubhc purposes was reviewed. 
 
 * 11 H. L. 444. See the judg- '•> 20 L. J., M. C. 155 ; 14 Q. B. 
 
 ments in this case, where the whole 587.
 
 608 OF TOLLS AND RATES. 
 
 The premises of the company consisted in part of the 
 custom house rented and occupied by her Majesty's Com- 
 missioners of Customs, and a manufactory and several 
 workshops, rented and occupied by the West India Mail 
 Packet Company and J. W. The company under sec- 
 tion 188 of their Act, which empowered them to build or pro- 
 vide 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 British Channel, had actually in use a steam tug which 
 offered considerable advantages to those who used the docks, 
 and was conducive to the general profits of the dock busi- 
 ness, though it was not indispensable, since other steamboats 
 might have been hired at Southampton for the same pur- 
 pose, but at less advantage and convenience to the company 
 and those using the docks. Attached to the freehold and 
 essential to the business of the company was a certain 
 fixed plant, consisting of cranes, steam engines, shears, 
 derricks, dolphins, 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. 
 
 It was held, upon a case stated as to the extent of the 
 company's liability to be rated to the relief of the poor : — 
 
 1st. That sect. 25 of 13 Geo. III. c. 50,^ 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. 
 
 2ud. That the steam-tug must 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 esti- 
 mating the amount of the company's assessment to the 
 rate. 
 
 1 "For the better regulating the poor, &c. of Southampton."
 
 RATES. 609 
 
 3rd. That as an allowance to the directors for manage- 
 ment, another proper deduction to be made was a reason- 
 able 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 em- 
 ployed by him. 
 
 4th. That the cranes, &c. and other ponderous machi- 
 nery were properly included in estimating the rateable 
 value of the company's premises. 
 
 5th. 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.^ 
 
 In ascertaining the net rateable value of the property 
 assessable 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 them- 
 selves, in addition to all other proper allowances, have 
 been deducted.^ 
 
 There have been many decisions as to the rateability Kateability of 
 of bodies, like floating piers or docks, barges, hulks, pertynot 
 and the like, which, while not themselves occupying the actually oc- 
 
 ' ' . . cupymg the 
 
 soil, are either attached to floats, &c. fixed in it, or other- soil. 
 
 wise 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.^ 
 
 In Beg. v. Leith,"^ under a local Act enabling trustees to Floating piers 
 , , 1 1 T • • i and floating 
 
 levy rates upon persons holdmg or enjoymg any tene- docks. 
 
 ^ As to tenant's profits, see fur- Rex v. Ilidl Dock Co., 2 B. & C. ^' ' 
 
 ther, Mcrsei/ Docks v. Liverpool, 516. 
 
 L. K, 9 Q.B. 84; 43 L. J., M. C. ^ 21 L. J.,M. C. 119; 1 E. & B. 
 
 33 ; 29 L. T. 454 ; 38 J. P. 27. 121 ; 18 L. T., 0. S. 121 ; 16 J. P. 
 
 ^ Ti/nc Improvement Commissioners 310. 
 V. Churchicardens and Overseers of * See the remarks of Mr. Castle 
 
 Chirton, 32 L. J., M. C. 192 ; cf. as iof oating bodies, pp. ISO — 182. 
 
 C. R K
 
 blU OF TOLLS AND RATES. 
 
 ments, land, building ground, hereditaments or premises in 
 the district, a steamboat company were rated in respect of 
 their floating pier or landing-place, by the description of 
 " tenement, land, landing-place and premises, and the ^row 
 " 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, boarded over 
 and kept in their places by chain cables fastened to anchors 
 sunk in the bed of the river ; the barges were connected 
 by wooden bridges, the first bridge resting on the first 
 barge at one end, and the other end being fastened to a 
 platform resting upon an abutment attached and made 
 fast to the wall of a building on the shore. Both bridges 
 and barges rose and fell with the tide. Passengers era- 
 barking by the steamboats passed through the floor of the 
 building, where a fare was paid, and then proceeded over 
 the platform, bridges and barges to the steamboats. The 
 ground floor, as well as the said pier and landing-places, 
 were in the exclusive occupation of the steamboat com- 
 pany : — 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 that the rate was therefore valid. 
 
 The ground floor of the building was rented of one 
 J. S. by the company, and formed part of a mill, the 
 residue of which was occupied by J. S. In the rate in 
 question, J. S. was assessed for " the mill and premises, 
 " exclusive of the steamboat pier :" — Held, that this meant 
 to exclude not the floating barges, but the ground floor 
 and landing-place occupied by the company ; and, there- 
 fore, the latter were not twice rated. 
 r^eg- V. This case was referred to in Reg. v. Morrison,^ which 
 
 Morriso7i. 
 
 1 22 L. J., M. C. 15 ; IE. & B. 150 ; 20 L. T., O. S. 190 ; 17 J. P. 
 24; cf. Castle, pp. 185, 186.
 
 RATES. 611 
 
 raised the question of the rateability of a floating dock. 
 There one M. occupied a building yard on the bank of a 
 tidal navigable river, owners of lands on the banks of 
 which paid an acknowledgment to the conservators. On 
 the river itself was a ship dock belonging to M., which 
 floated at high water, and grounded at low water, to 
 which his workmen passed by a plank resting on it, and 
 on the land of the yard, and which was fastened by a 
 staple to the dock. The dock was moored by chains to 
 the bed of the river and to the yard, 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 ; it was 
 held, that the floating dock could not be rated as accessory 
 to the yard — Lord Campbell, C. J., distinguishing the 
 case from Reg. v. Lcith, since there the pier was perma- 
 nently fixed to the landing-place. 
 
 A floating pier on the river Thames which rose and fell -^'V- v. 
 with the tide, and was kept in its place by an iron chain 
 attached to an iron post affixed to the stairs, which were 
 the landing-place, and by iron chain cables fastened to 
 anchors placed in the bed of the river, has been held 
 rateable to the poor rate.^ 
 
 The corporation of Oxford were the owners of the soil Grant v. 
 and bed of the river Isis. A boat club, comprised of Board. 
 members of the University of Oxford, were possessed of a 
 barge or house boat floating on the river and moored there 
 at a distance of about thirty feet from the bank by two 
 iron rings fixed to the barge, and passing loosely and 
 moveably round two solid fixed posts driven into the bed 
 of the river. These posts were of such a diameter as to 
 allow the barge to rise and fall with the water of the 
 river. Between the barge and the bank four other posts 
 were driven into the bed of the river ; and the club were 
 possessed of a moveable frame of boards laid on the top of 
 
 > jRcg. V. Forrest, 30 L. T., 0. S. 2S4 ; Forest v. Greenwich Church- 
 wardens, 8 E. & B. 890; 2 J. P. 130. 
 
 R R 2
 
 612 OF TOLLS AND RATES. 
 
 these four posts, but not fixed eitlier to tliem or the bank, 
 so as to form a gangway from the barge to the bank. 
 The posts had remained driven in the bed of the river, 
 without express licence of the corporation, for more than 
 twenty years, and no rent had ever been paid by the chib 
 in respect of any of the posts. The barge was used as a 
 means of access to boats, and as a dressing room : — Held, 
 that the club were not rateable as occupiers of the posts, 
 and of the barge attached to them.^ 
 Derrick In WcdkiHs V. AsscsHmcut Committee of the Gravesend 
 
 ,„ ','. and 3IUton Union,''' the question was raised of the rateability 
 
 // at/ans v. ^ ' ■■• _ "^ 
 
 Gravcu'iid. of the proprietors of a coal hulk built for the purpose of 
 being fastened to moorings, which the Thames Conserva- 
 tors undertook to fix in the bed of the river, in order that 
 she should be fixed thereto, the value of the land being 
 enhanced by the mooring and anchorage. The moorings 
 remained the property of the conservators, who made an 
 agreement with the appellants in the following terms : 
 " We, the conservators, grant liberty and licence to fasten, 
 " and henceforth to keep fastened, his coal, coal-hulk, or 
 " vessel called the Black Prince, to the moorings placed 
 " by the said conservators in the said river at Gravesend 
 " Reach, until either party shall have given to the other 
 " one calendar month's notice in writing to determine or 
 *' put an end to this licence. In consideration of which 
 " the said William Watkins agrees with the said conserva- 
 " tors to pay towards the expenses of the said conservators 
 " in placing, and maintaining, and rejDairing, the annual 
 " sum of 30/. lis." 
 
 It was held, that these words did not amount to a demise, 
 and that the appellant was not an occupier, but merely a 
 person having a licence to use the moorings.^ 
 
 The above case was commented on by Willes, J., in 
 
 1 Grant v. Oxford Local Board - 37 L. J., M. C. 73; L. R., 3 
 
 General District Rate, 38 L. J., M. Q. B. 350 ; 18 L. T. 601 ; 32 J. P. 
 
 C. 39 ; L. R., 4 Q. B. 9 ; 19 L. T. 294. 
 
 378. ^ See judgment of Blackburn, J,
 
 Il.lTES. 
 
 613 
 
 Coyy V. Churclitcardois of Grccmcich} The latter was a case 
 stated by a stipendiary magistrate under 20 8f 21 Vict. 
 c. 43. 
 
 The appellants were the owners of a coal derrick Cory v. Grcen- 
 riding afloat on the river Thames within the parish of 
 Greenwich, and retained at the spot where it floats by two 
 single fluke anchors on the side nearest the shore, by two 
 stones on the channel side, and by two stream anchors, 
 one at the head and the other at the stern. The anchors 
 and stones were merely dropped into the river, but, before 
 dropping the stones, a small quantity of the ballast was 
 removed in the bed of the river, so that the stones might 
 lie flat and securely. The stones were merely to serve 
 the piu-pose of anchors. The derrick was formerly at- 
 tached in another part of the river, and was moved thence 
 to its present position, bringing with it anchors and stones. 
 It had been anchored at the same place for some years, 
 but duly changed its position slightly with the ebb and 
 flow of the tide, and by agreement with the Conservators 
 of the Thames, in whom the soil of the bed of the river is 
 vested, and who have the management, and by whose 
 permission the derrick was moored where it was, it was 
 liable to be removed by them to another part of the river. 
 On the hearing of summonses against the appellants for 
 non-payment of rates, to which they had been rated in 
 respect of the moorings by which the derrick was attached 
 to the soil, the magistrate found as a fact that the ap- 
 pellants were occupiers of the soil in the bed of the river, 
 on which the moorings were placed. 
 
 It was held on appeal, however, that notwithstanding the 
 finding of the magistrate, there was no such occupation of 
 the soil of the river, upon the facts stated in the case, 
 by the appellants as to make them liable to be assessed 
 to the poor rate. 
 
 1 41 L. J., M. C. 142 ; L. K., 7 C. P. 499 ; 27 L. T. 150.
 
 614 OF TOLLS AND RATES. 
 
 Willes, J., said, " They no more occupy the bed of the 
 " river than does the anchor of any vessel at anchor there. 
 " It is an easement or privilege of navigation. Loitering 
 " on the way does not make the loiterer an occupier. . . . 
 " In TJie Queen v. Forrest,^ the landing could only be 
 " used at Grreenwich, and the pier was fixed to the shore, 
 " but in this case the derrick moved about the river ; so 
 " also there were in the above case fixed blocks on which 
 " one stage rested and occupied the ground when the tide 
 " was low. As to Watliins' case,- the moorings there were 
 " fixed and immovable, and part of the soil, and not of 
 '• the vessel ; and if the moorings in the present case were 
 " distinct from the vessel, and fixed to the soil, there 
 " might have been an occupation by them, but I will not 
 " follow out the reasoning of the Court of Queen's Bench 
 " to see whether or no the conservators would in such case 
 " be the occupiers." 
 
 Keating, J., said, " I think this case comes to nothing 
 
 " more than the floating barge anchored to the posts in 
 
 " the bed of the river, and that the case of Grant v. Local 
 
 " Board of District of Oxford^ binds us." 
 
 Rateability of The law, however, on this subject has recently been 
 
 t'he^Thames ^'^J stated in the case of Cory v. Bristoire,'^ the question in 
 
 Con/ V. the action being the liability of the plaintiffs to be rated 
 
 to the relief of the poor in respect of certain moorings in 
 
 the Thames. 
 
 Messrs. Cory, the appellants, who were the plaintiffs in 
 the action, by permission of the Thames Conservancy, 
 lowered stones and ballast into the bed of the river 
 Thames, so as to make permanent moorings, to which they 
 attached, by like permission, certain floating hulks, to bo 
 used for the loading and unloading of coal. The works 
 
 1 27 L. T., Rep., N. S., M. C. ■* 38 L. J., M. C. 39; S. C, L. 
 
 96. R., 4 Q. B. 9. 
 
 - TFatkinsv. Overseers of MiKon- * 2 App. C. 262; 46 L. J., M. 
 
 next-Gravesend, 37L. J.,M. C. 73; C. 273; 36 L. T. 594; 41 J. P. 
 
 .S'. C, L. R., 3 Q. B. 350. 709. 
 
 Brintoice.
 
 RATES. 615 
 
 were carried out under the superintendence of, and by 
 workmen employed by, the conservancy, but at the cost of 
 the plaintiffs, and the hulks were to be used subject to 
 regulations laid down by the conservancy. A rent was to 
 be jDaid by the plaintiffs to the conservators for the accom- 
 modation, and the moorings were to be removable at the 
 pleasure of the conservators on a week's notice : — Held, 
 affirming the judgment of the Court of Appeal, that the 
 plaintiffs were in the exclusive, permanent, and beneficial 
 occupation of the moorings, and rateable in respect of the 
 same. 
 
 The Lord Chancellor,^ after stating the facts of the case, 
 continued : " These being the facts as to the moorings, I 
 " will, in the first place, ask your lordships to observe how 
 " completely they differ from the other cases which have 
 " been pressed on us. In the case of Cory v. CJiiwch- 
 " 'Wardens of Greenwich ^^ a derrick was moored by means 
 " of two single-fluked anchors on the side nearest the 
 " shore, and by two stones on the channel side, and by 
 " two stream anchors, one at the head and the other at the 
 " stern. All these anchors and stones could be hauled 
 " on board the derrick by machinery, and were merely 
 " dropped into the river, and were in fact a part of the 
 " ordinary equipment of such a vessel. In this case, you 
 " have moorings which are fixed and embedded in the soil 
 *' of the river Thames, and if you find persons in beneficial 
 " occupation of such moorings, they are within the statutes 
 " which constitute rateability. 
 
 " Now who is in occupation of these moorings ? 
 " Undoubtedly the plaintiffs, and not the conservators, 
 " are in occupation of them. In Watkins v. The Assess- 
 " ment Committee of the Gravesend and Milton Union,^ 
 
 s. c, 
 
 1 46 L. J., M. C, p. 277. 
 
 3 43 L. J., M. C. 69 
 
 ^ L. E,., 7 C. P. 499; 44 L. J., 
 
 L. R., 9 Q. B. 180. 
 
 M. C. 153. 

 
 616 
 
 OF TOLLS AND RATES. 
 
 " there v/as a coal hulk which was moored iu the river 
 " Thames for the purpose of distributing coal by lighters ; 
 *' the hulk was moored near Grravesend ; there were two 
 " screw piles driven in by and belonging to the conserva- 
 " tors, who granted a licence to Watkins to use them. It 
 " does not appear it was an exclusive permission, and from 
 " the documents alone, it would appear that the conser- 
 " vators might have moored their own vessels to these 
 " piles. But assuming it was an exclusive permission, 
 " yet these moorings were the moorings of the conser- 
 " vators, and not of Watkins. And the Court held, and 
 " I assume rightly, that it was merely a permission, not 
 " an occupation. Whether or not, however, that case was 
 " correctly decided, it does not bear on the present case, — 
 " where moorings were laid down by and used exclusively 
 " by the plaintiffs, and where they, and no others, are the 
 " occupiers. 
 
 " But let us look at the nature of the occupation. It 
 " is clearly a beneficial occupation ; and, therefore, even 
 "if it were a wrongful occupation, it would, I think, be 
 " rateable. But this occupation arises in this way, — the 
 " conservators have by their Act transferred to them all 
 " the rights of the Crown in the soil of the bed of the 
 " river Thames, and are the guardians and protectors of 
 " the river for the purposes of navigation. They have 
 " extensive powers to grant licences to place moorings in 
 " the bed of the river, and were applied to by Messrs. Cory 
 '' for permission to lay down moorings for their derrick. 
 " Accordingly a resolution was passed that permission be 
 " given to Messrs. Cory to lay down moorings in a 
 " position therein specified, — the work to be done to 
 " the satisfaction of the commissioners, and under the 
 " inspection of the harbour master, and to remain on cer- 
 " tain specified conditions, — namely, amongst others, that 
 " the accommodation be assessed, and rent paid thereon, 
 " and with the full understanding on the part of Messrs.
 
 RATES. 617 
 
 " Coiy that if at any time thereafter it should be found 
 " by the conservators inexpedient to permit the moorings 
 " for the derrick hulks to remain in that or any other 
 " part of the river, the conservators might, under the 
 " powers vested in them by the 91st section of the Thames 
 " Conservancy Act, cause the same to be removed. Now 
 " I cannot look upon this resolution otherwise than as an 
 " exercise by the conservators of the powers of their Act. 
 " I therefore find fixed property, to the beneficial and 
 " permanent occupation of which the appellants and no 
 " one else can set up any claim, and this property arises 
 " out of a licence duly granted in exercise of parliamen- 
 " tary powers. On the whole, then, I am entirely satisfied 
 " with the unanimous judgment of the Court of Appeal, 
 " and more, that this appeal be dismissed with costs." 
 
 In determining the rateability of certain wharves, it Wharves, 
 was held in Reg. v. Doulais Iron Co.^ 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 Anchorage 
 rateable as connected with the use of the soil.- 
 
 " The occupier of a lighthouse is rateable in respect of Lighthouses 
 " the annual value of the lighthouse niachinery, &c., unless housetolls. 
 " the occupation is that of the Crown ; but the occupier is 
 " not rateable in respect of the tolls." ^ 
 
 In Rex\. Rehowe,'^ ih.Q facts disclosed were that King Rexy.Echowe. 
 Charles granted to Sir Isaac Rebowe liberty to erect 
 lighthouses in Harwich, and towards the maintenance 
 of them certain tolls and duties payable by all ships 
 passing or coming into that harbour; and that in pur- 
 suance of this authority two lighthouses were erected, 
 
 1 10 B. &"S. 208, n. * Cowp. 583; Cald. 155, 351; 
 
 - Req. V. Durham, Earl of , 28 L. *S'. C, Lofft, 77; Const. 142, pi. 
 J., M.'C. 232 ; 2 E. & E. 230 ; 1 177 ; Nolan's Poor Law, vol. i. p. 
 L. T. 30. 99. 
 
 ^ Castle's Law of Rating, p. 197.
 
 618 OF TOLLS AND RATES. 
 
 which Mr. Rebowe claimed under this grant and subse- 
 quent letters-patent. The duties he received annually 
 amounted to 1,400/., but only part thereof was received 
 at the port of Harwich — the rest at many different ports 
 in the kingdom. The collections were casual, as ships 
 pass by or come into the harbour ; and there was no other 
 advantage arising from the lighthouses. The defendant 
 occupied these lighthouses by two men kept in his pay to 
 light and attend the fire and lamps, who had a bed or beds 
 in the larger lighthouse to lie on alternately. Mr. Rebowe 
 did not reside in the parish, nor was otherwise an occupier 
 there than as above. He was rated for the lighthouse in 
 the same proportion to the land tax as to the poor rate. 
 The sessions were of opinion that he ought to be rated 
 and assessed towards the relief of the poor of St. Nicholas 
 parish, in respect of the said lighthouse and the duties 
 collected and paid as aforesaid. Lord Mansfield, 0. J., 
 said : " They have, properly speaking, rated the fire and 
 " the profits arising from the licence. The Pantheon play- 
 " house, and other places of public amusement, are rated, 
 " I suppose, but not for their profits. We will, however, 
 " consider of it ; but it seems to me, at present, that these 
 " duties are not rateable." Subsequently he observed : 
 *' We took some time to consider of the case of Mr. Rebowe, 
 " and we are all of opinion that he ought not be rated for 
 '' the tolls. This property is not in the parish. They 
 " have not rated the house, but they have rated the tolls. 
 " The tolls are not locally situated within the parish, and 
 " therefore not rateable here." ^ 
 Hex V. Ti'iic- In Hex V. Inhabitants of Tijnemoutl^- it was held that 
 the tolls of a lighthouse situated in the townshij) of Tyne- 
 mouth, which tolls were collected out of the township in 
 the several ports at which the vessels passing by the coast 
 afterwards arrived, are not rateable qua tolls in the town- 
 
 ^ Nolan's Poor Law, vol. i. j)- ' 12 East, 46. 
 
 90, &c. ; Bott's Appendix, p. 384.
 
 RATES. 619 
 
 ship. And the residence in such lighthouse by one as 
 servant to the owner, and at an annual salary, to take 
 care of the lights, is the occupation of the master, who 
 alone can be rated in respect of such occupation of the toll- 
 house. 
 
 " It is no question now," said Lord Ellenborough, C. J., 
 " whether this property could be rated in some other way, 
 " as if the lighthouse, whose light is the meritorious cause 
 " of earning the tolls, were in consequence let at a larger 
 " rent ; but this is a rate specially upon the tolls, and 
 " therefore the case is not distinguishable from Rex v. 
 " Rehowe,^ which is so immediately in specie, and in all 
 " its circumstances the same, that it concludes the ques- 
 " tion — What local property is there within the township ? 
 " The subject-matter of the rate has no locality within 
 " this township. As to the other point, it is equally clear 
 " that it is the occupation of the master by his servant, 
 *' and not the occupation of the servant himself; and 
 " therefore the rate on the servant is bad on that ground." 
 
 These decisions were confirmed in the case of Rex v. Rex v. CoJce. 
 Coke? 
 
 There a poor rate was imposed upon " a lighthouse, 
 " together with the duties and contribution money pay- 
 " able in respect of ships passing by the same ; " the 
 lighthouse was occupied by a servant of the owner, and 
 was situated in the parish, but the duties were collected 
 out of the parish ; it was held that these duties did not 
 constitute part of the annual profits of the house or land 
 where the light was placed, and were not rateable to the 
 poor.2 
 
 Holroyd, J., said, " This is a rate made not upon the 
 " lighthouse alone, but on the lightliouse together with 
 " the duties or contribution-money in respect of ships, 
 " hoys, and barques passing the same. I am of opinion 
 
 ' Cowp. 583 ; Cald. 155, 351 ; ^ ji^x v. Coke, 5 B. & C. 797. 
 
 6'. 6'., Lofft, 77.
 
 OF TOLLS AND RATES. 
 
 that the lighthouse is rateable for the sum at which it may 
 be valued, but that the tolls and duties are not rateable. 
 We cannot hold them to be rateable unless we overturn 
 the cases of Rex v. Heboice^ and Hex v. Ti/ncmouth{- and 
 the principles upon which these cases have been decided, 
 as well as others in which it has been held, that tolls, 
 although not rateable per nc, are rateable where they can 
 be considered as money paid for the use and occuj)ation 
 of the land. The case of Rex v. Reboive was very similar 
 to the present. There the king by letters-patent granted 
 to Sir Isaac Hebowe liberty to erect lighthouses at 
 Harwich, and towards the maintenance of them certain 
 duties and tolls were made payable by all ships passing 
 or coming into that harbour. That was a franchise 
 granted by the Crown ; it differs from many others 
 which are called so, but the privilege granted was a 
 franchise. The power to erect lighthouses originally be- 
 longed to the Lord High Admiral, and afterwards was 
 granted to the Trinity House. What is the toll payable 
 for ? Not for any benefit received within the parish, for 
 it is payable every time the ships pass the lighthouse, 
 whether any benefit be received or not by the ships, — 
 whether they pass by day when the lights are out, or 
 whether they pass in the night when the lights are bm-n- 
 ing. In Rex v. Reboice, the rate was made upon the 
 tolls and duties." His lordship here quoted Lord 
 Mansfield's judgment, noted above : " And after taking 
 time to consider. Lord Mansfield and all the judges were 
 of opinion that Mr. Eebowe ought not to be rated for 
 the tolls; he says, 'the property is not in the parish.' 
 By property he does not mean the lighthouse, but the 
 tolls, which did not arise from any benefit received in 
 the parish by the persons paying toll. He afterwards 
 says, ' The tolls are not locally situate in the parish, and 
 ' are not rateable there.' If they were to be considered 
 
 1 Const. 142, pi. 177; Cowp.oSS; 
 Nolan's Poor Law, vol. i. p. 99. 
 
 = 12 East, 46.
 
 Ferries. 
 
 RATES. 621 
 
 " as part of the money for which the lighthouse might be 
 " rated, they might have been rated under the denomina- 
 " tion of tolls. At a considerable interval of time after 
 " the decision of that case, came the case of Bex v. T//)ic- 
 
 " mouth Now in this case the profits of the 
 
 " lighthouse arise from the tolls which are rated under the 
 " name of duties and contributions. I think, according to 
 " these two cases, we must decide that the tolls, not being 
 " received, and having no locality within the parish of 
 " Lydd, are not rateable." 
 
 It has been shown above, that where the bed of a river Rivers and 
 is in permanent and beneficial occupation by means of 
 moorings, &c., the owners thereof are liable to be rated in 
 the parish in which the land so occupied is situated.^ The 
 question in all the decisions there considered was, — What 
 can be said to constitute a permanent beneficial occupa- 
 tion ? A similar principle applies where rivers have been 
 entrusted by Acts of Parliament to companies or trustees 
 for the purposes of improving the navigation. In such 
 cases, unless the incorporating Act actually vests the soil 
 in them, the proprietors have been held not rateable.^ 
 
 The rateability of ferries requires to be fully noticed, 
 since it was with reference to ferry tolls that the principle 
 that tolls detached altogether from local real property are 
 not rateable jkt se^ was first laid down. 
 
 In the important case of Rex v. NicJiohon,^ which has 
 been already referred to, it was held, that 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 
 
 1 C'ori/ V. Bristowe, see a)ite, p. Calder Navigation, 9 B. & C. 820 ; 
 
 QiUetseq. 3 B. & Ad. 139; Bruce v. Willis, 
 
 ' RexY. Mersey and Irwell Kavi- 11 A. & E. 463; 9 L. J., M. C. 
 
 gatioti, 9 B. & C. 95 ; Rex v. Thomas, 43. 
 
 9 B. & C. 114 ; Rex v. Aire and ^ Rex v. Nicholson, 12 East, 330.
 
 622 OF TOLLS AND RATES. 
 
 is mentioned in the statute 43 Eliz. c. 2, the occupancy of 
 which subjects the party to the relief of the poor of the 
 place. And all the cases where the parties have been 
 held rateable in respect of the occupancy or receipt of 
 tolls (apart from the question of inhabitancy) have been, 
 where they at the same time occupied real visible pro- 
 perty connected with such tolls in the place where they 
 were rated. 
 
 So, too, in a case^ decided on the same authority, it was 
 held, that t/ie owner of a ferry residing in a different parish, 
 but taking the profits of the ferry on the spot by his 
 servants and agents, is 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. 
 •^'■'' ^'- In delivering judgment in Re.v v. NicJiohon,^ Lord 
 
 Ellenborough, C. J., said : — " There was a case of 
 " WiUiams v. Jones,^ argued in the last term, which, in 
 " principle, is the same as the present, and will be 
 •' governed by it, unless the Court should hereafter see 
 " any special ground on which to distinguish it. The 
 " rate is here imposed on the tol/s merely of the ferry, and 
 " the question is — Whether the proprietor of the ferry, 
 " who is not an inhabitant of the township in which he is 
 " rated, be liable to be rated for such tolls received by 
 " him there ? And this being a question upon the 
 " construction of the statute 43 I!Iiz. c. 2, it is material to 
 " look to the words of it. By that statute, the parish 
 " officers, by consent of two justices of peace, are directed 
 " to raise a competent sum for the relief of the poor, by 
 " taxation of ' every inhahitant, parson, vicar, and others ; 
 " ' and of every occupier of lands, houses, tithes impro- 
 
 1 WiUiama v. Jones, 12 East, ^ 12 East, 341 et seq. 
 
 346. 3 12 East, 334.
 
 RATES. 
 
 623 
 
 " ' priate, propriations of tithes, coal mines, or saleable 
 " ' vmderwoods in the said parish.' Now tolls do not 
 " come within any one specification of occupancy de- 
 " scribed by the statute ; they are not lands nor houses, 
 " &c. If, therefore, the owner be taxable for them at all, 
 " it must be as an mhahitant of the parish out of which 
 " they arise ; but there is no case in which the word 
 " iii/iabitai/t in that statute has been held to mean any 
 " other than a resident within the parish. In the cases 
 " which have occurred of rating in respect of personal 
 " property, such as T/ie King v. Liverpool, and T//c King 
 " V. Collison, mentioned in The King v. Jo)ies,'^ residence 
 " was considered necessary to constitute inhabitancy. 
 " But we are reminded of cases where tolls arising from 
 " navigable canals, to which the tolls of a ferry are 
 " assimilated, have been held rateable, without any refer- 
 " ence to the question of inhabitancy ; and the WickJtani 
 " case is much relied on — where a corporation was held 
 " rateable for market tolls ; but they were the lords of the 
 " soil where the market was held in respect of which they 
 " were rated for the tolls. In the case of The King v. 
 " Cardington,^ 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 to be rateable, when they are 
 " examined, will be found to have proceeded on that 
 " ground. It was so in the case of The Staffordshire and 
 " Worcestershire Canal? The company were there rated 
 " for ' their basins, towing paths, and that part of their 
 " ' canal and the locks lying within Lower Mitton ; and 
 " ' for the tolls and duties arising therefrom due at Loicer 
 " ' Mitton.'' There could be no doubt that the basins, 
 " towing j^aths, canal, and lochs were local visible property 
 " there, and the tolls and duties arising therefrom, classed 
 " and connected as they are with the local visible property 
 
 J 8 East, 451—457. ^ s T. R. 340. 
 
 - Covvp. 581.
 
 624 
 
 OF TOLLS AND HATES. 
 
 Beg. V. North 
 and South 
 Shields Ferry 
 Co. 
 
 " rated, were considered as resulting from tliat local and 
 " visible property. In all these cases, the tolls have 
 " arisen from the use of the canal, w^hich is local and 
 " visible, being part of the land itself, lying within the 
 " parish where the tolls have been rated. But there is no 
 " case where tolls, detached altogether from local real 
 " property, have been held to be rateable per se. When, 
 " therefore, we are called upon to decide such a question 
 " for the first time, I am always disposed to go to the 
 " fountain head, which is the Act of the 43 JElh.; and 
 " looking at the words of that Act, I do not find any of 
 *' them which extend to rate any person not being an 
 " inhabitant of the place, nor the occupier of any of the 
 " specific kinds of property mentioned in the Act. And 
 " not finding any description in the statute which applies 
 " to the case of this appellant, I cannot hold him to be 
 " rateable for these tolls." 
 
 In Heg. v. North and South Shiehts Ferry Coinpconj,^ a 
 company was authorized ^ to maintain a ferry by boats 
 between North and South Shields, across the Tyne ; and 
 to erect ferry houses, landing-places, &c. on either side. 
 The boats passed from one to the other across the river ; 
 and no tolls could have been earned without the use of the 
 landing-places, nor for such use without the transit. The 
 company 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, 
 however, that the tolls could not be rated directly as 
 being connected with real property occupied in the town- 
 ship, and thus ceasing to be incorporeal, or indii^ectly as 
 profits of land ; but that the land, on the other hand, 
 should not be taken at its value as land merely, but should 
 be rated on an estimate of the rent which might be ob- 
 tainable for it from its being available for earning tolls. 
 
 It was further held that the rateable value could not be 
 
 1 1 E. & B. 140; 22 L. J., M. 
 C. 9 ; 7 Rail. Cas. 849 ; 20 L. T., 
 
 0. S. 89; 17 J. P. 21. 
 2 By 10 Geo. IV. c. 98.
 
 RATES. 625 
 
 ascertained by dividing the profits in proportion of the 
 land occupied in the two townships, and the length of 
 transit.^ 
 
 The right of fishery was not formerly rateable at Fisheries. 
 common law, unless connected with the use of the land ; ^ 
 but now, by 37 ^ 38 Vicf. c. 54,^ .<?. 6, it is enacted as 
 follows : — 
 
 1. Where any right of fowling, or of shooting, or of 
 taking or killing game or rabbits, or oi fislting (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 increased 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 applica- 
 tion 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 
 occupation of the land, is let, either the owner or the lessee 
 
 ' Cf. as to fenies, Castle, pp. " over a road, and a tram-way car 
 
 193 — 197. Mr. Castle remarks " that travels along the rails laid 
 
 that "in all these cases of ferries, " down for that particular pur- 
 
 " the passengers, &c. appear to "pose; if this be so, the question 
 
 ' ' have been earned in boats ' ' of the rateability of a ferry so 
 
 " worked by wind or steam, or by " worked would probably be de- 
 
 " hand freely over the surface of " cided upon the same principle as 
 
 " the water. The cases where the " the tramway cases : " page 196. 
 
 "ferry is worked by means of ^ See Castle, p. 167; -Bf.;; v. i'//Js, 
 
 " ropes or chains lying on the bed 1 M. & S. 652. 
 
 ' ' of the river, do not seem to have ^ An Act to amend the law re- 
 
 " been brought before the Court. specting the liability and valua- 
 
 " The distinction between the two tion of certain property for the 
 
 " seems to be similar to that be- purposes of rates. See Castle, pp. 
 
 " tween a carriage driving freely 328, 329. 
 
 C. S S
 
 626 
 
 OF TOLLS AND RATES. 
 
 thereof, according as the persons making the rate deter- 
 mine, 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 
 occupation 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 
 rio-ht. 
 
 Exemption of 
 in certain 
 
 Canals. Certain Canal Acts, passed at the time when such under- 
 
 takings 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 undertaking generally, by enacting 
 " that such lands are to be rated as other lands in the 
 " parish."^ 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 
 natui'al capacity. 
 Value of ad- With regard to the question of the value of "the other 
 iow'ffr Ke " ^^^^^^ ^y'^^S round," it was decided in Rex v. Monmouth- 
 considered. shire Canal Co.,^ that the canal was to be rated at the 
 value which the adjacent lands bore at the time of the 
 rate, and not at theu' value at the commencement of the 
 undertaking, nor at that which they would have borne at 
 the time if the canal had not been made, and their value 
 thus considerably increased. 
 
 1 Castle, p. 150; Bex v. St. Peter 
 the Great, 5 B. & C. 473 ; The King 
 V. RegenVs Canal, 6 B. & C. 720; 
 Jtex V. Chehner and BlacJcivater Na- 
 vigation, 2 B. & Aid. 14 ; Bex v. 
 
 Grand Junction Canal, 1 B. & Aid. 
 289. 
 
 - lb. ; Castle, p. 154. 
 
 3 3 A. & E. 619.
 
 RATES. 627 
 
 It appears, however, to be a moot point wliether, in 
 ascertaining the value of adjoining lands, where such land 
 has been covered for the most part with buildings, the 
 value of uncovered land should be taken, or whether the 
 average value of the whole of the adjacent lands was to be 
 the true criterion.^ It has been held on the one hand by 
 Lord Ellenborough in Rex v. Grand Junction Canal^ and 
 Lord Campbell and Erie, J., in Reg. v. Grand Junction 
 Canal^ that the land should be rated as other lands would 
 be, supposing them not to be applied to the purposes of 
 the canal, but to have remained in the hands of individual 
 farmers for ordinary agricultural purposes ; and on the 
 other by Cockburn, C. J., in Reg. v. Gtaniorgansliire Canal, "^ 
 it was laid down that the true criterion is what a tenant 
 from year to year would give for the adjoining land 
 increased in value by buildings, together with the adjoin- 
 ing lands of other descriptions, the different lands being 
 brought into hotchpot, so that the canal would be rated 
 according to the aggregate value of the adjoining lands at 
 the time the rate was made.'^ 
 
 Mr. Castle, however, points out,*" that in the cases of GrandJunc- 
 Grand Junction Canal Co. v. Hemel Hempstead., and Grand Bandmm'))- 
 Juuction Canal Co. v. Kingh Langleij^ the Court of ^^'^"'^' 
 Queen's Bench " followed the opinion of Lord Campbell .^'"'^"f "^"f ''' 
 
 '- i tion Canal v. 
 
 " rather than of Cockburn, C. J." There the company, Kind's 
 according to the provisions of 24 Geo. III. c. 24, s. 19, ""^ ^'^' 
 were to be rated to all taxes in respect of lands and 
 grounds purchased or to be purchased, and all warehouses, 
 or other buildings in the same proportion as other lands and 
 buildings adjoining, &c. Land was purchased, a canal with 
 towing paths, lock houses, &c., made, and subsequently a 
 railway was made adjoining. It was held, that the lands 
 occupied by the canal was to be rated in the same propor- 
 
 ^ Castle, p. 155. ^ See Castle, pp. 152 — 159. 
 
 2 1 B. & Aid. 289. « Page 159. 
 
 3 7 W. R. 597. ' L. R., 6 Q. B. 173 ; 40 L. J., 
 * 3E. &E. 186; 29L. J.,M. C. M. C. 25 ; 24 L. T. 228. 
 
 238. 
 
 s s 2
 
 b20 OF TOLLS AND RATES. 
 
 tion as open land near, tlie value of which might be 
 increased by circumstances, and the buildings of the com- 
 pany as the buildings lying near. It was further decided, 
 that the land occupied by the canal lying near the railway 
 was not to be rated as land improved in value by the 
 railway ; and that the rateable value of the canal was not 
 affected by the company carrying on the business of 
 carriers : — Mellor, J., remarked : "It is true that Cock- 
 " biirn,C. J.,ini?^//.v. Glamorganshire Cana/,^&eem.s to have 
 " disapproved of the decision of Lord Campbell, C. J., and 
 " Erie, J., in Bcff. v. Grand Junction Canal ;- but I think 
 " that there is a distinction between the two cases. I do 
 " not think that Lord Campbell, C. J., and Erie, J., in- 
 " tended to say that the land occupied by the canal was 
 " always to be rated at the value of purely agricultural 
 " land, which Cockbum, C. J., in Ecg. v. Glamorganshire 
 " Canal, appears to have thought they intended, but at the 
 " increased value of surrounding land as determined from 
 " time to time by circumstances. If the land lying near 
 " becomes of more value by a new mode of cultivation 
 " being adopted, or by a different use being made of it, as 
 " being used as a market garden, or by buildings being 
 " erected in the neighbourhood, then the rateable value of 
 " the canal will be determined by the increased rateable 
 " value of the land lying near." 
 
 The principle laid down in the decisions of Grand 
 Junction Canal Co. v. Hemel Ucmpdcad^ and Reg. v. 
 Glamorganshire Canal Co.^ was followed in the late case of 
 Regenfs Canal Co. v. St. Pancras Assessment Committee.^ 
 EegenVs Canal There the Canal Company's Act provided that the lands 
 of the company, whether covered with water or not, 
 and also all dwelling-houses, wharves, warehouses, lock- 
 houses, and other houses of the company, should be 
 rateable — the lands according to their quantity and 
 
 1 3 E. & E. 186 ; 29 L. J., M. C. * 3 E. & E. 18G ; 29 L. J.,M. C. 
 238; 2 L. T. 604. 238. 
 
 2 7 W. R. 597. 5 3 Q. B. Diy. 73, 
 
 3 L. R.,6 Q. B. 173.
 
 RATES. 
 
 629 
 
 quality, and the dwelling-houses, &c., according to the 
 nature and respective uses, dimensions, and descriptions 
 thereof ; and should be charged and assessed in like 
 manner as lands of a like quality, and dwelling-houses, 
 &c., of a like and similar size, nature, dimension or 
 description in the respective parishes where the same 
 should be situate, were, or should be, assessed or charged. 
 The lands adjoining the canal were all built upon, and 
 the assessment committee sought to assess the canal and 
 towing path on the following principle. They assumed 
 the area occupied thereby to be covered by buildings 
 similar in rateable value to the buildings adjoining the 
 canal, allowing for necessary roads, access, &c., and then 
 took a proportionate part of such rateable value as repre- 
 senting the rateable value of the lands so covered as distin- 
 guished from the buildings : — Held, that the canal ought 
 to be rated in like manner as land of the like quality in 
 the parish uncovered with buildings, the value of which 
 might be increased from time to time by circumstances, 
 and that the mode of assessment proposed by the assess- 
 ment committee was therefore incorrect. 
 
 It was formerly held, that canal tolls were rateable per Canal tolls 
 se, and not as part of the profits arising from the occupa- gjuaiiy held 
 tion of the soil, and, therefore, were rateable in the parish rateable 
 where they became due, that is, where the voyage ter- 
 minated.^ 
 
 This rule was slightly modified by the decision in the 
 case of Rex v. Leeds and Liverpool CanaJ,- where goods 
 were carried along two different lines of canal, one of 
 which was exempted by statute from being rated in 
 respect of tolls, and the other not, and the voyage might 
 happen to end in the unexempted line where the tolls 
 became due. The Court, though agreeing with the prin- 
 
 ^ Rex V. Cardlnrjton, 12 Cowp. x. Leeds and Liverpool Canal, o 'East, 
 
 581 ; Rex v. Page, 4 T. E. 543 ; 1 325 ; of. Woolrych, Law of Water, 
 
 Nolan's Poor, p. 107, 'S'. C. ; Rex v. p. 329 ; Castle, Law of Rating, pp. 
 
 Aire and Calder Navigation, 2 T. E. 205 et seq., 394 ct seq. 
 660 ; Rex v. Staffordshire and Tf'or- ~ 5 East, 326. 
 
 cestershire Canal, 8 T. E. 340; Rex
 
 630 
 
 OF TOLLS AND RATES. 
 
 but now arc 
 not so rate- 
 able since. 
 
 Hex V. 
 
 Nicholson. 
 
 ciple that the toll only becomes due where the voyage ends, 
 and can only be taxable there, if at all,^ held, that the 
 canal company should not be rated for more than such 
 proportion as accrued for carriage along the unexempted 
 part — /. c, for so much per ton per mile as the goods were 
 carried along the unexempted part ; and that as the Act 
 directed tolls to be exempt from taxes other than such as 
 the land used for the navigation would be subject to, that 
 goes to exempt the tolls quel tolls altogether from being 
 rated, leaving the land as before. 
 
 The case, however, of Rex v. NicJiolson,^ above men- 
 tioned, where it was decided that tolls detached altogether 
 from local real property are not rateable per se, caused a 
 complete reversal of the former principles on the subject, 
 as will be seen by the consideration of Iie.r v. Milton,^ and 
 Rex V. Palmer,^ where the decisions were carefully re- 
 viewed. 
 EexY.Miiion. In The King v. Milton," certain tonnage dues were 
 payable in respect of goods carried along a line of river 
 navigation, extending through several parishes, which were 
 landed at a wharf locally situate within the parish of B. ; 
 and 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 considered 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 there- 
 fore be supported. 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. 
 
 Bayley, J., in his judgment,*' reviewed all the decisions 
 on the rateability of tolls : " Since the case of The King 
 " V. Nicholson, the Court have held themselves bound to 
 
 ' See judjyment of Lord Ellen- 
 boroug-b, 5 East, 330. 
 
 - 12 East, 330 ; see ante, p. 622. 
 
 3 3B. & Aid. 112. 
 
 4 I B. & 0. 546 ; cf . Bex v. CaJdcr 
 
 and ITchhle Navigation, 1 B. & Ad. 
 263. 
 
 5 3B. &Ald. 112. 
 
 e Paa-e 116.
 
 RATES. 631 
 
 " see clearly that the property rated comes within the 
 " words of the 43 EUz., by which the rate is directed to 
 " be ' by taxation of every inhabitant, passenger, vicar, 
 " ' and other, and of every occupier of lands, houses, 
 " ' tithes impropriate, propriations of tithes, coal mines, 
 " ' or saleable underwoods in the parish.' Now the party 
 " here, not being an inhabitant, must be brought within 
 " some of the other words, and the only other words ap- 
 " plicable to this case are ' occupier of land.' Now in 
 " The King v. Tynemouth, it was decided that the tolls of 
 " a lighthouse, situate in the parish of Tynemouth, but 
 " collected in the several ports at which the vessel, passing 
 " along the coast, afterwards arrived, were not rateable 
 " qua tolls in the township, and the rate was held to be 
 " bad. In The King v. Nicholson the party was rated for 
 " the tolls of a ferry ; he was not an inhabitant, nor did 
 " he occupy any lands or tenements, for he was not 
 " entitled to the land on either side of the river over 
 " which the ferry extended. The Court then considered 
 " the cases of The King v. Cardingfon,'^ and The King v. 
 " Aire and Calder Navigation? The former case does not 
 " fall within the principle laid down in The King v. 
 " Nicholson; it was a rate for toll of a sluice, and the 
 " party was the occupier of the sluice within the parish in 
 " which the rate was imposed. The sluice being landed 
 " property, the party was properly rated for the tolls 
 " yielded by the sluice within the parish. The cases of 
 " Rex V. Aire and Calder Navigation and Rex v. Page"^ 
 " certainly do not admit of that distinction. Those de- 
 " cisions, however, were expressly overruled by this Court 
 " in the case to which I have alluded. In Rex v. Stafford- 
 " shire Canal ^^ the company were rated for their basin and 
 " towing-paths, and that part of their canal and locks 
 " lying within Lower Mitton, and for the tolls and duties 
 " arising therefrom due at Lower Mitton ; so that it 
 
 > Cowp. p. 581. 3 4 T. R. .513. 
 
 2 2 T. R. 560. ^ 8 T. R. 340.
 
 632 
 
 OF TOLLS AND RATES. 
 
 appeared on the rate itself that, though it was nomi- 
 nally a rate upon tolls, yet it was on such tolls as 
 arose from rateable property within the parish. In 
 The King v. Sir Archibald MacdonakI, the rate was for 
 the Rochdale Canal Lock Tunnel dues or rates. Now 
 if those dues or rates had arisen from property j)artly 
 within the parish and partly without, it would have 
 been like the present case. The only dues which the 
 party was entitled to receive in that case were dues in 
 respect of vessels passing through the lock, tchich lock 
 lay within the jxirish ; and, therefore, all the tolls and 
 dues there arose from what may be called parish pro- 
 perty. The rate in this case is for tonnage dues, and it 
 would be a good rate, provided it could be shown that 
 the tonnage arose wholly from the use of rateable pro- 
 perty within the parish. It is stated, however, that the 
 canal passes through several parishes. The tolls, there- 
 fore, which are collected for goods landed at the wharf 
 in the j)arish of Beng worth, are payable to the pro- 
 prietor as a compensation for the use of the whole line 
 of the canal through which the goods pass, and not 
 merely for the use of that part of the canal which lies 
 "uithin the parish of Bengworth. It is a rate, therefore, 
 upon profits arising partly within and partly without the 
 parish, and, upon that ground, I think that the rate cannot 
 be supported ; and if it cannot, the case of Hex v. The Mayor 
 of Batli'^ is an authority to show that the rate must be 
 quashed. In that case the rate was upon certain springs 
 and reservoirs ; and the question was, whether the springs 
 and reservoir's were rateable property, and the Court 
 decided that they were ; but the whole of the rate 
 having been imposed on one parish, the Court were of 
 opinion that it ought to have been imposed on different 
 parishes, and that the parish in which the reservoir was 
 situate ought to have been assessed for the value of that, 
 and that the parishes through which the pipes con- 
 1 11 East, 609.
 
 KATES. 633 
 
 " veying the water passed ought to have been assessed for 
 " the value of the profits arising therefrom. It seems to 
 " me, therefore, that this rate having been imposed on 
 " property partly within and partly without the parish, is 
 " bad, and that it is not a mere objection to the quantum 
 " of the rate." 
 
 This decision was confirmed by that of Her v. Pcduicr,^ Hex v. Vcdmcr. 
 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 pui-poses of the 
 navigation ; and, therefore, that where the proprietors of 
 such a navigation, which extended through different 
 parishes, were rated in one for the entire amount of their 
 tolls, the Court of King's Bench held that the rate could 
 not be supported. 
 
 The principles here laid down now appear to apply 
 equally to cases where the pajinents are made irrespective 
 of distance.- 
 
 In Ecx V. Card'uKjton^ mentioned above, the grantee of Lock dues, 
 the riffht of navigation of the river Ouse between Erith ^^^1' 
 
 -rTo ,,, ,, ., ., Cardington. 
 
 and Bedford, was held rateable to the poor m 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,'^ Lord EUenborough 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 
 
 ^ 1 B. & C. 546. . B. & C. 113 ; Reg. v. Kingsivlnfovd, 
 
 2 See Castle, Law of Rating', 7 B. & C. 236. 
 p. 399 ; Hex v. Oxford Canal, 4 B. ^2 Cowp. 581. 
 
 & C. 74 ; Rex v. Oxford Canal, 10 * 12 East, 341.
 
 634 
 
 OF TOLLS AND RATES. 
 
 Rex V. Mac- 
 donald. 
 
 Eex V. Loiccr 
 Mitton. 
 
 Trade profits. 
 
 " to be locally rateable." ^ In Rex v. Macdoxald,^ this 
 question came under consideration. 
 
 Where an Act of Parliament empowered the Duke of 
 Bridgewater to erect a lock upon the Eochdale Canal, and 
 to receive at such lock certain rates or tolls upon goods in 
 vessels navigated from that canal into his own, as a com- 
 pensation for the profits arising to him from certain wharfs 
 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 " Hochdale canal, lock, 
 *' tunnel dues or rates" (which rates or dues are 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,^ 
 where lock dues were expressly held locally rateable. 
 
 There a canal company were empowered by their Act to 
 take lock dues at tivo of their locks in lieu of making a 
 mileage charge, as they were entitled to, of l\^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," says Mr. Castle,^ "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 theu' 
 duties as carriers. In Rex v. Trustees of Dulic of Bridge- 
 
 1 See Castle, p. 400 ct scq., 479. 
 
 2 12 East, 324. 
 
 3'9B. & C. 810; 4M. &R. 711. 
 
 * Page 227. He points out that 
 
 canals differ from railways on this 
 
 point, in that the latter hare a 
 monopolj of canying traffic, while 
 the former have to compete with 
 the public. 
 5 lb. 230.
 
 RATES. 635 
 
 Kate)'^ 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 con- 
 " sidered. The profits of carrying goods are the profits of 
 " their trade. The tonnage is the profit of the land occu- 
 " pied by them. The other sums received by them con- 
 " stitute 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,- on the other hand, it 
 has been held by Lord Campbell, C, J., in Reg. v. Coventrij 
 Caned;" that the expenses of maintaining locks do not 
 come under the head of local expenses. 
 
 " Where there is a profitable occupation of a public Water com- 
 " highway by private persons or companies, the occupiers P^^^^*^ 
 " are rateable, though 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 occu- rateable for 
 pied by their pipes, mains,' and reservoirs;^ and the Metro- by thTir^^^^ 
 politan Board of Works were held rateable for their ^orks, &c. 
 engine-houses, pumping stations, and wharfs, though not 
 for their sewers, which are not the subject of beneficial 
 occupation.' 
 
 1 9 B. & C. 68; 7 L. J., 0. S., ' Athins v. Davis, Cald. 325; 
 
 M. C. 81. Rex V. Bath, 14 East, 609 ; Rex v. 
 
 ' 10 B. & C. 113; 5 M.'& R. Chelsea Waterworks, 5 B. & Aid. 
 
 100. 156; 2 L. J., M. C. 98; Rex v. 
 
 3 IE. &E. 572; 2SL. J.,M. C. Rochdale IVatericorks, 1 M. & S. 
 102. In contradiction apparently 634; Rer/.y. West Middlesex Water- 
 to Rex V. Lower Mitiou, 9 B. & C. works, 1 E. & E. 716 ; 20 L. J., M. 
 68; andiJcr Y.Macdonald, \2'E?is.t, C. 135. 
 
 324; cf. on the subject, Castle, pp. ^ Rex v. Bath, 14 East, 609. 
 
 478—481. ' L. R., 4 Q. B. 15; 9 B. & S. 
 
 * Castle, p. 176. 937 ; 38 L. J., M. 0. 24.
 
 636 OF TOLLS AND RATES. 
 
 In Taho-yofh MiniiKj Co. v. *SY. Asaph Unio)i,^ where the 
 owners of a lead mine diverted a stream from its natural 
 course into an artificial watercourse passing to the machi- 
 nery 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 rate- 
 able in respect of the occupation of the watercourse at the 
 full value of the land enhanced by its capacity for carry- 
 ing water, and that the stream was not exempt by its 
 connection with a lead mine, which is not rateable under 
 43 mz. c. 2. 
 Value of laud Land, the value of which is enhanced by a spring, has 
 a°sra-in? ^ heen held rateable to the poor at such improved value, 
 although the New Eiver Company, the owners and occu- 
 piers 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.^ Bayley, 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 the land. 
 " The company have the means of carrying this produce 
 " to market, where it affords a beneficial return." 
 Hex V. Da til. The decision of Bex v. JBafh ^ is instructive as to the 
 question of rateability where reservoirs and other appa- 
 ratus for conveying water are outside a parish. 
 
 The statute 6 Geo. III. c. 70, for better supplying the 
 inhabitants of Bath with water, reciting that there were 
 springs of water in the neighboiu-hood belonging to the cor- 
 poration, enacts that they shall Jiave power and authority 
 to cause the water to be conveyed from such springs to the 
 
 ^ L. R., 3 Q. B. 478; B. & S. Company t. St. Asaph Union, L. 
 
 210 ; 37 L. J., M. C. 149 ; cf. Hex E., 3 Q. B. 478 ; and Jie//. v. Jifc- 
 
 V. Bilston, 5 B. & C. 851, Avhcre iropolltan Board of Worls, L. R., 3 
 
 the owner and occupier of an iron- Q. B. 15 ; see Castle, p. 437. 
 
 stone mine, who erected an engine ^ Rex v. l>!'ew Hirer Co., 1 M. & 
 
 for the purpose of drawing the S. 503. Cf. Bex v. Miller, 3 
 
 water from the mine, using it for Cowp. 619, where the spring was 
 
 no other purpose, was held not a mineral spring consumed on the 
 
 rateable for the engine. ground, and not convej^ed to a 
 
 This decision seems to be much distance, 
 
 questioned; see Talarrjoch Mininff ^ 14 East, 609.
 
 RATES. 637 
 
 city, and gives tliem authority to enter upon and break 
 up the soil of any pubhc highway or waste, and the soil 
 of any private grounds within two miles of the city, and 
 the soil or pavement of any street within the city, in order 
 to drain and collect the water of the said springs, and to 
 make reservoirs, fresh conduits, waterhouses, and engines 
 necessary for keeping and for distributing the water, &c., 
 and to lay underground aqueducts and pipes for the same 
 purpose ; and it vests the right and property of all these 
 in the corporation : — Held, that in addition to the springs, 
 the corporation was liable to be rated for the reservoirs 
 made by them in the parishes of Lydcomb and Widcomb 
 under the Act, as for land occupied by them, which reser- 
 voirs, by means of aqueducts and pipes laid underground, 
 partly in the same parish and through the parish of 
 St. James into the parish of St. Peter and St. Paul in 
 Bath for the supply of the city, produced to the corpora- 
 tion a clear annual profit of 600/. But that the corporation 
 were not rateable for the whole of the entire profit 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 ; and, therefore, a 
 rate upon the entire profits arising out of all the parishes, 
 made on the corporation in the first-mentioned parish, was 
 held bad.^ 
 
 The above case, it will be seen, raises the consideration Where works 
 of the mode of rating a whole system of waterworks ^^*Q°f:u 
 extending through several parishes. This point has now several 
 been satisfactorily settled by the decision in Reg. v. Mile ^'^"'^ 
 End Old Town? 
 
 In that case, the works of a water company extended Reg. x. Mile 
 into several parishes, and consisted of two portions, one of " °"'"' 
 
 which, being the service pipes which delivered the water 
 
 1 Hex V. Bath, 14 East, 609. - 10 Q. B. 208 ; 16 L. J., M. C.184.
 
 638 OF TOLLS AND RATES. 
 
 to the consumer, was directly productive of profit ; and 
 the other, consisting of reservoirs, buildings, &c., in- 
 directly conduced to such production. In some parishes 
 the company had no works, but service pipes. The rate- 
 able value (for the pui'poses of poor rate) of the entire 
 works was 30,800/. The rateable value of the reservoirs, 
 buildings, &c., valued as land and buildings, deriving 
 additional value from their capacity of being applied to 
 the objects of a water company, was 6,500/. It was held 
 that the rateable value ought to be apportioned as follows 
 among the several parishes : — The rateable value of the 
 reservoirs, buildings, &c., valued as above, 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 the residue of the rateable value to be appor- 
 tioned among the parishes containing the service pipes, in 
 the ratio of the net profits produced in each of those 
 parishes. 
 
 Lord Denman, C. J., in delivering judgment,^ pointed 
 out that an analogous course had been adopted for rail- 
 ways,^ and for gas companies ; ^ and that in Rex v. The 
 New River Compcuuj,^ the spring which indirectly con- 
 duced to the ultimate profit, by water rate, was held rate- 
 able in the parish where it was situate ; the quantum of 
 such rate being left for the sessions. He also stated that 
 an apportionment, according to the gross receipts, is in 
 accordance with the decisions which have apportioned the 
 sum of rateable value from a railway or canal, according 
 to the length of the line in each parish.^ " Where the 
 " profit arises," said his lordship,*^ " from transit, the line 
 " of the canal or railway is directly productive of the 
 " profit, and the reservoirs, warehouses, stations, &c. 
 
 1 10 Q. B. 218. Co., 8 A. & E. 73. 
 
 2 Beg. V. London and South * 1 M. & S. 503. 
 
 Western Rail. Co., 1 Q. B. 558 ; ^ Rex v. King sw in ford, 7 B. & 
 
 Reg. V. Grand Junction Railway, 4 C. 236 ; Rex v. Woking, 4 A. & E. 
 
 Q. B. 18. 40. 
 
 3 Reg. v. Cambridge Gas Light <= 10 Q. B. 221.
 
 RATES. 639 
 
 " indirectly conduce to such, production. Eacli portion of 
 " tlie line earns an aliquot portion of the profit ; and, if 
 " the equal portions of one line carrying at one rate could 
 " be conceived to be let separately, no one portion would be 
 " let at a higher rate than the other ; and an apportion- 
 " ment of a sum of rateable value, according to the length 
 " of line in each parish, is according to the rent to be 
 " expected for that part of the line. In the case of water 
 " companies, where the profit arises from the delivery of 
 " the water at a given place, the previous transit being 
 " immaterial to the consumer, the service pipes imme- 
 " diately produce the profit, and the agency by which the 
 " water reaches those pipes indirectly conduces to such 
 " production. If the service pipes in each parish could be 
 " let separately, the water being assumed to be sold at the 
 " same price throughout, the criterion of the rent would 
 " be found in the gross receipts, which would depend on 
 " the number and diameter and level of the service pipes 
 " in each parish ; and an apportionment according to the 
 " gross receipts in each district would be according to the 
 " rent to be expected from the part of the rateable subject 
 " situate in such district." 
 
 This decision was followed in Reg. v. West Middlesex,^ Bcfi. v. West 
 where the cases on the subject were fully reviewed. MuWcscx. 
 
 There a waterworks company was empowered by Act of 
 Parliament to construct works and lay down mains and 
 pipes under certain highways, and to supply certain 
 parishes with water. In the parish of Hampton, not 
 being one of these parishes, the company erected engine 
 houses and other buildings, containing apparatus for 
 raising water from the Thames, and laid down a main 
 under the highway, which ran about a mile through 
 Hampton, and conveyed the whole of the water supplied 
 by the company to reservoirs in another parish, whence 
 the water was distributed by other mains and pipes to the 
 customers in the several parishes. The company derived 
 no direct profit whatever in Hampton, and had no free- 
 
 1 28 L. J., M. C. 135.
 
 640 OF TOLLS AND RATES. 
 
 liold or leaseliold interest in the soil of the highway. It 
 was held by the Court, that the company was rateable to 
 the poor rate for the mains, being fixed capital vested in 
 land, the company being in possession of the mains buried 
 in the soil, and so, de faefo, in occupation of the space in 
 the soil filled by the mains for a purpose beneficial in 
 itself ; and that, as to the principle on which the company 
 was to be rated in Hampton, in respect of the plant, 
 engine house, buildings, wharfs, mains, lands, and 
 premises, that it was to be rated as for so much land and 
 buildings, with fixtures and machinery attached, and 
 deriving some additional value from their capacity of 
 being aj^plied to such purposes as those of a water com- 
 pany ; such additional value being derived from an in- 
 crease of demand beyond supply, according to the prin- 
 ciple regulating exchangeable value, and not by reference 
 to receipts earned in another parish, beyond assuming 
 that they were suificient to pay all outgoings, including 
 profits on capital. 
 
 Wightman, J., who delivered the judgment of the 
 Court to the above effect, after stating the two questions 
 at issue, pointed out, with regard to the first, that " The 
 " decisions are uniform in holding gas companies to be 
 " rateable in respect of their mains, although the oceupa- 
 " tion of such mains may be de facto merely, and without 
 " any legal or equitable estate in the land where the 
 " mains lie, by force of some statute : " and with respect 
 to the second, as to the rating of the machinery, &c., he 
 quoted the decision in the Mile End Old Town case, that it 
 is to be rated as for " mere land and buildings, with 
 " fixtures and machinery attached, and deriving some 
 " additional value from their capacity of being applied to 
 " such purposes as that of a water company."^ 
 
 ^ The learned judge then added: "the present, as practically to 
 
 ' ' There appears to me, however, ' ' amount nearly, if not entirely, to 
 
 "so much difficulty in applying " an impossibility of doing so satis- 
 
 " the parochial principle of rating " factorily. I may also add that 
 
 " by estimating the rent which a "I am not quite satisfied that the 
 
 " tenant would give for the sub- " distinction which has been taken 
 
 " ject-matterj in such a case as " between direct and indirect
 
 RATES. 
 
 641 
 
 Where under the Valuation of Property (Metropolis) 
 Act (32 Sf 33 Vicf. c. 67),^ s. 43, the mains and pipes of a 
 waterworks company have been inserted in the quinquennial 
 valuation list, a supplemental valuation list under sects. 46, 
 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.- 
 
 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,^ the 
 
 Rateability 
 under 32 & 33 
 Vict. e. 67. 
 
 " sources of profit, as applied to 
 " the mains and pipes of a water 
 " company running through diffe- 
 " rent parishes, is ■well founded, 
 " and more especially in cases 
 " where the mains only belong 
 " to the company, and not the 
 " service pipes. Indeed, the whole 
 " subject matter appears to me 
 " to be involved in so much difE- 
 " culty and uncertainty, that I 
 " cannot but hope that the Legis- 
 " lature may interfere and make 
 " some provision adapted to the 
 " rating of the property of such 
 " companies as that in question, 
 " and which may declare the 
 " principle upon which such com- 
 " panics are to be rated, and 
 " establish some uniform and 
 *' practicable mode of carrying 
 " that principle into effect." 
 
 ^ An Act to provide for uni- 
 formity in the assessment of 
 rateable property in the Metro- 
 polis. By sect. 43, the valuation 
 list, as approved by the Assess- 
 ment Committee, shall come into 
 force at the beginning of the year, 
 commencing on the 6th of April 
 succeeding that to which it is 
 made, and shaE last for five years, 
 subject to any alterations that 
 may be made by any supplemental 
 or provisional list as hereinafter 
 mentioned. 
 
 By sect. 46, every valuation list 
 shall be revised in manner directed 
 by this Act ; and such revision, in 
 every period of five years, shall be 
 
 C. 
 
 Urban autho- 
 rities and 
 other pubUc 
 bodies supply- 
 ing water 
 
 conducted as follows: — 
 
 1 . In each of the first four years 
 
 of such period, a supple- 
 mental list shall, if neces- 
 sary, be made out in the 
 same form as the valuation 
 list, and shall show all the 
 alterations which have 
 taken place during the 
 preceding twelve months 
 in any of the matters 
 stated in the valuation list, 
 but shall contain only the 
 hereditaments affected by 
 such alterations. 
 
 2. In the fifth year of every 
 
 such period, the overseers 
 shall make a new valuation 
 list. 
 By sect. 47, if in the course of 
 any year the value of any here- 
 ditament is increased by the addi- 
 tion thereto of any building, or is 
 from any caiise increased or re- 
 duced in value, the following pro- 
 visions shall have effect: — 
 
 1 . The overseers of the parish in 
 which such hereditament is 
 situate may . . . send 
 to the Assessment Commit- 
 tee a provisional list con- 
 taining the gross and rate- 
 able value, as so increased 
 or reduced, of such heredi- 
 tament. 
 "^ Req. V. New River Co.,!^. R., 4 
 Q. B. biv. 309. 
 
 3 Cf. ante, Chap. V., p. 326; 
 Castle, Law of Rating, p. 376 et 
 seq. 
 
 T T
 
 G42 
 
 OF TOLLS AND RATES. 
 
 rated 
 
 foiinerly as 
 private under - 
 taldngs, but 
 now only 
 with refer- 
 ence to the 
 actual profits 
 earned. 
 
 Mayor of 
 Liverpool V. 
 1 raver free. 
 
 question in these cases being whetlier tlie 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 adventiu-ers. 
 
 In the cases of T/w Quecny. Churclncardens of Loncjicood^^ 
 The Queen v. Kentmere^' and Reg. v. Township of Lonrjwood^ 
 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, how- 
 ever, a different decision was arrived at. 
 
 The Mayor of Liverpool v. Overseers of Wavertree * was a 
 case in the Court of Queen's Bench stated under 12 ^ 13 
 Vict. 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, in- 
 cluding therein the borough of Liverpool. Pursuant to 
 their statutory powers they maintained waterworks in the 
 township of "Wavertree. By Liverpool Corporation Water- 
 works Act, 1862,^ the corporation of Liverpool were to 
 estimate and fix the amount of money necessary for 
 defraying the costs, charges, and expenses payable out of 
 the Liverpool water account for the year then current, and 
 were to fix the rate in the pound at which the domestic 
 water rent was to be charged at such amount as, regard 
 being had to the several sources of revenue, would be 
 sufficient in the aggregate to meet the estimated expenses 
 payable out of the water account for the current year. 
 The corporation were limited by the said Act from re- 
 ceiving any more money from the consumers than was 
 requisite to pay the above-mentioned expenses, and in 
 this respect their income differed from that of an ordinary 
 trading company, inasmuch as it did not necessarily 
 
 1 13 Q. B. IIG ; 18 L. J., M. C. ^ 17 q. 5. 871 ; 21 L. J., 11. C. 
 65. 215. 
 
 2 17 Q. B. 551 ; 21 L. J., M. C. ^ 2 Ex. Div. 55, note 1. 
 
 13. = 25 & 2G Vict. c. cvii, s. 59.
 
 RATES. ■ 643 
 
 represent the full value of the use and enjoyment of the 
 water to the consumers. One of the questions for the 
 opinion of the Court was whether, in arriving at the gross 
 annual value of the appellants' waterworks, the re- 
 spondents ought to ascertain the gross receipts which the 
 appellants might derive if they were a trading company 
 earning a profit by water supply, and then make the 
 statutory and proper deductions from the figure so ob- 
 tained, or whether they were limited to the actual re- 
 ceipt. 
 
 Blackburn, J. (with whom Lush, J., concurred), said: — 
 " I think it clear that the appellants are right. The 
 *' whole question turns on the rule given by the Parochial 
 " Assessment Act, which says the occupier is rateable at 
 '' what a tenant from year to year will give as the rent, 
 " who takes the land subject to the same restrictions as 
 " those under which the appellants hold it. Now the 
 " tenant would only give such a rent as the restrictions 
 " imposed by statute would enable him to earn, and the 
 " rateable value is to be based upon that rent." 
 
 This principle was followed in the case of The City of (-'^y of TFor- 
 Worcester v. Droit /rich Poor Law Union ^ where the local Droitiv'kh 
 board of W. erected and occupied works for the purpose ^T -^''''' 
 of supplying the inhabitants thereof with water, the works 
 being situate in the parish of C. In order to benefit the 
 inhabitants of W., the local board made the scale of 
 charges so low as to leave a profit far less than would have 
 accrued to a company carrying on the works as a com- 
 mercial undertaking. In adopting the scale of charges 
 above mentioned the local board intended to carry out 
 those provisions of TJie Piihlic Ilecdth Act, 1848, the 
 object of which was to insure a supply of water at a low 
 price for sanitary purposes. The assessment committee of 
 the D. union, within which the parish of C. was situate, 
 by a valuation list assessed the local board at a rateable 
 
 1 2 Exch. Div. 49. 
 T T 2
 
 644 
 
 OF TOLLS AND RATES. 
 
 value of 1,400/., based upon tlie amount wliieli might 
 have been earned by a trading company carrying on the 
 waterworks for their own benefit ; the local board, how- 
 ever, claimed to be assessed at a rateable value of 540/., 
 based upon the profit actually earned by them. 
 
 It was held, affirming the judgment of the Court of 
 Appeal from the inferior Courts, that the assessment of 
 1,400/. was wrong, and that the local board were liable to 
 be assessed at 540/. only ; for under the provisions of The 
 Public Health Act, 1848, they could not make rates of an 
 amount more than sufficient to enable them to maintain 
 the waterworks, and they could be lawfully assessed only 
 with reference to the profit actually earned. 
 
 " The question in this case," said Cleasby, B.,^ in giving 
 the judgment of the Court of Appeal from inferior 
 Courts, " is not the rateability of a public body in respect 
 " of premises occupied by them for public purposes ; that 
 " question has been for some time settled ;- and it is not 
 " disputed that the appellants, who are the local board of 
 " health of Worcester, are liable to be rated in respect of 
 " waterworks erected and occupied by them for the pur- 
 " pose of supplying the inhabitants with water. The 
 " question is, whether the rateable occupation is to be 
 " measured by the profits actually derived from the occu- 
 " pation, or by the profits which might be derived from it 
 " by a person or a company who occupied the works solely 
 " for the purposes of profit ; the fact being that the cor- 
 " poration having in view the benefit of the inhabitants, 
 " have made the scale of rates so low as to leave a profit 
 " only of 600/. upon the rates actually received after 
 " deducting the expenses connected with the providing 
 " the water, collection, &c., upon which amount they 
 " contend they ought to be rated ; whereas the respon- 
 " dents contend that a trading company with the same 
 
 1 2 Ex. Div. 57. L. J., M. C. 
 
 * See, as to this, Mersey Docks Docks, lb. 
 V. Cameron, 11 H. L. Cas. 443; 35 
 
 1 ; Jones v. Mersey
 
 RATES. 645 
 
 " powers of rating might have realized a net profit of 
 " 1,750/., on which amount they say the rate ought to have 
 " been made. 
 
 " It seems to us that the respondents cannot maintain 
 " the rate which they contend for ; and that the restric- 
 " tions which are put by law upon a public body as to the 
 " profits derivable from the occupation of waterworks or 
 " gasworks, or other property of that description, must be 
 " regarded in considering the profitable occupation by that 
 " body." 
 
 This decision was afiirmed in the Court of Appeal, 
 Mellish, L. J., who delivered the judgment of the Court, 
 saying:^ "It has been held by the Divisional Court of 
 " Appeal, that the contention of the corporation is right, 
 " and we are of opinion that their decision ought to be 
 " affirmed. There are two questions to be considered : 
 " first, are the corporation, according to the true construc- 
 " tion of the Public Health Act, prevented from charging 
 " for the use of the water a larger sum than the sum they 
 " actually require for the maintenance and repair of the 
 " waterworks ? and, secondly, if they are, can they be 
 " rated as occupiers in respect of profit which the law does 
 " not allow them to earn ? Now, with respect to the first 
 " question, we think that the corporation, in making a 
 " water rate under sect. 93 of the Public Health Act, are 
 " bound to make an estimate of the sum they require for 
 " the maintenance of their waterworks, and cannot legally 
 " levy a larger sum by a water rate than the sum they 
 
 " require The question then is, whether, in 
 
 " applying the rule given by the Parochial Assessment 
 " Act, the Court is to consider what rent a tenant from 
 " year to year would give for the reservoir and waterworks, 
 *' who was subject to the same restrictions the corporation 
 " are subject to, or what rent a tenant from year to year 
 " would give who was subject to no such restriction ; and 
 " we are of opinion that the hypothetical tenant is to be a 
 
 1 2 Ex. Diy. 69.
 
 646 OF TOLLS AND RATES. 
 
 " tenant subject to the restrictions. The case of Corponi- 
 " fioii of Livetyool v. Overseen of Wavertree, is directly in 
 " j)oint, and we are of opinion that case was correctly 
 
 " decided An occupier of land is not rateable 
 
 " in respect of the whole profit derived from the land, but 
 " only in respect of the profit which he himself derives 
 
 " from the land If the waterworks were 
 
 " transferred to a tenant, who was under no restriction as 
 " to the price he charged for water, the rateable value of 
 " the waterworks would be increased, but there would be 
 " a corresponding diminution of the rateable value of the 
 " premises supplied with the water. We may also observe 
 " that the reservoir by itself, without the power of con- 
 " necting the reservoir with the houses by pipes running 
 " through the streets, is probably worth nothing, and 
 " certainly is not worth 651/. a year; and it is the same 
 " Act of Parliament which gives the power to lay the 
 " pipes, and therefore creates the value of the reservoii', 
 " which contains the restrictions on the amount of profit 
 " which the occupiers of the reservoir can earn. Even in 
 " the case of the reservoirs of public companies established 
 " by Act of Parliament to supply towns with water, in 
 " estimating the rateable value of the reservoirs, the Court 
 " only considers the amount of profit which the terms of 
 " their Act enable the company to earn, not the profits 
 " which the company might earn if Parliament had 
 " enabled the company to establish waterworks without 
 " restriction as to the price to be charged to consumers." 
 
 Bridges and The principle that profits must be rated where they are 
 ruge tolls, gamed, which has been noted above in the case of docks,^ 
 applies as well to bridges, with regard to which the paro- 
 chial principle also holds good.^ 
 Bridges in Where the proprietors of Hammersmith Bridge had 
 
 parishes. \^ni\. on both sides of the river, on which they erected 
 
 ' Reg. V. Bristol Loek Co.., 10 L. - See Castle, 415 ct seq. 
 
 J.. M. C. 105.
 
 RATES. 04/ 
 
 piers and abutments, but took the tolls on one side only, 
 it was held that they were rateable for the lands on both 
 sides, which were used by the proprietors for the purpose 
 of passage over the Thames, in respect of which they 
 received tolls. ^ 
 
 Similarly, the owner of a bridge resting on piles driven 
 into the soil, one end of which was in the parish of A., 
 and the other in the parish of B., where the toll-house 
 was situated, was held rateable for an occupation of land 
 in A. 2^ro rata, though the road over the bridge was re- 
 paired by other persons.- There the tolls had been let by 
 parol at a yearly rent; and Lord Denman, C. J., after point- 
 ing out that the case was almost identical with that of Eex 
 v. Barnes, said : " Assuming then that the tolls are claimable 
 " in respect of the ownership of the land, there is no evi- 
 " deuce here that the land eo nomine is professed to be 
 " demised at all; there is nothing to show that at this 
 " moment the marquis is not in the possession of the land 
 *' for doing the repairs, — indeed for every pui'pose con- 
 " sistent with the bare collection of the tolls by Everett at 
 " the toU-house. On the other hand, though there is an 
 " agreement for the demise of the tolls eo nomine, yet, as 
 *' by their nature they can only pass by deed, no interest 
 " at law has passed out of the marquis, who must there- 
 *' fore be still considered in possession of them, his in- 
 " tended tenant being in truth only his bailiif for collect- 
 " ing them." The marquis was therefore held rateable 
 in respect of his beneficial occupation. 
 
 The rateability of bridge tolls came again under con- Beg. v. Sam- 
 sideration in Reg. v. Hammersmith Bridge Co.,^ where jiyujge co. 
 it was decided that a rate is to be apportioned between 
 two parishes, " according to the length of the bridge in 
 " each parish." In this case it was argued that the tolls 
 should be distributed between the bridge proper and its 
 
 1 Rex V. Barnes, 1 B. & Ad. ^ 18 L. J., M. C. 85 ; 15 Q. B. 
 
 113 ; 8 L. J., 0. S., M. C. 115. 369 ; 3 New Sess. Cas. 424 ; 13 J. 
 
 - Reg. V. Salisburi/, Marquis of, 3 P. 103. See Castle, p. 435. 
 K. & P. 476, Q. B.
 
 648 OF TOLLS AND RATES. 
 
 road approaches, but the Court declined to consider this 
 reasoning. " The approaches," said Lord Denman, C. J., 
 " stand in the same relation to the bridge as stations and 
 " warehouses to railways, reservoirs and wharves to canals, 
 " aqueducts and mains to water supplies, gasometers and 
 " mains to gas burners; and the principle for dividing the 
 " direct from the indirect sources of profit, for rating the 
 " indirect sources, and for apportioning the residuary net 
 " rateable value among the districts in which the direct 
 " source was situate, was explained in Reg. v. Mik End 
 " OklToicnr^ 
 
 Where the revenue of a bridge company, over and above 
 the working expenses, was raised from tolls, but was wholly 
 absorbed in the payment of mortgage debts, leaving nothing 
 by way of interest for the shareholders, though there was 
 a provision for paying them off (if the tolls were sufficient), 
 when the tolls should cease, the company were neverthe- 
 less held to be rateable.^ Where, in such a case, money 
 is raised for the construction of an undertaking, so as to 
 cause a debt, the interest of which is paid for out of the 
 profits, such interest is not allowed as a deduction.^ 
 
 I 10 Q. B. 208. See ante, p. 828 ; 1 P. & D. 603. See Castle, 
 
 637. p. 373. 
 
 - Beg. V. Blackfriars Bridge Co., ^ lb. See Castle, p. 475. 
 
 8 L. J., M. C. 29 ; 9 A. & E.
 
 ( 649 ) 
 
 CHAPTER X. 
 
 or THE KEMEDIES FOR THE INERINGEMENT OF RIGHTS 
 OF WATER. 
 
 All infringements of rights of water, natural or acquired, All infringe- 
 come under one or other of two classes — trespass or ™^htsof 
 nuisance. Where the act complained of is a wrongful water either 
 disturbance of another in the exclusive possession of pro- nuisance. 
 perty it is a trespass ; where the infringement of the right 
 is the consequence of an act which is not in itself an in- 
 vasion of property, the cause from which the injury flows 
 is termed a nuisance.^ "The distinction between nuisance 
 " and trespass," says Mr, Angell,'-^ " is that the former is 
 " only a consequence or result of what is not directly or 
 " immediately injurious, but its effect is injurious. A 
 " person who digs a channel or erects a dam on his own 
 " land, does no more than what is, in itself, lawful ; but 
 " as the effect of his so doing is to divert the water from 
 " a natural watercom'se to the loss of a riparian owner 
 " below, or to turn it back to the injury of a riparian 
 " owner above, such acts become unlawful, — ' the law in 
 " ' such instances taking care,' says Blackstone, ' to enforce 
 *' * the precept of gospel morality of doing to others as we 
 " ' would that they should do unto ourselves.' Trespass, 
 " on the other hand, is a direct and immediate invasion of 
 " property, — as treading down grass in a neighbour's field, 
 " or destroying his in closures." 
 
 This distinction between trespass and nuisance, so far as 
 
 1 Phear, Rights of Water, p. Mod. 164; 1 Ld. Raymond, 274 ; 
 
 100 ; Reynolds Y. Clarke, 2 Ld. Ray- Lcveridge v. Hoskins, 11 Mod. 257 ; 
 
 mond, 1399; Smith v. Milles, 1 T. 1 Str. 636. 
 
 R. 475; Courtney v. Collett, 12 ^ On Watercoiirses, p. 575.
 
 650 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 Public nui- 
 Bance. 
 
 the form of action is concerned, is now of little value, as 
 by The Common Law Procedure Act, 1852, and Tlie Judica- 
 ture Acts, 1873 and 1875, all forms of action are abolished. 
 Where the act complained of is an invasion of a public 
 right — such as the obstruction of the public right of navi- 
 gation or fishery, or the pollution of a river to the public 
 prejudice — it is termed a public or common nuisance.^ 
 
 Abatement of 
 private nui- 
 sances. 
 
 No more 
 damage must 
 be done than 
 absolutely 
 necessaiT. 
 
 Eemcdy hy Act of Party. 
 
 A private nuisance may be removed or abated by the 
 party aggrieved, if it can be peaceably done and without 
 a riot.^ Thus if a ditch is dug, by means of which the 
 water is diverted from the land of a riparian proprietor, 
 through whose land it would otherwise flow in its natural 
 course, he may go upon the land of the wrongdoer and 
 fill it up ; ^ even though at the time it causes him only 
 nominal damage.^ A thing, however, cannot be abated, 
 until it actually becomes a nuisance ; so that if one see his 
 neighbour erecting that which it is probable will ultimately 
 be such, it cannot be abated as long as it continues in an 
 inoffensive state.'^ 
 
 If a person injured abate no more than is necessary, any 
 damage resulting from the act will not be laid to his 
 charge ; but he must act reasonably and take reasonable 
 care that no more damage be done than is positively neces- 
 sary for effecting his purpose. Thus where one erected 
 a mill dam partly on his own land and partly on the land 
 adjoining, upon which the owner of the adjoining land 
 pulled down the part on his land, and the whole dam fell 
 down and the water ran out, it was held that the owner 
 was justified.'' But where the plaintiff had a right to 
 irrigate his meadow by placing a dam of loose stones across 
 
 ^ Woolrych on "Waters, p. 192. 
 See Stephen's Blaekstone, p. 402. 
 
 - Blackstone's Com. 5 ; Battens 
 case, 9 Eep. 54 b.; 2 Roll. Abr.; 
 Nuisance, 8 ; Ang-ell, p. 576 ; 
 Woolrych, p. 281. 
 
 " Yin. Abr., Nuisance. See 9 
 
 Edw. IV. 35 ; 8 Edw. IV. 5 ; Gmj 
 V. Broicn, Mo. 644 ; Maikes v. 
 ToirnsJioid, 2 Smith's Rep. 9. 
 ^ I\-)iruddock^ s case, 5 Co. 101 b. 
 
 5 12 Mod. 510 ; Holt's cases, 499. 
 
 6 Wickford v. Bill, Cro. EUz. 
 269.
 
 REMEDY BY ACT OF PARTY. 651 
 
 the stream, and occasionally a board or fender, and ho 
 fastened the board with two stakes, which he had no right 
 to do, the defendant was held liable to an action for 
 pulling down the board as well as the stakes, although, as 
 owner of the adjoining land, he had lawful power to abate 
 the latter.^ 
 
 So in Cawkwell v. Busseli,^ where the plaintiff had a 
 prescriptive right to send waste water down the defen- 
 dant's drain, and he sent down also the foul water from 
 his privies, it was held that the defendant was justified in 
 stopping the whole drain ; for where a i^arty has a right to 
 send clean water down a drain and chooses to send dirty, 
 every drop of it ought to be stopped, for the whole is 
 dirty. 
 
 In the case of Roberts v. Rose,^ the plaintiffs, by parol 
 licence from one Lowe and from the defendant, made a 
 watercourse and discharged water thereby, first across the 
 land of Lowe, and then across the land of defendant. 
 The defendant revoked his licence, and on the plaintiff's 
 refusing to discontinue the discharge of water, entered on 
 Lowe's land and obstructed the watercourse there. The 
 defendant, by stopping the watercourse on his own land, 
 would have done less damage to the plaintiff than was 
 actually done, but more damage to Lowe, and possibly 
 some damage to the public. The Court held, that the 
 watercourse had been obstructed in a reasonable manner, 
 inasmuch as the convenience of the plaintiffs, who after 
 the revocation of the licence were wrongdoers, was sub- 
 ordinate to the convenience of innocent third parties and 
 of the public. Blackburn, J., delivering the judgment of 
 the Court of Exchequer Chamber, says : " We are all 
 " agreed, that where a person attempts to justify an inter- 
 " ference with the property of another in order to abate a 
 " nuisance, he may justify against the wrongdoer so far 
 
 ^ Grecnsladc v. Uallidaij, 6 Bing. Cock, 2}osf, p. 652. 
 379. 3 L_ R^ I Ex. 82. 
 
 = 26 L. J., Ex. 314. See Hill v.
 
 652 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 " as his interference is positively necessary. We are also 
 " agreed, that in abating a nuisance, if there are two ways 
 " of doing it, he must choose the least mischievous of the 
 *' two. "We also think, that if by one of these alternative 
 " methods, some wrong should be done to an innocent 
 " third party or to the public, then that method cannot be 
 " justified at all, although an interference with the wrong- 
 ** doer might be justified. 
 
 " Therefore, where the alternative method involves such 
 " an interference, it must not be adopted ; and it may 
 " become necessary to abate a nuisance in a manner more 
 " onerous to the wrongdoer." 
 
 In the case of Hill v. CocA*,^ the plaintiff, who had a 
 prescriptive right to the flow of water led by means of 
 a gutter from a mill stream at a point where an ancient 
 weir was erected, wrongfully lengthened the gutter for 
 the purpose of irrigating more land. The flow of water 
 down the defendant's mill stream was thereby diminished, 
 and he in consequence pulled down the ancient weir, and 
 thereby prevented the water from flowing down the plain- 
 tiff's gutter. The Court held that the defendant was not 
 justified in stopping the plaintiff's excessive user of the 
 water, by means which altogether prevented his enjoy- 
 ment of the water, but only in stopping it by the least 
 injurious means in his power. Willes, J., says : " The 
 " flow of water to defendant's mill was injured by the 
 " alteration of the gutter, and the plaintiff had thereby 
 " destroyed the measure of his right over the old course, 
 " and created a confusion of his antient right. If the 
 *' whole of the defendant's enjoyment had been interfered 
 " with, as it was in the case of Caicku-ell v. Eusscll,'^ where 
 *' the person who had a right to send clean water through 
 " his gutter sent down foul water, so that the nuisance 
 *' could not be stopped without interfering with the enjoy- 
 " ment ; if that had been the case, then the taking down 
 " of the weir would have been a reasonable mode of 
 1 26 L. T., N. S. 185. - 26 L. J., Ex. 34.
 
 REMEDY BY ACT OF PARTY. 653 
 
 " destroying the plaintiff's enjoyment. However, he is 
 " bound to abate the nuisance in the most reasonable 
 " manner, and subject to there being no confusion of the 
 " rights created, the jury have found that it was not 
 " practically necessary for the purpose of abating the 
 " nuisance to pull down the weir. If the extent of the 
 " excess was so great that it was reasonably impossible to 
 " abate the nuisance, then I should say there exists a 
 " right on the part of the proprietor of the servient tene- 
 " ment to interfere with the whole. "^ 
 
 No previous demand to remove the nuisance is requisite, No previous 
 except where the tenement on which the nuisance is remove ne- 
 erected has passed into other hands since the erection ; and cessary. 
 in this case, without such demand, the abatement would 
 not be lawful, for the new occupant was not Kable to a 
 quod pennittat before request made ; but the demand may 
 be made either on the lessor or lessee, for the continuance 
 of a nuisance by the lessee, against whom an action will 
 lie.2 
 
 A public nuisance may also, it would appear, be abated Abatement of 
 in a peaceable manner.^ A private individual, however, sance. 
 is not justified in abating a public nuisance, unless it does 
 him a special injury beyond that which is suffered by the 
 rest of the public* In the case of The Mayor of CoIcJiester 
 V. Brooke,^ it was held, that if oyster beds are placed in 
 the channel of a public navigable river, so as to create a 
 public nuisance, a person navigating is not justified in 
 damaging such property by running his vessel against it 
 
 ^ See also Arlett v. EUls, 7 B. & see also Saxbij v. Manchester, L. R., 
 
 C. 346 ; Yard v. Ford, 2 Wms. 4 C. P. 198. 
 
 Saimd. p. 571, ed. 1871; Lawton ^ Lodie v. Arnold, Salk. 458; 
 
 V. Ward, 1 Ld. Raymond, 75 ; Lid- James v. Sayward, Cro. Car. 184 ; 
 
 treWs ease, 4 Rep. 86 b. Rolle, Abr. Nusans (T.) ; HilVs 
 
 - Gale on Easements, p. 645 ; case, Cro. Eliz. 384. 
 
 PenruddocFs case, 5 Rep. 101; Jones * Benjamin v. Storr, L. R., 9 C. 
 
 V. Williams, 11 il. & W. 176; P. 400; Uubert v. Grores, 1 Esp. 
 
 Davies v. U'iUiams, 16 Q. B. 546; 148; Wintcrbothamx. Derby, Jj.'R., 
 
 Burling v. Read, 11 Q. B. 908; 2 Ex. 316. 
 
 Perry v. Fitzhoice, 8 Q. B. 778 ; ^ 7 q. -q 339^ 
 Brent v. Haddon, Cro. Jac. 555 ;
 
 654 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 By action. 
 Private nui- 
 sances. 
 
 Injunction 
 and manda- 
 mus. 
 
 if he lias room to pass witliout so doing ; for an individual 
 cannot abate a nuisance if lie is not otherwise injured by 
 it than as one of the public. So in Dunes v. Tethj^ the 
 defendant under similar circumstances was held not jus- 
 tified in running his ship against a wharf of the defen- 
 dant's projecting into a public navigable river, — the Court 
 holding that a person under such circumstances can only 
 interfere with a public nuisance as far as is necessary to 
 exercise his right of passing along a highway, 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. In Blaclx v. Batemau,- Lord Campbell, C. J., 
 goes so far as to say that he cannot justify, unless there 
 was no way in which he could exercise his right without 
 the removal. 
 
 Remedy hy Act of Law. 
 The remedy by act of law for the infringement of water 
 rights is now by action in one of the first four Divisions of 
 the High Court of Justice.^ By the Supreme Court of 
 Judicature Acts all the jurisdiction of the Court of 
 Chancery and of the common law Courts has been trans- 
 ferred to the High Court of Justice, which is to administer 
 law and equity concurrently, and where there is any 
 conflict between the rules of equity and common law, the 
 rules of equity are to prevail. New rules of pleading and 
 forms are provided which supersede the old forms. Either 
 the Chancery Division or those Divisions which represent 
 and are called after the old common law Courts, have 
 equal power to award damages and the remedy by in- 
 junction and mandamus, to enforce equitable rights, and 
 receive and carry out equitable defences. By The County 
 Courts Act, 1867,'^ the County Courts have jurisdiction to 
 try any action in which the title to any corporeal or in- 
 
 1 15 Q. B. 283. 
 
 2 18 Q. B. 876. 
 
 2 Judicature Acts, 3G k 37 Vict. 
 
 c. 66, s. 16, 35 ; 38 & 39 Vict. c. 
 77, s. 11. 
 
 ■» 30 & 31 Vict. c. 142, s. 12.
 
 REMEDY BY ACT OF LAW. 655 
 
 corporeal lieredita^ment comes in question, when neither 
 the value of the land, tenements, or hereditaments in dis- 
 pute nor the rent payable in respect thereof shall exceed 
 20/. per annum, or, in case of an easement or licence, where 
 neither the value of the lands, tenements, or hereditaments 
 in respect of which the easement or licence is claimed shall 
 exceed 20/. per annum. 
 
 The tenant in possession may sue for a nuisance, even Parties en- 
 though it be of a temporary nature only, but if the ^'^^"^^ ^^ "''*'■ 
 nuisance be of a permanent nature, and injurious to the 
 inheritance, the reversioner may also have an action, and 
 both the tenant in possession and the reversioner are 
 respectively entitled to recover damages commensui'ato 
 with the damage sustained by him.^ To entitle the rever- 
 sioner to sue, it must be shown either that the act done is 
 an act necessarily injurious to the reversioner, or, where it 
 is not necessarily injiuious, the declaration must aver that 
 the reversionary interest is thereby injured.^ In an action 
 brought by a reversioner against the defendant for the 
 non-repair of a gutter, whereby the water oozed through 
 and carried away the soil of the close, the defence was, 
 that the injury was the consequence of the tenant in 
 possession penning back the water and watering his 
 meadow. Tindal, C. J., said he thought this no defence, 
 as the owner of the reversion was suing for a permanent 
 injury to his estate, and that he could not be met with the 
 answer that the injury arose out of the -wrongful act of 
 the tenant, for which the defendant might have main- 
 
 ^ Angell on "Watercoiirses, p. & N. 3i ; Sampson v. Savage, 1 C. 
 
 585; Gale ou Easements, p. 649; B., N. S. 347; Bell v. Ilidland 
 
 Com jTi's Dig-., Action for Nuisance Eailicaij, 10 C. B., N. S. 287; 
 
 (B) ; Jackson v. Ft'skcd, 1 M. & S. Crump v. Lambert, L. E,., 3 Eq. 
 
 234; Alston v. Scales, 9 Bing. 3 
 Baxter v. Tayler, 4 B. & A. 72 
 Bell V. Twentyman, 1 A. & E. 766 
 
 409 ; Johnstone v. Hall, 2 K. & J. 
 414; Mott V. Shoolhrcd, L. K., 2 
 Eq. 22; Jones v. Chappell, L. E.., 
 
 see also Hopuood v. Schojield, 2 20 Eq. 539 ; Wilson v. Towns- 
 
 Moo. & Rob. 34 ; Tucker v. New- end, 1 Dr. & S. 324 ; Cleave v. Ma- 
 
 man, II A. & E. 40 ; Fay r. Prcn- liony, 9 W. R. 882; Broder v. 
 
 tice, 1 C. B. 828 ; Kidgell v. Moor, Saillar, 2 Ch. D. 292. 
 
 9 C. B. 364; Metropolitan Assoeia- • Metropolitan Associationv. Fetch, 
 
 Hon V. Fetch, 5 C. B., N. S. 504; 5 C. B., N. S. 504; Bell y. Midland 
 
 Mumford v. Oxford Failway, 1 H, Railway, 10 C. B., N. S. 287.
 
 656 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 tained an action against liim. That was merely the per- 
 sonal act of the tenant ; and it did not appear that there 
 was any legal duty in the owners and- occupiers of the 
 close to do any act, the neglect of which by the tenant 
 had caused the injury.^ 
 
 Building a roof with eaves which discharge rain-water 
 by a spout into adjoining premises is an injury which the 
 landlord of such premises may recover as reversioner while 
 they are under demise, if the juiy think there is damage 
 to the reversion.^ 
 
 In Dyson v. CoIlicJi,^ a contractor for making a canal 
 having, by permission of the owner of the land, laid down 
 a dam for the purpose of the navigation, was held to have 
 sufficient possession to enable him to maintain trespass 
 against a wrongdoer.'^ 
 Joinder of By Order XVI. of The Judicature Act, 1875, all per- 
 
 P am 1 s ^^^^ ^^y -^^ joined as plaintiffs in whom the right to any 
 relief claimed is alleged to exist, whether jointly, 
 severally, or in the alternative, and judgment may be 
 given for such one or more of the plaintiffs as may be 
 found to be entitled to relief, for such relief as he or they 
 may be entitled to without any amendment. But the 
 defendant, though unsuccessful, shall be entitled to his 
 costs occasioned by so joining any person or persons who 
 shall not be found entitled to relief, unless the Court, in 
 disposing of the costs of the action, shall otherwise direct.^ 
 By the rules of Chancery, which are followed by the 
 Judicature Acts, the owners of several properties affected 
 by a nuisance might join in suing. If one failed to make 
 out his case, the suit as to him was dismissed with costs. 
 Such costs were deducted from those of the successful 
 plaintiff.'^ 
 
 ' Egremont Y. Titfnam, 1 Moo. & action for disturbance of easements. 
 
 IMalk. 404. ^ As to the joinder of parties, 
 
 - Tucker \. Newman, 11 A. & E. see Wilson's Judicature Acts, p. 
 
 40. 173— 185 (2nd ed.). 
 
 3 5 B. & Aid. 600. « Umfreville v. Johnson, L. H., 10 
 
 * See ante, p. 234, as to rights of Ch. 580; Pollock v. Lester, 11 Ha.
 
 REMEDY BY ACT OF LAW. 657 
 
 The purchaser of an estate injured by a nuisance may 
 sue the original wrongdoer — the person Avho erected and 
 still maintains the nuisance — without notice or request to 
 abate, for the damage done to the land while he owned 
 and occupied it. Nor does it matter in this respect how 
 many times the land injured may have changed hands since 
 the erection of the nuisance.^ 
 
 He who has been the author of a nuisance is answerable Parties liable 
 for all the consequences thereof ; and although after 
 damages recovered in an action for erecting it, another 
 action cannot be maintained for the erection, yet it may 
 for a continuance of the same nuisance. The continuance 
 of that which was originally a nuisance is, in fact, a new 
 nuisance." For the continuance of a nuisance, each 
 successive owner of the land on which there exists an 
 actual nuisance, is liable ; though it may have been begun 
 before his estate commenced.^ 
 
 Where, however, the party was not the originator of 
 the nuisance, a request must be made to remove it before 
 any action is brought; but it is sufficient if such request is 
 made to the party in possession, though he be only 
 lessee ; ^ and a request to a former occupier while in 
 possession has been held sufficient to bind a subsequent 
 occupier.'^ 
 
 . If the owner of land on which a nuisance exists lets the for continu- 
 land, an action for the continuance of the nuisance will g^^^^e 
 lie at the option of the party injured, either against the 
 
 274; see, however, Httdson v. Mad- Co., 4 N. H. 143 (American case) ; 
 
 dison, 12 Sim. 416. In the case of ShadwcU v Hutchinson, 2 B. & A. 
 
 Cou-an y.Dake of JSiicckucIi, 2 A-p-p. 97; 4 C. & P. 333; £atishUl y. 
 
 Cas. 344, the House of Lords held, Heed, 18 C. B. 696 ; TTUson v. Feto, 
 
 that by the practice of the Scotch 6 Moo. 47 ; Gale on Easements, p. 
 
 Courts, in a case of nuisance by 649 — 658. 
 
 pollution, the several sufferers may - Angell on Watercoui'ses, p. 
 
 combine and bring- a joint action 587. 
 
 against the several authors of the ^ G-ale on Easements, p. 659. 
 
 niiisance — asking a declarator and ^ Fen ruddock^ s case, 5 Rep. 181 ; 
 
 interdict, but not claiming da- Brent v. Hudson, Cro. Jac. 555 ; 
 
 mages. Jones v. Willianis, 11 M. & W. 176. 
 
 ' Angell on "Watercourses, p. ^ Salmon v. Bensley, Ry. & M. 
 
 587 ; Fcnrnddoclc' s case, 5 Rep. 100; 189, at Nisi Prius. 
 Eastman v. Amoslieag Manufacturing 
 
 c. u u
 
 658 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 landlord or the tenant ; ^ but no such, action lies against 
 the landlord for any such act of his tenant dui'ing the 
 continuance of his tenancy ; - and a declaration charging 
 the defendant with the duty of cleansing drains, merely 
 as owner and proprietor thereof, is bad.^ If, however, a 
 landlord makes a drain for the use of his tenants, and 
 keeps it in his own possession, and allows them to use it, 
 he is liable if it becomes a nuisance through their user 
 whilst in his possession."^ 
 
 A landlord has been held not liable if he has taken a 
 covenant to repair from the tenant, as in such case he does 
 not authorize the continuance of the nuisance.^ 
 by a stranger. So the owner of land has been held not responsible for 
 the act of a stranger causing or continuing a nuisance, 
 which he neither authorized nor adopts. Thus, in Saxhj v. 
 Mancheder Railway,^ the defendants were owners of the 
 soil of a stream which supplied water to two print works. 
 A., whilst occupier of both works, erected a weir across 
 the stream, and thereby diverted the water from one of 
 the works. The plaintiff becoming lessee of the last- 
 mentioned work, and entitled to the water of the stream, 
 removed the weir. A. afterv/ards, without any authority 
 from defendants, and against their will, replaced the weir. 
 The Court held that the defendants were not responsible 
 for the act of A., or for the continuance of the nuisance ; 
 and that a nonsuit which had been directed was right.' 
 
 1 Todd V. FUyht, 9 C. B., N. S. B. 261. 
 
 377; Mason v. Shewsbunj, L. R., 6 ^ Pretty v. Bichnore, L. E,., 8 C. 
 
 Q. B. 585 ; Christian Smithes case, P. 401 ; Gicinnell v. Earner, L. E,., 
 
 Sii- W. Jones, 272; Rosivell v. 10 C. P. 658; see Gandi/ v. Jabber, 
 
 Trior, 2 Salk. 460; H. v. Fedlei/, 1 5 B. & S. 78, 485; 9 B. & S. 15 ; 
 
 A. & E. 822; Thompson y. Gilbert, Bobbins v. Jones, 15 C. B., N. S. 
 
 7 M. & W. 456 ; see, however, 240. 
 
 Eypon V. Boivles, Cro. Jac. 373. ^ L. R., 4 C. P. 198, 
 
 ^ Cheethain v. Hampson, 4 T. R. '' See also Baniells v. Potter, 4 C. 
 
 318; Rich v. Basterjield, 4 C. B. & P. 262. For other cases on re- 
 
 783; Bishop v. Bedford, 1 E. k E. sponsibility for nuisance, see Pen- 
 
 697 ; Preston v. Xorfolk, 2 H. & N. dlcbij v. Greenhalgh, 1 Q. B. D. 36 ; 
 
 735; Bartlett v. Baker, 3 H. & C. Pickard v. Smith, 10 C. B., N. S. 
 
 153. 470; Ui/ams x. Webster, L. R., 2 
 
 3 Bussell V. Shenton, 3 Q. B. 449. Q. B. 138; Uadley v. Taylor, L. R., 
 
 ^ Broicn v. Pussell, L. R., 3 Q. 1 C. P. 53.
 
 REMEDY BY ACT OF LAAV. 659 
 
 "WTienever an injury is done to a riglit, actual per- ^Tiether 
 ceptible damage is not indispensable as the foundation of actual"^ 
 an action ; but it is sufficient to show the violation of the damage is 
 right, and the law will presume damage.^ suprmrtln^ 
 
 Thus, in Rose v. Groves,'^ where the plaintiff was the action. 
 owner of a pubKc house on a navigable river, and de- 
 fendant obstructed his right of access thereto, by placing 
 floats of timber in front thereof, the Court held that, this 
 being the obstruction of a private right, proof of special 
 damage was unnecessary. 
 
 Any unreasonable and unauthorised use of the common 
 benefit of the flow of water, as between riparian pro- 
 prietors, will give a right of action to the pai-ty whose 
 rights are infringed, without proof of actual damage. 
 Thus, the claim by an upper riparian proprietor, to divert 
 permanently the whole of a stream, for the purpose of 
 supplying a town with w^ater, is not a reasonable use con- 
 nected with the tenement of that proprietor, and he will be 
 restrained from so using the water, though no injury has 
 been sustained by the lower riparian proprietor.^ 
 
 In Pennington Y.Brinsop Hall Co., ^plaintiff claimed as a 
 riparian proprietor of a mill, and also as having forty years' 
 prescriptive right to the use of pure water. Defendants 
 alleged, admitting the pollution, that the water did no 
 appreciable injmy to plaintift's, and that the w^ater was 
 first polluted by others. They urged that if an injunction 
 was granted they would be ruined. Fry, J., said, " Plain- 
 " tiffs allege that the defendants pollute the stream so as 
 " to create an injmy to plaintiffs' rights, and they say, 
 
 ^PerParke,B.,iiii';«J?-e^v.O«Y«, B., N. S. 575; Northamy. Surlcy, 
 
 G Ex. 353; Woocly.Wai(d,Z'Ex.'ii'S,. 1 E. & B. 665; Mason v. Bill, 5 
 
 2 M. & G. 613; see also Z?/o« B. & A. 1; Earl Eljjon v. Hobarf, 
 
 V. Fishmongers' Co., 1 App. C. 662. 3 Myl. & K. 169; Williams v. 
 
 ^ Sicimloii Waterworks' \. Wilts Morelancl, 2 B. & C. 910. 
 Canal, L. R., 7 H. L. 6S7 ; Claxton * 5 Ch. Div. 769; see also Cloices 
 
 V. Claxton, Ir. R., 7 C L. 23 ; Sar- v. Staffordshire Po'terics, L. R., 8 
 
 rop V. Hirst, L. R., 4 Ex. 43; Ch. 125 ; Crossleij x. Lightowler,'Li. 
 
 Sampson v. Eoddinot, 1 C. B., N. R., 2 Ch. 478; St. Helens v. Tip- 
 
 S. 590; mwell y. Crou-ther, low. ping, 11 H. L. 642; A.-G. v. 
 
 R. 615; Medicay v. Momtieif, 9 C. Leeds, L. R., 5 Ch. 583. 
 
 u u 2
 
 660 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 " 1st, that this is an injury accompanied by damage; and, 
 " 2nd, that if it be unaccompanied by damage they have 
 " nevertheless a good cause of action. This second proposi- 
 " tion of plaintiffs is, in my judgment, well founded. . . . 
 *' 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 injmy and 
 " damage on the cessation of the other pollutions." 
 
 A riparian proprietor exercising in a reasonable way his 
 ordinary riparian rights, will not, however, be liable to an 
 action unless he work actual damage to another riparian 
 owner above or below him.^ 
 
 " By the general law," says Lord Kingsdown, "applicable 
 " to running streams, every riparian proprietor has a right 
 " to what may be called the ordinary use of the water 
 " flowing past his land, for instance, to the reasonable use 
 " of the water for his domestic purposes and for his cattle, 
 " and this without regard to the effect which such use may 
 " have in case of deficiency upon proprietors lower down 
 " the stream. But, further, he has a right to the use of it 
 " for any purpose, or what may be deemed the extraordi- 
 " nary use of it, provided he does not interfere thereby 
 " with the rights of other proprietors either above or below. 
 " Subject to this condition he may dam it up for the pur- 
 " pose of a mill or divert the water for the purpose of 
 *' irrigation. But he has no right to interrupt the regular 
 " flow of the stream if he thereby interferes with the law- 
 " ful use of the water by other proprietors and inflicts 
 " upon them a sensible injury." ^ 
 
 ^ Emhretj v. Owen, 6 Ex. 353; 
 Orr iLH-ing v. Colquhoiin, 2 App. C. 
 839; Bichette. Morris, la.'R., 1 H. 
 L., Sc. 47; Swindon Water Co. v. 
 Wilts and Berks Canal, L. R., 7 H. 
 
 L. 697; Holker v. Porrit, L. R., 10 
 Ex. 59 ; see also Weeks v. Howard, 
 low. R. 557. 
 
 2 Miner v. Gtlmoiir, 12 Moo. P.O. 
 131. Seeante, Ch.III.p. lloetseq.
 
 REMEDY BY ACT OF LAW. 661 
 
 To entitle a private person to maintain an action for Public nui- 
 a thing wliicli amounts to a public nuisance, he must show actionable ^ 
 that he has sustained a particular damage or injury other 
 than and beyond the general injury to the public, and 
 that such damage is direct and substantial.^ Thus, in 
 Hose V. Miles,^ where the plaintiff was obstructed in his 
 use of a navigable water, and was damaged by being- 
 obliged to imload his barge and carry his goods overland, 
 the Court held that he had a good cause of action, 
 
 A party guilty of causing a public nuisance may be pro- aud incUct- 
 secuted by indictment, upon which he may be fined and 
 imprisoned, and judgment given to abate the nuisance.^ 
 The question in all such cases being whether the acts done 
 amount to a nuisance.'^ 
 
 Another remedy for a public nuisance is by information Information 
 at the suit of the attorney-general. Where a person has 
 sustained special damage over and above the general 
 damages sustained by the public, there may be both an 
 information and an action. The attorney- general may 
 file an information to restrain the thing complained of as 
 a public nuisance ; and the individual who sustains a 
 particular damage may join as plaintiff as well as relator 
 and have the remedy for himself by action.^ 
 
 A local board might sue in respect of a public nuisance 
 without making the attorney-general a party f but under 
 TJie Piihlic Health Act, 1875, the sanction of the attorney- 
 general is required if proceedings are taken for the pur- 
 pose of protecting a watercourse from pollution." 
 
 1 Benjamin v. Storr, L. R., 9 C. E. 143; Rex y. Morris, 1 B. & A. 
 
 P. 400; mdert v. Groves, 1 Esp. 441. 
 
 148; Mickctv. Metro2}olitanItailicai/, * Rex v. Medley, 6 C. & P. 292. 
 
 L. E.., 2 H. L. 175; 5 B. & S., ^ Kerr on Injunctions, p. 167; 
 
 per Erie, C. J., p. 761 ; Winter- A.-G. v. Johnson, 2 Wils. C. C. 87; 
 
 hothaniY. Lord Derby, L. R.,2Ex. A.-G. v. Sheffield, 3 D. M. & G. 
 
 316; Fain v. Patrick, 3 Mod. 289. 304; A.-G. v. Lonsdale, L. R., 7 
 
 - 4 M. & S. 101 ; see Hart v. Bar- Eq. 377; A.-G. v. Halifax, 17 W. 
 
 nett, T. Jones, 156; Greasley v. U. l^d,; A.-G. y. Hackney, 'L.'R., 
 
 Codling, 9 Moo. 489; Wiggins v. 20Eq. 626; A.-G. v. Birmingham, 
 
 Boddington, 3 C. & P. 544. 4 K. & J. 328; A.-G. v. Cocker- 
 
 3 4 Blackstone's Com. 167; Reg. month, L. R., 18 Eq. 172. 
 T. Wigg, Salk. 460; Rex y. Russell, ^ Nuneaton Local Board y. General 
 
 6 B. & C. 566; Rex v. Ward, 4 A. Sewage Co., L. E., 20 Eq. 127. 
 & E. 384 ; Rex v. Lindall, 6 A. & ' 38 & 39 Vict. c. 55, s. 09.
 
 662 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 An information will lie against a corporation wMcli lias 
 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.^ 
 
 Indictment 
 for non- 
 repair of 
 bridg'es. 
 
 No action 
 lies against a 
 county, 
 
 or against a 
 county sur- 
 veyor. 
 
 On an indictment for the non-repair of a bridge, the 
 inhabitants of a county are bound to repair every public 
 bridge within it unless they can show by their plea that 
 some other person or body politic or corporate is liable, 
 and every bridge in a highway is by the Statute of 
 Bridges, 22 Hen. III. c. 5, taken to be a public bridge for 
 this purpose.^ 
 
 The proper remedy therefore against a county is by 
 indictment, and no action will lie against the inhabitants 
 of a county for an injury sustained in consequence of a 
 county bridge being out of repair.^ 
 
 On a similar principle it has been held that no action 
 for personal and peculiar damage resulting from the want 
 of proper repair in a county bridge will lie against the 
 county surveyor, either at common law, or under 43 Geo. 
 III. c. 59.^ 
 
 ^ A.-G. V. Basbif/stolcc, 45 L. J., 
 Ch. 726. 
 
 ~ Hex V. Biiclis, 12 East, 192; cf. 
 Hex V. West Ridinc/ of Yorkshire, 2 
 East, 342; Hex v. Sendon, 4 B. & 
 Ad. 628 ; Hex v. Laneashire, 2 B. 
 & Ad. 813 ; Hex v. Northampton, 2 
 M. & S. 262 ; Hex v. Whitno/, 4 N. 
 & M. 594 ; 3 A. & E. 69 ; '7 C. & 
 P. 208. As to Bridges generally, 
 see ante, Ch. VIII. 
 
 3 Hussell V. Devon, 2 T. R. 667. 
 
 * Maelilnnon v. Tenson, 8 Excli. 
 319. Per Pollock, C. B.: "This 
 " was an action ag-ainst defendant 
 " as surveyor of a county bridge for 
 ' ' a particiilar damage sustained 
 ' ' by the plaintiff in consequence of 
 " a want of repair of a county 
 
 "bridge The only 
 
 * ' question is, whether an action for 
 
 a peculiar damage resulting to 
 the plaintiff for want of proper 
 repair- to a county bridge wUl lie 
 against the county's siu-veyor. 
 ' ' There is no doubt of the truth 
 
 ■ of the general rule that when an 
 ' indictment can be maintained 
 
 ■ against an iudi^■idual or a cor- 
 poration for something done to 
 the general damage of the public, 
 an action on the case can be 
 maintained for a special damage 
 
 ■ thereby done to an individual, as 
 ' in the ordinary case of a nuisance 
 ' on the highway by a stranger 
 ' digging a ditch across it, or by 
 
 the default of the person bound to 
 
 repair ratlonc tenura 
 
 [Sail V. Mayor of Lyme Regis, 5 
 Bing. 91 ; and 8 Bligh. 690, as to 
 repair of sea walls.) ....
 
 REMEDY BY ACT OF LAW, G63 
 
 An indictment will not lie for repairing a bridge unless 
 it be in a high. way. " Highways " is a general term for 
 all public ways, as well cart, horse, and footways, and 
 an indictment lies for any one of these ways if they are 
 common to all the Queen's subjects.^ If a way be in 
 decay an indictment of necessity lies, for an action on the 
 case will not lie without special damage,^ and no action on 
 the case will lie against inhabitants of a county for non- 
 repair of a bridge, because they are not a corporation, and 
 cannot be sued.^ 
 
 Upon an indictment charging a township with a pre- Declaration 
 scriptive liability to repair a bridge, the declarations of an i^h^Xtants 
 ancient inhabitant are admissible against the township, admissible in 
 
 GVIQCHCG 
 
 for he is a party to the record, whether rated or not.'* 
 
 Where an indictment had been preferred against a Eight to 
 county for not repairing a bridge, at the instance of the books! ^^^'^'^ 
 inhabitants of a parish, and the question intended to be 
 tried was, whether the inhabitants of the parish or those 
 of the county were liable for its repair, the Court refused 
 to compel the inhabitants of the parish to allow the parties 
 indicted to inspect the parish books and documents re- 
 lating to the repair of the bridge,^ and also held that the 
 bridge wardens ought not to be compelled, they being 
 trustees for the parish.'^ 
 
 The inhabitants of a county pleaded to a presentment Reputation. 
 
 "But it has been held, no such "against the hundred. We have 
 
 "action on the case would lie "then to decide whether the 4th 
 
 "against the inhabitants of a "sect, of 42 Geo. 3, c. 59 removes 
 
 " county for a special injiuy sus- "that difficulty We 
 
 " tained by a plaintiff by reason of " have, therefore, come to the con- 
 
 " their neglect to repair a county "elusion that judgment ought to 
 
 "bridge. [Russell \. Men of Devon, " be arrested.'* 
 "2T. R. 667.) We think it clear, ^ Ecg. v. Saintiff, 6 Mod. 255; 
 
 " on the full consideration of that Holt, 129. 
 
 " case, that the only reason why ^ lb.; 2 Lord Raymond, 1174. 
 
 " the action would not lie was be- ^ Pollock, C. B., in Mackin7wn y. 
 
 " cause the inhabitants of the Fenson, 8 Exch. 319. 
 "county were not a corporation * Ecx\. Adderbury East, 1 D. & 
 
 " and could not be sued, — a diffi- M. 324. 
 
 " culty which was got rid of in the ^ Rex v. Buckingham, 8 B. & C. 
 
 " case of the Statutes of Hue and 375; 2 M. & M. 412. 
 ' Cry by giving a specific remedy " lb.; per Lord Tenterden.
 
 664 REMEDIES FOE. THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 against the inhabitants of a county for not repairing a 
 bridge, that A. was liable to repair it ratione foiurce. 
 Issue on A.'s liability : — Held, that evidence of reputation 
 iras adniissihle to prove such liability on A.'s part.^ 
 
 By sect. 64 of 13 Geo. III. c. 78, the Court before 
 whom any indictment is tried for not repairing highways 
 is empowered to award costs to the prosecutor if it shall 
 appear to the Court that the defence to such an indictment 
 was frivolous. 
 
 Sect. 1 of 43 Geo. III. c. 59 enacts that " the penalties, 
 " forfeitures, matters and things in the former Act con- 
 " tained relating to highways are extended as far as the 
 " same were therein repeated and re-enacted." 
 
 The 13 Geo. Ill c. 78 is repealed by 5 c^ 6 Will. IV. 
 c. 50, sect. 98 of which empowers the Court before whom 
 any indictment shall be preferred for not repairing high- 
 ways to award costs to the prosecution where the defence 
 appears to be frivolous. 
 
 Sect. 5 provides that the word " highways " shall in- 
 clude all bridges " not being county bridges.''^ 
 
 To an indictment for the non-repair of a county bridge, 
 the defendants pleaded that a particular hundred were 
 liable to repair it. The jury found the defendants guilty, 
 and the judge who tried the case, thinking the defence 
 frivolous, gave a certificate for costs : — Held that, although 
 the 5 (^ 6 Will. IV. c. 50 did not apply to county bridges, 
 and repealed the 13 Geo. III. c. 78, yet that the 43 Geo. 
 III. c. 59 incorporated the latter Act, and kept alive the 
 power in the judge of granting the certificate for costs.^ 
 
 The Couii of Quarter Sessions cannot impose more than 
 one fine for the non-repair of a bridge.^ 
 
 The Court is reluctant to stay judgment on an indict- 
 ment for not repairing a bridge. They will not stay it 
 generally, but only till further order ; and if trial of 
 
 ' Reg. V. Bedfordshire, 4 El. & Sess. Cas. 316; 6 Q. B. 343; 8 
 
 Bl. 535; 1 Jur., N. S. 208 ; 24 L. Jur. 778 ; 13 L. J., M. C. 158. 
 
 J., Q. B. 81. 3 ji y_ Machynleth and Penegocs, 
 
 • Eeg. V. Merionethshire, 1 Nen' 4 B. & A. 469.
 
 REMEDY BY ACT OF LAW. 665 
 
 another indictment is proceeded in with all despatch, judg- 
 ment will be given.i 
 
 The sessions are not authorized to order the payment by 
 their bridgemaster to the clerk of the peace of a per- 
 centage on all money raised for repair of bridges in a 
 particular district in lieu of all his fees for indictments, 
 presentments, &c. for bridges within it ; although such 
 percentage was claimed as an ancient fee, and had been 
 paid without dispute for a long period of time.- 
 
 Per Lord Ellenborough,^ " I accede fully to the doctrine 
 laid down by Lord Kenyon in the case cited,^ that 
 wherever a duty is imposed on a county, and where 
 costs incidentally and necessarily arise in questioning 
 the propriety of acts done to enforce that duty, the 
 magistrates who have the superintendence over the 
 county pm'se, have necessarily a right to defray such 
 expenses out of the county stock. . . . But the question 
 is, whether they had a right to make that order in these 
 terms. . . . Then this Court seeing that the magistrates - 
 have adopted an improper and illegal rule for computing 
 the amount of this compensation, can do no otherwise 
 than quash this order which is founded on that compu- 
 tation."^ 
 
 A right of distress is incident to every toU,^ and the Tolls, 
 distress may be made on the thing itself in respect of 
 which the toll is due, or on any portion of it, as on a ship 
 or any part of it, for a toll due on goods exported on the 
 ship.^ 
 
 In cases of nuisance and injmy to the rights of pro- In junctions. 
 
 1 R. V. Southampton, 2 Chitty, ^ j^ ^^^. ^ ^i^^j^ 2 B. & Ad. 22. 
 
 215. '^ Gunning on Tolls, p. 216; 
 
 - Rex V. Houldgrave, 1 B. & A. Bac. Abr. tit. Distress (F), pi. 6 ; 
 
 312; cf. Rex v. Bird, 2 B. & A. Vin. Abr. tit. Toll, 1; Heddy v. 
 
 522; Rex v. Dorset, 15 East, 5. Wheclhousc, Cro. Eliz. 558. 
 
 ^ Rex V. Houldgrave, 1 B. & A. " Gimning on Tolls, p. 216 ; 
 
 312. Vinkensterne v. Ebden, 1 Ray. 386 ; 
 
 * The King v. Inhabitants of 1 Salk. 248 ; Carth. 357. 
 Essex, 4 T. E. 59.
 
 666 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 luterlocutory. 
 
 Perpetual. 
 
 Foundation 
 for inter- 
 ference of the 
 courts by 
 injunction. 
 
 Mandatory 
 injunctions. 
 
 Injunctions 
 granted to 
 prevent re- 
 jjeated 
 actions, 
 
 perty, tlie Courts will interfere by injunction in aid of 
 the legal riglit for the purpose of protecting the property 
 from damage. Thus an interlocutory injunction will be 
 granted to protect the property from irreparable, or at 
 least from substantial or material damage pending the 
 trial of the right.^ After the establishment of the right, 
 and of the fact of its violation, a man is in general entitled, 
 as of course, to a perpetual injunction to prevent the re- 
 currence of the wrong, unless there be something special 
 in the circumstances of the case.^ 
 
 If the case made out is such that the recovery of 
 damages will give a full and adequate compensation for 
 the injiuy, no foundation is laid for the interference of 
 the Court by way of injunction. If, on the other hand, 
 the injury is of so material a nature that it cannot be well 
 or fully compensated by the recovery of damages, or be 
 such as from its continuance and permanent mischief might 
 occasion a constantly recurring grievance, a foundation 
 is laid for the interference of the Court by way of injunc- 
 tion.^ The order may be framed so as to compel a defen- 
 dant to restore things to their former condition ; and when 
 framed in such a form it is called a mandatory injunction.'* 
 The jurisdiction of the Court is founded on the equity of 
 relieving a man from the necessity of bringing repeated 
 actions for damages for every violation of a common law 
 right, and of finally quieting the right, after a case has 
 received such full decision as entitles a man to be pro- 
 tected against further trials of the right.^ 
 
 Where, therefore, an action for damages by a riparian 
 proprietor lies for an interference with a stream, the 
 Court will interfere by injunction to restrain the nuisance, 
 
 ' See Kerr on Injunctions, p. 
 165. 
 
 ~ lb. p. 4-t ; Wood v. SutcUffe, 2 
 Sim., N. S. 166 ; Imperial Gas 
 Company v. Broadhcnt, 7 H. L. 612. 
 
 ^ Kerr on Injunctions, p. 16.') ; 
 A.-G. y. XichoU, 16 Ves. 338 ; 
 A.-G. V. SJirJfuld, 3 D., M. & G. 
 
 319; Wilson v. Totniend, 1 Da. & 
 Sm. 329. 
 
 * KeiT on Injunctions, p. 50 ; 
 Robinson v. Lord Byron, 1 Bro. C 
 C. 5SS; A.-G. \. Birmingham, 4 
 K. & J. 547. 
 
 ^ Lowndes v. Bet tie, 33 L. J., Ch. 
 451.
 
 REMEDY BY ACT OF LAW. 667 
 
 even where no actual damage is proved, to prevent the in- 
 convenience of repeated actions;^ and also where the act andtopre- 
 done is claimed as of right, on the ground that the repeti- ^^^ o/nghts. 
 tion of the act would at the end of twenty years establish 
 a right in the claimant in derogation of the prior right.^ 
 
 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.^ 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.* 
 
 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.^ 
 
 The Court will not interfere by injunction in a case of Trospective 
 merely prospective injmy ; but although the fact of pro- •^"J"''^- 
 spective nuisance is not of itself a ground for the inter- 
 ference of the Court, -' yet if some degree of present nuisance 
 exists, the Court will take into account its probable con- 
 tinuance and increase.^ 
 
 1 I'ciiiihifftoii V. Brinso}), 5 Cli. ■* Pennington v. Brbisoj), 5 Ch. 
 
 Div. 769 ; Clowes v. Staffordshire D. 7C9 ; A.-G. v. Birininr/hftni, 4 
 
 TFatcr Compamj, L. R., S'Ch. 125, K. & J. 328 ; Siiolrs v. Banhuri/, 
 
 143. L. R., 1 Eq. 42; TFood v. Sutdifc, 
 
 ~ Sirindon Water Company v. 2 Sim., N. S. 166; Bankart v. 
 
 Wilts and Bevies Canal, L. R., 7 H. Houghton, 27 Beav. 431 ; A.-G. v. 
 
 L. 697 ; Goldsmith v. Tunbridge Bradford, L. R., 2 Eq. 71. 
 
 Wells, Ij. R., 1 Ch. 349; Crossleg ^ A.-G. v. Bradford, L. R., 2 
 
 V. Lightowler, L. R., 2 Ch. 478; Eq. 71. 
 
 Harrop v. Hirst, L. R., 4 Ex. 43. « A.-G. v. Kingston, 13 W. R. 
 
 3 Wood V. Sutcliffe, 2 Sim., N. 888. 
 
 S. 163 : Bankart v. Houghton, 27 " Goldsmith v. Tunbridge, L. R., 
 
 Beav. 431. 1 Eq. 349; A.-G. v. Sheffield, Z
 
 668 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 No part of 
 the duty of 
 the Courts to 
 inqiiii-c iu 
 what way 
 nuisaBccs 
 may be re- 
 moved. 
 
 Injunction 
 to restrain 
 diversion and 
 obstriiction of 
 water. 
 
 Pollution. 
 
 Where the plaintiff has proved a right to an injunction, 
 it is no part of the duty of the Court to inquire in what 
 way the defendant can best remove the nuisance. The 
 plaintiff is entitled to an injunction at once, unless the 
 removal of the injury is physically impossible ; and it is 
 the duty of the defendant to find his way out of the diffi- 
 culty, 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.^ 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 compliance with the order was 
 physically impossible ; it was held that this was a gross 
 and wilful contempt of Court, and sequestration was ordered 
 to issue.^ 
 
 The Courts will grant injunctions to restrain the diver- 
 sion and obstruction of water in a natural stream ; and 
 though merely nominal damages may have been recovered 
 for the diversion, 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 eft'ect of destroying a right.^ If necessary 
 the injunction will be in a mandatory form.'* 
 
 So the Courts will restrain the fouling and pollution of 
 
 D., M. & G. 304 ; A.-G. v. Leeds, 
 L. R., 5 Ch. 583 ; A.-G. v. mdi- 
 fax, 89 L. J., Ch. 129 ; EUiott v. 
 North Eastern Railway, 10 H. L. 
 333 ; A.-G. v. Hachneij, L. E., 20 
 Eq. 631 ; Earl Itipon v. Hohart, 2 
 M. & K. 169 ; Cator v. Leuisham, 
 11 Jm-. 340 ; EUivcll v. Crowther, 
 31 Beav. 163. 
 
 1 A.-G. V. Colneij Hatch, L. E., 
 4 Ch. 146; A.-G. v. Halifax, 39 
 L. J., Ch. 129; rennington v. 
 Urinsop, 5 Ch. D. 769; A.-G. v. 
 Birmingham, 4 K. & J. £28. 
 
 ^ Spokes V. Banbury Board of 
 Health, L. R., 1 Eq. 42. 
 
 ^ Sicindon Water Co. v. Wilts and 
 Berks Canal, L. E., 7 H. L. 697; 
 Grand Junction Canal v. Shagar, 
 L. E., 6 Ch. 483; A.-G. v. Great 
 Eastern liaihcay, L. E., 6 Ch. 577; 
 Ehcell V. Croivther, 31 Beav. 163; 
 Rochdale Canal v. King, 2 Sim., 
 N. S. 79 ; Tipping v. Echcrslcy, 2 
 K. & J. 264 ; Robinson v. Lord 
 Byron, 1 Bro. C. C. 588; Wellcr y. 
 Smcaton, 1 Bro. C C. 572. 
 
 * Harropv. Jlirst, L. E., 4Ex. 43.
 
 REMEDY BY ACT OF LAW. 669 
 
 water to the injury of a riparian owner, even where the 
 damage is only nominal, upon the ground of the incon- 
 venience of leaving the parties to repeated and successive 
 actions for damages ;^ 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 reason s.^ 
 
 The Courts will not grant an injunction unless some 
 perceptible pollution exists; and in the case of A.-G. v, 
 Cockermouf/i,^ 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 any 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- Greneral, 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 Weehs v. Howard,^ Wood, Y.-C, refused to grant an 
 injunction to restrain the defendant from draining the 
 water out of a gravel pit, which water the plaintiff alleged 
 being muddy,^ 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.*^ 
 
 ^ Pennington V. Brinsop,b C\\. J). ^ Making water muddy is not 
 
 769; Clowes N. Staffordshire, L. E,., pollution. See TayUr v. Bennet, 7 
 
 8 Ch. 125. C. & P. 329 ; 39 & 40 Vict. c. 75, 
 
 " Zinffwood V. Stoicmarket,lj.li., s. 20. 
 
 1 Eq. 77. For form of order, see ^ A.-G. v. Zeeds, L. E,., 5 Ch. 
 
 lb. 336. 589; Crosslet/ v. Ziffhtoivler, li. R., 
 
 3 L. R., 18 Eq. 172. 2 Ch. 418 ; Goldsmith v. Tunhridge, 
 
 * low. E. 567. L. E., 1 Ch. 349; A.-G. v. Bir-
 
 670 
 
 REMEDIES FOR THE INFRINGEMENT OF RIGHTS OF WATER. 
 
 Piirpresture 
 and public 
 nuisance to 
 navigable 
 rivers. 
 
 Bight of 
 access. 
 
 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 the defendants to comply with the 
 order, by altering their works. ^ 
 
 In the case of injury to riparian rights, the Courts will 
 not, except in special cases, award damages in lieu of an 
 injunction.- The injunction may be in a mandatory form.^ 
 
 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 navigation, the Court 
 will generally direct an inquiry, whether it is more bene- 
 ficial 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.'* 
 Erections on the bed of na\dgable 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.^ 
 
 Any interference, however, with the right of access 
 
 mlngham, 4 K. & J. 528 ; Bidder 
 y. Croydon, 6 L. T., N. S. 778 ; 
 A.-G. V. Luton, 2 Jur., N. S. 180 ; 
 Manchester v. Worksop, 23 Beav. 
 198 ; Wood v. SutcUffe, 2 Sim., N. S. 
 1G3; Tipping v. Eckerslei/, 2 K. & 
 J. 2C4 ; Oldaker v. Hunt^, 6 D., M. 
 & G. 376. 
 
 ' Goldsmith v. Tmihridge, L. R., 
 1 Ch. 163; A.-G. v. Colney Hatch, 
 L. R, 4 Ch. 146; A.-G. v. leech, 
 L. R., 5 Ch. 583; A.-G. v.IIalifaz, 
 17 W. R. 1088; yl.-G. v. Birming- 
 ham, 19 "W. R. 561 ; Bennington v. 
 Brinsop, 5 Ch. D. 769. 
 
 - Bennington v. Brinsop, 5 Ch. D. 
 769 ; Kerr on Injunctions, pp. 243, 
 
 244. 
 
 3 Spokes V. Banbury, L. R., 1 
 Eq. 42. 
 
 * A.-G. V. Terry, L. R., 9 Ch. 
 423; A.-G. v. Lonsdale, L. R., 7 
 Eq. 388; A.-G. Y.Johnson, 2 Wils. 
 Ch. 87; Barmeter v. A.-G., 10 Price, 
 412 ; A.-G. V. Barmeter, 10 Price, 
 378; A.-G. v. Burridge, 10 Price, 
 350 ; Bristol Harbour case, cited 18 
 Ves. 214; A.-G. v. Richards, 2 
 Anstr. 603 ; see also Gann v. Free 
 Fishers, 11 H. L. 292. 
 
 5 A.-G. V. Terry, L. R., 9 Ch. 
 423; A.-G. v. Lonsdale, L. R., 7 
 Eq. 388 ; Rec/. v. Beits, 16 Q. B. 
 1023; R. V. Ward, 4 Ad. & E. 386.
 
 REMEDY BY ACT OF LAW. 671 
 
 wliicli a riparian owner lias to a navigable river for the 
 purposes of exercising 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.^ 
 It is a question of fact in each case, whether an obstruc- 
 tion in a river amounts to an interference with the right of 
 access to a river frontage.^ 
 
 An action will lie for the breaking and entering a Fishery, 
 several or a free fishery.^ 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.'^ 
 
 The obstruction of the passage of fish, as by weirs, is 
 actionable by the owner of a fishery prejudiced thereby.^ 
 
 The pollution of a river, which has the effect of killing 
 or driving away fish, may be restrained by injunction.^ 
 
 In a case where a man, by making an embankment and 
 enclosing the bed of a river, shut out and prevented the 
 tide from 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 Lijon V. Flshmoinjers' Co., I ^ Weld y. Hornby, 7 East, 195; 
 
 App. C. 662 ; Ease v. Groves, 5 M. Marquis of Donegal v. Hamilton, 3 
 
 & G. 613 : Bobson v. Blackmore, 9 Ridg. P. C. 267; Leconfeld\. Lons- 
 
 Q. B. 991; Hubert v. Groves, 1 Esp. dale, L. E,., 5 C. P. 726, per Bovill, 
 
 N. P. C. 148 ; Fmeux v. Hoveden, C. J. 
 
 Cro. Eliz. 664. " A.-G. v. Birmingham, 4 K. & 
 
 ^ Bell X. Corporation of Quebec, il J. 528; A.-G. v. Luton, 2 Jur., 
 
 L. T., N. S. 451 (P. C). N. S. 181 ; Bidder v. Croydon, 6 
 
 3 Holford V. Bailey, 13 Q. B. L. T., N. S. 778; Oldaher\. Hunt, 
 
 426. 6 D., M. & G. 376 ; Aldred's ease, 
 
 * Blomfield v. Johnson, Ir. R., 8 9 Re^D. 59 a. 
 
 C. L. 68; Child v. Grecnhill, Cro. '' Bridges v. Highton, 11 L. T., 
 
 Car. 553; Gij>ps v.TFoollicotf, Skin. N. S. 653. 
 577 ; Upton T. Lawkins, 3 Mod. 97.
 
 ( 673 ) 
 
 APPENDIX. 
 
 EULES AND BYE-LAWS FOR THE REGULATION OF 
 THE NAVIGATION OF THE EIVER THAMES. 
 
 I. Bye-laics framed binder an Order in Council of bth 
 February, 1872. 
 
 1. All bj'e-laws, rules, and orders for the regulation, management Former bye- 
 and improvement of tlie river Thames and the navigation thereof, ^^^^ repealed, 
 and for compelling vessels at anchor or other-sviso to carry or 
 
 exhibit lights from sunset to sunrise, and for the government, good 
 order and regulation of vessels in or upon the said river, and of 
 persons navigating the same, or using the towing-paths, j^iers, 
 landing-places, or any of the locks thereof, also for the mooring of 
 timber, and for the government and regulation of the officers, ser- 
 vants and workmen in their employment, except the bye-laws for 
 regulating the fisheries of the 4th October, 1785, the 23rd of Janu- 
 ary, 1860, and the Upper Thames bye-laws, 1869, shall, after these 
 present bye-laws shall have been allowed by order of her Majesty 
 in Council, be and the same are hereby repealed. 
 
 2. That in the following bye-laws the words and expressions Interpretation 
 hereinafter mentioned shall have the several meanings hei'eby clause, 
 assigned to them, unless there bo something in the subject or con- 
 text rej)ugnant to such construction. 
 
 The word "person" shall include corporations, whether aggregate 
 or sole. 
 
 The word " horse " shall include all draught animals. 
 
 The word "vessel" shall mean any ship, lighter, barge, boat, 
 wherry, punt, raft, or craft, and any kind of vessel whatever, 
 whether navigated by steam or otherwise. 
 
 The word " collier" shall mean any vessel, the cargo of which 
 shall consist of coal. 
 
 The word " station " shall mean any section, berth, or station for 
 mooring or anchoring of vessels. 
 
 The word "master," when used in relation to any vessel, shall 
 mean any person, whether the owner or not, lawfully or wrong- 
 fully, having or taking the command, charge or management 
 of the vessel for the time being. 
 
 The word "harbour-master" shall be taken to mean and shall 
 apply to each of the harbour-masters and the deputy harbour- 
 master, and to any person authorized by the Conservators to 
 assist them or to perform the duties of the said harbour-masters 
 during the absence of any of them from any cause whatsoever. 
 C. XX
 
 674 
 
 APPENDIX. 
 
 Accommoda- 
 tiou for vessels 
 between Lon- 
 dou Bridge 
 and Irongato 
 Stairs. 
 
 Width of 
 passage be- 
 tween Iron- 
 gate Stairs 
 and Barking 
 Creek. 
 
 Number of 
 vessels to be 
 moored at the 
 respective 
 tiers. 
 
 Nunaber of 
 colliers to be 
 moored at the 
 several sta- 
 tions. 
 
 The word "river Thames" or "river" shall mean so much of 
 the river Thames, and such part of its tributaries within the 
 jurisdiction of the Conservators, as is between Cricklade, in the 
 county of Wilts, and Yantlet Creek, in the county of Kent. 
 The words " in writing " ajjplied to any document shall include 
 dociunents wholly printed or wholly written, or partly j)rinted 
 and partly written. 
 o. The harbour-master shall provide as far as practicable accom- 
 modation between London Bridge and Irongate Stairs for vessels 
 passing up and down the river, maintaining as far as practicable a 
 navigable passage of not less than two hundred feet. 
 
 4. The harbour-master shall provide and maintain as far as 
 practicable for vessels passing up and down the said river between 
 Irongate Stairs and Barking Creek a navigable passage of not less 
 than three hundred feet, and where the navigable passage shall bo 
 between a tier of vessels and the shore the sjiace hereby allotted for 
 any such passage shall be reckoned from the vessel in such tier 
 which shall be nearest to the said shore to the low-water mark 
 on the said shore, and in all parts of the river where the navigable 
 passage shall be in the stream between tiers of vessels the space 
 allotted for the navigable passage shall be reckoned from the vessel 
 in each of the said tiers nearest to the other or opposite tier. 
 
 5. The several tiers used by colliers shall be placed as near to the 
 respective shores of the river as the depth of the water wall permit, 
 and no more colliers or vessels shall be moored and distributed 
 thereat at the same time than the number hereinafter respectively 
 specified and allotted, that is to say — 
 
 On the South Side of the Eiyee. 
 
 Princes Stairs, 
 Princes Stairs, 
 Church Hole, 
 Chiu'ch Hole, 
 Planover Hole, 
 Hanover Hole, 
 Mill Hole tier. 
 
 uj)per tier, 
 lower tier, 
 upper tier, 
 loAver tier, 
 upper tier, 
 lower tier. 
 
 Ten vessels. 
 Ten vessels. 
 Ten vessels. 
 Twelve vessels. 
 Twelve vessels. 
 Twelve vessels. 
 Twelve vessels. 
 
 0:s THE North Side of the Eivep.. 
 
 Bell "Wharf tier Fourteen vessels. 
 
 Stone Stairs tier ..... Eighteen vessels. 
 Eatcliffe Cross, upper tier, Sixteen vessels. 
 
 Eatcliffe Cross, lower tier, Six vessels. 
 
 At all the said tiers or stations hereinbefore mentioned not more 
 than one half of the said number of vessels so allotted and siDccified 
 shall be moored with their heads iip the river, nor more than one 
 half of the said number of vessels with their heads down the river. 
 
 6. No more vessels shall be placed or i:)ermitted to remain at or 
 in the several stations for colliers below Blackwall, at one time, 
 than the number herein respectively specified, (that is to say) — 
 
 Ox THE South Side of the Eivee. 
 Station No. 1, from Blackwall 
 Point to the Charlton Perry 
 ^ Bugsby's Hole . . . Seventy-five vessels. 
 Station No. 2, Galleons. . . Fifteen vessels.
 
 RULES AND BYE-LAWS AS TO RIVEIl THAMES. 675 
 
 7. No vessel shall, under any circumstances, without an order or No vessel to 
 consent for that piu'pose first had and obtained from the harbour- remain longer 
 master, remain in any of the tiers in the said river for a longer ^^^^ fifteen 
 period than fifteen days next after such vessel shall have entered ^^^J^- 
 
 anj' such tier, exclusive of the day of entering the same. 
 
 8. Every vessel admitted into any tier in any part of the river Vessels to 
 shall go out and remove from such tier at the next succeeding flood- remove from 
 tide after its cargo shall have been discharged, and shall forthwith tiers at the 
 proceed to such station as shall be for that purpose appointed by the f-^^^ ^°°'-^ 
 harbour-master, who is hereby authorized and required in case of ^'^ ^' 
 
 any such vessel not being so removed within the time aforesaid, 
 to remove the same from such tier, and to take and place the 
 same in such i)art of the river as shall be by him for that purpose 
 deemed fit ; and the expenses of so removing and placing such vessel 
 shall be recoverable from the owner or owners of the said vessel, 
 or from the master thereof, to the use of the Conservators, as pro- 
 vided by the Thames Conservancy Act, 1857. 
 
 9. No vessel shall lie at, be jilaced, made fast, or moored in any Xo vessel to 
 of the in-shore passages or ferries or upon the banks or shores of be moored m 
 the river, so as to prevent the free transit of any other vessel. And ii^-shore 
 
 it shall be lawful for the harbour-master forthwith to unmoor and fCTritf^^o^ 
 remove, or cause to be unmoored and removed, any vessel so to obstruct, 
 jilaced, made fast, or moored, and the amount of the charges and 
 expenses of such immooring and removal shall be recoverable from 
 the owner or owners, or from the master of the said vessel, to the 
 use of the said Conservators, as provided by the Thames Conservancy 
 Act, 1857. 
 
 10. No vessel shall be anchored, moored, or placed between the No vessel to 
 tiers hereinbefore mentioned, or outside the stations hereinbefore be anchored 
 mentioned, or in any part of the navigable water-way of the river, between the 
 otherwise than by the order and direction of the harbour-master. *^*^^^ °^' ^^ ^^^° 
 
 11. The harbour- master may give notice for the removal, ^^ ei-way. 
 within a time to be in the said notice sjDecitied, of any vessel which ^°^' ^'en^oval 
 shall at any time be so moored, anchored, or placed in any part of croachino-^'^' 
 the river, as in his opinion shall encroach upon the free navigation upon the" 
 of the river, to such other place as such harbour-master in his dis- passage, 
 cretion shall see fit, such notice to bo given to the master of such 
 vessel, or in case there shall be no person on board the said vessel, 
 then such notice to be affixed and left affixed to some conspicuous 
 part of such vessel, and in case the same shall not be removed in 
 accordance with the said notice before the exi^iration of such time, 
 the harbour-master is hereby authorized to remove or cause to bo 
 removed any such vessel, and the amount of the charges and 
 expenses of such removal shall be recoverable from the owner or 
 owners, or from the master of the said vessel, to the use of the 
 Conservators as provided for by the Thames Conservancy Act, 1857. 
 
 12. No vessel shall be brought up, stopped or placed so as to en- Vessels ob- 
 croach upon or obstruct the free navigation of or passage on the structing 
 river, nor on any vessel going into any of the said tiers, or quitting passage to be 
 the same and getting into the stream of the fail- way of the river, I'emoved. 
 shall any anchor be let go therefrom (except for the purpose of 
 navigating such vessel), and no part of the cargo of any vessel and 
 no ballast shall be discharged or taken in whilst the same is lying 
 in the stream of the fair way of the river, and the harbour-master 
 
 X X 2
 
 676 
 
 APPENDIX. 
 
 is hereby aiitliorized and. required to remove any vessel so causing 
 such, obstruction to the navigation and fair way of the river, and 
 the amount of the charges and expenses of such removal shall be 
 recoverable from the owner or owners or master of such vessel to 
 the use of the Conservators, as provided by the Thames Conservancy 
 Act, 1857. 
 As to floats or 13. No float or floats, or raft or rafts of timber, either singly or 
 rafts. together, exceeding sixty feet in length (except timber in one length), 
 
 and twenty feet in width, shall be permitted to go into or pass along 
 any part of the stream of the river between Bugsby's Hole and 
 London Bridge, nor shall any float or floats, raft or rafts of timber, 
 exceeding forty feet in mdth, be permitted to go into or pass along 
 any other part of the stream of the river, nor shall any two or more 
 floats or rafts of timber go or float abreast, nor shall more than three 
 such floats or rafts in one body in continuous succession go into or 
 pass along any part of the said stream lengthways, nor shall any 
 following float or raft of timber go within the distance of three 
 hundred yards of any other such float or raft floating upon the 
 stream of the river. 
 
 14. Repeahd nth July , 1877. 
 
 15. AU vessels navigating Grravesend Reach are to keep to the 
 northward of a line defined by a skeleton beacon erected upon the 
 India Arms "Wharf on with the high chimney of the Cement Works 
 at Northfleet ; and all vessels intending to anchor in the Eeach are 
 to bring up to the southward of that liiie. A lantern is placed on 
 the above beacon which shows (at night) a bright light to the north- 
 ward of the same line, and a red light to the southward of it, over 
 the anchorage ground. All vessels so anchoring and remaining 
 beyond a period of twenty-foiu- hours are to be moored. 
 
 16. All barges, boats, lighters, and other like craft navigating the 
 river shall, when imder way, have at least one competent man con- 
 stantly on board for the navigation and management thereof, and all 
 such craft of above 50 tons burden shall, when under way, have one 
 man, in addition, on board to assist in the navigation and manage- 
 ment of the same, with the foUo's^'ing exceptions : — "When being 
 towed by a steam vessel, or when being moved to and fro between 
 any vessels or places a distance not exceeding 200 yards ; and in 
 case of non-compliance with this jDresent bye-law, the harbour- 
 master may take charge of and remove such craft to such place as 
 to such harbour-master may seem fit, and the amount of the charges 
 and exi^enses of taking charge thereof, and of such removal, shall 
 be recoverable from the owner or owners or master thereof, to the 
 use of the Conservators, as provided by the Thames Conservancy 
 Act, 1857. 
 
 Left anchor.? 17. Any vessel slijDping or parting from her anchor, shall leave a 
 
 to be buoyed, buoy to mark the position of such anchor. 
 
 As to anchors 18. No anchor or anchors shall be suffered to lie or remain in the 
 
 in the stream, stream of the river outside of the line of the said tiers so as to en- 
 danger any vessel. And if any anchor or anchors of any vessel 
 shall be so permitted or suffered to lie or remain in the stream of 
 the river outside of the Line of any of the tiers in such a manner 
 as in the judgment of the harbour-master to endanger the vessels 
 passing up or down the river, it shall be lawful for the harbour- 
 master, and ho is hereby required to deliver or cause to be 
 
 Course of 
 vessels navi- 
 gating 
 Gravesend 
 Reach. 
 
 Barges over 
 .50 tons to 
 have two 
 persons to 
 navigate them.
 
 RULES AND BYE-LAWS AS TO RIVER THAMES. 677 
 
 delivered on board such vessel a notice in \vTiting, signed by 
 bim, requiring tbe master of such vessel fortbwith to remove sucb 
 anchor or anchors, and if such master shall not \vithin a reasonable 
 time after the deUvery of such notice, remove such anchor or anchors, 
 the harbour-master is hereby further authorized and required to re- 
 move or cause to be removed such anchor or anchors, the amount of 
 the charges and exjienses of such removal shall be recoverable from 
 the owner or owners or master of the said vessel to the use of the 
 Conservators, as provided for by the Thames Conservancy Act, 1857. 
 
 19. No vessel shall navigate or lie in the river with its anchor or Anchors a 
 anchors a cock bill, excejjt while fishing such anchor or anchors or cock bill, 
 during such time as may be absolutely necessary for getting such 
 
 vessel under way or for bringing it to anchor. 
 
 20. No vessel shall be navigated or lie in the river with its anchor Anchor.? 
 
 or anchors hanging by the cable perpendicularly from the hawse, hanging up by 
 unless the stock shall be awash, except during such time as shall ^"-^ cable, 
 be absolutely necessary for catting or fishing the said anchor or 
 anchors, or during such time as may be absolutely necessary for 
 getting such vessel under way. 
 
 21. In the loading and unloading of any vessel in any one of the Vessels to bo 
 said tiers in the river when and as often as it may be found requisite slacked off if 
 and necessary for any vessel to lie alongside another for the i^uri^ose ^^l^ii^'^d. 
 
 of receiving or delivering goods or ballast, it shall and may be lawful 
 for the harboiu'-master to direct and require the master of any 
 such vessel as aforesaid to slack oif the same, and in case of non- 
 compliance by the master with the said direction the harbour- 
 master is hereby authorized to slack off such vessel lying alongside 
 as aforesaid. 
 
 22. No vessels which shall hereafter be laid or stationed in any Vessels not to 
 of the said tiers in the river shall lie or be boomed off from each boomed off, 
 other, unless when necessary for the pui'pose of admitting any other 9-^^ ^o ^^ 
 vessel alongside the same, and every such vessel, (excej^t the out- i?! ■? °^^^ 
 ward one at each end or extremity of such tier, ) shall be laden over 
 
 the bows thereof, and not otherwise, unless from the weight or 
 bulk of the goods or nature of the merchandize it shall be deemed 
 by and appear to the harboiu'-master necessary to load or unload 
 the same alongside, and when and so often as the harbour-master 
 shall dii-ect any vessel to be so loaded or unloaded, every master of 
 any vessel so Ij'ing in the said tier as aforesaid, when required to 
 do so by such harbour-master, shall as speedily as possible slack 
 the breastfasts and moorings of his vessel for the purposes afore- 
 said. 
 
 23. No private chain or chains shall be affixed to the public As to the 
 moorings in the river without the permission of the harbour-master public moor- 
 first had and obtained, and if any such private chain or chains ^S^- 
 
 shall be affixed to the said public moorings, the harbour-master is 
 
 hereby authorized to remove the same therefrom. " 
 
 24. No vessel shall be moored to the public moorings in the river Vessels at 
 otherwise than by the proper rings and bridles. moorings. 
 
 25. Every vessel lying in any of the said tiers in the river shall Vessels in 
 have a bow and stern lashing to the vessel next to it in the said tiers. 
 tier. 
 
 26. Every master of any vessel which shall bo moored or navi- When hawser 
 gated on any part of the river with a warp, hawser, rope, or chain, to be slacked.
 
 678 
 
 APPENDIX. 
 
 Moorings to 
 be slacked 
 when I'e- 
 quired. 
 
 As to moor- 
 ing steam - 
 vessels. 
 
 No steam 
 vessel while 
 attached to 
 mooring to 
 have engines 
 in motion. 
 
 Master of 
 steam vessel 
 to remain on 
 paddle-box or 
 
 bridge. 
 
 Xo person to 
 be taken on 
 board nor 
 leave steam- 
 vessel whilst 
 in motion. 
 
 Steam-vessels 
 plying on liver 
 to show places 
 between 
 Avhich they 
 
 ply. 
 
 Vessels for 
 certain pur- 
 poses to be 
 licensed by 
 Consen-ators. 
 
 Precautious in 
 taking in or 
 discharging 
 ballast. 
 
 Barges to have 
 fifteen inches 
 free board. 
 
 Penalties for 
 intoxication, 
 &c. 
 
 or having a rope across for any pui'i:)ose wliatsoever, unless in the 
 act of entering or departing from any dock, shall slack the same 
 down on the approach of any other vessel which shall be proceed- 
 ing, dropping or sailing with or against the tide. 
 
 27. The harboiu'-master may order the moorings to be slacked 
 down, or the sails to be furled, or the yards, masts, and booms, or 
 any or either of them respectivelj-, of any vessel lying or being in 
 the said river, forthwith to be struck or run in, whenever in the 
 judgment of any such harbour-master it shall be proper and ex- 
 pedient for the safety of any vessel or vessels so to do. 
 
 28 & 29. Repealed I8th March, 1880. 
 
 30. 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. 
 
 31. No master of any steam- vessel, engineer, or other person 
 therein shall set the engine or engines of such steam-vessel in 
 motion during the time that such steam- vessel shall be attached to 
 any mooring or moorings in the river. 
 
 32. 33, 34 & 35. Ilepeakd ISth March, 1880. 
 
 36. The master of every steam-vessel navigating the river shall 
 be and remain on one of the paddle-boxes, or on the bridge of such 
 steam-vessel, and shall cause a proper look out to be kept from the 
 said steam-vessel during the whole of the time it is under way, 
 and shall remove or cause to bo removed any person other than the 
 crew who shall be on the bridge or paddle-boxes of such steamer. 
 
 37. No person shall be taken on board any steam- vessel navi- 
 gating the said river, nor leave the same for the purj^ose of landing, 
 Avhilst the vessel is in motion ; nor shall the engine thereof be put 
 in motion until any boat or wherry bringing or taking away any 
 passenger to or from such steam-vessel shall be sufficiently clear 
 thereof. 
 
 38. Every steam- vessel navigating the river, and conveying 
 passengers from any landing place to any other landing place 
 thereon, shall have painted and conspicuously displayed on the 
 outside of such vessel, and on each side thereof, in letters of not 
 less than three inches in length, the names of the places between 
 which such vessel plies. 
 
 39. No vessel shall be iised for the purj^ose of carrying away 
 refuse from gas-works or other manufactories, or mud or other 
 liquid or solid substances of an offensive and deleterious nature, 
 which it is unlawful to cast into the Thames, other than the vessels 
 licensed by the Conservators for that jiurpose under their seal. 
 
 40. No master of any vessel shall take in or discharge ballast, 
 unless canvas or tarpaulings be affixed below the ballast port, and 
 extend down inside the barges, so as to prevent the ballast falling 
 into the river. 
 
 41. No person shall navigate any barge or hghter on the river 
 below London Bridge unless there shall be a free board of at least 
 fifteen inches, to be measured fi"om the waters-edge to the top of 
 the coamings of the hatches ; and if there be no coamings there 
 shall be a free board of at least fifteen inches, to be measured from 
 the waters-edge to the top of the gunwale. 
 
 42. Any master, engineer, waterman or other person engaged in
 
 RULES AND BYE-LAWS AS TO RIVER THAMES. 679 
 
 navigating any vessel in the river who shall be intoxicated while so 
 engaged, and any person whosoever engaged or employed on the 
 river who shall make use of abusive or insulting language to any 
 officer of the Conservators whilst employed in the performance of 
 the duties of his office, or shall obstruct any such officer in the 
 execution of his said duties, shall be deemed to have committed a 
 breach of these present bye-laws, and shall be liable to the penalty 
 hereinafter mentioned. 
 
 43 & 44. Repeahd hy Explosives Bye-laws, 2Gta January, 1876. 
 
 45. The master or owner of any vessel entering or leaving the As to payment 
 Thames, subject to the pajTnent of tonnage due, and which has not °* tonnage 
 been entered at the office of _ H.M. Customs and on which the ^^t ent'ereT at 
 tonnage dues have not been paid to the receiver there, shall furnish ^he Customs', 
 the Conservators, for the purpose of registration, 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, and shall pay to the Conservators the 
 tonnage rates which are then due for each time of arrival in, and 
 departure from the river, provided by the Act of the 4th and 5th 
 Wm. IV., cap. 32, entitled, "An Act for rendering the Tonnage 
 Eates payable in the Port of London." 
 
 46. Bepeahd 18th March, 1880. 
 
 47. No person shall unload on the towing-paths of the river any Obstructions 
 sand, gravel, timber, or other material, or place any rubbish, boats, on towing- 
 carts, or any articles whatsoever upon the said to-^dng-paths, or on paths. 
 
 the banks thereof. 
 
 48. No person shall ride or drive any horse (except when towing Trespasses on 
 vessels) or drive or place any cart, waggon, or other vehicle over or towing-paths, 
 upon any part of the towing-paths, unless there be a public right 
 
 of way for such cai'ts, waggons, or other vehicles, or allow cattle to 
 pastiu'e upon the same. 
 
 49. No person shall remove any stones, clay, or other material Eemoviug 
 from the banks, weirs, tumbling bays, towing-paths, or any other stones, &c. 
 of the works of the Conservators. 
 
 50. No person shall place any vessel on the shores of the river in Vessels not to 
 front of the to^^ing-paths. _ fron^of^ "" 
 
 51. The navigable part of the channel of the river above Ted- towino-.paths. 
 dington Lock shall at all times be kept clear for the passage of all "^ ' ' 
 vessels navigated thereon, and no vessel shall be stopped on any i,e obstructed'^ 
 account whatsoever in the na^-igable part of the said channel, so as 
 
 to prevent or obstruct the free ancl clear passage of any other 
 vessel. 
 
 52. If any vessel, or other matter whatsoever, shall bo wilfully As to removal 
 placed or stopped, or accidentally be aground or sunk in any part of obstruc- 
 of the river above Teddington Lock so as to impede, hinder, or i^°^^. '^^'^ 
 obstruct the free and clear navigation thereof, the owner or any Lqc^!"^ 
 person having the care of such vessel, or other matter shall, imme- 
 diately on the request of any person hindered or obstructed, or of 
 
 any officer of the Conservators, remove such impediment or ob- 
 struction, so as to open and clear the channel of the river, and on 
 the refusal or neglect of the person concerned and directed as afore- 
 said to remove such obstruction in a reasonable time, any officer of 
 the Conservators is hereby authorized forthwith to remove, or cause
 
 680 
 
 APPENDIX. 
 
 Vessels 
 l)otwecn 
 Teddiiigtnn 
 and Eeadiug 
 to be measured 
 and marked as 
 to capacity. 
 
 Vessels not to 
 stop in locks. 
 
 As to vessels 
 passing locks 
 without pay- 
 ing the toll. 
 
 Sails not to be 
 used In locks. 
 
 As to tow 
 lines. 
 
 Ferry boats. 
 
 Injury to 
 banks. 
 
 As to tres- 
 passers on 
 towing-paths 
 and injuries to 
 works. 
 
 to be removed such obstructiou or impediment, and, if necessary, to 
 cause to bo unloaded any sucb vessel, and the costs of such removal 
 shall be paid by the owner of such vessel or other matter. 
 
 53. The owner of every vessel used for carrying goods or mer- 
 chandize for hire on the river between Teddington and Eeading, 
 which vessel has not been weighed out, measured, marked and 
 numbered, shall, on being requested so to do by the Conservators, 
 or any of their officers, cause the same to be taken to the Thames 
 Conservancy Works at Kow or Shepperton, for the purpose of 
 being so weighed out, measured, marked and numbered, and the 
 ow^ner of eveiy such vessel shall permit the Conservators to affix on 
 each of the extei^nal sides of every such vessel three pieces of copper 
 legibly marked with the feet and inches, measured from the bottom 
 or chine of such vessel, and shall permit the same to be renewed so 
 often as the same shall be worn out, or torn off in any part, or in 
 the whole. 
 
 54. No vessel shall enter into any lock unless there be sufficient 
 water to float and carry such vessel thi-ough such lock, and the 
 channel or cut leading to or from the same, and no vessel or float 
 shall on any account whatsoever stop in any lock longer than is 
 absolutely necessary for the filUng or empt^ang such lock and 
 passage through the same, and for the lock-keeper to gauge the 
 vessel and settle the toll payable in respect thereof. 
 
 55. If any vessel shall have passed through any lock, and the 
 tolls for the passage thereof shall not have been duly paid, such 
 tolls shall and may be demanded, received, and taken at any other 
 lock through which such vessel or float is to pass in the same 
 passage, before the same be permitted to pass. 
 
 56. No vessel used for cariying goods or merchandize shall enter 
 any lock with sail up, nor hoist any sail during the time it con- 
 tinues in lock, and from every vessel having entered a lock, a fast 
 or ro^^e shall be immediately put out and made fast to some pile for 
 that i^urpose on shore, in order to prevent the vessel from running 
 foul of the gates, or other works in the lock, and the bargemen or 
 others on board any vessel shall not hold with their poles in any 
 lock. 
 
 57. When any vessel is stopped between the towing-path and the 
 navigable channel, the mast, or towing-mast, or the funnel, shall 
 be lowered so as to jiermit the towing-lines of any other vessel to 
 pass without obstruction ; and when any vessel shall be moored at 
 any wharf or elsewhere to be laden or unladen, or otherwise, 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 as con- 
 veniently may be. 
 
 58. No person shall take aw^ay or use any ferry-boat at any of 
 the ferries, or any pole or jioles or tackle belonging to such ferry, 
 without the consent of the ferrjTnan first obtained. 
 
 59. No person employed on board any vessel shall wilfully, or 
 ■without actual necessity, place or hold a jiole against any of the 
 banks and towing-paths, or works, so as to injure or damage the 
 same. 
 
 60. No owner of towing-horses, or his servant, or driver shall 
 jiermit or suffer the towdng-horses or any of them, to go out of the 
 towing-paths, or to trespass, graze or trample on the lands adjoin-
 
 KULES AND BYE-LAWS AS TO RIVER THAMES. 681 
 
 ing such towing-paths, or shall leave any of the gates on the 
 towing-paths or bridges open, or leave any swing-bridge open, or 
 suffer the towing-lines to tear away or damage any rails, gates, 
 jDosts, bridges or works. 
 
 61. No person shall erect any new buck or weirs, or drive or affix As to planting 
 any piles or stakes, or make any hedge, or jjlant any willows or psiers or erect- 
 osiers in the river without the permission of the Conservators. ^^^^ bucks. 
 
 62. Every barge shall be gauged at each lock and the actual Barges to be 
 draft shall be inserted on the ticket, and in case of any obstruction gauged and 
 being offered by any barge-master or his servant by refusing to ticket shown 
 show the lock-keei")er a manifest or invoice of his cargo, the toll cargo, 
 shall be taken at the full burden which the barge is capable of 
 carrjdng. 
 
 63. No person under any pretence shall use or meddle with the Persons not to 
 sluices of the Conservators without the permission of the lock- ^^ddle with 
 keepers. _ ^l^*^^^- 
 
 64. No vessel shall be towed upon the river from the bank, Mode of 
 otherwise than from a mast of sufficient height to protect the towing, 
 banks, gates, and works from injury by the towing-line, except in 
 ])laces where the sti-ength of the stream renders it necessary that 
 
 the line should be brought down to the vessel and made fast. 
 
 65. Two flashes and no more shall be penned for or drawn in a Flashes, 
 week on such days, and at such hours as the Conservators shall 
 
 from time to time by order of the board appoint. Previously to the 
 drawing for such flashes, all the flood gates and sluices, and shuttles 
 at all mills and weirs shall be close shut in, and be kept close shut 
 in till the flash is at best, and such flash shall then be di-awn, 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 weii's 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 neces- 
 sary) 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. 
 
 66. No owner or occupier of a mill shall, except in case of sudden Millowners to 
 necessity, draw down the water at the mill for the purpose of rejiairs f efor^°draw- 
 to the works of such mill, or for cleansing the mill stream, unless jj^g down 
 
 he shall have given notice in writing of his intention so to do to the water for 
 Conservators at their office seven days previously thereto. repairs. 
 
 67. The toll at each lock upon every new vessel capable of carry- Tolls, 
 ing ten tons, but ungauged, built in the upper district for the lower, 
 shall be 2s. Gd. ; a declaration of the number of tons on board shall 
 
 be produced at each lock. 
 
 68 & 69. Bepeuhd 28th November, 1874. 
 
 70. Repealed by Bye-laws of 17th May, 1879, which regulate the 
 ' tolls as follows : — 
 
 Persons in charge of pleasure boats passing through, by, or over Pleasure boat 
 any of the locks on the river Thames, shall pay to the lock-keepers tolls for locks, 
 or other persons authorized to receive tolls, the sums contained in 
 the following table : — 
 For every steam pleasure-boat and passenger 
 
 steamer Eighteenpence
 
 682 
 
 APPENDIX. 
 
 Class 1. — For every sculling-boat, pair-oared row- 
 boat, and skiff, and for every randan, 
 canoe, punt, and dingey 
 
 Class 2. — For every foiir-oared row-boat (other than 
 boats enumerated in Class 1) and saOing- 
 boat ....... 
 
 Class 3. — For every row-boat shallop, over four 
 oars (other than boats enumerated in 
 Classes 1 and 2) . . _ . 
 
 For every house-boat, under fifty feet in length 
 
 Threepence 
 
 Sixpence 
 
 For every house-boat, over fifty feet in length 
 
 One shilling 
 One shilling 
 
 and sixpence 
 Two shillings 
 and sixpence 
 The above charges to be for passing once through, by, or over a. 
 lock and returning on the same daj'. 
 
 In lieu of the above tolls, pleasure steamers or row-boats may be 
 registered on the i:)a5Tnent to the Conservators of the undermentioned 
 sums, and shall in consideration of such pajTnent pass the several 
 locks free of any other charge from the 1st day of January to the 
 31st day of December in each year. 
 
 For every steam pleasure-boat and steam passenger- 
 boat, not exceeding thirty-five feet in length 
 Ditto above thirty-five feet in length, and not exceed- 
 ing forty- five .... 
 Ditto exceeding forty-five feet in length 
 For every row-boat of Class 1 
 For every row-boat or yacht of Class 2 
 For every row-boat of Class 3 
 
 For every house-boat, not exceeding thirty feet in length 
 Ditto above thirty and not exceeding fifty feet in length 
 Ditto exceeding fifty feet in length .... 
 
 In computing the tolls every number less than the entire numbers 
 above stated is to be charged as the entire number. 
 
 The above rates on Classes 1, 2 and 3 to be doubled if towed by 
 horse or any other animal. 
 
 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. 
 
 71, Persons using any boat registered on an annual payment 
 shall at all times when required by any lock-keeper, produce the 
 certificate of such registration, or pay the toll authorized to be taken 
 from persons passing thi'ough locks in an unregistered boat, and 
 every boat registered for an annual payment shall have attached to 
 it in some conspicuous place, and seciu'ely fixed, to the satisfaction 
 of the Conservators, a metal ticket to be issued by the Conservators, 
 containing the number of such registration, and on the expiration 
 of such registration the said ticket shall be returned to the Conser- 
 vators. 
 
 72. Any person committing any breach of, or in any way in- 
 breach of bye- fringing any of these bye-laws, shall be liable to a penalty of and 
 
 ^^^' shall forfeit a sum not exceeding 51. , which said penalty shall be 
 
 recovered, enforced, and applied according to the provisions of the 
 " Thames Conservancy Acts, 1857 and 1864." 
 
 Per annum. 
 
 £ 
 
 s. 
 
 (7. 
 
 5 
 
 
 
 
 
 7 
 
 10 
 
 
 
 10 
 
 
 
 
 
 2 
 
 
 
 
 
 2 
 
 10 
 
 
 
 3 
 
 
 
 
 
 3 
 
 
 
 
 
 5 
 
 
 
 
 
 7 
 
 10 
 
 
 
 Tickets of 
 registration to 
 be produced. 
 
 Penalty for
 
 RULES AND BYE-LAWS AS TO RIVER THAMES. 
 
 683 
 
 II. Bye-laws framed under an Order in Council, 
 28lh November, 1874. 
 
 1. The rules and bye-laws numbered 68 and 69 in tbe Eulcs and 
 Bye-laws for tbe regulation of tlie navigation of tbe Eiver Thames, 
 allowed by her Majesty in Council, at a Court held the otb day of 
 February, 1872, shall, after these present Bye-laws have been 
 allowed by Order of Her Majesty in Council, be and the same are 
 hereby repealed. 
 
 Tolls. 
 
 2. The following tolls, rates or duties shall bo taken by the Con- 
 servators from the owners, coast bearers, or chief boatmen of and 
 for every vessel carrying a cargo, and passing through any lock or 
 locks between Cricklade and Staines, or vice versa, for the use of 
 such lock or locks according to the biu'thcn or tonnage of such 
 vessel, the measurement of such burthen or tonnage to be limited 
 as in the 6th clause of the said Act 28th George III. chaj). 51, that 
 is to say : — 
 
 The sum of 2d. per ton at every lock, subject to such provisions 
 as to the aggregate of tolls as hereinafter mentioned. 
 
 If the vessel in the downward voyage shall pass through all the 
 locks between the undermentioned places, the aggregate of such 
 tolls per ton shall be as follows : 
 
 For all locks between — 
 
 Oxford and Abingdon inclusive 
 
 Wallingford ,, 
 
 Pangbourno , , 
 
 Eeadiug , , 
 
 Henley , , 
 
 Marlow , , 
 
 Maidenhead , , 
 
 Windsor , , 
 
 Staines , , 
 
 If the vessel, in the upward voyage, shall pass through all the 
 locks between the undermentioned places, the aggregate of such 
 tolls per ton shall be as follows : 
 
 'er 
 
 Ton 
 
 s. 
 
 (/. 
 
 
 
 6 
 
 1 
 
 
 
 1 
 
 6 
 
 1 
 
 9 
 
 2 
 
 
 
 2 
 
 6 
 
 2 
 
 9 
 
 3 
 
 
 
 3 
 
 6 
 
 
 
 
 Per Ton. 
 
 To all locks between— 
 
 
 s. d. 
 
 Staines 
 
 and Windsor inclusive . 3 
 
 
 
 Maidenhead , 
 
 6 
 
 
 
 Marlow , 
 
 9 
 
 
 
 Henley , 
 
 1 3 
 
 
 
 Eeading , 
 
 1 9 
 
 
 
 Pangbourne , 
 
 2 
 
 
 
 Wallingford , 
 
 2 6 
 
 
 
 Abingdon , 
 
 3 
 
 
 
 Oxford 
 
 3 6 
 
 Oxford and Cricklade 2d. per ton for each lock. 
 
 For timber in rafts — 
 
 The same rate per ton as is charged if conveyed in vessels, 
 there being 50 cubic feet in one ton.
 
 684 
 
 APPENDIX. 
 
 Toll fob Feeries. 
 
 3. The following tolls shall be paid for tlie use of tlie Conservators' 
 ferry boats above Teddington Lock for every time of passing, 
 namely : — 
 
 For every borse not engaged in towing, taken aci'oss 
 
 by ferry-boat, the sum of .... . 3d. 
 
 For every cariiage, wagon, cart, or other vehicle in 
 
 addition to the toll on the horse .... 3d, 
 
 For every foot i^assenger ...... Id. 
 
 Ia'tekpketation Clause. 
 
 4. The interi^retation clause numbered 2 in the rules and bye- 
 laws api^roved on the 5th day of February, 1872, above referred to, 
 shall apjily to these present ru.les and bye-laws ; and the present 
 rules and bye-laws, when so allowed as aforesaid, shall be in- 
 corporated with, and read and taken as part of, the said rules and 
 bye-laws allowed as aforesaid on the 5th day of February, 1872. 
 
 Lights for 
 dumb barges 
 below Charl- 
 ton Pier. 
 
 Lights for 
 barges iu tow. 
 
 Boat races, re- 
 gattas, &c. 
 below Staines. 
 
 No vessel to 
 be mooi'ed to 
 piers, &c., 
 without per- 
 mission. 
 
 Inteiiiretation 
 of term 
 " burden" 
 of barges iu 
 
 III. Bye-laws framed under an Order in Council, 
 11 th March, 1875. 
 
 1. Bepcaled l^th March, 1880. 
 
 2. Every i)erson in charge of a dumb barge when under weigh 
 and not in tow shall, between sunset and sunrise, when below or 
 to the eastward of» a line drawn from the upper part of Silvertown, 
 in the county of Essex, to Charlton Pier, in the county of Kent, 
 have a white light always ready, and exhibit the same on the 
 ajiproach of any vessel. 
 
 3. The person in charge of the sternmost or last of a line of 
 bai'ges, when being towed, shall exhibit between sunset and sun- 
 rise a white light from the stern of his barge. 
 
 4 & 5. Bcpmled 18th March, 1880. 
 
 6. On the occasion of any boat race, regatta, public procession, 
 or shij) launch in the river Thames below Staines, or on any other 
 occasion when large crowds assemble thereon, no vessel shall pass 
 on the river so as to obstruct, impede, or interfere with the boat 
 race, regatta, procession, or launch, or to endanger the safety of 
 persons assembling on the river, or to prevent the maintenance of 
 order thereon, and the master of every vessel shall, on all such 
 occasions, observe the directions of the harbour master or other 
 officer of the Conservators of the Thames engaged in superintend- 
 ing the execution of this bye-law. 
 
 7. No vessel shall be moored to or remain at any pier or vessel 
 of or to or at any premises belonging to the Conservators of the 
 river Thames, without the permission of their officer in charge of 
 such pier, vessel, or premises being first had and obtained, and 
 shall move away when ordered so to do. 
 
 8. In constriiing the sixteenth bj-e-law of the rules and bye-laws 
 for the regulation of the navigation of the river Thames, allowed 
 by her Majesty in Council at a court held on the fifth day of
 
 RULES AND BYE-LAWS AS TO RIVER THAMES. 685 
 
 February, one thousand eight hundred and seventy-two, the word l^th bye-law, 
 "burden" shall mean the burden or burthen of a barge as ^^'-• 
 registered at Waterman's Hall. 
 
 9. Any master or person in charge of any vessel or barge failing Penaltj-. 
 in any respect to comj^ly with or committing any breach of or in 
 any way infringing any of these bj'e-laws, shall be liable to a 
 penalty of, and shall forfeit a sum not exceeding, five pounds for 
 each offence, which penalties shall be recovered, enforced, and 
 applied according to the provisions of the Thames Conservancy 
 Acts, 1857 and 1864. 
 
 lY. Bye-laws framed U7ider an Order in Council, 
 11 M July, 1877. 
 
 1. Bye-law No. 14 of the bj-e-laws of 1872 for the regulation of 
 the na-s-igation of the river Thames, allowed by order of her Majesty 
 in Council, on the 5th February, 1872, shall, after these present 
 bye-laws shall have been allowed by order of her Majesty in 
 Council, be, and the same is herebj' repealed, and in lieu thereof : 
 
 2. All vessels navigating the river between the Albert Bridge, at 
 Chelsea, and Charlton Pier, shall be navigated singly and separ- 
 ately, except small boats fastened together, or towed alongside, or 
 astern of other vessels, and except vessels towed by steam. 
 
 3. Vessels towed by steam shall be placed two abreast, if more 
 than four in number, and not more than six, shall be towed to- 
 gether at one time. 
 
 4. Above and to the westward of the Albert Bridge, at Chelsea, 
 six vessels and no more may be towed together in a single line, at 
 one time, and the distance between any two of the vessels, so towed, 
 shall not exceed fifty feet. 
 
 5. Repealed I8th March, 1880. 
 
 6. All persons cutting weeds in the river Thames or in any 
 stream, canal, or watercoiu'se communicating with the river, shall 
 remove such weeds immediatelj" after cutting so as to prevent their 
 passing into the river, and no i:)erson shall throw or cause to be 
 thrown any weeds, grass, or matter of a like nature into the liver 
 Thames, or into any stream, canal, or watercourse communicating 
 with the river. 
 
 7. Any person committing any breach of or in any way infring- 
 ing any of these bj^e-laws shall be liable to a penalty of and shall 
 forfeit a sum not exceeding 57., which said penalty shall be re- 
 covered, enforced, and applied according to the provisions of the 
 Thames Conservancy Acts, 1857 and 1864. 
 
 Y, Bye-laxcs framed under an Order in Council, 
 Wth Nov., 1869. 
 
 1. These bye-laws may be cited as the Ui^per Thames bye-laws Short title, 
 of 1869. 
 
 2. These bye-laws shall come into operation the day after the Commence- 
 
 ment of opera- 
 tion.
 
 C86 
 
 APPENDIX. 
 
 same arc allowed by order of her Majesty tlie Queen iu Council 
 (which time is in these bye-laws referred to as the commencement 
 of these bye-laws). 
 Application. 3. These bye-laws extend and apply only to the river Thames, 
 
 or the rivers Thames and Isis, from the city-stone near Staines to 
 Cricklade (which part of the river is in these bye-laws called the 
 Upper Eiver) ; and nothing in these bye-laws shall affect the 
 rules, orders, and ordinances made by the Coiu't of the Mayor and 
 Aldemien of the city of London the fourth day of October, one 
 thousand seven hundred and eighty-five (relative to fishing in the 
 river Thames below the city-stone aforesaid), or the rule, order, or 
 ordinance made by the Conservators of the river Thames the 
 twenty-third day of January, one thousand eight hundred and 
 sixty, amending those rules, orders, and ordinances, or any other 
 rule, order, or ordinance, or bye-law, appljing to the river Thames 
 below the city-stone aforesaid, and in force at the commencement 
 of these bye-laws. 
 Interpreta- 4. In these bye-laws, except where otherwise provided, words 
 
 tion. have the same meaning and effect as in the above-mentioned Acts. 
 
 5. The provisions of these bye-laws, and penalties imi:»osed 
 therebj', and remedies for the enforcement thereof, shall be deemed 
 to be in addition to, and not in substitution for, any statutory pro- 
 vision in force at the commencement of these bye-laws, and penal- 
 ties imposed thereby, and remedies for the enforcement thereof. 
 Boat races, &c. 6- Any vessel being on the ui^per river on the occasion of any 
 boat race, regatta, public procession, or launch of any vessel, or 
 on any other occasion when large crowds assemble thereon, shall 
 not pass thereon so as to impede or interfere mth 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, on any such occasion 
 as aforesaid, shall observe the directions of the officer of the Con- 
 servators engaged in superintending the execution of this bye-law ; 
 and if any such master fails in any respect to comply with the 
 requirements of this bye-law, or does anything in contravention 
 thereof, he shall be deemed guilty of an offence against these bye- 
 Penalty, laws, and shall for every such offence be liable to a penalty not 
 exceeding bl. 
 
 YI. Bt/e-lmvs framed under an Order of Council 
 18fh of March, 1880. 
 
 Bye-laws numbered 28, 29 with subsections (a) {h) (c) (d) (e) (/) 
 {(j) W (0 (y). and 32 with subsections («) {h) (c) {d), 33, 34, 35 with 
 subsections («) and (5), and 46 allowed by Order of her Majesty 
 in Council on the 5th February, 1872, and the bye-law so allowed 
 on the 20th November, 1873, and bye-laws numbered 1, 4, 5 so 
 allowed on the 17th March, 1875, and bye-law No. 5 so allowed on 
 the 11th July, 1877, shall after these present bye-laws have been 
 allowed by Order of her Majesty in Council be, and the same are 
 hereby repealed. 
 
 The word "vessel" shall mean any ship, lighter, barge, boat.
 
 RULES AND BYE-LAWS AS TO RIVER THAMES. 687 
 
 wherry, punt, canoe and any kind of craft whatever, whether navi- 
 gated by steam or otherwise. 
 
 The word "river" shall mean that part of the river Thames 
 which is within the jurisdiction of the Conservators between Crick- 
 lade, in the county of Wilts, and Yantlet Creek, in the county of 
 Kent. 
 
 1. In obepng and construing the following rules due regard shall 
 be had to all dangers of navigation ; and to any si^ecial circiun- 
 stances which may render a departure from the rules necessary in 
 order to avoid immediate danger. 
 
 2. Nothing in the following rules shall exonerate any vessel, or 
 the owner, or master, or crew thereof, from the consequences of any 
 neglect to carry lights, or signals, or of any neglect to keep a proper 
 look-out, or of the neglect of any precaution which may bo required 
 bj^ the ordinary practice of seamen, or by the special circumstances 
 of the case. 
 
 Bye-law for the Eegulatiox of the Navigation 
 of the En^ER. 
 
 3. Every steam vessel navigating the river shall be navigated 
 with care and caution, and at a speed and in a manner which shall 
 not endanger the safety of other vessels or moorings, or cause 
 damage thereto, or to the banks of the river. Special care and 
 caution shall be used in na^dgating such steam vessel when passing 
 vessels employed in dredging or removing sunken vessels or other 
 obstructions. 
 
 If the safety of any vessel or moorings is endangered or damage 
 is caused thereto or to the banks of the river by a passing steam 
 vessel, the onus shall lie upon the owner of such steam vessel to 
 show that she was navigated with care and caution, at such speed 
 and in such a manner as directed by this rule. 
 
 Bn:-LAws and Eules for the Eegulation of the Naviga- 
 tion of the EiVER between Yaktlet Creek and Ted- 
 DiNGTON Lock. 
 
 Eides concerning Lights, 
 
 4. The lights mentioned in the following rules, numbered 6 to 10 
 and no others, shall be carried in all weathers, from sunset to sun- 
 rise. 
 
 5. A steam vessel when under way shall carry : 
 
 (a.) On or before the foremast, or if there be no foremast, on a 
 staff at 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, a bright white light, so con- 
 structed as to show a 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 
 vessel, — viz., from right ahead to tvv'o points abaft the 
 beam on either side ; and of such a character as to be
 
 688 APPENDIX. 
 
 visible on a dark night, with a clear atmosphere, at a dis- 
 tance 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 only above London Bridge 
 may carry the white light at any convenient height above 
 the stem. 
 
 (h.) On the starboard side, a green light so constructed as to 
 show a 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 starboard side, and of such a character as to be visible 
 on a dark night, with a clear atmosphere, at a distance of 
 at least one mile. 
 
 (c.) On the port side, a red light, so constructed as to show a 
 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 
 one mile. 
 
 {(I.) The said green and red side lights shall be fitted in such a 
 manner as to prevent these lights from being seen across 
 the bow. 
 
 [e.) A steam vessel, when towing another vessel shall, in addi- 
 tion to herside lights, carry two bright white lights in a verti- 
 cal 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 carried in the same position as the 
 white light which other steam vessels are required to carry. 
 
 (/. ) A steam vessel towing maj^ also carry a light showing astern 
 as a guiding light to the vessel or vessels towed, but this 
 light must be so screened as not to be visible fiu-ther for- 
 ward than four i^oints abaft her beam. 
 
 G. A sailing vessel under way, or being towed, shall only carry 
 the side lights j^rovided by (i) & (c) of rule 5 for a steam vessel 
 imder way. 
 
 7. A steam vessel, a sailing vessel or a barge, when at anchor in 
 the river, shall carry where it can best be seen, at a height not 
 exceeding twenty feet above the hull, a white light, in a globular 
 lantern of not less than eight inches in diameter, 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 ; provided always that 
 where masted vessels are lying in tiers, the outermost off shore 
 masted vessels only of each tier shall each carry a light similar to 
 that required for vessels at anchor ; but barges lying at the usual 
 barge moorings in the river above Barking Creek shall not be re- 
 quired to exhibit such riding light. 
 
 8. A vessel which is being overtaken by another vessel below 
 Barking Creek shall show from her stern to such last mentioned 
 vessel a white light, or a flare wp light. 
 
 This rule shall not apj^ly to boats, whenies, 23unts, or canoes. 
 
 9. All vessels when employed to mark the positions of wrecks or
 
 RULES AND BYE-LAWS AS TO RIVER THAMES. 689 
 
 other obstructions shall exliibit two bright lights placed horizontally 
 not less than six nor more than twelve feet apart. 
 
 10. Every steam dredger moored in the river shall, between sun- 
 set and simrise, exhibit thi-ee bright lights from globular lanterns 
 of not less than eight inches in diameter, the said three lights to be 
 ])laced in a triangular form, and to be of sufficient power to be 
 distinctly visible with a clear atmosphere, on a dark night, 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, athwart-ships. 
 
 Rides concerni)i(/ Fug, &c. Signals. 
 
 11. All vessels entering or being overtaken by a fog shall be 
 navigated with the greatest caution and at a very moderate speed. 
 
 12. Everj" steam vessel navigating the river shall be provided 
 with a steam whistle or other efficient steam sound signal, so placed 
 that the sound may not be intercepted by any obstruction, and also 
 with an efficient bell. Every sailing vessel navigating the river 
 shall be provided with an efficient fog horn, and also with an efficient 
 bell. 
 
 1 3. In fog, whether by day or night, the signal described in this 
 rule shall be used, that is to say : 
 
 (a.) A steam vessel under way shall make with her steam whistle, 
 or other steam sound signal, at intervals of not more than 
 two minutes, a prolonged blast. 
 
 (b.) A sailing vessel under way shall sound her fog horn, at inter- 
 vals of not more than two minutes. 
 
 (c.) All steam vessels and all sailing vessels when in the fairwaj- 
 of the river, and not under way, shall at intervals of not 
 more than two minutes ring the bell. 
 
 Bides as to Speed and Mode of Navigation. 
 
 14. Every steam vessel, when approaching another vessel, so as 
 to involve risk of collision, shall slacken her speed, and shall stop 
 and reverse if necessary. 
 
 15. Steam vessels navigating the river between Barking Creek 
 and London Bridge, other than river passenger steamers certified to 
 carrj' passengers in smooth water only, shall never exceed a speed 
 of seven statute miles per hour over the ground whether with or 
 against the tide. 
 
 16. Every sailing vessel or steam vessel, overtaking any other 
 vessel, shall keep out of the way of the overtaken vessel, which 
 latter vessel shall keep her course. 
 
 Bye-Laws and Eules regulating the Nayigatiox of the Ei%t:r 
 between Y-aa'Tlet Creek and a line dra\^^l from Blackwall 
 PoixT to Bow Creek. 
 
 Steajn-ivhistle Signals. 
 
 17. T\Tien two steam vessels are in sight of one another and are 
 approaching 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 three seconds 
 duration to mean " I am directing my course to starboard, 
 C. Y Y
 
 690 APPENDIX. 
 
 and intend to pass you portsido to portside." The use of 
 
 tliis signal shall be optional. 
 {h.) Two short blasts of the steam- whistle, each of about throe 
 
 seconds duration, to mean " I am directing my course to 
 
 port, and intend to pass you starboard side to starboard 
 
 side." 
 This latter signal shall not be used in the case provided by rule 
 22 where that rule can be obeyed ; but it shall be compulsory to 
 use this signal when a departure fi'om that rule is necessary to avoid 
 immediate danger. 
 
 18. AVhen it is unsafe or impracticable for a steam vessel to keep 
 out of the way of a sailing vessel, she shall signify the same to the 
 sailing vessel by four or more blasts of the steam-whistle in rapid 
 .succession, the blasts to be of about two seconds duration. 
 
 19. The signals by whistle mentioned in the preceding rules shall 
 not be used on any occasion or for any purjiose except those men- 
 tioned in the rules ; and no other signal by whistle shall be made 
 by any steam vessel unless it be by a prolonged blast of not less 
 than five seconds duration. 
 
 Steering and Bailinfj Rules. 
 
 20. When two sailing vessels are approaching one another, so as 
 to involve risk of collision, one of them shall keep out of the way 
 of the other, as follows, viz. : — 
 
 (a.) A vessel which is running free shall keep out of the way 
 
 of a vessel which is close-hauled. 
 (/*.) A vessel which is close-hauled on the port tack shall keep 
 
 out of the waj' of a vessel which is close-hauled on the 
 
 starboard tack, 
 (c.) When both are running free with the wind on different 
 
 sides, the vessel which has the wind on the j)ort side shall 
 
 keej) out of the way of the other. 
 (fZ.) When both are running free with the wind on the same 
 
 side, the vessel which is to windward shall keei? 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. 
 
 21. If a sailing-vessel and a steam-vessel are proceeding in such 
 a direction as to involve risk of collision, the steam vessel shall 
 keep out of the way of the sailing-vessel. 
 
 If owing to causes bej'ond the control of those navigating the 
 steam- vessel it is unsafe or impracticable for the steam-vessel to 
 keep out of the way of the sailing-vessel, she shall signify the same 
 to the saiUng-vessel by four or more blasts of the steam whistle in 
 rapid succession, as mentioned in rule 18; the sailing-vessel shall 
 then keep out of the way. 
 
 22. When two steam-vessels proceeding in opposite directions, 
 the one up and the other down the river, are ai^proaching onej 
 another so as to involve risk of collision, they shall pass one another] 
 port side to port side. 
 
 23. Steam- vessels navigating against the tide shall, before round- 
 ing the following points, viz., Coalhouse Point, Tilbur^-ness, Broad- 
 ness, 8toncness, Craj-fordness, Cold Harbour Point, Jcnningtreej 
 Point, Halfway House Point or Crossness, Margarctness or Trip-j
 
 RULES AMD BYE-LAWS AS TO RIVER THAMES. 691 
 
 cock Point, Bull Point or Gallionsness, Hookness, and Blackwall 
 point, ease tkeir engines and wait until any other vessels rounding 
 the point with the tide have j^assed clear. 
 
 24. Steam- vessels 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. 
 
 25. Where by the above rules one of two vessels is to keep out of 
 the way, the other shall keep her course. 
 
 Bye-Laws and Eules regulating the Navigation of the Eiver 
 above Teddingtox. 
 
 26. "When two steam-vessels proceeding in opj^osite directions, 
 the one vip and the other down the river, are approaching one 
 another so as to involve risk of collision, they shall pass one 
 another port side to port side. 
 
 27. Steam- vessels navigating against the stream shall ease, and 
 if necessary stop, to allow "s-essels coming down with the stream to 
 pass clear. 
 
 28. Every steam- vessel shall when under way after sunset and 
 before sunrise, either carry the lights required for steam- vessels by 
 rule 5, or exhibit a bright white Ught on or above the stem, or on 
 the funnel. 
 
 29. The name of every steam-vessel navigating the river shall be 
 painted or marked and kept in plainly legible characters not less 
 than two inches in length on the outside of both bows and on the 
 outside of the stern ; and such name and the residence of the o^svTier 
 shall be registered with the Conservators. 
 
 30. Any person committing any breach of or in any way infring- 
 ing any of these bye-laws shall be liable to a penalty of, and shall ' 
 forfeit, a sum not exceeding ol., which said penalty shall bo re- 
 covered, enforced, and apjilied according to the provisions of the 
 Thames Conservancy Acts, 1857 and 1S6-1. 
 
 Y" Y
 
 INDEX. 
 
 ABANDONMENT. See Extimjuishmcnt. 
 
 ABATEMENT, 
 
 of nuisances, 650, 654. 
 
 in the sea and public rivers, 33, 421, 433. 
 in private streams, 96, 442. 
 See Nuisances ; Remedies. 
 
 ACCESS, right of, 
 
 on the sea shore, 33. 
 
 shore of a navigable lake, 35, 90. 
 shore of a tidal navigable river, 79, 86, 420, 421, 434. 
 no right of the public over private lands on the sea shore or navigable 
 
 rivers for the purpose of bathing, 40. 
 is a private right to the enjoyment of land, 420, 670, 671. 
 
 the invasion of which may form ground of an action for damages, 
 or of an injunction, 87, 420, 671. 
 the obstruction of, is actionable without proof of special damage, 88, 
 434, 670, 671. 
 and is an injury to property quite distinct from injury to the 
 
 public right of navigation, 86, 434, 670, 671. 
 whether such obstruction amount to interference with the right 
 is a question of fact, to be determined by the circumstances of 
 each case, 89, 434, 671. 
 
 See Sea ; Ticlal Navigahle Elver ; Lake. 
 
 ACCRETION, 
 
 property in land formed by, 22—24, 62—67, 94. 
 
 if gradual, belongs to owner of land added to, 65, 94. 
 
 from the sea, whether natural or artificial, by sect. 27 of 31 & 32 
 
 Vict. c. 122, annexed to adjoining parish in proportion to the 
 
 extent of the common boundary, 13. 
 and being incorporated therewith for all civil and parochial 
 
 purposes, rateable to the poor, 13, 597. 
 
 ACQUIESCENCE, equitable doctrine of, with regard to the acquisition 
 of easements, 206 — 208. 
 
 ACQUIRED RIGHTS OF WATER. See Easements. 
 
 ACT, 
 
 of God. See Vis 3faJo>: 
 of Parliament. See iStatnte. 
 
 ACTION, 
 
 remedy by, for infringements of rights of water, 654, 671. See 
 
 Remedies. 
 interference with public rights is the subject of, on proof of special 
 
 damage, 15, 171, 344, 661.
 
 694 INDEX. 
 
 ADMIRALTY, COURT OF, 
 
 criminal jurisdiction of, over English sliips on the high seas, 3, 397, 
 
 398. 
 origin and jurisdiction of, 398, n. 
 jurisdiction of the admiral transfciTed to the Central Criminal Court 
 
 by 4 & 5 Will. 4, c. 36.. 3, 398. 
 jurisdiction of, over foreig'n ships under 41 & 42 Vict. c. 73. .8, 397. 
 
 over wreck, 39. 
 has no cognizance of offences committed on the sea shore forming 
 part of an adjoining county, 13. 
 the justices of which have cognizance thereof, 13. 
 the various duties and powers of, as to ports transferred to the 
 Board of Trade by 25 & 26 Vict. c. 69. .45, 400. 
 
 ALLUVION, 
 
 property in land fonned by, in the sea, 22 — 24. 
 in tidal rivers, 62 — 67. 
 in private streams, 94. 
 
 See Tidal Xavigahle Hirer ; Private Ricer. 
 
 AMERICA, 
 
 law of, as to lakes, 100. 
 
 riparian ownership, 105. 
 
 ANCHORAGE, 
 
 the right of, included in the right of navigation, 4, 396, 416 — 418. 
 dues for, may be claimed in a port which is a natui'al roadstead, not 
 artificially formed, 47 — 50, 417, 418. 
 the right to take, in a port implies a duty in the owner to 
 keep it in repair', 47. 
 decisions as to, 558 — 563. 
 See Tolls. 
 and beaconage dues, rateability of, 617. See Rates. 
 
 ARTIFICIAL WATERCOURSE, 
 
 easement of, 103—107, 247—260. 
 
 the most important, viz. canals and sewers, &c., are the creatures 
 of statute, 103. 
 
 rights in, are acquired solely by gTant or prescription, and are not 
 natiu-al rights, 102, 106, 107, 247—260. 
 are incorporeal rights, 106, 204, 247, 260. 
 
 effect of gi-ant of, 209—211. 
 
 ownership of soil of, 102. 
 
 right of fishery in, is prima facie incident to the ownersliip of the 
 soil, 373. 
 
 rights in, depend on the character of the watercourse and the cir- 
 cumstances under which it was created, 106, 107, 249, 255, 260. 
 
 diversion and obsti'uction of, 247 — 260. 
 
 pollution of, 154, 157, 247—250, 257—260. 
 
 diversion of a natural stream by, 122, 154, 250. 
 
 liability of landowner for escape of water where an artificial has been 
 substituted for a natural watercoui'se, 136. 
 
 easement to discharge water by, 203, 251. 
 to receive water by, 251, 252. 
 
 right of servient owner to compel dominant owner to continue dis- 
 charge of water by, 252 — 260. 
 
 See Canal; Watercourse ; Diversion ; Pollution. 
 
 AVON (THE HAMPSHIRE) NAVIGATION ACT, 451, n., 459, n. 
 
 AVON (THE WARWICKSHIRE) NAVIGATION ACT, 451, n.
 
 INDEX. 
 
 695 
 
 BALLAST, rubbish, &c., 
 
 throwing into rivers, prohibition against, under 54 Geo. 3, c. 159 . . 474. 
 into the Thames, 465. 
 is a nuisance, and indictable, 422. 
 
 BANKS, 
 
 of a watercovirse, definition of, 54. See Watercourse. 
 of a tidal navigable river, ownership of, 78. 
 right of landing and towing on, 78, 419. 
 of private rivers, property in, 92, 93, 95. 
 of canals, duty of owners of, to repair, 303. 
 duty of conservators to repair-, 454 — 458. 
 
 ^ee Tidal Navigable River ; Private River ; Canal. 
 
 BARGE, A FLOATING, 
 
 rateability of, 611, 612, 614. See Rates. 
 
 BATHING, 
 
 no common law right of, in open sea or tidal rivers, 40. 
 
 and the public is not justified in passing over private propex-ty 
 to gain access to the water, 40. 
 custom of, gives no right to use machines, 41. 
 laws of decency must be respected in enjoyment of, 41. 
 
 BEACH. See Foreshore. 
 
 BEACONAGE AND ANCHOEAGE DUES, 
 
 rateability of, 617. Sec Rates. 
 
 BED of a watercourse, 
 
 definition of, 54. 
 of the sea, property in, 1 — 9, 14 — 24. 
 of tidal navigable rivers, property in, 58, 59, 73, 78, 80. 
 of private rivers and streams, property in, 93, 95. 
 of lakes, property in, 98. 
 of canals, property in, 276. 
 
 Qqq Sea ; Tidal Navigable River ; Private River ; Canal. 
 
 BOAED OF TEADE, 
 
 powers of, as to ports, 45, 400. 
 
 rights and interests of the Crown in the foreshores transferred to, 
 
 Addenda et Errata. 
 Ai-bitrations Act, 1876 (37 & 38 Vict. c. 40), provisions of, as to 
 
 navigable rivers and canals, 483. 
 
 BOITNDARY, 
 
 of the realm of England, 1, 5 — 9, 11. 
 
 of counties on the sea and tidal rivers, 13, 67, 68. 
 
 of parishes on tidal rivers, 13, 67, 68. 
 
 of the sea shore, 12. 
 
 of grants by the Crown on the sea shore, 18. 
 
 on tidal rivers, 02, 71. 
 of lands on non-tidal waters, 93, 94, 97. 
 of lands on large navigable lakes, 98 — 101. 
 international rights as to, on rivers bounding two States, 68, n. 
 
 BEIDGES, 
 
 definition of, 503. 
 
 prerogative of Crown as to owners of, similar to that as to owners of 
 ferries, 500.
 
 G96 INDEX. 
 
 BRIDGES— coiitimu-d. 
 
 in early times repair of, was part of the trbioda nccessitas, as in 
 Koman law, 503, ih. n. 
 and was included in the repair of roads, which fell and is still 
 
 cast on the parish, 503, 504. 
 but repair of bridges has now, for the most part, passed to the 
 counties in which they are situate, 504. 
 incident to river conservancy, which might prove a nuisance, placed 
 
 imder Commissioners of Sewers by 23 Hen. 8, c. 5. .445. 
 statutory provisions as to, 504 — 510. 
 Magna Charta, 504. 
 
 applies only to making, and not to repairing, n. (3), 504. 
 22 Hen. 8, c. 5 (The Statute of Bridges), 504—506, 513, 514, n. 
 5 & 6 Will. 4, c. 50 (Highway Act, 1835), 506—508, 514. 
 1 Anne, st. 1, c. 12 ; 43 Geo. 3, c. 59, and other Acts, n. (2), 506. 
 4 & 5 Vict. c. 49 ; and 13 & 14 Vict. c. 64 . .508. 
 Malicious Injuries to Property Act (24 & 25 Vict. c. 97) ; 33 & 34 
 Vict. c. 73, s. 12 ; 38 & 39 Vict. c. 55, s. 144 ; and 40 & 41 
 Vict. c. 77, ss. 1, 21, 22.. 509. 
 liability of the county to repair, 510 — 527. 
 
 a bridge of public utility is to be repaii'ed at public expense, 
 
 510, 518. 
 as a general riile extends to all bridges built by individuals 
 before 43 Geo. 3, c. 59, if the public use them, 511 — 513, 
 518—521. 
 but if rendered necessary by an authorized interference for 
 private jaurposes with a highway, the parties so inter- 
 fering must repair, 511 — 514, 518 — 521. 
 what is a public bridge, 512. 
 
 " riding,^'' meaning of, under 22 Hen. 8, c. 5, as to, 513. 
 
 " hundred,^ ^ meaning of, imder 5 & 6 WHl. 4, c. 50, as to, 513. 
 
 county only bound to repair bridges over water answering 
 
 description of fnmcn rcl ciirsus aqniT, 514, 515, and notes. 
 a floating bridge, propelled by steam from one side of a river 
 
 to another is in substance a ferry, and not a bridge, 515. 
 sect. 7 of the Locomotive Act does not apply to county 
 
 bridges, 517. 
 an indictment docs not lie for not repau-ing a bridge unless it be 
 
 on a highway, 513, n., 518. 
 highway is a general term including all public ways, 518. 
 a bridge built on a public way without public utility is a 
 nuisance, 518, n. 
 ^ or if built colourably in an imperfect way so to throw the 
 
 onus of rebuilding and repair on the county, 518, n. 
 persons building bridges under special authority for their own 
 
 benefit are pi'imarily liable to repair them, 518. 
 but not where special authority to do works for public benefit 
 
 only, 519. 
 or where it can be shown that the particular liability has been 
 
 shifted by statute or otherwise on to the public, 520, 521, n. 
 duties of canal companies to construct and maintain bridges, 
 
 288, 304—308. See Canals. 
 provisions as to construction and management of, under Railway 
 Clauses Act, 1863. .476, 477. See Kai-ir/ation. 
 statutory limitations as to the liability of the county, 521 — 527. 
 
 bridges built in counties by indi\dduals, &c., to bo erected to 
 
 satisfaction of the county surveyor, &c., 522, 523, and notes, 
 the county not bound to widen bridges by force of the obliga- 
 tion to repair-, 523, 525.
 
 INDEX. 697 
 
 BRIDGES— continued. 
 
 statutory limitations as to the liability of the county — contimied. 
 
 justices of county may widen and make commodious bridges or 
 
 roads at end thereof repairable at expense of county, 524, 525. 
 but this section is pennissive and not imperative, 525. 
 county liable both at common law and under 2 Hen. 8, s. 5, to 
 
 repair approaches to bridges to extent of 300 feet, 525. 
 no liability on a county under Railway Clauses Act, 1845, to 
 
 repair approaches to a railway bridge over a highway, 52G. 
 even though company have lowered level of old highway, 526. 
 where two parts of a bridge are in different counties the liability 
 
 is divided between the two, 526. 
 in absence of words in 7 & 8 Vict. c. 61, determining boundary 
 
 between two counties separated by a river, the middle of 
 
 such river continuously is such boundary, 527. 
 liability to repair rat lone teiiurce, b21 — 531. 
 
 at common law owner of land is ultimately liable though pri- 
 marily occupier may be, 527. 
 liability of proprietor of a navigation, 528. 
 how far covenant to repair binds when damage is done by an 
 
 extraordinary flood, 528, n. 
 where a bridge is built by an individual and dedicated to the 
 
 public the ownership of fabric remains in builder, 529. 
 form of indictment for non-repair ratione tenurce, 529. 
 liability of tenants of parcels of a manor held by service of 
 
 tenixre of repairing a common bridge or highway, 530. 
 an indictment for non-repair ratione tenurcc not sustainable 
 
 where tenement charged originated within legal memory, 530. 
 liability to repair foot bridge part of a carriage bridge, 531. 
 what evidence will negative an immemorial liability, 531. 
 e\ddence of reputation admissible in proof of liability, 531. 
 liability to repair by prescription, 531 — 534. 
 
 extent of territory chai'geable is to be ascertained by usage, 531. 
 and in default of usage the larger territory, i. e. the county, 
 is liable, 532. 
 immemorial custom may be pleaded in defence to an indictment 
 
 against a county, 532. 
 a parish may be indictable, 532. 
 so too a hundi'ed, 532. 
 or a pi-escriptive corporation, 533. 
 in absence of evidence to the contrary, prescriptive liability to 
 
 repair extends to 300 feet of the approaches, 534. 
 and bridge tolls, rateability of, 646 — 648. See Rates. 
 the statute of (22 Hen. 8, c. 5), provisions of, 504, 505, 514, 526. 
 remedies for non-repair of, 662 — 665. See Remedies. 
 
 BULWARKS, ripff muniendaj causci, 
 
 right of riparian owners to erect, 73 — 78, 147, 148, 149, 423. See 
 Riparian Owner ; Overjfow. 
 
 BYE-LAWS, as to navigation in the Thames. Apjioidix, p. 673. 
 
 CALEDONIAN CANAL ACT, THE, 459. 
 
 CANAL BOATS ACT, 1877 (41 Vict. c. 60), the provisions of, as to 
 canal boats used as dwellings, 484, 485. 
 registration, authority under, 485. 
 
 enforcement of Education Acts, 1870, 1873, 1876. .485. 
 definition of " canal" under, 485. 
 
 " canal boat" imder, 485.
 
 698 INDEX. 
 
 CANALS, 
 
 definition of, 273. 
 
 under the Explosives Act, 1875. .484. 
 Canal Boats Act, 1S77. .485. 
 how distinguished from a river navigation, 273, 458. 
 general statutes regulating traffic and navigation on, 274 — 485. 
 are real property, 274. 
 
 and tolls are profits arising from use of the land, 274. 
 fishery in, 280, 373. 
 status of proprietors of, defined, 274. 
 rights of proprietors or undertakers are defined and limited by the 
 
 Act creating the, 274, 275. 
 general tenour of Acts incorporating, 275. 
 
 ownership of soil vested in undertakers, but only for pui-poses of Act, 
 276^279. 
 undertakers may have mere possession without being owners, 
 27C. 
 but this possession entitles them to maintain trespass, 
 276. 
 undertakers cannot acquii-e an easement to Avatcr for other pur- 
 poses than those authorized by their Act, 277. 
 and easement to use water to fill a canal ceases when canal 
 
 ceases to exist, 277. 
 undertakers cannot grant right to take water for uses not sanc- 
 tioned by then- Act, nor can such rights be acquired against 
 them by prescription, 53, 232, n., 23'o, 278, 279, 296. 
 reservations of rights of proprietors on lands adjoining, 214, 277, 
 279—282. 
 of the right to use pleasure boats on, 214, 277, 280. 
 of fishery in, 279, 280, 377, 378. 
 
 See Fishcrif. 
 of the right to work mines under, 280. 
 as to transport of minerals, 282. 
 ordinary rvdes of construction as to conveyances binding on under- 
 takers, 282—284. 
 powers of undertakers to take leases and give them, 284. 
 liabilities of undertakers, 284—308. 
 for injury to mines, 281. 
 as to making compensation under their Acts for injuries, 284 — 
 
 286. 
 at common law for negligence, 286 — 290, 305. 
 not liable for injuries caused in due execution of their works, 
 
 288. 
 vis major, how far an excuse, 289, 290. 
 remedies against undertakers, how enforced, 290, 291. 
 rights of adjoining proprietors to sui-plus water, 53, 232, n., 235, 
 
 278, 279, 291—297. 
 claim against undertakers to have water diverted, 297. 
 undertakers are entitled to ordinary remedies at law, 298. 
 
 but must use due diligence in bringing actions, 299. 
 duties of undertakers as to navigation, 299 — 312. 
 
 duty of, to maintain the navigation, 299 — 304, 450, 454. 
 
 must take reasonable care that na^"igation is safe so long as it is 
 
 open, 302, 454. 
 duty of, to remove obstructions, 299 — 303, 454. 
 right of, to recover for damage to navigation, 303. 
 works necessary to maintain the navigation, 303. 
 duties as to bridges, 304—308, 518, n., 519. See Bridges. 
 l^ower of iindertakers to deepen and widen, 304. See Navigation.
 
 INDEX. 699 
 
 CANALS — cont in ited. 
 
 navigation of, open to public on payment of tolls, 308. 
 
 by steamers, 308. 
 
 and on Sundays, 308. 
 powers of undertakers to make bye-laws as to navigation, 308. 
 tolls on, 308—312, 584—593. 
 power to vary tolls on, 310 — 312. 
 mortgagee of tolls, how far a proprietor, 312. 
 
 See Tolls. 
 shares in, 312, 313. 
 
 are not an estate aud interest iu land, 312. 
 
 are deemed pei'sonal property under Canal Acts, 312, 313. 
 
 probate of wiU. of shareholder, 312. 
 
 calls for, 312, n. 
 and canal tolls, rateabUity of, 626— G35. See Eatcs. 
 
 CAIIRIER, 
 
 powers of a canal company to act as, imder 8 & 9 Vict. c. 112, aud 
 
 10 & 11 Vict. c. 94. .480— 483. 
 definition of, under the Explosives Act, 1875. .484. 
 a common, by water is on the same footing as one on land, 501. 
 
 and does not insvire against the irresistible act of nature, 141, 
 501. 
 trade profits of a canal company arise from its duties as, 634. 
 See Ferry ; Canal. 
 
 CENTRAL CRIMINAL COURT, 
 
 jurisdiction of admiral transferred to, as to the high seas, 3, 398. 
 and tidal navigable rivers, 67. 
 
 CHAR, enactments as to protection of, 374, 380, 383, 384, 392. See 
 Fis/icri/. 
 
 CISTERN, statutory restnctions as to fouling a public or private, 174, n. 
 
 COLLISIONS, 
 
 at sea, rule as to, 407 and note. 
 
 miles of Admiralty and Common Law Coiu'ts now identical as to, 
 
 407, n. 
 international law as to, 408, n. 
 in navigable rivers, 411, 438. 
 in the Thames. See Ajopcndix, p. 690. 
 
 COMMISSIONERS OF SEWERS, 
 
 origin of commissions, 24, 444. 
 
 derivation of "sewer," 444. 
 
 duties and powers of, 25, 333, 445, 450. 
 
 now vested partly in sanitary authorities, 445, 450. 
 partly in inclosure commissioners, 446, 450. 
 and in conservancy boards, 447, 450. 
 may be created by Act of Parliament independently of any general 
 
 commission, 447. 
 bodies corporate authorized by legislature to do matters properly 
 
 cognizant by commissioners are thereby constituted, 447, 448. 
 saving clauses in modern Acts preserving rights of, 448. 
 propei-ty in embankments or sea-walls not vested in, 26. 
 then- powers limited to parts of coast not vested in conservancy or 
 harbour authorities, 26.
 
 700 INDEX. 
 
 COMMISSIONERS OF SBWEHS— continued. 
 
 acting for a number of land owners, may erect defences if necessary, 
 
 thoug-h injurious to adjoining owners, 32, 33. 
 liability of landowners under authority of, to keep sea-walls at a 
 
 certain height, 144. 
 had powers to remove obstructions in navigable rivers, 449. 
 
 but not to make rivers navigable which were not formerly so, 449. 
 jurisdiction of, confined to such rivers as are necessary and useful to 
 navigation, 25, n., 449. 
 See Sea- IVall. 
 
 COMMON OF FISHERY, 
 
 definition of, 340. 
 
 generally used to express right of tenants of manor to fish in waters 
 
 of the lord, 341. 
 in private waters, 366. 
 
 See Fishery. 
 
 COMMON OR PUBLIC FISHERY, 
 
 definition of, 338. 
 
 in the high seas, is common to all the world, 338, 342. ' 
 in territorial waters, only to the subjects of the realm, 342. 
 in tidal waters, 343. 
 See Fishcnj. 
 
 CONSERVANCY OF NAVIGABLE RIVERS, 80, 443. Seeyavlffation, 
 Conscrranci/ of. 
 authorities, definition of, under 40 & 41 Vict. c. 16. .401. 
 
 CONSERVATORS OF RIVERS, 80, 8.5, 443—485. 
 are guardians of navigation, 80. 
 
 ownership of bed and banks not usually vested in, 80. 
 not bound at common law to keep navigation open or in repair, 85. 
 but bound to take care that persons navigating run no undue 
 danger, 454. 
 See Xaviijation. 
 
 CONVENTION as to fishery between England and France attached to 
 31 & 32 Vict. c. 42. ,11, 375, 381. 
 
 CONVEYANCES to canal companies, how construed, 282. See Canal. 
 
 CORNWALL, custom of tinbounders in, 239, n., 251, n. 
 
 CORPORATION, a prescriptive, indictable for non-repair of a bridge, 533. 
 
 COSTS, power of Courts to award, in case of non-repair of bridges, 664. 
 See Remedies. 
 
 COUNTY, 
 
 extencLs to low water-mark, where high seas begin, II. 
 creeks and anns of sea within body of a, are subject to law governing 
 inland tidal waters, 11. 
 but those not within form part of territorial waters, 12. 
 question as to what portion of sea is within, must be decided by 
 
 evidence, 12. 
 an arm of the sea lying intra fauces tcrrce is or may be within, 12. 
 sea shore forms part of the body of adjoining, 13. 
 bed of public navigable river presumably within, and subject to 
 
 justices thereof, 67. 
 where tidal river forms the boimdary bet'n'cen two, boundary line 
 
 will presumably pass through centre of stream, 68, 526. 
 liability of, to repair bridges, 510. See Bridges.
 
 INDEX. 701 
 
 COUNTY COURTS, 
 
 jurisdiction of, in the case of easements, 654. 
 under the Pollution Act, 180. 
 
 COVENANTS, 
 
 conferring easements, run with the land, 214. 
 
 to build or repair a bridge, how far binding, when damage is caused 
 by extraordinary flood, 529, and n. 
 See Bridges. 
 
 CREEKS AND ARMS OF THE SEA, 
 
 within body of a county are governed by law relating to inland tidal 
 w^aters, 11, 12. 
 but if not within, form part of the territorial waters of the 
 
 State, 12. 
 and are governed by the laws relating to such waters, 12. 
 grant by Crown of lands bounded by a non-na\igable, held to pass 
 soil ad medium fihim aqucr, 93. 
 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 Vict. 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, 9, 10. 
 jurisdiction of, over the ten-itorial waters of the realm, 5 — 9. 
 
 over " the king chambers," n. (3), 12. 
 ownership of soil of sea shore between high and low water-mark, 
 by, 14—22. 
 is for the benefit of the public, 14, 15, 33, 72. 
 and therefore grants by it are construed strictly, 16. 
 but same mles of common sense apply in construing grants from 
 Crown as from a subject, 16. 
 power of, before 1 Ann. c. 7, to grant portions of shore to a subject, 
 
 is now prohibited, 15, 71. 
 prerogative of, to take royal fish and wreck, 15, 37, 40. 
 
 and before Magna Charta, to create a several fishery, on sea 
 shore and tidal waters, 15, 37, 91. 
 property of, in land formed by alluvion or dereliction, 22, 23. 
 
 and in is;lands arising in the sea, 23, 24. 
 is not the universal occupant of unclaimed dry land, n. (1), 24, 60. 
 rights of, over lands lost by encroachments of the sea, 23, 24. 
 prerogative of, to protect from inroads of the sea, 24 — 29. 
 liability to repair sea defences is not enforceable against, 26. 
 power of, to prevent destruction of natural barriers from the sea, 27. 
 rights of, in ports, 43. See I'orin. 
 is conservator of all ports, havens, and arms of the sea in virtue of 
 
 office of Lord High Admiral, 43, 400, 443. See Sea; Sea Shore. 
 
 rights of, in tidal navigable rivers, 58—60, 62, 69, 96, 104, 345, 44 3. 
 
 property in soil of, may be granted to a subject by, 69, 70. 
 
 limits of such grants, 71, 72. 
 
 rights and interests of, in foreshore, transferred to the Board of 
 
 Trade, Addenda et Errata. 
 has no right to soil of rivers above the flow of the tide, 59, 92, 345, 
 347. 
 See Trivate Biter. 
 has no de jure right to soil and fisheries of large non-tidal lakes, 60, 
 98, 340.
 
 702 INDEX. 
 
 CROWlii—contuiiicd. 
 
 grant from, when owner of soil of lake, of free fishery, lands adja- 
 cent, &c., not sufficient to pass soil, 100, 101. 
 See Lakes. 
 public right of fishery in tidal waters possibly derived from the, 9 1 , 
 
 347. 
 but has now no longer power to create a several fishery on the sea- 
 shore or in tidal waters, 15, 37, 91. 
 See Fishery. 
 a ferry may be established by grant or licence from, 486. 
 rights and duties of, as to ferries, 486, 493, 496, 500. 
 
 See Ferry. 
 exemption of, from payment of tolls, 570. 
 and of ships of, 572. 
 See ToJh. 
 exemption of, from payment of rates, 606. 
 
 dockyards in occupation of, or occupied for government pur- 
 poses, C06. 
 but tenants of, holding for private benefit, are not exempt, 606. 
 See Rates. 
 
 CUSTOM, 
 
 of nations as to fisheries in the high seas must be respected by other 
 
 nations, 5, 342. 
 acquisition of easements by, 238. 
 evidence of, admissible as to repaii- of bridges by prescription, 531. 
 
 See Bridges. 
 evidence of, as to payment of toUs, rules as to, 541 — 543. 
 See TolU. 
 
 DAM. See Weir; Mill; Fisheri/. 
 
 DEED, 
 
 necessary for the creation or assignment of an easement, 204. 
 rules as to construction of, the same in grants by the Crown as in 
 grants by subjects, 16, 71. 
 
 DERELICTION, land lost by, property in, 22, 23, 24, 62, 94. 
 
 DERRICK HULKS, rateability of, 012. 
 See Bates. 
 
 DISTRESS, 
 
 the right of, incident to every toll, 546, 665. 
 
 and may be made on the thing itself, or any portion of it, 546, 665. 
 
 DIVERSION AND ABSTRACTION, 
 
 of a natural stream by a riparian owner, 116. 
 
 must be reasonable, 117. 
 
 and for uses of his tenement, 118. 
 
 for supplying a town with Avater, not a reasonable riparian 
 use, 117. 
 
 for irrigation, 120. 
 
 for mills, 121. 
 of a natural stream by artificial means, 122, 250. 
 of subterranean water from a well, 189. 
 of water actually in a Avell, 196. 
 
 actually in a surface channel, 19". 
 easement of, 240. 
 
 is within the Prescription Act, 232, n. 
 
 cannot bo materially increased, 241. 
 
 mere alteration, docs not dcstroj', 242.
 
 INDEX. 703 
 
 DIVERSION AND ABSTRACTION— co«^i«««?. 
 claim to be relieved of water by, 255. 
 
 continuance of, 297. 
 
 against a canal company, 297. 
 injunction to restrain, 668. 
 
 ^ee Easement ; Eeinedies ; liijMrian Owner. 
 
 DOCKS, 
 
 dock companies are bodies possessing statutory powers, 205. 
 
 See Stattitorij Fowers, Bodies possessing. 
 definition of, 331. 
 ownership of, 331. 
 provisions of Harbours, Docks and Piers Clauses Act, 1847, as to, 
 
 331. 
 are usually primarily governed by special Act incorporating them, 
 
 332. 
 right to take dues derived entirely from the Act, 331. 
 which is regarded in light of a bargain with imblic, and must bo 
 
 construed strictly, 332. 
 liability of dock companies, 270, 271, 273, 332—335. 
 for negligence generally at common law, 332. 
 even where tolls are devoted to the maintenance of the works, 
 
 270, 271, 332. 
 to repair, 333. 
 
 for compensation under Acts to jiersons injured by their works, 
 334, 518. 
 dues, 569, 576—584. 
 
 See Tolls. 
 
 rateability of, 595. 
 
 See Hates. 
 
 DOMESTIC PURPOSES, 
 
 right of a riparian owner to use water of a stream for, 116. 
 what are, 116, 320, n. 
 
 taking water for an engine by a railway company is not a, 116. 
 owners and occupiers entitled to demand a supply of water for, 
 under the Waterworks Clauses Acts, 319, 320, n. See Riparian 
 Owner ; Water Supply. 
 
 DRAINS, 
 
 right to make for agricvdtural purposes is unqualified, 188. 
 
 no easement to the continuance of the flow of water froni such 
 
 drains can be acquired by prescription, 189, 2G0. 
 implied grant of existing, on conveyance of tenement, 215 — 228. See 
 
 also Pollution. 
 
 DRIP, OR EAVES-DROPPING, easement of, 133, 260, 261. 
 
 DUES, dock. See Bodes and Tolls. 
 
 DYNAMITE, use of, to kill fish, is iUegal, 385, 392. 
 
 EASEMENTS OF WATER, 
 
 embrace all acquii-ed rights of water, 202. 
 
 definition of, 202. 
 
 must be used in connection with a tenement, 202, 203, 234. 
 
 classification of, 203. 
 
 how acquired, 203. 
 
 by express agreement, 204 — 208. 
 
 can only be created and assigned by deed, 204. 
 
 equitable doctrine of acquiescence, title to, by, 206. 
 
 extinguishment of, by parol evidence, 208.
 
 704 INDEX. 
 
 EASEMENTS OF VfATER—contuined. 
 how acquired — continued. 
 
 constructiou and effect of express grant of, 102, 209. 
 
 extent of, determined by express words of grant, 210. 
 benefits of right to an easement run with the hiud, 214. 
 not so rights unconnected with the land, 214. 
 no particular words of grant necessary, 215. 
 by implied grant, 21.5. 
 
 on severance of tenements, 215. 
 
 there is an implied grant of necessary easements to gi'antee, but 
 no corresponding reservation, 215. 
 except of ways of necessity, 215. 
 reciprocal easements, 227, 228, 252. 
 
 easements not of necessity, words necessaiy to pass, 228. 
 secondary easements, 229. 
 
 the burden of, cannot be increased, 230. 
 easements are limited by words of grant or by the extent of 
 
 user proved, 230, 263. 
 a mere alteration does not destroy, 230, 242—246, 263. 
 by prescription, 230—239. 
 See Frescription. 
 by lost grant, 231. 
 under the Prescription Act, 232. 
 what easements are within the Prescription Act, 232, 233, nn., 
 
 294, 298, 337. 
 bj' and against whom claim to, by prescription maybe made, 234. 
 cannot be claimed when the servient owner is under a disability 
 to grant, 235. 
 enjojTnent must be nee ri, nee clam, nee precario, 236. 
 and adver.se, 237. 
 and uninteri-upted, 236. 
 
 partial interruption may c[ualify without destroying, 236, n. 
 claims to, by custom, 238, 239. 
 pai'ticular easements of water, 239. 
 easement of watercourse, 252. 
 
 See Watercourse. 
 easement of diversion and obstruction, 240. 
 See Diversion and Obstruction. 
 of pollution, 242. 
 See Pollution. 
 of artificial watercourse, 247. 
 See Arlijieial Watercourse. 
 to discharge water and receive flow of water by artificial 
 
 means, 251, 260. 
 right of servient owner to compel dominant owner to con- 
 tinue discharge, 252. 
 of drip, or eaves -droi)ping, 260, 261. 
 
 See Drip. 
 to draw water from a well, 203, 232, n., 238. 
 to take water to fill a canal, 277. 
 
 to take water from a canal for piii-poses not sanctioned by 
 act, cannot be acquired by grant or prescription, 53, 232, n., 
 235, 278, 291. 
 to have water diverted by a canal, 255, 297. 
 See Canal and Diversion. 
 extinguishment of, 261. 
 
 if granted by .statute for a particular pui-pose, easement ceases 
 
 when purpose is accomplished, 261, u. 
 by express release, 261. 
 by merger, 201.
 
 INDEX. - 705 
 
 EASEMENTS OF W A.T'ER— continued. 
 exting-uishment of — continued. 
 by licence, 208, 2G2. 
 by abandonment. 262. 
 by nou-user, 262. 
 
 by alteration of dominant tenement, 230, 242, 244, 263. 
 by encroachment, 242, 244, 263. 
 remedies for disturbance of. See Remedies, 
 
 EAVES-DROPPIN&, easement of. See Drijj. 
 
 EDUCATION ACTS, 1870, 1873, 1876, provision to enforce under the 
 Canal Boats Act, 1877 . .485. 
 See Canal Boats Act. 
 
 EELS, statutoiy provision as to, 383. 
 
 EMBANKING and inclosing evidence of ownership of sea shore, 20, 21, 22. 
 See Sea Shore. 
 under Improvement of Land Act, to defend from sea, is " an 
 improvement of land," 446. 
 
 ENCROACHMENT of sea, land lost by, 23, 24. See Sea Shore and 
 Dereliction. 
 extinguishment of easements by. See Easement. 
 
 ENGINES, 
 
 "fixed," 386, 387, 390. 
 
 what are "fixed engines," 390. 
 what are illegal, under Salmon Fisheries Acts, 386, 387. 
 
 privileged, 387—390. 
 railway, taking water to supply, is not a "domestic purpose," 116, 
 119, 120." ^ee Fishery. 
 
 ERECTIONS on bed of a tidal navigable river, when pemussible, 73 — 
 78, 147 — loO. See Tidal Navigable River. 
 
 EXPIRING Laws Continuance Acts, provisions under, as to salmon 
 fisheries, inspectors and commissions, n. (3), 380. 
 
 EXPLOSIVES ACT, 1875, the, provisions of, as to earners on canals 
 and navigable rivers, 483, 484. 
 definition of carrier under, 484. 
 canal company, 484. 
 
 EXTINGUISHMENT OF EASEMENTS. See Easements. 
 
 FERRY, 
 
 definition of, 486, 493, 502. 
 
 may be created by act of parliament, royal grant or licence, or by 
 
 prescription, 486. 
 incidents to the ownership of the franchise of, 486, 487, 502, 503. 
 the right to take toUs is usually part of privilege of, 487. 
 but must be founded on adequate consideration, 487. 
 and biu'den must be reasonable in amount, 487. 
 rights of action and liabilities of parties entitled to franchise of a, 
 487—500, 501, 502, 503. 
 against parties evading payment of toll, 487, 502, 503. 
 for distui'bance of franchise by setting a new ferry so as to 
 
 diminish custom, 487 — 500, 502. 
 owners of, liable to criminal indictment if they wilfully or by neg- 
 lect of duty obstruct subjects of realm in use of, 487, 501, 502. 
 
 c. z z
 
 706 INDEX. 
 
 F'ER'RY—coiitimied. 
 
 description and limits of a, 489, 490, 491, 492. 
 
 right to ply on Sundays, under the "Waterman Acts, does not 
 
 constitute an ancient ferry, 491, 492. 
 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 other, 492 — 500. 
 owner of, is propi'ietor of a particular species of monopoly for 
 public advantage, 495, 500. 
 but has not a grant of exclusive right of carrying by any 
 
 means whatever, 495. 
 but only by means of a feny, 496. 
 protection of Crown to grantees does not extend to future dis- 
 coveries of entirely new means of transit supei'seding a, 476. 
 no actions against persons violating' rights otherwise than by 
 
 means of boats, 496. 
 how far owners are entitled to compensation for loss arising 
 from creation of new highways, 499, 500. 
 liabilities of lessees and owners for injury by negligence, 501, 502. 
 common carriers by water on same footing as those by land, 501. 
 
 and do not insui-e against irresistible acts of nature, 501. 
 what constitutes a contract between owners of ferries and pas- 
 sengers, 501, 502. 
 a floating bridge propelled across a river by steam is not a, 516 — 518. 
 
 or withiu the Mutiny Act, 516—518. 
 rateability of, 621 — 625 and n. See Rates. 
 tolls, 502, 503. See Tolls. 
 
 alteration of, no answer to an action for disturbance, 502. 
 lie in grant and not in tenure, 502. 
 an agreement to lease must be under seal, 502. 
 "passage" defined, 502. 
 
 the individuals or inhabitants of a particiilar town may have cus- 
 tomary right of passage over a ferry without paying toll, 503. 
 rateability of, 621—625. 
 See Rates. 
 
 FISH. See Fishery. 
 
 shell. See Shell Fish. 
 royal. See Royal Fish. 
 
 FISHERMEN, British, have exclusive right of fishing within distance 
 of low water mark on the British coast, 11, 342. 
 
 FISHERY, 
 
 the various rights of, defined, 336. 
 
 a territorial fi^&hevj, 336, 361. 
 
 right of, when not connected with soil is a proft a prendre, 336. 
 
 but not an easement within the Prescription Act, 337. 
 common or public fishery in the sea or tidal waters, 338. 
 a several fishery, 338. 
 free fishery, 338. 
 common of fishery, 340. 
 
 See Territorial Fishery ; Free Fishery ; Common or Ptiblic Fishery ; 
 and Common of Fishery. 
 licence to exercise exclusive right of, must be by deed, 97. 
 effect of licences to fish, 34 1 . 
 in the high seas : 
 
 prima facie common to all the world, 2, 4, 342. 
 
 exclusive right of, how acquired by one nation as against 
 another, 5.
 
 INDEX. 707 
 
 FISHERY— continued. 
 
 in the high seas — confbuml. 
 
 customs of other nations as to, must be respected, 5, 342. 
 
 no restrictions on, either as to season or means of catching fish, 
 
 342, 381, 385. 
 a prescription for a fishery in the sea is bad, 343. 
 in the ten-itorial waters of the reahn : 
 
 common to all subjects of the reahn, 11, 342. 
 
 who have an exclusive right within three nautical miles of low 
 
 watermark, 11, 342. 
 convention with France as to, annexed to the Sea Fisheries Act, 
 11, 343, 375. 
 regulations as to fishing and boats under, 375, 378. 
 convention with America as to, 11, 343. 
 no statutory regulations as to season for taking fish in, 375. 
 except on parts of the coast of Cornwall, 375, 385, n. 
 or as to means of taking fish in, 385. 
 except by dynamite or explosive substances, 385. 
 provisions of the Sea Fisheries Act as to oyster and mussel beds, 
 381, 382, 385. 
 in tidal waters : 
 
 public right of, e-^\s,ts prima fade in all subjects of the realm, 36, 
 
 91, 343. 
 subject to legal restrictions as to season and means of capture, 
 
 36, 381, 385. 
 extends to the sea -shore between high and low water mark, 36, 
 
 343. 
 and to estuaries and tidal rivers so far as the tide flows and 
 
 reflows, 91, 343. 
 does not exist in non -tidal waters which have been made navi- 
 gable, or been immemorially so, 59, 60, 345, 348. 
 or in inland non-tidal na\agable lakes, 346. 
 
 semble, depends on proprietorship of bed byCrown, 59, 62, 63, 347. 
 which prior to Magna Charta had right to exclude pubhc and 
 
 create several fishery, 91, 348. 
 the Cro'wn cannot now interfere with the right, by grant or 
 
 charter, 34, 37, 91, 344. 
 the right is subservient to that of navigation, 37, 92, 356. 
 includes right of fishing between high and low water mark, and 
 
 taking shell fish there, 36, 343. 
 but not of using adjoining land, except by custom, 344, 356. 
 the public may take all the fish they can by lawful means, 344, 360. 
 interference with right is indictable and actionable on proof of 
 
 special damage, 344. 
 right does not include that of taking royal fish, 344. 
 right, how affected by change of bed, 64, 65. 
 a several fishery in, how claimed, 348 — 355. 
 by grant, 349. 
 by prescription, 349. 
 
 what evidence is necessary to support claim to, by prescrip- 
 tion, 349—352. 
 as appurtenant to a manor, 338, 352. 
 semble, cannot be claimed as appurtenant to land, 352, 353. 
 is a royal franchise, and does not merge on forfeiture, 353. 
 efPect of grant of, 353—355. 
 
 does not, in absence of other evidence, pass the soil beneath 
 water, 37, 92, 354. 
 a free fishery in, is a co-extensive right enjoyed by two or more 
 persons, 355 
 
 z z 2
 
 708 INDEX. 
 
 FISHERY— fonilnuid. 
 
 obstructions to, 358 — 360. 
 
 weirs obstructing navigation are illegal, unless granted by Crown 
 prior to reign of Edw. I., 358. 
 and are indictable, 358. 
 so, senible, if obstructing fishery, 358. 
 " obstructions to fishery and the passage of fish are actionable by 
 the owners of the fishery, 359, 360. 
 in private streams, 59, 60, 6-1, 97, 360 — 369. 
 
 belongs prima facie to the owners of bed ad medium Jilmn aqiice, 
 60, 360." 
 as a ten-itorial right, 361. 
 where a man possesses land on both sides of a stream he has sole 
 
 right of, 97, 361. 
 lord of a manor must make out his claim to right by evidence of 
 
 his own, as by deed, 97, 362. 
 opposite proprietors are liable to actions of trespass for throwing 
 
 net or line beyond centre thread, 361. 
 the right is vested in the occupier of land and not in the land- 
 lord, 361. 
 lords of manors are prima facie entitled to fisheries over waters 
 
 of the waste, 97, 362. 
 claim by the public to fish in private waters cannot exist in 
 law, 59, 345, 363. 
 or by custom, 363. 
 licences to the public to fish are revocable at any time, 363. 
 several fishery in, apart from ownership of soil, 97, 363 — 
 366. 
 semblc, grant of, passes the soil by implication, 364, 366. 
 may be appiuienant to a manor, 363. 
 but semblc, not to a tenement, 363. 
 free fishery in, 366. 
 
 does not import ownership of soil, 366. ' 
 
 right of fishery in, subordinate to rights of navigation, 367. 
 obstructions to fishery in, 367. 
 
 statutes prohibiting weirs only relate to navigable rivers, 
 
 367. 
 so a claim to a weir in private waters may be established by 
 
 gTant or prescription, 367. 
 but obstructions to fishery a,ve prima facie actionable, 368. 
 
 though not a public nuisance or indictable, 368. 
 pollution of a stream, rendering it unfit for fish to live in, 
 is actionable, 369. 
 and ground for interference by the Court by injunction, 
 369. 
 in lakes and pools, 59, 60, 98, 102, 369. 
 
 in small pools and ponds which are included in one property or 
 
 manor is prima facie in owner thereof, 101, 369. 
 where boundary of two properties passes along it, it coincides 
 with the medium filum, and fishery follows such line, 101, 
 369. 
 fish are /(?>•« naturce, and cannot be subject of larceny at common 
 law, 369. 
 except in small ponds, tanks or stews, 369. 
 in large inland navigable lakes the law as to the right is doubt- 
 ful, 59, 60, 98, 369—372. 
 the Crown has no dejure right to it, 98, 370 — 372. 
 semhle, the public have no right in such lakes, 101, 102, 369 
 —372.
 
 INDEX, 709 
 
 FISHERY— continued. 
 
 in lakes and pools — continued. 
 
 grant of free fishery in, held not to pass the soil of the bed, 365, 
 370. 
 in canals and artificial waters, 279, 280, 373, 377, 378. 
 
 is prima facie incident to the ownership of the soil, 373. 
 
 and canal j)roprietors, &c. may let it if they think fit, 373. 
 reservations of, to land owners, 279, 280. 
 
 is in many cases regulated by the act incorporating- a canal 
 company, and is then dependent on its construction, 373. 
 boards of salmon conservators must not injuriously affect canals, 
 &c., 377. 
 statutory regidations affecting, 374 — 395. 
 
 general enactments for protection of fish, 374 — 381. 
 
 as to salmon, 374, 376—380, 382—385. See Salmon Fisheries 
 
 Acts; Salmon. 
 as to freshwater fish, 374, 380, 383, 384, 392. 
 as to sea fish, 375, 376, 381 — 385. 
 provisions as to oyster fisheries, 375, 381. 
 statutory provisions as to the season during which it is illegal to 
 catch fish, 381—386. 
 in the kiffh seas and territorial waters, 381. 
 in inland waters, 382 — 384. 
 as to salmon, 382 — 384. 
 trout, 383, 384. 
 eels, 383. 
 lamperns, 383. 
 
 freshwater fish other than trout and char, 383, 384. 
 as to the means by which it is illegal to catch fish, 385 — 392. 
 oyster beds, distm-bance of, 385. 
 salmon, disturbance of, 385 — 392. 
 usiug dynamite to kill, 385. 
 
 or lime or noxious materials, 385, 386. 
 obstiniction of fish descending a stream, 386. 
 using snares, lights, spears, &c., 386. 
 size of mesh of net to be used, 386. 
 licences for salmon, 386. 
 seine or draft nets, 386. 
 dams, weirs, and fixed engines, 386 — 392. 
 what dams and weirs are privileged, 387, 391, 392. 
 privileged fixed engines, what are, 387 — 389. 
 
 evidence necessary to supjjort a claim to, 388 — 390. 
 what is a fixed engine, 390. 
 trout and other freshwater fish, 392. 
 
 using dynamite to kill, obstructrag when descending stream, 
 
 392. 
 using lights, spears, &c., 392. 
 establishment of fishery districts for, 392. 
 as to prevention of poaching fish, 370, 392 — 395. 
 
 stealing fish in ponds is larceny at common law, 370, 392. 
 taking or destroying fish in waters adjoining or belonging 
 to a dwelling-house, 393. 
 or in other private waters, 393. 
 at night, 393. 
 
 or in the daytime, 393. 
 where a bona fide claim is set up, 394. 
 seizui'e of nets and tackle, 394. 
 
 maliciously destroying dams of fish ponds, 394, 395. 
 or putting lime or other noxious material therein, 394, 395.
 
 710 
 
 INDEX. 
 
 FI8UERY— continued. 
 
 in the Thames, bye-laws of the conservators as to, 471. 
 rateability of a, 625. See Rates. 
 
 what remedies will lie for infringement of rights of, 671. 
 See Remedies ; Trespass. 
 
 FLOODS, 
 
 right of riparian owners to protect their lands from, 32, 147 — 150. 
 is not so extensive in the case of inland waters as in that of the 
 sea, 147. See Sea Wall ; OverJIow. 
 proprietors may build bulwarks ripce 7)mniendcecmisd to avert, 147 — 149. 
 ordinary and extraordinary channel for waters of, distinguished, 148, 
 
 149. 
 rights of riparian owners to avert ordinary, 148. 
 
 and extraordinary, 149, 150. 
 an extraordinary, is a common enemy, in providing against which 
 
 riparian owners may exercise reasonable selfishness, 149. 
 liability for escape and overflow of water, 128 — 147. 
 in mines, 129—138. See Overflow; Mines. 
 
 duty of railway companies as to building sufficient bridges, 519. 
 extraordinary, how far an excuse for damage at common law, 138 — 
 
 150, 629, n. 
 where liability is imposed by act of parliament, 142. 
 in cases of negligence, 142, 144. 
 
 See OverJIow ; Vis Major; Riparian Owner. 
 
 FLOTSAM, definition of, 38, n. 
 
 FOG SIGNALS, 
 
 rules of the sea as to, 405 and note. 
 
 in navigable rivers, 411. 
 
 in the Thames, Appendix, 689. 
 
 FOOTBEIDGE, 521, n., 524, n., 525, 531. See £ridffes. 
 
 FOREIGNERS, 
 
 on English ships are subject to English law, 3, n., 397. 
 
 on foreign ships, when subject to English law, 3, 8, 11, 397. 
 
 FORESHORE, 
 
 of the sea and tidal rivers, 12 — 42, 394, 597. 
 dejinition and limits of, 12 — 58. 
 
 comprises only that portion lying between high and low water 
 
 mark, at ordinary tides, 13, 62. 
 but this line varies as the sea recedes from or encroaches on the 
 
 land, 13, 62. 
 land beyond this line is not shore, 13. 
 though overflowed by high tides, 13. 
 forms part of body of adjoining county, but not prima facie of 
 
 adjoining parish or manor, 13, 67, 595. 
 justices of adjoining county have cognizance of offences com- 
 mitted thereon, 13, 67. 
 whether shore is or is not covered with water, 13. 
 incorporated by 31 & 32 Vict. c. 122, with adjoining parish for 
 all civil and parochial purposes, 13, 68, 597. 
 and is rateable to the poor there, 13, 68, 597. 
 so, too, all artificial or natiu'al acciimulations from the sea, 
 13, 68, 597.
 
 INDEX. 711 
 
 FOR'ESHO'R'E—coHtinimL 
 
 definition and limits of — continued. 
 
 is extra-parochial within the Nuisances Removal Act (18 & 19 
 Vict. c. 121), s. 22.. 14, 68. 
 property in, 14 — 33. 
 
 is prima facie in the Crown, 14, 58, 99, 413. 
 
 but subject to public rights of navigation, 14, 33, 58, 72, 413. 
 
 and of fishery, 14, 36, 58, 338, 343. 
 may belong to a subject by ancient grant or charter from the 
 Crown, 14, 69. 
 or by prescription, 14, 16. 
 construction and effects of grants of, by the Crown, 15, 71. 
 of lands adjoining, 18, 72. 
 
 alienation of Crown lands prohibited by 1 Ann. c. 7, s. 5 . . 15, 71. 
 grantees of Crown take subject to public rights, 14, 33, 71, 418. 
 and cannot make any claim or demand interfering with 
 them, 15, 33, 71, 418. 
 interference with public rights on, is a nuisance, 15, 33, 62, 73, 
 344, 421, 518, 650, 670. 
 with rights of the Crown on, is a purpresture, 15, 73, 423, 670. 
 title of a subject to, as against Crown by prescription, 16. 
 may form parcel of a manor, 18 — 22. 
 
 what acts of ownership are evidence of title to, 16 — 22, 41, 42. 
 property in land foi-med by alluvion and dereliction, 22, 62. 
 duty of the Crown to protect from the sea, 24. 
 right of riparian owners to protect from the sea, 28, 32, 144. 
 from river floods, 73, 147, 423. 
 See Sea Wall ; Overflow. 
 queer e, whether excavations endangering adjoining lands are 
 
 actionable, 28, n. 
 public right of navigation, 33. 
 
 senible, includes the right to cross at low water, 33, 79, 86, 90. 
 right of bathing, semble does not, 40. 
 public right of fishery on, 33, 36, 91, 343. 
 several fishery on, 37, 91, 348. 
 See Fishery ; Several Fishery. 
 the right to take wreck on, 15, 21, 37. 
 See Wreck. 
 to take sand, seaweed and shells on, 41, 42. 
 See Sand ; Seaweed. 
 
 FOUNTAIN, statutory provision against fouling, 174, n. 
 
 FREE FISHERY, A. 
 
 definition of, 338. 
 
 when an incorporeal hereditament, can only pass by a deed, 97, 336. 
 distinguished from a several fishery, 338 — 340. 
 effect of grant of, 340, 366. 
 in tidal waters, 355. 
 in private waters, 366. 
 
 does not import the ownership of the soil, 366, 367. 
 See Fishery ; Several FisJiery. 
 
 FRESHWATER FISHERIES ACT, 1878, the (41 & 42 Vict. c. 39), 
 375, 380, 392. 
 See Fishery. 
 
 FRONTAGERS, rights and liabilities of, as to sea defences, 27 — 33. 
 See Sea Wall ; Commissioners of Sewers ; Overflow.
 
 712 INDEX. 
 
 GAS, 
 
 statutory pi'ohibition against pollutions by, 172, 173, n. 
 washings, liability for pollution caused by, 173, n. 
 
 GOIT, 122, 157, 250. Sec Artificial JFatercourse ; Hill. 
 
 GRAND JUNCTION CANAL ACT, the (33 Geo. 3, c. 80), n. (3), 459. 
 
 HARBOUES, 
 
 definition of, 42, 399. 
 
 under 40 & 41 Vict. c. 16. .400, n. 
 tolls in, 4, 45, 569, 573. See Tolls. 
 rateability of, 595. See Rates. 
 conservancy of, 44, 400, 411. 
 obstructions in, 33, 418, 421, 422. 
 
 See Ports ; Navigation. 
 
 HIGH SEAS. See Sea. 
 
 HIGHWAY, 
 
 on water, 
 
 the sea is the, of all nations, 113, 397. 
 a public navigable river is a public, 72, 419. 
 on land, 
 
 is a general tenn for all public ways common to the Queen's subjects, 
 
 518. 
 no indictjnent lies for repairing a bridge unless it be situate in a, 
 
 513, n., 517. 
 at the extremity of bridges, repair of, 505, 525, 534. 
 provisions of 5 & 6 Will. 4, c. 30, as to repair of, 507. 
 definition of, under 5 & 6 Will. 4, c. 50, includes bridges not county 
 
 bridges, 507. 
 law as to toll for passage along a, on land applies equally to that 
 
 along sea or navigable waters, 536. 
 See Navigation ; Bridges ; Toll. 
 
 HIGHWAYS ACT, 1835, the (5 & 6 WiU. 4, c. 50), provisixjns of, as to 
 bridges, 506—509, 514. See Bridges. 
 
 IMPROVEMENT OF LAND ACT, 1864.. 446. 
 powers of Inclosiu'e Commissioners under, 446. 
 meaning of term improvement of land, 446. 
 
 INCLOSURE COMMISSIONERS, 
 
 jurisdiction of Commissioners of Sewers transferred to, 446. 
 powers of, under Improvement of Land Act, 1864, and the Land 
 Drainage Act, 466. 
 
 INDICTMENT, 
 
 interference with public rights is the subject of an, 15, 62, 73, 171, 
 
 344, 421, n., 517, 530, 661, 662, 670. 
 pollution of streams, when amounting to public nuisance, punishable 
 
 by, 171, 661, 670. 
 for obstruction of navigation, 62, 73, 426. 
 
 of fishery, 344. 
 for non-repair of bridges, 511, n., 513, n., 517, 521, n., 530, 532, 662. 
 See Pollution ; Nuisance; FisJierij ; Bridges; Bemedies.
 
 INDEX. 718 
 
 INFORMATION, 
 
 at suit of the Attorney-General, 
 
 interference with public rights the subject of an, 15, 33, 73, 
 171, 421, 661, 662, 670. 
 for pollution of a stream, 171, 245, 661, 662. 
 for obstruction of navigation, 3, 33, 73, 423. 
 
 individual sustaining injury may join as plaintiff and relator, 661. 
 See Memedies ; Follutmi ; Nuisance; Fishery; Navigation. 
 INJLTNCTION, remedy by, 
 
 Courts of Chancery and Common Law have now equal powers as to 
 
 granting, 664. 
 when granted in cases of nuisance and injury to property, 665. 
 interlocutor y, 666. 
 perpetual, 666. 
 mandatory, 666, 672. 
 
 not granted where damages are sufficient compensation, 666. 
 principles on which Courts will gi-ant, 294, 665 — 668. 
 granted to prevent re^jeated actions, 489, 666. 
 
 and acquisition of rights, 119, 667. 
 granted where an action lies by riparian owner for interference with 
 
 stream, even where no actual damage is proved, 666, 667. 
 damages not generally awarded in lieu of, for injui'ies to riparian 
 rights, 157, 670. 
 and balance of convenience and inconvenience will not be con- 
 sidered, 157, 489, n. 
 no part of duty of Court to inquire how nuisance may be removed, 
 
 158, 668. 
 Courts will not interfere in cases of merely prospective nuisance, ' 
 167, 667. 
 however strong apprehension of injury may be, 167. 
 but probable continuance and increase of nuisance wall be considered, 
 
 167, 667. 
 acquiescence in nuisance, how far a bar to obtaining, 167. 
 Court will not hold its hand on gi'ound of a decision being appealed 
 
 from, unless it doubts justice thereof, 667. 
 to restrain interference with right of access, 87, 420. 
 
 diversion and obstruction, 119, 136, 199, 207, 257, 292. 
 interference with a ferry, 489, 491. 
 injuries to fishery, 671. 
 
 to navigation, 421 — 423. 
 poUution, 126, 151, 152, 157, 171, 200, 243, 369, 668. 
 pui'prestures, 15, 73, 653, 670. 
 statutory bodies from exceeding their powers, 165. 
 
 INLAND WATERS, definition of, under the Explosives Act, 1875 . . 
 484, n. 
 
 INTERNATIONAL LAW, 
 
 as to the sea washing the shores of states, 1, 10, 397. 
 
 as to fishery, 5, 11, 342. 
 
 as to merchant shipping, 402, 408. 
 
 as to rivers fonning the boundary between two states, 68, n. 
 
 INTRUSIONS. See Furprestures. 
 
 IRRIGATION, 
 
 right of a riparian owner to use water for, 116, 118, 120, 237, 238. 
 in India duty of zemindars to maintain tanks in their zemindaries 
 
 for, 141, n. 
 easement of, 237. 
 
 See Jiiparian O'oier ; Diversion.
 
 714 INDEX. 
 
 ISLANDS, 
 
 in arms of the sea, when private property, 23. 
 arising in the sea, property in, 23, 24. 
 in private waters, property in, 95. 
 
 JETSAM, definition of, 38, n. 
 
 JUSTICES, 
 
 jurisdiction of, on the sea shore, 13. 
 
 as to offences on shores of tidal navigable rivers, 67. 
 
 LAKES AND POOLS, 
 definition of, 98. 
 ownership of soil of, 98 — 101. 
 
 small ponds, 98. 
 large and na\dgable, question of ownership is doubtful, 98 — 101. 
 the Crown has no de jure right to soil and fisheries of, 98, 347. 
 American law as to such lakes, 100. 
 
 where there are several adjoining proprietors, rule as to owner- 
 ship usque ad medium filum, ditficult of application, 100, 347. 
 grant from Crown, owner of soil of lands adjacent, of islands 
 therein, and of a free fishery, held not to pass soil of, 100, 
 101. 
 grant of a several fi^heiy in, held to be proof of ownership of 
 soQ, 101, 364. 
 right of na^dgation in, 101, 370, 443. See Navigation. 
 right of fisheiy, 
 
 in small non-navirjahU lakes and pools, 101, 369. 
 in large navigable lakes, 101, 346, 369 — 373. 
 See Fishery. 
 
 LAMPERNS, law as to catching, 383. 
 
 " LANDED," meaning of term as regards goods shipped into harbour, 
 576, n. 
 
 LANDING, the right of, as incident to the right of access, 33, 78, 90. 
 
 LANDS CLAUSES ACTS, 
 
 a ferry is land for which compensation can be given under, 488, n. 
 a right of fisheiy is not, 337. 
 
 LARCENY of fish in small ponds, 370, 392. 
 See Fishery. 
 
 LARCENY ACT, the, provisions of as to poaching fish, 392. 
 
 LEE CONSERVANCY ACTS, the, 451, n. 
 
 provisions of as to restriction of pollution, 173. 
 
 excepted out of the Rivers Pollution Prevention Act, 184. 
 
 LICENCE, 
 
 to divert water, effect of a, 204, 209. 
 
 a parol, may extinguish an easement, 208, 262. 
 to fish, revocable at will, 341, 363. 
 
 in order to be binding on grantor, must be by deed, 97, 341.
 
 INDEX. 715 
 
 LIGAN, definition of, 38, n. 
 
 LIGHTHOUSES, 
 
 and buoys and beacons, regulations as to under Merchant Shipping 
 
 Acts, 410. 
 tolls taken for, 569. 
 
 and lighthouse tolls, rateability of, 617. 
 See Tolls; Rates. 
 
 LIGHTS, 
 
 rules of the sea as to vessels using, 403, n. 
 in navigable rivers, rules as to, 411. 
 in the Thames, Appendix, p. 687. 
 
 LOCAL GOVERNMENT BOARD, 
 
 powers of under the Rivers Pollution Prevention Act, 176. 
 the Canal Boats Act, 1877. .484. 
 
 LOCK DUES, 
 
 rateability of, 633. 
 
 are a local earning, and locally rateable, 633. 
 See Rates. 
 
 LOCOMOTIVE ACT, the (24 & 25 Vict. c. 70), s. 7, does not apply to 
 county bridges, 517. 
 See Bridges. 
 
 LORD OF MANOR. See Manor. 
 
 MALICIOUS INJURIES TO PROPERTY ACT, the, 174, n., 475, 
 476. 
 provisions as to restriction of pollution, 174, n. 
 protection of navigation, 475. 
 as to fishery, 174, 394. 
 
 MANDAMUS. See Remdies. 
 
 MANOR, 
 
 the sea-shore may form parcel of a, 18, 22. 
 on the sea coast, 18, 22. 
 
 eflPect of grant of, 18. 
 
 acts of ovniership admissible to prove extent of grant of, 18, 22. 
 
 a port may be parcel of a, 43, 48, 560. 
 
 right to take wreck is frequently attached to, 37. 
 claim by lords of to fish in waters of, 97, 362. 
 " waste lands of," meaning of, 280. 
 right of lord of to fish in waters of waste, 362. 
 
 See Sea- Shore ; Fishery; Rorts. 
 
 MARINE PROPERTY, 
 
 rateability of, 595. 
 
 where not actually occupying soil, 609. 
 
 MASTER, definition of under the Canal Boats Act, 1877. .484, n. 
 
 MERCHANT SHIPPING ACTS, 1854—1876, 
 
 jurisdiction of English courts over foreign vessels under, 3, 398. 
 regulations as to the navigation of the sea under, 401 — 411. 
 of inland waters, 411. 
 
 See Sea, the ; Navigation.
 
 716 INDEX. 
 
 MERGEK, 
 
 natural rights of water are not extingiiislied by, 262. 
 extinguisliment of easements by, 215, 261. 
 
 MILL DAMS AND WEIRS, 
 
 obstructing navigation, 357, 431. 
 
 fishery, 358, 367, 386, 391. 
 powers of Conservancy Boards and Commissioners of Sewers over, in 
 
 navigable rivers, 445, 449. 
 property in, in the Thames vested in the Conservators, 473. 
 See Riparian Owner ; Basement ; Fishery. 
 MILLS, 
 
 right of riparian owners to use water for, 116, 121. 
 
 for a mill newly erected, 109, 112, 121. 
 the use of the water for must be reasonable, 116. 
 
 and not interfere with the rights of other riparian owners, 109, 
 116, 121. 
 right to divert the water of a natural stream to by artificial means, 
 
 122, 154. 
 easement to divert water to, 241. 
 
 liability of owner of to repair a bridge used by the public, 512. 
 See Riparian Owner ; Easement. 
 
 MINES, 
 
 below low water-mark, title of the Crown to, as against a subject, 9. 
 the working of, evidence of ownership of the sea shore, 21. 
 liability of owners of, for escape of water, 128, 129 — 138. 
 the right to work, if duly exercised, begets no responsibility for 
 
 injury by escape of water, 134. 
 liability for throwing water on, which would not naturally have 
 
 come there, 135. 
 where an artificial is substituted for a natural chaimel, 136. 
 no liabihty on owner of for di-ainiTig away percolating or surface 
 water, 189. 
 or for intercepting water which would have percolated into a 
 
 well, 189, 191, 192. 
 or for abstracting water actually in a well, 196. 
 liabihty for abstracting water actually in a siu'face channel, 197. 
 no right to support from water in, 199. 
 prohibition under the Rivers Pollution Act as to drainage into 
 
 streams from, 177. 
 claim by custom to use a stream to carry away refuse from, 238. 
 claim to use an artificial watercourse by the owners of, 234, n., 
 
 239, n., 251, 253. 
 claim to use by tinbounders under custom of Cornwall, 239, n., 251, 
 
 253. 
 claim to continuance of flow of water from, 253, 256, 258. 
 right to work under canals, 145, 146, 280. 
 reservations as to, in Canal Acts, 279, 280. 
 rights of water companies to interfere with under the Lands and 
 
 Waterworks Clauses Acts, 317. 
 owners of, rateability of for a watercourse, 636. 
 See Overflow ; Riparian Owner; Canal, 
 
 MOORINGS in the Thames, 
 
 rateability of, 614. 
 
 See Rates. 
 
 MUSSEL FISHERIES, 
 
 law as to protection, &c. of, 375. 
 See Fishery ; Oysters.
 
 INDEX. 717 
 
 NAR NAVIGATION ACT, the (24 Geo. 2, c. 19), 451, u. 
 
 NATURAL rights of water. See Hijxirian Owners. 
 
 NAVIGABLE RIVER. See Tidal Navigable River. 
 
 NAVIGATION, and therein of the conservancy of navigation, 
 definition of, 396. 
 in the sea, 2, 3, 10, 33, 396. 
 
 the sea is the highway of all nations, 3, 397. 
 jurisdiction over ships on the high seas, 3, 397. 
 
 in the teiTitorial waters of the realm, 5, 8, 9, 11, 397. 
 over pirates, 4, 398. 
 treaty or acquiescence may give sole right of, 2, 399. 
 
 qucere, whether obstruction of is inconsistent with interna- 
 tional law, 2, 3. 
 right of, in territorial waters, 10. 
 right of includes right to anchor free of toll, 4, 33, 47, 48, 
 
 399, 558. 
 right is paramount to ownership of Crown and its grantees in 
 soil of sea shore, 14, 33. 
 qucere, whether it includes the right to pass over shore at 
 low water, 33, 90. 
 no toU is demandable for navigating, except in ports and 
 harboirrs, or where benefit is done to navigation, 4, 47, 48, 
 398, 399, 536, 547, 550, 558, 571. 
 in ports and harboiu's, 45, 400, 411. 
 
 the regulations for vmder the Merchant Shipping Acts, 401 — 411. 
 as to rules of the sea in sailing, steering, »S:c., 401 — 407, and 
 
 notes, 
 foreign countries which have adopted the rules, n. (1), 403. 
 niles of the sea as to lights, fog signals, sailing and steering, 
 
 collisions, n., 403. 
 as to pilots and pilotage, 408. 
 as to lighthouses, buoys, and beacons, 410, 411. 
 as to the duties of the Trinity House, 410, 411. 
 as to passengers, 411. 
 in inland waters, 16, 58—61,68,72,78,79,92,105,356,367,411—443. 
 on rivers forming boundaiy between two states, international 
 
 law as to, 68, n. 
 rules as to lights, signals, and collisions in, under Merchant 
 Shipping Acts, 411, 412, and note, 
 in tidal waters, 411^^41. 
 
 the general right of is common to all the subjects of the realm, 
 58, 413. 
 and extends to all waters navigable at any state of the tide, 
 
 60, 413. 
 
 and to the whole of the navagable channel, 72, 78, 357, 416, 
 424, 431. 
 
 and includes the right of grounding and anchoidng free of 
 toU, 72, 416. 
 
 and of stopping for a reasonable time to rmload and for a 
 wind, 72, 419. 
 
 unless some benefit to the navigation can be shown as a 
 consideration for the toll, 417. 
 what is evidence that a river is navigable, 60, 413. 
 change of coiu'se of a river does not destroy the right, 416. 
 
 which can only be extinguished or abridged by act of par- 
 liament, by writ o.d qnoA damnum, or by natural causes, 
 
 61, 72, 421.
 
 718 INDEX. 
 
 NAVIGATION— co«<i««f(f. 
 in tidal waters — continued. 
 
 the right is paramount to the property of the Crown and its 
 grantees, 72, 105, 418. 
 and to the right of fishery, 92, 356, 367. 
 the right of passage is simply a right of way, and involves no 
 rights of property, 78. 
 
 semble, includes the right to pass over the shore at low 
 
 water, 79. 
 but not of landing, mooring or towing on the banks, in the 
 absence of custom, 78, 419. 
 right of access enjoyed by riparian owners superadded to the 
 pubUc right of, 86, 105, 420. 
 
 semble, includes the right of passing over the shore at low 
 water, 421. 
 obstructions to navigation., 61, 73, 357, 367, 421 — 438. 
 
 obstruction of the public right a public nuisance, and 
 indictable, 62, 73, 421. 
 and public right is not barred by an artificial obstruc- 
 tion, 61, 73. 
 but erections on bed of a public navigable river are 
 not necessarily a nuisance, 73, 78, 423. 
 whether they are so is a question for the jury, 423. 
 public benefit, how far a justification for obstruction, 426. 
 private benefit too remote, 426, 431. 
 weii-s obstructing navigation illegal unless granted by 
 
 Crown prior to Edw. I., 357, 367, 431. 
 abatement of nuisances to, 433, 653. 
 
 obstruction of navigation is actionable on proof of special 
 damage, 73, 421, 434. 
 but obstruction of the right of access is actionable 
 
 without such proof of special damage, 88, 434. 
 whether obstruction of a river amounts to interference 
 with right of access is a question of fact to be deter- 
 mined in such case, 88, 434. 
 liability of persons erecting or keeping obstructions in a 
 navigable river, 434. 
 where authorized by a statute, 436. 
 persons navigating, 
 
 are bound to use reasonable skill and care, 438. 
 the duty arises out of the control of the vessel, and ceases 
 when the vessel ceases to be under control of owner, 
 438. 
 where vessels are sunk by accident, 438. 
 liability for injuries caused in carrying on traffic, 439. 
 in non-tidal waters, 96, 441 — 443. 
 
 right of not a public franchise paramount to all rights of property 
 in bed, 441. 
 but can only be acquired by grant, or prescription, or act 
 
 of parliament, 96, 441, 442. 
 semble, does not extend prima facie to passage over whole 
 navigable channel as in tidal rivers, 44 1 . 
 but is hmited to extent of right granted or user proved, 
 441. 
 obstructions to, illegal and a nuisance, 96, 442. 
 it is doubtful whether large inland navigable lakes are navigable 
 by the public at common law, 443. 
 but such rights of navigation have been and may be acquired 
 even where soil is private property, 443.
 
 INDEX. 719 
 
 N A VIG ATION— f w; tin ued. 
 
 the conservancy of navigation, 80, 443. 
 origin of conservancy, 443. 
 
 duty formerly vested in Crown as the representative of State, 
 443. 
 delegated to various authorities, of which Commissioners of 
 Sewers were chief, 444. 
 duties and powers of Commissioners, 445. 
 their jurisdiction as to nuisances, 445. 
 
 in navigable rivers transferred to conservancy 
 boards, 447. 
 conservancy of Thames vested in Mayor and Corporation of 
 
 London by 17 Eic. 2, c. 9. .448. 
 general powers of Commissioners of Sewers to remove 
 
 obstructions in na\agable rivers, n. (4), 449. 
 all rivers, ports and harbours now entrusted to conservators 
 by Act of Parliament, 450. 
 who are made guardians of navigation, performing in 
 a fuller manner the powers of commissioners, 450. 
 the statutes relating to inland navigation are of three kinds, 450. 
 
 1. Such as restore or improve navigation of rivers formerly 
 
 navigable, 450. 
 
 2. Such as make navigable rivers not formerly so, 450. 
 
 3. Such as provide for construction of an inland navigation 
 
 or canal, 450. 
 under first two classes of Acts care and conservancy is vested in 
 commissioners, with certain powers, 450. 
 but soil of bed is not generally vested in them, 80, 451. 
 distinction between rivers of which navigation is restored and 
 
 those made navigable for first time, 451, n. 
 conservators are not liable for damage to adjoining lands in 
 absence of negligence, 452. 
 nor bound at common law to keep navigation open or in 
 
 proper repair, 454. 
 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, 454. 
 even where the tolls are taken solely for maintenance of the 
 
 navigation, 456. 
 no duty exists where no tolls are taken, 458. 
 duty of, to maintain towing paths, 455. 
 liability of, for repair of a bridge, ratione tenurtB, 529. 
 for the third class of statutes providing for construction of a 
 
 navigation, 453. See Canals. 
 specimens of Conservancy Acts, 459, n. 
 the Acts relating to the Thames, 463. 
 
 summary of principal Acts relating to the Thames, 463 — 474. 
 See Thames. 
 Acts relating to Lower Thames, 463 — 471. 
 Acts relating to the Upper Thames, 471 — 473. 
 the whole of the river is now placed under one management 
 
 by 29 & 30 Vict. c. 89.. 473, 474. 
 Thames Watermen's Acts, 466. See Watermen, 
 general enactments relating to the protection of inland navigation, 
 474—485. 
 boards of salmon conservators must not injuriously affect 
 
 any navigable river, canal or inland navigation, 378. 
 prohibition against casting ballast, &c. into navigable 
 rivers, 474.
 
 720 INDEX. 
 
 NAVIGATION— cow ^ i« ««/. 
 
 the conservancy of navigation — continued. 
 
 (jcneral enactments relating to tlie protection of inland navigation — 
 continued, 
 prohibition against injuries to banks, walls, &c., under the 
 
 Malicious Injuries to Property Act, 475. 
 Railway Clauses Act, 1863, provisions of, 476. 
 
 as to construction and management of bridges, 476. 
 as to access to tidal lands and tidal waters, 477. 
 as to railways skirting tidal and navigable rivers, 478. 
 as to surveys of works over tidal lands or tidal waters 
 
 by order of Board of Trade, 479. 
 definitions under, 479. 
 police regulations as to navigable rivers and canals, 479. 
 regulations as to tolls, 480. 
 
 traffic on navigable rivers and canals, 483. 
 the carriage of explosives, 483. 
 boats used as dwellings, &c., under the 
 Canal Boats Act, 1877. .484. 
 See Sea; Tidal River; Private River; Commissioners of Seivers ; 
 Canal. 
 
 NECESSITY, easements of, 215—228. 
 
 NEGLIGENCE, 
 
 definition of, 147. 
 
 ris major, no excuse in cases of, 29, 144. 
 liability of canal owners for, 286, 299, 305. 
 water company, 323, n. 
 ■nath regard to navigation, 299, 434, 437, 438, 454, 544. 
 of owner of ferry, 501. 
 
 conservators of rivers for, 454 — 458, 544. 
 See Statutory Powers, Bodies possessing. 
 
 NETS, 
 
 kind and size of, permissible, 
 
 no restriction for sea fish other than salmon, 385. 
 size of mesh for catching salmon, 386. 
 stop net, what is a, 390. 
 when a fixed engine, 390. 
 
 within the Salmon Fishery Acts, 391. 
 draft or seine, regiilations as to, under the Salmon Fisheries Acts, 
 
 386. 
 using a, not peculiarly an instrument for taking salmon, not an 
 
 oft'ence within 24 & 25 Vict. c. 109. .386. 
 and tackle, are forfeited by persons j)oachiug, 394. 
 
 NORFOLK and Suffolk, fisheries of, regulated by 40 & 41 Vict. c. 98 
 (local), 374, n., 380. 
 
 NUISANCE, 
 
 any interference with a public right is a, 15, 62, 73. 
 
 and the subject of indictment or infoiination, 171, 344, 421, 
 
 518, n., 650, 670. 
 or of an action, on proof of special damage, 15, 73, 171, 359, 
 434, 661. 
 .so pollution of a stream amounting to, may be proceeded against by 
 indictment, infomiation or action, 171.
 
 INDEX. 721 
 
 NUISANCE— cow tinned. 
 
 a bridge built in a public way without public utUity is a, n. (2), 
 
 51o. 
 a public, may be abated in a peaceable manner, 433, 653. 
 
 but a private individual cannot abate, unless it does him special 
 damage, 433, 653. 
 all infringements of rights of water are either trespass or, 649. 
 abatement of private, 650 — 653. 
 
 previous demand to remove when necessary, 653. 
 remedy by action for, 654. 
 
 as to bridges, 518, n., 662—665. 
 by injunction, 665. 
 
 See Remedies for Itifringcmeni of Rights of Tf'ater. 
 
 OBSTRUCTION. See Diversion. 
 
 an artificial, on a navigable river will not bar the public right of 
 
 navigation, 61, 73. 
 to navigation, 61, 73, 357, 367, 421. 
 to fishery, 344, 358, 368, 386. 
 
 See Navigation ; Fisherg ; Tidal Navigable River ; Riparian 
 Owner. 
 
 OVERFLOW and escape of water, 128 — 150, 262—266, 318, n., 
 
 322, n. 
 liability for injiuy caused by, 128 — 144. 
 no liability where land is used in its ordinary manner, 128. 
 same principles apply to underground as to sui-face water in cases 
 
 of, 129. 
 liability only extends to direct consequences, 128, 134. 
 liability for throwing on a mine water which would not naturally 
 
 have come there, 135. 
 liability where an artificial is substituted for a natural water- 
 course, 136—138. 
 from extraordinary rainfall, how far vis major is an excuse for at 
 
 common law, 130, 139, 140—142. 
 how far vis major is an excuse where duty is imposed by contract or 
 
 statute, 142—144. 
 where caused by negligence vis major is no excuse, 144, 145. 
 liability for where works are authorized by act of parliament for 
 
 bringing or storing up water, 145—147, 266, 318, n., 322, n. 
 liability of water companies for, 318, n., 322, n. 
 negligence in cases of, defined, 147. 
 rights of riparian owners to protect their lands in cases of, of the 
 
 sea, 24—33, 144. 
 
 of inland waters, 73, 147, 423. 
 
 See Floods ; Rijmrian Owner ; Vis Major ; Sea Wall. 
 
 OYSTER FISHERY, 
 
 claun to, by prescription, 352, n. 
 
 take toll for anchorage on, 48, 356. 
 damage by vessels navigating, 356. 
 " layings," grant of, held to pass the soil, 355. 
 provisions of 31 & 32 Vict. c. 45, as to powers of Board of Trade for 
 
 estabhshment or improvement of mussel or, on sea shore, estuaries 
 
 or tidal rivers, 375. 
 
 C. 3 A
 
 722 INDEX. 
 
 OYSTER FISHERY— contl)! tied. 
 
 provisions of convention between England and France annexed to 
 31 & 32 Viet. c. 45, as to season during whioli it is illegal to catch 
 oysters, 381. 
 disturbance of oyster beds, 38.5. 
 
 PARISH, 
 
 the sea and estuaries and arms of the sea are not prima facie 
 within, 595, 596. 
 nor the sea .shore, 13. 
 nor the shore or bed of tidal rivers, 68. 
 the sea-shore between higli and low water mark, the bed of tidal 
 rivers and accretions from the sea incorporated by 31 & 32 Vict, 
 c. 122, for all civil and iiarochial purposes with the adjoining, 
 13, 68, 597, n. 
 part of a pier below low water mark held not to be an accretion from 
 
 the sea within 31 & 32 Vict. c. 122, but without the reahu, 14, 597. 
 extending along shores of a tidal river, rateability of, 598. 
 may be indictable for non-repaii* of a bridge — by prescription, 532. 
 Bee Sea ; Foreshore; Bridges; Tidal Navigable River ; Hates. 
 
 PAROCHIAL ASSESSMENT ACT, THE, 594, n. 
 PASSAGE, definition of, 502. See Ferrg ; Toll. 
 PASSENGERS ACTS, THE, 411. 
 
 PERCOLATING or surface water, 105, 188—201. 
 
 is not a watercourse or subject to the law of watercourses, 105, 
 134, 188. 
 
 liability of mine owners as to, 134. 
 
 abstraction and diversion of not actionable, 188. 
 
 right to drain for agricultural purposes, 188, 189, 260. 
 and subterranean water, abstraction of from wells, 189. 
 
 long user gives no further right of action as to, 192. 
 
 abstraction of water actually in a well, 196. 
 
 and of water in a defined siu'face channel, 197. 
 su]Dport from subterranean water, 198. 
 pollution of percolating water, 153, 199. 
 
 See Snbterraiican ITater ; Follution. 
 
 PIER, 
 
 part of a, built on iron piles extending below low-water mark on sea 
 
 shore not rateable under s. 27 of 31 «Sc 32 Vict. c. 122. . 14, 597. 
 tolls for, 569 — 573. 
 rateability of, 595. 
 floating, rateability of, 609. 
 See Tolls ; Rates. 
 
 PILCHARD FISHERIES in Cornwall, regulations as to, 385, n. 
 
 PILOTS, 
 
 duties of, under Merchant Shipping Acts, 408, 409. 
 definition of, under Merchant Shipping Acts, 409. 
 
 PIRATES, are the common enemies of mankind, and may be seized on 
 the high seas and tried anywhere, 4, 398.
 
 INDEX. 723 
 
 POACHINa OF FISH, 
 
 stealing fish in ponds is larceny at common law, 370, 392. 
 taking or destroying fish in waters adjoining or belonging to a 
 dwelling house, 393. 
 
 in other private waters at night or in the day-time, 393. 
 where a ho)ia fide claim is set up, 394. 
 arrest of persons fishing, 394. 
 seiziu'e of nets and tackle, 394. 
 maliciously destroying dams and fish ponds, 395. 
 
 See Fishery . 
 
 POLICE REGULATIONS as to canals and navigable rivers, 479. 
 
 POLLUTION, 
 
 of water in a natural stream, 
 
 is actionable at suit of a riparian owner, without proof of actual 
 injury, 150—153, 659, 669. 
 though rtrfi(ff/ pollution of some kind must be proved, 169, 669. 
 what amoimts to actual, 169. 
 law as to, in Scotland, with respect to primary and secondary 
 
 purposes of a stream, 151, n. 
 no defence to an action for, that folding was also caused by 
 others, 152, 659. 
 or that trade causing, is carried on in a lawful manner, 153. 
 is in itself an unlawful act, and thus differs from diversion 
 and obstruction, 153. 
 of surface and percolating water is actionable, 153, 199. 
 of subterranean water, 199. 
 of wells, 173, n., 174, n., 199. 
 
 of artificial watercourses, law as to is in an uncertain state, 154, 
 201, 250. 
 action for, will not lie at the suit of a mere licensee, 112, 154, 250. 
 where an action for damages by a riparian proprietor lies for. Courts 
 
 will interfere to restrain by injunction, 157, 665 — 671. 
 in case of damage to riparian rights by, Coiu'ts will not, except in 
 
 special cases, award damages in lieu of injunction, 157, 670. 
 practice of Courts as to granting injunctions to restrain, 158, 670. 
 the Courts will restrain bodies possessing statutory powers by in- 
 junction, where powers are exceeded or abused, 165, 662. 
 acquiescence in existing cases of, how far a defence to actions for, 107. 
 the Courts will not interfere by injunction in cases of merely pro- 
 spective injury from, 167, 667. 
 and injury must be actual and existing, and not future, 167, 
 
 667, 669 
 however strongly apprehension of injury may be supported by 
 
 scientific evidence, 167, 168. 
 value of scientific evidence in cases of, 168, n. 
 if some degree of present nuisance exists, Coui-ts will take into 
 consideration its probable continuance and increase, 168, 607. 
 various sources of which have been held actionable, 170, 174. 
 
 under the Rivers Pollution Prevention Act, 174 — 188. 
 of a stream, when amounting to a public nuisance, may be prose- 
 cuted by indictment, or proceeded against by information at 
 suit of the Attorney -General, 171, 661. 
 and an action will lie therefor on proof of sfiecial damage, 171, 661. 
 by escape of gas washings, liability for, 173, n. 
 
 of a stream, so as to render it unfit for fish to live in, is actionable, 
 162, 171, 369. 
 and ground for interference by injunction, 369, 671. 
 
 3 a2
 
 724 INDEX. 
 
 TOLLJJTIO'i^—conihiucd. 
 
 statutory resti-ictions upon, 171 — 176. 
 
 in the Waterworks Clauses Act, 1817 .. 171. 
 
 Public Health Act, and other acts of a like nature, 171 — 173. 
 G-asworks Clauses Act, 173. 
 Thames Na\dgation Acts, 173, 474. 
 Lee Conservancy Act, 173. 
 Salmon Fisheries Acts, 173, 174, 386. 
 Malicious Injuries to Property Act, 174, 395. 
 Other acts, 174, n. 
 
 Rivers Pollution Prevention Act, 174 — 188. 
 See Pollution, Rivers, Prevention Act. 
 the easement of, 
 
 the right to pollute is an easement, and within the Prescription 
 Act, 232, n. 
 and may be acquired by act of parliament, grant, or pre- 
 scription, 239, 242. 
 can only be gained by continuance of perceptible injury for 
 
 ticenty years, 243. 
 must not be considerably increased, 244. 
 mere change in quality of, does not destroy, 246. 
 of artificial watercourses, 250. 
 
 See Riparian Owner; Easement; Nuisance ; Artijicial Water' 
 course ; Remedies. 
 
 POLLUTION, RIVERS, PREVENTION ACT, THE, (39 & 40 Vict. 
 c. 75), 174—188. 
 laiv as to solid matters, 174, 175. 
 
 prohibition as to putting solid matters into streams, 175. 
 
 in proving interference with due flow, evidence of repeated acts 
 
 may be given, 175. -J 
 
 law as to sewar/e pollutio/is, 175 — ^176. 
 
 prohibition of drainage of sewers or any solid or liquid sewage 
 
 into streams, 175. 
 proviso as to channels constructed, or in process of construction, 
 
 at passing of act, 176. 
 duties of Local Government Board as to making ordei'S, 176. 
 persons not to be guilty of offence as to sewage passing along 
 drains sanctioned by sanitary authorities, 176. 
 law as to manufacturinr/ and niininf/ 2)ollutions, 176 — 179. 
 
 prohibitions of drainage from manufactories and mines into 
 streams, 176, 177. 
 restrictions on proceedings as to, 177 — 179. 
 administration of the law, 178 — 180. 
 
 duties and powers of sanitary authorities, 179, 180. 
 
 and of the Lee Conservancy Board, 180. 
 legal proceedings, how regulated, 180 — 184. 
 offences may be restrained by summaiy order of the county 
 
 court, 180, 181. 
 appeal and removal of case, 181, 182. 
 certificate of inspector of Local Government Board, powers 
 
 imder, 182, 183. 
 restrictions on proceedings for offences, 183. 
 orders as to costs, 183. 
 
 jjowers of inspectors of Local Government Boards, 183. 
 saving clauses, 184 — 185. 
 
 powers of act are cumulative, 184. 
 
 construction of sect. 16, Addenda et Errata. 
 
 as to rights of impounding and diverting water, 184. 
 
 i
 
 INDEX. 725 
 
 POLLUTION, RIVERS, PREVENTION AJCT—contuiucd. 
 
 as to rights under certain conservancy acts and of certain local 
 authorities, 185. 
 dejinitions, 185. 
 
 of pollution, 185. 
 of stream, 185. 
 modification of laic as to Scotland, 186, 187. 
 application of laiv as to Ireland, 187, 188. 
 
 PONDS and Pools, 
 definition of, 98. 
 ownership of soil of, 98. 
 ornamental artificial, liability for injury caused by bursting of dams 
 
 forming, 138. 
 fishery in, 369—372. 
 
 polluting, so as to kiU fish in, 174, n., 395. 
 larceny of fish caught in, 369. 
 breaking down dams of, 395. 
 
 jurisdiction of Commissioners of Sewers over, 445, 446. 
 See Lakes ; Fishenj ; Overjtoiv. 
 
 POOLS. See Fonds. 
 
 PORPOISE is " royal fish," 40, 345. See Roijal Fish. 
 
 PORTS, 
 
 definition of, 42, 399, 577. 
 
 privilege of erecting, part of the prerogative of Crown, 43, 400, 
 552. 
 
 but may be granted to a subject, 43. 
 ownership of soil of, 21, 43, 552. 
 limits of, 44, 574, 575, 577. 
 
 franchise of, evidence of ownership of sea -shore, 21. 
 what is evidence of the existence of an ancient, 48, 558. 
 conservancy of, 44, 400. 
 
 originally was in Crown, but now is transferred to the Board of 
 Trade, 45, 400. 
 removal of wrecks in, 45, 400. 
 duty to repair, 47, 551. 
 
 English, foreign vessels sailing to. Liable to English law, 11. 
 foreign, foreign vessels sailing to and having right of passage within 
 three miles of English coast, not subject to English law, 11. 
 
 imless by express provision of act of parliament, 1 1 . 
 tolls in, 4, 45, 550. 
 
 tolls for anchorage may be taken in, 4, 45, 48, 558. 
 rateability of, 595. 
 
 See Tolls ; Rates; Sea. 
 
 PRESCRIPTION, 
 
 definition of, 230. 
 
 liability to repair sea walls by, 28 — 32. 
 claim to easements by, 230 — 240. 
 by lost grant, 231. 
 
 under the Prescription Act, 232 — 234. 
 at common law, not superseded by act, 234. 
 by and against whom claims may be made, 234, 238. 
 necessary elements of enjoyment by, 235 — 238. 
 rights in artificial watercourses may be acquired by, 247. 
 rights to a ferry by, 486.
 
 726 INDEX. 
 
 rEESCEIPTION— ro//^-«««/. 
 
 liability to repair bridges by, 532. 
 and immemoriality as to tolls, 546. 
 
 See £((scijic/it ; Fcvdj ; Toll; rrcscriptioii Aci. 
 
 PRESCRIPTION ACT, THE (2 & 3 Will. 4, c. 71), 
 claim to a watercourse under the, 232 — 234. 
 by twenty years' enjoyment, 232. 
 forty years' enjoyment gives an absolute right, 233. 
 claim to jDoUute water of a natiu-al stream is within, 232, n., 242. 
 and claim to go on a man's close and take water from a well, 
 
 232, n. 
 and the right to keep an opening from a ditch into a stream 
 closed, 232, n. 
 claim to have water diverted under, 232, n., 233, n., 255, 297. 
 claim to waste water allowed to pass from a canal to another canal 
 
 is not within, 53, 232, n., 294. 
 claim to an easement under, by forty years' enjoyment can only be 
 
 defeated by proof of licence by deed or writing, 233, 237. 
 a clami to a fishery in gross is not within, 337. 
 does not supersede the common law, 234. 
 
 now g'ovems the question of immemoriality as to tolls, 541, 542. 
 See Easoncnt ; Prescription. 
 
 PRIVATE RIVERS AND STREAMS, 
 
 all streams above the flow and reflow of the tide are prima facie, 
 92. 
 even though subject to the public right of na%agation, 59, 92. 
 the right of navigation gives no right of property or fishery in, 59, 
 
 93, 96, 442. 
 ownership of soil of bed of, is primd facie in the owners of the ad- 
 joining lands, ad medium flum aquce, 59, 60, 93, 360. 
 and the share of each belongs to him in severalty, 93, 361. 
 where a stream changes its course, 64, 93, 94, 360. 
 where same owner is piroprietor of soil on both sides of a, he is 
 
 prima facie proprietor of the whole channel, 93, 361. 
 the more than ordinary breadth of, does not affect the limits of 
 
 grants on, 93. 
 islands in, ownership of, 94, 95. 
 presumption of ownership may be rebutted, 95. 
 soil of land covered by, and the right of fishery therein, may be 
 specially conveyed to a tliii'd person, whether owner of land 
 on borders or not, 95, 361. 
 rights of owners over bed of, 74, 95, 128, n. 
 
 to protect lands from floods, 74, 95. 
 the right of navigation on, 
 
 may be acquired by the public by express grant, 95. 
 or by immemorial user or act of parliament, 96. 
 and where such right has been acquired, the obstiiiction of it is 
 a public ntiisance, and indictable as in tidal rivers, 96, 441, 442. 
 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, 96, 441. 
 the public acquire no right of proprietorship in the bed thereby, 
 
 59, 93, 96,442. 
 nor does it caiTy with it the right of fishery, 59, 96. 
 the Crown has no right to property in such rivers when made 
 navigable by act of parliament, 59, 96.
 
 INDEX. 727 
 
 PRIVATE RIVERS AND STREAMS—coutimwcL 
 the right of navigation on — continued. 
 or the public to the fisheiy, 59, 96. 
 
 but the CrowTi has an interest of jurisdiction to reform and 
 punish all nuisances in, 96, 442. 
 weirs in, are not illegal, unless they obstruct naAdgation, 358, 367. 
 the right of fishery in : 
 
 owners of land on, have exclusive right of fishery in, 97, 360. 
 as a territorial right, 336, 361. 
 See Fishery. 
 tolls on, 536, 546. 
 
 rateability of property occupying soil in, 609. 
 rateability of rivers, 621. 
 
 See Riparian Owner ; Kavigation ; Fishcrij ; Tidal Navigable 
 River. 
 
 PROFIT A PRENDRE, 
 
 how distinguished from an easement, 202. 
 a right of fisheiy in alieno solo is a, 336. 
 
 a right to draAv water from a weU is an easement, and not a, 232, n., 
 238. 
 
 PROTECTION from inroads of the sea, 24, 144. 
 
 See Floods ; Sea Wall ; Commissioners of Sewers ; Overflow. 
 
 PUBLIC HEALTH ACTS, THE, 
 
 provisions against pollution under, 171, 172. 
 provisions as to bridges under Act of 1875. .509. 
 
 PUMP, statutory restriction against fouling-, 174, n. 
 
 PURPRESTURE, 
 
 any unauthorized intrusion or encroachment on soil of sea shore or a 
 navigable river is a, 15, 33, 73, 423, 670. 
 and mav be abated by the Crown or owner of the shore, 15, 423, 
 
 653, 670. 
 or restrained by injunction at the suit of the Attorney-General, 
 whether it be a nuisance or not, 15, 73, 670. 
 whether a nuisance to navigation is a question of fact, 15, 73, 78, 423. 
 the punishment of, is evidence of the ownership of the sea shore, 21, 
 22. 
 
 RAILWAY AND CANAL TRAFFIC ACT, 1854, THE (17 & 18 Vict. 
 c. 31), provisions as to traffic on canals and navigable rivers, 482. 
 
 RAILWAY COMPANIES, 
 
 w^hen riparian proprietors, right of, to water engiues, 116, 119. 
 liabilities of, as to navigation under Railway Clauses Act, 1863 (26 
 
 & 27 Vict. c. 92), 476. 
 liabilities of, for compensation to owners of ferries, &c. for loss of 
 
 traffic, imder Railway Clauses Consolidation Acts (8 Vict. c. 18 ; 
 
 8 Vict. c. 20), 488, 495, 499. 
 duties of, as to management and repair of bridges, under Railway 
 
 Clauses Consolidation Act, 1845 (S'Vict. c. 20), 518, 526. 
 
 RAINFALL, an exceptional, how far an excuse for injury caused by 
 overflow, 136, 138. 
 
 See Vis Major ; Overflow; Watercourse; Artificial Watercourse.
 
 728 INDEX. 
 
 RAIN-WATER, 
 
 liability of landowner for bringing on to lands of another by artifi- 
 cially raising the surface of his own soil, 133. 
 or disclaarging it from roof of a house by means of a sx^out or 
 drij), 133. See Drip. 
 
 RATES for the poor, payment of, incident to rights of water, 486, 535. 
 arising from the improvement in value of land thereby, 535. 
 in-esent system of rating based on 43 Eliz. c. 2. .593. 
 principal authorities and statutes as to, 593, n. 
 the principles governing assessment now regulated by G & 7 Will. 4, 
 
 c. 96 (Parochial Assessment Act), 594, n. 
 rateability of piers, harbours, docks and marine property, 595 — 621. 
 estuaries and arms of the sea are 2}rimd facie extra-parochial, 
 695. 
 but presumption may be rebutted, 595. 
 the main sea is extra-parochial, 596. 
 occupiers of land covered with water, how rated under Local 
 
 Government Act, 1858, s. 55.. 597. 
 of piers, 597—599. 
 
 part of a, below low-water mark beyond the realm and not 
 extra -parochial within s. 27 of 31 & 32 Vict. c. 122.. 14, 
 597. 
 nor an accretion from the sea, and therefore not rateable, 
 
 13, 14, 67, 597, n. 
 land occupied by piers from wliich occupiers had no benefit, 
 
 not rateable, 598. 
 built on piles in bed of a river in a parish extending along 
 the shore thereof, how rateable, 599. 
 of chcl-s, 599—609. 
 ■wet docks, 599. 
 profits of docks, if rated at all, must be rated where they 
 
 are earned, 599, 601. 
 apportionment of earnings Avhere docks extend through 
 
 several parishes, 601 — 604. 
 persons to whose use certain accommodation in docks is 
 
 appropriated not rateable as occupiers, 604, 605. 
 dock property must be valued in comnuoiibus ainiis, 606. 
 exemption of the Crown from rates, 606. 
 
 dockyards for government purposes are exempted, 606. 
 but not tenants of Crown holding for their private 
 benefit, 606. 
 deductions allowable in the assessment of docks, 607. 
 of marine 2J rope rti/ not aetualhj occitpijiiig the .soil, 609 — 617. 
 
 rateability dependent on whether such property is in per- 
 manent beneficial occupation of the soil, 609. 
 and whether the floating bodies have increased rateable 
 
 value of the moorings, 609. 
 floating piers and docks rateable, 609. 
 barges, 611. 
 derrick hulks, 612. 
 
 moorings in the Thames when rateable, 614. 
 of wharves, 617. 
 
 of anchorage and beaconage tolls, 617. 
 of lighthouses and lighthouse tolls, 617 — 621. 
 
 occupier is rateable in respect of annual value of lighthouse, 
 
 machinery, &c., 617. 
 unless lightliouse be in occupation of the Crown, 617. 
 but is not rateable in respect of the tolls, 617.
 
 INDEX. 729 
 
 RATES— coHt hi Hcd. 
 
 rateability of rivers and ferries, 621 — 625. 
 of rivets, 621. 
 
 where bed is in permanent beneficial occupation, 621 . 
 where rivers are entrusted to trustees, conservators, &c., 
 they are not rateable unless the incorporating act vests 
 soil in them, 021. 
 of ferries, 621 — 625. 
 
 tolls detached from local real property not rateable per se, 
 
 621—625. 
 lessee and occupier of an ancient and exclusive ferry, not 
 being an inhabitant resiant, not rateable for a share of 
 the tolls, 621. 
 nor the owner of a ferry, resident in a different parish, but 
 taking jirofits thereof on the spot by his servants, for 
 such tolls in the parish where they are collected, 622. 
 rateability of a ferry between two townships occupying land 
 
 in each, 624. 
 distinction between ferries worked by hand or steam or 
 wind freely over surface of water and those worked by 
 chains or ropes lying on bed of river, 625, n. 
 rateability of fisheries, 625, 626. 
 
 not formerly rateable at common law, unless connected with use 
 of land, 625. 
 but now rateable under s. 6 of 37 & 38 Vict. c. 54. .625. 
 rateability of canals and canal tolls, 626 — 635. 
 canals, 626 — 629. 
 
 were originally partially exempted, 626. 
 
 and lands taken for canals were rateable as other lands 
 in parish, 626. 
 value of adjoining lands, how far to be considered, 626. 
 canal must be rated at value of adjacent lands at time of 
 making rate, 626. 
 but qitfcrc, whether value of uncovered land must be 
 taken where adjoining land has been covered with 
 buildings, 627. 
 or the average value of whole adjacent lands should be 
 the true criterion, 627, 629. 
 of canal tolls, 629—633. 
 
 originally held rateable /(tr sc, 629. 
 
 but now are not so rateable, 630 — 633. 
 ratcahility of lock dues, 633, 634. 
 
 lock dues are a local earning and locally rateable, 633, 
 634. 
 trade profits are not rateable per sc, but must be taken into con- 
 sideration, 634. 
 deductions allowable in assessing canals, 635. 
 rateability of water companies, 635 — 646. 
 
 where there is a profitable occupation of a public highway by 
 private persons or companies, occupiers are rateable, 635. 
 but profits are not, unless incident to the occupation, 635. 
 water companies rateable for land occupied by their pipes, 
 mains and reservoirs, 635. 
 and by engine-houses, pumping stations and wharfs, 635. 
 but not for their sewers, 635. 
 for land over which an ai-tificial watercourse has been made, 
 
 636. 
 for land, value of which is enhanced by a spring, 636. 
 where reservoirs, works, &c. are outside a parish, 636, 637.
 
 730 INDEX. 
 
 EATES — continued. 
 
 rateability of water compauies, &c. — continued. 
 
 where works extend throiigli several parishes, 637 — 640. 
 principle of apportionment in such cases, 638 — 640. 
 under the Valuation of Property Act (MetropoUs) (32 & 33 Vict. 
 
 c. 67), ss. 43, 46 and 47.. 641. 
 provisions of the Act as to assessment, 641, n. 
 rateabiliti/ of urban authorities and other public bodies supphjing icater, 
 641—646. 
 are now assessed only for profits actually earned, 642. 
 on the principle that occuxiiers are rateable on rent of a tenant 
 from year to year, 643, 645, 646. 
 rateahihty of bridges, 646 — 648. 
 
 the principle that profits must be rated where earned applies to, 
 
 046. 
 with regard to assessment the parochial principle holds good, 
 646—648. 
 
 REALM OF ENGLAND, the extent of, 1, 5, 10, 11, 14, 597. 
 See Foreshore; Count!/; Territorial Waters ; Sea. 
 
 EEGULATIONS OF RAILWAY ACTS, 1873, 1874, provisions of, as 
 to navigable rivers and canals, 482, 483. 
 
 REMEDIES, for infiingement of rights of water, 
 
 all infringements of rights of water either trespass or nuisance, 649. 
 remedy by act of party, 650 — 654. 
 private •nuisance, 650. 
 
 may be abated by party aggrieved, 650. 
 
 if no more damage be done than actually necessary, 650. 
 the least mischievous way must be chosen, 651. 
 previous demand to remove when necessary, 653. 
 public miisance may be abated in peaceable manner, 433, 653. 
 but private indi\-idual not justified in abating it unless it 
 does him special injuiy, 653, 654. 
 remedy by act of law, 654 — 671. 
 
 is now by action in one of the first four divisions of High 
 
 Court of Justice, 654. 
 efiect of Judicatui-e Acts, 654. 
 
 County Courts Act; 654. 
 p>rivate mcisance, 654^662. 
 
 powers of Chanceiy and Common Law divisions similar as to 
 
 granting injunction or mandamus, 654. 
 parties entitled to sue, 655, 656. 
 joinder of plaintiffs, 656. 
 parties hable to be sued, 057. 
 parties liable for continuance of nuisance, 657. 
 
 by a stranger, 658. 
 whether proof of actual damage is necessary as foundation 
 of action, 659, 660. 
 public nuisance, 661, 662. 
 when actionable, 661. 
 when indictable, 661. 
 
 information at suit of the attorney- general when available, 
 662. 
 remedies as resiiects canal com^yanies, 
 for injuries against, 290. 
 for injuries by, 298.
 
 INDEX. 731 
 
 B^EMEBIES— continued. 
 
 indictment for iwn-rejxtir of bridges, 662 — 665. 
 
 no action against county for injury from non-repair, 662. 
 
 or against county surveyor, 662. 
 
 declaration of ancient inhabitants admissible in evidence upon 
 indictment against townsliii), 663. 
 
 right to inspect parish books, 663. 
 
 evidence of reputation admissible to prove liability ratione 
 tenurce, 664. 
 
 rules as to costs, 664. 
 
 powers of court of Quarter Sessions as to, 664. 
 remedy as to tolls, 546, 665. 
 
 a right of distress is incident to, 546, 665. 
 
 and may be made on thing itseK in respect of which toll is 
 due, 546, 665. 
 
 or any portion of it, as on a ship or any part of it, 546, 665. 
 injunctions, rules as to, 665- — 671. 
 
 when granted in cases of nuisance and injury to property, 665. 
 
 interlocutor)/, when granted, 666. 
 
 perpetual, when granted, 666. 
 
 mandatory, when granted, 666. 
 
 See Injunction, 
 remedies for infringement of rights of fishery, 671. 
 
 an action lies for breaking into a free or several fishery, 671. 
 
 or obstructing the passage of fish, 671. 
 
 injunction to restrain. See Injunctions. 
 See Action ; Indictment; "Information;^^ Injunction; Trespass; Nuisance. 
 
 EEVENUE, 
 
 nations entitled by international law to take measures for the pro- 
 tection of, 10. 
 and such pro\dsions recognize the three mile limit, 10. 
 
 RIPARIAN OWNERS, rights and duties of, 
 
 how regulated by international law where a river forms the boundary 
 between two states, 68, n. 
 on natural water-courses, 104 — 115. 
 
 exist ./«re naturw, 57, 85, 107, 111, 248, 256. 
 
 founded not on ownership of the bed but on the right of access 
 
 to the water, 85, 104, 113. 
 law as to, in America, 105. 
 
 exist only as to water flowing in defined channels, 52, 105, 188. 
 above or below ground, 52, 105, 188. 
 not as to percolating or surface water, 52, 105, 188. 
 rights on navigable and non-navigable rivers identical save where 
 
 controlled by the public right of navigation, 85, 95, 96, 105. 
 which the riparian owner on tidal navigable rivers enjoys super- 
 added to his riparian rights, 105. 
 which are svibordinated to it, 105. 
 contact necessary to the existence of, 85, 106, 113. 
 lateral contact is as good as vertical, 85, 106. 
 contact in tidal waters, 85, 106. 
 such rights corporeal hereditaments, 106. 
 
 and not easements, but parcel of the inheritance and pass there- 
 with, 106. 
 are liable to be abridged, modified, or enlarged by acquii'ed rights or 
 
 easements, 107, 202. 
 rights to enjoyment of a stream in its natural state inflow, quantity, 
 audquaUty, 107, 115, 116, 117. 
 and without obstruction, 107, 115, 116, 117. 
 right to water is not ^;«^/(("jy?H-(*, 108, 111.
 
 732 INDEX. 
 
 RIPARIAN OWNERS- continued. 
 
 obstmction of rights actionable without proof of special damage, 88, 
 111, 119, 120, 150, 151, 152, 420, 434, 659, 670. 
 and may be restrained by injunction, 111, 119, 151, 420, 665, 
 668, 671. 
 right to compensation for, under Lands Clauses Acts, 89. 
 
 rmder Water-n-orks Claiises Acts, 318, n. 
 right is not an absolute right to the flow of all the water. 111 . 
 
 but subject to the rights of other riparian proprietors. 111, 112, 
 116, 120, 169, 248, 255. 
 not limited by iDresent enjoyment, 109, 111, 121, 151. 
 
 a new mode of enjoyment gives at once a right to sue for injury 
 done thereto, ill, 112, 160. 
 limited only by rights of jiroprietors in a similar position, 112, 113, 
 
 121, 151. 
 mere possession of water by one who is not a riparian owner will not 
 enable possessor to maintain action for its diversion or pollution, 
 112, 122, 154, 250. 
 sole, to right to water, 113. 
 
 special statutory proi^erty in water of stream, 115. 
 t/ic r\(jht to loatcr in its natural qnantitij, 115 — 150. 
 ordinary use for domestic piu'poses, 116, 320. 
 extraordinary use, 116, 119, 120. 
 
 must be reasonable, and connected with tenement, 117, 118. 
 right of a railway company, if a riparian proprietor, to water en- 
 gines, 116, 119. 
 right of irrigation, 116, 118, 120. 
 
 right to use water for mills, 121—127, 241—246, 322, n. 
 right of diversion bv natural means, 116 — 123. 
 
 artificial means", 122—127, 154, 250. 
 liability to receive flood water, 115, 127, 147, 288, 289. 
 for escape and overflow of water, 128. 
 
 only extends to dii'ect and proximate consequences, 128, 134. 
 none for using land in the ordinary manner, 84, 128, 189, 
 
 267, 452. 
 for interfering Avith the coui'se of a stream, 75, 128, and 
 note, 147, 197. 
 where authorized by statute, 145, 146, 266, 281, 322. 
 decisions as to mining and underground water, 129, 281. 
 water accumulated by natural user, 130. 
 
 by non-natural user, 130. 
 same principles of law apply both to siuface and underground 
 
 water, 129. 
 the right to work mines, if duly exercised, begets no liability, 
 
 134, 135, 145, 281. 
 liability of mine owners for throwing on a mine water which 
 would not naturally have come there, 135. 
 for escape of water where an artificial is substituted for a 
 
 natural watercourse, 136- — 138. 
 for di-aining siuface water, 189. 
 and water from a well, 196. 
 and water in surface channel, 197. 
 how far vis major is an excuse for injury, 29, 138 — 147, 149, 289, 
 290, 322, n., 440. 
 at common law, 138 — 142. 
 
 where such diity is imposed by contract or act of parlia- 
 ment, 142—147, 440. 
 vis major no excuse in cases of negligence, 29, 144, 145. 
 liahiUiii as to storing ivatcr, 
 for bringing on land anything likely to do mischief, 132.
 
 INDEX. 733 
 
 RIPARIAN OWNERS— contimicd. 
 
 limited to allowing things per sc injurious to pass to a neighbour's 
 
 property, 133. 
 
 or causing tilings 2)cr sc harmless to do injury by passino- to 
 
 such neighbour's property, 133. ° 
 
 liability for bringing sewage on to another's land, 133, 153, 162 166 
 
 168, 170, 171, 174, 175, 200, 263, 651, 658. ' ' ' " 
 
 or discharging rain water thereon by drip, or means of spout, 
 
 the right to protect land from overflow, 
 on the sea, 24, 32. 
 on inland waters, 73, 95, 147. 
 
 owners may build bulwarks ripm muniendfc causd, 95, 147 149. 
 
 but not so as to injure in any way lands below them, 95, 147. 
 mere apprehension not sufficient to found a complaint of acts done 
 
 by opposite proprietor, 74, 147. 
 no right to build a mound which in times of ordinary flood would 
 throw water of river on land of the opposite proprietor, 
 148. 
 in extraordinary floods, may exercise a reasonable selfishness in 
 protectmg themselves, 149, 289, 322, n. 
 the right to water in its natural quality, 150 — 188. 
 
 incident to land through which water flows, 150. 
 if infringed so as to occasion damage in law, though not in fact 
 gives a good cause of action, 150, 151, 159. ' 
 
 can restrain fouling of water without proof of actual iuiurv 
 151 — 153. ■' •'^ 
 
 but must prove actual pollution, 169. 
 law as to pollution in Scotland, 151, n. 
 
 entitled to complain of such pollution as renders water unfit 
 
 for primary purposes, 151, n. 
 several sufferers may combine and bring joint action against 
 several authors of nuisance, 151, n. 
 no defence that water is also polluted by others, 151, 152, 159 287 
 case of pollution of a stream illustrates difference betwoeu''iu- 
 
 jury and damage, 152. 
 pollution itself an unlawful act, and thus distinguished from 
 _ diversion and obstruction, 153. 
 rights of licensees who are not riparian owners to sue for pol- 
 lution, 154—157, 250. ^ 
 injunctions to restrain pollution, when granted, 157, 605 668 
 See Injunction ; I'olliit ion. ; Hc/nedies. ' 
 right of access to lands on navigable rivers, a right of property dis- 
 tmct from public right of navigation, 86, 88, 420, 670 
 injiiry thereto, actionable without proof of .special 'damage, 88, 
 
 compensation for, under Lands Clauses Act, 89. 
 See Navigation ; Access. 
 right of fishery not strictly a riparian right, 361. 
 
 See Fishery. 
 right of navigation of, 105. 
 
 See Navigation ; Access. 
 
 rights and duties of, on artificial tvatercourses, 
 are acquired and incorporeal rights, 106. 
 depend entirely on words of the grant originating the right, 102, 
 
 either jn-oved or presumed, 248. 
 
 See Artificial Watercourse; Easement; Canals.
 
 734 INDEX. 
 
 RIVERS AND STREAMS, ^ee Tidal Xavigabk Rivers ; Pricate Elvers ; 
 Watercourse. 
 conservancy of. See Navigation. 
 rateability of. See Rates. 
 
 ROTHER RIVER NAVIGATION ACT, THE, 459, n. 
 
 ROYAL FISH, 
 
 right to take, a prerogative of Crown, but may be communicated to 
 
 a subject by grant or charter, 15, 40. 
 taking of, evidence of ownership of the sea shore, 21. 
 whale, sturgeon, and porpoise, whether throAvn on shore or caught 
 in sea within the realm are, 40. 
 are property of Crown and not of the finder, 40, 345. 
 
 but by grant or prescription may bo property of a subject, 40. 
 
 RULES OF THE SEA, 
 
 as to sailing, steering, &c., 402 — 406, and notes. 
 
 See Navigation. 
 in the Thames, Appendix, 690. 
 
 SAILING and Steering, 
 
 rules of the sea as to, 403, n. 
 
 as to, in navigable rivers, 411. 
 
 in the Thames, AiDpendix, 690. 
 
 SALMON, 
 
 definition of, under 24 & 25 Vict. c. 109. .382, n. 
 
 statutoiy restrictions as to poisoning water containing, 173, 174, n. 
 
 provisions of Salmon Fisheries Acts, 1861 and 1865, as to, 376 — 380. 
 
 formation of conservancy boards and districts, 376. 
 
 regulation of proceedings of boards, 377. 
 
 powers of boards, 377. 
 
 may do nothing to injuriously affect any navigable river, canal or 
 
 inland navigation, 378. 
 powers as to making bye-laws, 378. 
 powers of water-bailiffs, 378. 
 regulations as to gratings, 379. 
 
 general superintendence of, vested in Home Office, 379. 
 appointment and duties of inspectors and commissioners, 379. 
 provisions as to the season during ichich it is illegal to catch, 381 — 384. 
 
 restrictions as to sale of, 382, 384. 
 
 and capture of, during close season, 382. 
 
 do not apj)ly to fish caught beyond the limits of the Salmon 
 Fisheries Acts, 382. 
 
 penalties as to contravention of provisions, 382. 
 
 provisions prohibiting obstruction of passage during the close 
 season, 382. 
 
 as to the measuring of unseasonable, 384, n. 
 as to the means hg ichich it is illegal to catch, 385 — 392. 
 
 the use of dynamite, pro\'isions as to, 385. 
 
 use of lime, &c., 386. 
 
 as to lights and spears, &c., 386. 
 
 as to roe, 386. 
 
 as to mesh of nets, 386. 
 
 as to dams, weirs and fixed engines, 386, 387 — 392. 
 claim to use piivileged fixed engines, 381, 388. 
 
 weirs and dams, 391. 
 licences required for catching, 386. 
 See Fishery.
 
 INDEX. 735 
 
 SALMON FISHERIES ACTS, THE (1861—1876), provisions of, 173,. 
 174, 351, 374 et seq. See Salmon. 
 
 SAND, 
 
 digging or taking of, evidence of ownersHp of sea shore, 19, 21, 22. 
 right to take by prescription and custom, 41, 42. 
 See Sea Shore. 
 
 SANITARY AUTHORITIES, 
 
 jurisdiction of Commissioners of Sewers as to drains and sewers 
 
 transferred to various, 446. 
 matters, principal Acts relating to metropolis as to, 446, n. 
 
 to kingdom at large as to, 446, n. 
 
 SCOTLAND, 
 
 law of, as io 2^oUut 1 0)1, 151, n. 
 
 modification of law under the Rivers Pollution Prevention Act as to, 
 
 186. 
 law of, as to sea Jisheries, 385, n. 
 
 SEA, THE, and rights therein, 1—50. 
 high seas, the, 1 — 12. 
 
 definition of, 1. 
 
 ownership of bed of, 1, 9. 
 
 are extra-parochial, 596. 
 
 right of navigation on, 1, 3, 397 — 411. 
 
 jurisdiction over ships navigating on, 3, 10, 397. 
 
 fishery in, 2, 4, 11, 338, 342. 
 territorial waters, 5. 
 
 limits of, 5. 
 
 dominion of the Crown over, 5 — 9. 
 
 title of Crown to soil of, 9. 
 as against a subject, 9. 
 
 provisions of 41 & 42 Vict, as to jurisdiction over, 8, 11, 397. 
 
 provisions as to protection of revenue, 10. 
 
 na^dgation on, 10. 
 
 fishery in, 11, 36, 342,375, 381, 382, 385. 
 creeks and arms of , 11, 595. See Creeks, 
 sea shore, 12, 42. See Foreshore. 
 
 protection from. SeeSea-JFaUs; Overfow ; Commissioners of Sewers. 
 land gained from, and lost by. See Allueion ; Dereliction; Accretion. 
 tolls on, 547 — 584. See Tolls. 
 
 See Forts ; Harbours; BocJcs ; JSfavigation ; Fishery. 
 
 SEA FISHERIES ACT, THE (31 & 32 Vict. c. 43), 11, 375, 381, 385. 
 convention between England and France annexed to, 11, 375, 381. 
 all restrictions on kinds and sizes of nets used for taking sea fish 
 
 except salmon, repealed by, 385. 
 provisions of, as to protection of oysters and mussels, 375, 381, 385, 
 See Oyster. 
 
 SEA-V/ALLS, 
 
 prerogative of the Crown to erect, 24, 27. 
 
 powers and duties of Commissioners of Sewers as regards, 25, 445. 
 
 property in, 26. 
 
 I'ight of way along, 26. 
 
 liability to repair not enforceable against the Crown, 26. 
 
 nor at common law against a frontager, 27. 
 the Crown may prevent destruction of natural barriers, 27, 28, n.
 
 736 INDEX. 
 
 SEA-WALLS— continued. 
 
 liability to repair may be imposed on an individual by prescription, 
 27,28. 
 even in an extraordinaiy tempest, 29, 31, 144. 
 negligence in not repairing, 29, 144. 
 liability of tenant for life to repair, 31. 
 
 and of mortgagee, 31. 
 presentments by jm-ies as to repair, 31. 
 all occupiers benefited rateable to repair's in absence of prescriptive 
 
 liability, 32. 
 when necessary, may be erected, though injiu'ious to adjoining 
 
 owners, 32. 
 liability at common law to keep a wall at a height prescribed by 
 Commissioners of Sewers, 29, 144. 
 and for damage caused through negligence in not doing so, 29, 
 144. 
 
 See Vis Major ; Commissioners of Seivers ; Overflow. 
 
 SEAWEED, 
 
 the right to take, evidence of ownership of sea shore, 19—21. 
 
 holorx^^ prima facie to the Crown and its grantees, 41. 
 
 when thrown on land by extraordinary tides belongs to owner, 42. 
 
 SEVEEAL FISHERY, A, 
 
 definition of, 338. 
 
 in the sea and tidal waters, 
 
 prerogative of the Crown to create and grant to a subject, 15 
 
 37, 91, 338, 348, 354. 
 is a royal francliise independent of the ownership of the soil, 15 
 —37, 338, 353. 
 which does not merge on forfeiture, 353. 
 semble, right to grant, is derived from o\vnership of the soil 
 
 by the Crown, 62, 91, 343, 347, 355. 
 can now only be clauned by prescription or implied grant, 
 15, 37, 91, 348. 
 what evidence will support a claim to, 349, 388. 
 may be appurtenant to a manor, 338, 352. 
 
 " but not to land, 338, 352. 
 grant of soU will not pass fishery, nor grant of, pass the soil, 20, 
 37, 92, 354. 
 
 though coupled v\-ith grant of a manor, it may be evidence 
 that soil was intended to pass, 37, 92, 354. 
 OAvner of, can maintain tresjjass for breaking into his fishery 
 and taking fish, 338, 671. 
 and has a property in fish before they are caught, 338. 
 is subject to the right of navigation, 37, 92, 356, 431. 
 and grantee takes subject to that right, 92, 356. 
 weirs appurtenant to, 358, 431. See Weirs. 
 poaching fish in, 393, n. 
 in private icaters, 
 
 belongs prima facie to the owners of the bed as a territorial 
 
 right, 360. 
 and as such is vested in the occupier of the land, 362. 
 may be granted by owner to another apart from the ownership 
 
 of the soU, 97, 99, 338—363. 
 claims of, by lord of a manor, 97, 362. 
 in the waste lands of the manor, 362. 
 
 may be appurtenant to a manor but not to a tenement, 338, 363. 
 grant of, prima, facie passes the soil, 101, 364, 366. 
 See Fishenj.
 
 INDEX. 737 
 
 SEVERN, RIVER, The, 
 
 local acts as to fisheries in, 374, n. 
 conservancy of, 449, n. 
 
 SEWAGE, 
 
 liability of landowners for bringing on, to lands of a neighbour, 133, 
 264—652. 
 for pollution by. See Pollution ; Riparian Owner. 
 
 SEWERS, 
 
 meaning and derivation of tenn, 444. 
 definition of, in modern statutes, 444, n. 
 
 drains, &c. formerly imder jurisdiction of commissioners of, 445. 
 but now placed under various sanitary authorities, 445. 
 See Commissioners of Seicers ; Foliation. 
 
 SHANNON NAVIGATION ACT, The, 454, n., 459, n. 
 
 SHELL Fish, right to take, between high and low water mark included 
 in the public right of fishing, 37, 91, 344. 
 
 SHIPS, 
 
 foreign, jurisdiction of English courts over, 3, 9, 11, 397, 398. 
 navigation in territorial waters by, 10. 
 
 on voyage to foreign ports with right of passage within three 
 miles of English coast not prima facie subject to English 
 municipal law, 11. 
 in absence of an act of parliament, 11. 
 
 but if seeking an English port are subject to English law, 
 11. 
 foreigners on board English, subject to English law, 3, n. 
 foreigners on board foreign, subject to English criminal law by 41 & 
 
 42 Vict. c. 73.. 11, 397. 
 regulations for English, under Merchant Shipping Act, 401 — 412. 
 duties and liabilities of persons navigating arise out of control of, 
 139, n., 438. 
 and cease when control ceases, 438. 
 
 if sunk by accident no indictment Ues against the owner, 438. 
 liability of owner where abandoned diiring extraordinary stonn 
 139, n., 438. 
 
 See Navigation ; Collision ; Wreck. 
 
 SHORE OF THE SEA. See Foreshore. 
 
 SPRING, A, 
 
 definition of, 51. 
 
 limits of, 52, 53. 
 
 effect of grant of, 211, 213, 214. 
 
 rateability of land, value of which is enhanced by, 636. 
 
 a mineral, 636, n. 
 See Well; Watercourse. 
 
 STATUTES, 
 
 for making rivers navigable, general nature of provisions, 459, n. 
 
 for constructing canals, 459, n. 
 
 for improving the navigation of rivers, 459, n. 
 
 STATUTORY POWERS, 
 
 bodies possessing, are substitutes for individual enterprise, 265. 
 
 not responsible for injury caused by due exercise of their powers, 
 145, 266, 436, 454. 
 
 c. 3b
 
 738 INDEX. 
 
 STATUTORY 'POWBUS—mttimced. 
 bodies possessing, &c. — continued. 
 
 but responsible in case of negligence or exceediag their powers, 
 145, 266, 436, 454, 544. 
 whether they take tolls for their own benefit or that of the 
 pubUc, 85, 271, 454. 
 and are bound to take reasonable care with regard to their 
 
 works, 271, 436, 454. 
 but may exercise powers to fullest extent, provided they occa- 
 sion no needless injury, 266. 
 if exercise of powers occasion inconvenience or injury, may be 
 treated as bound to take measures to prevent its recurrence, 
 266, 322. 
 canal, water and dock companies are such, being incorporated 
 to supply public wants for their own profit, 265. 
 or invested with powers for the public benefit, 265. 
 courts will restrain by injunction the abuse or excess of powers 
 by, 165. 
 See Canals ; Water Companies ; Docks. 
 
 STORM, liability of owner of a ship abandoned on account of, 139, n., 
 438. 
 
 STREAMS, 
 
 definition of, 51. 
 
 under Waterworks Clauses Act, 314, n. 
 jvuisdiction of commissioners of sewers over, 445. 
 
 of Inclosui-e Commissioners under the Drainage Acts, 446. 
 
 See Watercourse; Tidal Rivers; Private Rivers ; basements; 
 Subterranean Water. 
 
 SUBTERRANEAN WATER, 
 
 in defined channels, governed by same rules of law as streams above 
 
 groimd, 52, 105, 189, 193. 
 diversion of, 189—199, 258. 
 pollution of, 153, 199, 257. 
 right to support from, 198. 
 percolating, law as to, 52, 105, 189. 
 See Percolating Water ; Wells. 
 
 SURFACE WATER. See Percolating Water. 
 
 TANKS, 
 
 statutory provisions against fouling jjublic or private, 174, n. (1). 
 in India, law as to, see Zemindar. 
 
 TERRITORIAL FISHERY, A, 
 
 definition of, 336, 338. 
 
 exists prima facie in the owners of the bed of non-tidal waters, 360, 
 361. 
 See Fishery. 
 
 THAMES, The, 
 
 ownership of soil of, up to high water mark, 80, 450, 451, 463. 
 
 of banks of, 455. 
 right of towing on banks of, 79, 420, 455. 
 custom of mooring barges on, 420. 
 duties of conservators as to towing-paths, 455.
 
 INDEX. 739 
 
 THAMES, The-coutimiecL 
 
 Jiskeri/ ill, 
 
 local act as to, 374, n. 
 
 close seasons in, 383, n. 
 
 bye-laws as to, 471. 
 
 conservancy of, 
 
 entrusted to mayor and corporation of London by 17 Ric. 2 c. 9 
 448. ■ -) • J 
 
 conveyed to the conservators appointed under 20 & 21 Vict 
 
 c. cxlvii. ..4.51, 463. 
 duties and powers of conservators, 450, 451, 455—459, 463—475. 
 acts relative to the Lower Thames, 463—471 
 
 20 & 21 Vict. c. cxlvii. 
 22 & 23 Vict. c. cxxxiii. 
 27 & 28 Vict. c. 113. 
 
 to the Upper Thames, 471, 472. 
 
 21 Jac. 1, c. 33. 
 24 Geo. 2, c. 8. 
 11 Geo. 3, c. 45. 
 
 the whole river placed under one manasrement bv, 472—474 
 
 29 & 30 Vict. c. 89. ^ 
 
 30 & 31 Vict. c. ci. 
 
 33 & 34 Vict. c. cxlix. 
 watermen in the, regnilated by 7 & 8 Greo. 4, c. clxxv ; 22 & 23 
 
 Vict. c. cxxxiii ; 27 & 28 Vict. c. 113. .466— 469. 
 bye-laws as to, to be approved by conservators, 469. 
 powers and duties of conservators, 
 
 to make bye-laws to protect navigation, 450, 464. 
 to erect piers and landing-places for accommodation of public 
 450, 464. ^ ' 
 
 to authorize riparian owners to make landing-places, wharves 
 and jetties, 450, 464. 
 and put down mooring chains and moorings for more con- 
 venient access to lands, 450, 464. 
 to license erections, interfering with navigation, 464. 
 
 where such erections interfere with right of access they 
 may be restrained by injunction, 464. 
 not to execute works on bed or shore of river below high water 
 unless approved by admiralty, 464. ' 
 
 to take tolls for the use of piers, 465. 
 to appoint harbour masters, 465. 
 to raise and sell vessels sunk or stranded, where master fails to 
 
 remove, after notice, 465. 
 to remove obstnictions, 465. 
 
 and to lay down buoys and beacons, 465. 
 owners to be accountable for damage done by vessels to propertv 
 of conservators, 465. r ir j 
 
 no baUast, rubbish, &c., or other offensive matter, is to be thrown 
 
 or allowed to flow into river, 465. 
 all tolls, tonnage and port dues to form conservancy fund for 
 
 caiTjTug out the act, 466. 
 rights of Trinity House, Commissioners of Sewers, and Metro- 
 politan Board of Works saved, 466. 
 and those of Crown in Medway, trustees of the Lee and 
 other owners, 466. ' 
 
 to purchase lands under Lands Clauses Consolidation Acts 1 84 5 
 
 465. ' 
 
 property in all locks, dams, and weirs to vest in, on pavment of 
 compensation, 473. 
 
 3 B 2
 
 740 INDEX. 
 
 THAMES, The— continued. 
 
 powers and duties of conservators — continued, 
 to regulate locks, 473. 
 
 provisions as to the disused portion of the navigation, 473. 
 the five vrater companies may complain of works likely to 
 injure iiow and purity of vsrater above their w^orks, 473. 
 and are to contribute to expenses of the conservators, 473. 
 tolls are regulated, 473, 474. 
 pollution of river by sewage is prohibited, 474. 
 regulation of boat races, 474. 
 and pleasure boats, 474. 
 
 THAMES BYE-LAWS for regulation of navigation, Appendix, 673. 
 
 TIDAL LANDS, 
 
 definition of, vmder Railways Clauses Act, 1863. .479. 
 duties of railway companies as to access to, 477. 
 
 TIDAL NAVIGABLE RIVER, 
 
 definition of, 58, 413. 
 
 under Railways Clauses Act, 479. 
 according to French law in Canada, 413, n. 
 of navigable, 58, n., 413, n. 
 evidence of navigability of, 60, 413. 
 of tide, 58, n. 
 bed of, presumably within the county, and subject to jui-isdiction of 
 justices and the common law, 67. 
 jurisdiction of Central Criminal Cotu't over, 67. 
 not presumably within adjoining parish or manor, 67. 
 
 though it may be, 67. 
 and accretions thereto incoi-porated with adjoining parish for 
 civil purposes by 31 & 32 Vict. c. 122. .9, n., 13, 68, 597, n. 
 forming boundary between two counties, 68, 526. 
 two parishes, 68, 598. 
 international rights on, when bounding two states, 68, n. 
 ownership of soil of bed, 58, 413. 
 
 vested prima facie in the Crown for the benefit of the subject, 
 
 58, 413. 
 may belong to a subject by gi'ant from the Crown, 69. 
 effect and limits of Crown grants on, 71, 418. 
 subject to the public rights of navigation and fisheiy, 58, 71, 
 344, 413. 
 property and rights of Crown on, confined to tidal waters, 59. 
 
 and limited by line of ordinary tides, 60, 62. 
 do not extend to the banks, which remain private, 78, 419. 
 change of course of, how affecting- ownership of bed, 62, 416. 
 rights of Crown and its grantees to build on bed of, 73, 128, n., 147, 
 423—431. 
 provided no injury is done to navigation, 73, 147, 423 — 431. 
 riparian rights on, similar to those above the flow of the tide, 85, 105. 
 
 but controlled by the public right of navigation, 85, 105. 
 right of access to lands on, 86, 419, 420, 670. 
 
 distinct from right of navigation, 86, 420, 670. 
 
 interfei'ence with, actionable, without proof of special damage, 
 
 88, 421, 670. 
 compensation for, under Lands Clauses Acts, 89, 670. 
 right of landing as accessory to, 90, 420, 670. 
 See Foreshore. 
 right of navigation on, 72, 105, 396, 413.
 
 INDEX. 741 
 
 TIDAL NAVIGABLE RiyE,-R—co?itiimed. 
 
 belongs by law to all the subjects of the realm, 72, 413, 416. 
 at all times and states of the tide, 72, 413. 
 and is a right to pass and anchor free of toll, 72, 413. 
 the Crown and its grantees cannot interfere with the right, 72, 
 
 73, 413, 416, 418. 
 does not extend to use of banks for mooring, landing or towing, 
 
 78, 419. 
 in the absence of prescription, 79, 420. 
 
 change of course of river does not affect the right of, 73, 416. 
 if the river remain navigable, 73, 416. 
 See Navigation. 
 conservancy of, 
 
 formerly in the Crown, 24, 443. 
 
 but now transfeiTed to Conservancy Boards, 24, 80, 444, 447. 
 See Navigation — Conservancy of. 
 rights of fishery in, 
 
 prima facie common to all subjects of the realm, 91, 338, 343. 
 either as a common right, or derived from the Crown as owner 
 
 of the bed, 91, 343. 
 several fishery in, 91, 338, 348. 
 free fishery in, 338, 355. 
 
 See Fishery ; Several Fishery ; Free Fishery. 
 tolls on. See Tolls. 
 rateability of. See Rates. 
 
 TIDAL WATERS, 
 
 definition of, imder 26 & 27 Vict. c. 92. .479. 
 duties of railway companies as to access to, under, 477. 
 as to abandonment of works, 479. 
 as to surveys, 479. 
 
 See Navigatio)/ ; Sea, The; Tidal Navigable River, 
 TIDE, 
 
 limits of shore of the sea and tidal waters determined by line of 
 
 medium, 13, 61. 
 extraordinaiy overflow by, 29, 31, 144. 
 
 as applied to tidal rivers, includes fresh water ponded back, 58, n. 
 See Sea, The ; Tidal Navigable River ; Vis Major. 
 
 TITHES, 
 
 owner of, not entitled to compensation under a canal act, 286. 
 rateable under 43 Eliz. c. 2. ,593. 
 
 TOLLS, 
 
 incident to rights of water, 486, 535. 
 
 right of Crown to authorize collection of, viewed with jealousy by 
 
 courts, 487. 
 must be founded on adequate consideration, 4, 46, 417, 487, 541. 
 right to take, exists only by act of parliament, 4, 46, 541. 
 
 by express grant from Crown, 46, 541. 
 or immemorial usage, 46, 541. 
 payment of, enforceable by act of parliament within its operation, 4. 
 definition of, 535. 
 general law as to, 
 
 law as to highways on land applies to those on all navigable 
 waters, 536. 
 toll thorough defined, 536. 
 toll traverse defined, 536. 
 
 distinction between toll thorough and toll traverse, 536 — 541. 
 the right to take, how supported, 541.
 
 742 iisDEX. 
 
 TOLLS — con tin ued. 
 
 by prescription and immemoriality , 
 
 prior to the Prescription Act, 541. 
 
 noiv is governed by that act, 541. 
 
 definition of prescription, 541. 
 
 where rights are claimed by, jury are warranted to presume 
 
 right immemorial, 542. 
 long enjoyment a foundation for good consideration, 48, 542, 559. 
 custom by which claimed must be reasonable, 50, 556. 
 tolls may be good under a custom of which a grant could not 
 now be made, 542. 
 the right to vary tolls, 
 
 a toll reasonable but varying with value of money is valid, 311, 
 
 543, 584, 588. 
 but equality clauses are expressly introduced in modem acts, 
 310, 311, 480, 543. 
 liaiUitij of bodies incorporated by statute and empoivered to take tolls, 
 271, 455, 544. 
 where toUs are received for beneficial or fiduciary purposes, 271, 
 
 455, 545. 
 of conservators of rivers taking, 85, 452, 454. 
 extinguishment of, 545. 
 lease of, must be by deed, 545. 
 right of distress is incident to every toll, 546, 665. 
 on the sea and navigable rivers, 
 
 none demandable except where a benefit is done to community 
 
 at large, 4, 46, 398, 417, 547. 
 or where a toll is created by statute, 4, 46, 547. 
 powers of Thames Conservators as to, 465, 473. 
 on ferries, 
 
 alteration of, no answer to action for disturbance of ferry, 502. 
 lie in grant and not in livery, 502. 
 an agreement to lease, must be under seal, 502. 
 inhabitants of particular place or individuals may have by cus- 
 tom right of passage over a ferry without paying, 503. 
 on ports, 
 
 formation of a port is sufficient consideration for, 4, 46, 550, 560. 
 ancient ports free of toll to subjects of the realm, 550. 
 law as to erection of ports, 43, 552, 553. 
 what consideration is sufficient to support claim, 46, 555. 
 taking of, implies a duty to repair even where there is no benefi- 
 cial interest, 47, 555. 
 arise from ownership of property or franchise in, 45, 553. 
 dues incident to ownership of, 4, 45, 550 — 564. 
 anchorage, 4, 48 — 50, 553. 
 
 no toll can be taken for anchorage except in, 4, 45, 555. 
 but anchorage dues may be claimed in a port which is a 
 
 natural roadstead, 48 — 50, 559 — 562. 
 even though there is no obligation to repair, 48 — 50, 
 
 559—562. 
 claim for anchorage dues cannot be made merely in 
 
 respect of the use of the soil, 48, 558. 
 but immemorial payment is evidence of existence of a 
 port and that tolls have a legal origin, 48, 559. 
 ballastage, 553. 
 dues incident to owner by usage, 554, 563. 
 busselage, keelage, 554. 
 primage, 554, 563.
 
 INDEX. 743 
 
 TOLLS — con t in ued. 
 shore duties, 
 
 depend sometimes on custom and sometimes on statute, 564. 
 wharfage and cranage, 
 
 owners entitled to, at common law, 565. 
 
 amoimt of, may be fixed by prescription or grant, 332, 566. 
 
 amount claimed must be reasonable, 50, 567, 568. 
 
 except in case of private wharves, 50. 
 where rates charged are a bargain between the parties, 50. 
 See Wharf, 
 on harbours, lighthouses, docks and piers, 
 are statutoiy tolls, 569. 
 exemption of Crown from, 570. 
 
 statutes imposing, must be construed in favom- of the subject, 
 570. 
 on lighthouses, 
 
 can only be taken when vessels benefit thereby, 571. 
 ships belonging to the Crown exempt, 572. 
 on piers and harbours, 
 
 "shipped for exportation," meaning of, 574. 
 " owner and shipper," meaning of, 576. 
 "landed," meaning of, 576. 
 dock dues, 
 
 depend entirely on Act of Parliament, 576. 
 
 and when it is silent as to amount, dues must be reasonable, 
 576. 
 "reasonableness" is a question for the Coiu-t and not for the 
 
 jury, 577. 
 meaning of term "port" as applied to, 577. 
 assignment of, 577. 
 
 decisions as to the London Docks, 577, 580. 
 duty of company to deliver, 578. 
 duties as to unloading of ships, 579. 
 decisions as to the Liverpool Bocks, 580 — 582. 
 
 meaning of " duty outwards and inwards," 580. 
 " same voyage out and home," 580. 
 right to distrain for toll, 583. 
 on canals, 583. 
 
 right to, derived solely from the Act of Parliament, 308, 584. 
 obhgations as to equahty and varying, 310, n., 480, 543, 584, 
 588. 
 by 8 & 9 Vict. c. 28.. 311, 480. 
 acts imposing, must be construed strictly, 585. 
 rateability of, 
 
 detached from local real property are not rateable per se, 621, 
 
 629, 630, 
 on piers, 597, 598. 
 on docks, 599 — 604, 606. 
 on xoharves, 617. 
 
 on anchorage and beaconage dues, 617. 
 m ferries, 621—625. 
 mi canals, 629—633. 
 on bridges, 646 — 648. 
 
 See Navigation ; Rates. 
 
 TOWING, 
 
 no right of, at common law, on banks of navigable rivers, 79, 80, 
 
 419. 
 right of, dependent on custom, 79, 80, 419.
 
 744 IKDEX. 
 
 TOWING— row^JHwerf. 
 
 right of, on banks of Thames, 79. 
 paths, ownership of, 80, 455. 
 
 duty of river conservators to repair, 81, 455. ' 
 
 See Navigation. 
 
 TRADE PROFITS, rateability of, 599, 606, 634. See Rates. 
 
 TRAFFIC, statutory regailations as to, on navigable rivers and canals, 
 480. See Navigation. 
 
 TRENT RIVER NAVIGATION ACT, The, 451, n., 459, n. 
 
 TRESPASS, 
 
 all infringements of rights of vrater are either nmsance or, 649. 
 right of owner of canal to maintain, 276. 
 
 several fishery to maintain, 338, 671. 
 free fishery to maintain, 339, 671. 
 Commissioners of Sewers have no right to maintain, 26. 
 See Remedies ; Nuisance. 
 
 TROUT, 
 
 statutoiy enactments for the protection of, 374, 380 — 384, 392. 
 close season for, 383. 
 in the Thames, 383, n. 
 measuring of unseasonable, 384, n. 
 using dynamite to kill, 392. 
 
 lights, spears, &c., 392. 
 licences for taking, 392. 
 no restriction as to size of nets, 392. 
 See Fishery. 
 
 TYNE IMPROVEMENT ACT, 1850, The, 459, n. 
 
 USAGE. See Prescription. 
 
 VALUATION OF PROPERTY (METROPOLIS) ACT, rateability of 
 water companies under, 641. 
 
 VIS MAJOR, or the act of God, 
 definition of, 141, n. 
 how far an excuse for liability at common law, 29, 132, 138, 142, 
 
 289, 290, 322, n., 440. 
 how far an excuse where liability is imposed by contract or Act of 
 
 ParHament, 29, 142, 440, 528. 
 is no excuse in cases of negligence, 29, 144, 323, n. 
 
 WATER, 
 
 sole right to, 113. 
 
 special statutoiy property in, 57, n., 114. 
 
 •waste, from a canal, is not a watercourse, or subject to the law of 
 
 watercourses, 53, 54, 232, n., 294, 296. 
 right to draw from a well, 203, 229, 232, n., 238. See IFell. 
 in a defined course. See TFatercoici-se. 
 
 percolating and surface. See Percolating and Surface Water. 
 subterranean. See Subterranean Water. 
 natural rights of. See Rijjarian Owner. 
 acquired rights of. See Easements. 
 land covered with, how rateable under the Local Government Act, 
 
 597.
 
 INDEX. 745 
 
 WATER COMPANIES, 
 
 diversion by, for supplying a town, not a reasonable riparian use, 117. 
 
 See Riparian Owner. 
 duties of, as to cleansing and maintaining reservoirs, channels, &c., 
 
 and other works, 266, 322, n. 
 powers and duties of the five principal London, under Thames Con- 
 servancy Acts, 473. 
 
 See Water Supply ; Bates. 
 
 WATERCOURSE, 
 
 definition of a, 51. 
 
 extent and limits of, 52. 
 
 must flow in a regular and well-defined channel, 53, 105. 
 
 but it is not necessary that water should flow continually, 53. 
 waste water allowed to pass from a canal is not a, 53, 54, 232, n., 
 
 294, 296. 
 consists of bed, banks or shore, and wafer, 54. 
 
 right to use of water in, does not arise from ownership of soil, 55, 
 104, 107. 
 but from the right of access thereto, 56, 104, 107. 
 owner of soil of bed may grant lands through which it flows, re- 
 serving to himseK the soil of such bed, 57. 
 and grantee in such case will have the full use of the waters of, 
 57. _ 
 water in, is not bontini vacans, 57, 108. 
 
 and none can have any property in it, 57, 108. 
 
 save by statute, 57, n., 114. 
 but it is publici Juris only so far that all who have a right of 
 access thereto may have a reasonable use of it, 55, 57, 108, 115. 
 meaning of grant of, in law, 102, 210. 
 
 must be shown by the context, 102, 210. 
 may be either a real or incorporeal hereditament, 204. 
 easement of, includes right of going on land to clear and repair, 229 . 
 natural rights on. See Hiparian Owner ; Tidal River ; Private River. 
 acquired rights on. See Eascmeyit. 
 artificial. See A)-tiJicial Watercourse. 
 subterranean. See Subterranean Water. 
 
 jurisdiction of commissioners of sewers over pools, streams, and, 445. 
 of the Inclosure Commissioners under the Land Drainage 
 Acts, 446. 
 
 WATERMEN AND LIGHTERMEN in the Thames, 
 
 rules governing, vmder the Watermen and Lightermen's Amend- 
 ment Act, 1859. .466— 469, nn. 
 
 definition of terms Hghterman and waterman, 467. 
 
 constitution and election of the company, 467. 
 
 rules as to plying on Sundays, 467. 
 
 all owners of barges and lighters to be registered, 467. 
 
 freemen of the company may employ apprentices on certain con- 
 ditions, 467. 
 
 persons other than freemen or qualified apprentices navigating 
 wherries, fighters, &c. within limits of act, liable to a fine of forty 
 shillings, 467, 468 and notes. 
 
 watermen and lightermen's licences, 468. 
 
 no barge, 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 bl., 468 and notes. 
 
 unlicensed persons rowing, steering or navigating for hire within 
 limits of Act, liable to penalty of bl. for each offence, 468. 
 
 c. 3c
 
 746 INDEX. 
 
 WATERMEN AND IjIG'H.TEU^I'E^S— continued. 
 
 uo passenger boat to carry more passengers tlian licensed, imcler 
 
 jjeualty of 40s. for each extra passenger, 468. 
 regulations as to fares charged for j^assenger boats, 468. 
 bj-e-laws may be made under Act if not inconsistent mth bye-laws 
 of the Thames Conservators, 469. 
 and no bye-laws valid until approved by the Conservators, 469. 
 proceedings lor penalties, savings, &c., 469. 
 amendments of the Act by 27 & 28 Vict. c. 113. .469, n. 
 
 WATER-RATE, 
 
 liability for, 318, n. 
 definition of, 321, n. 
 
 WATER SUPPLY, 
 
 companies ivlthjxirliainentari/ powers, 313 — 323. 
 generally established by private Acts, 313. 
 
 which incorporate the Waterworks Clauses Acts, 313 — 315. 
 the Lands Clauses Consolidation Acts, 315. 
 and the Companies Clauses Consohdation Acts, 316. 
 rigJits and liabilities of companies, 317 — 319 and notes. 
 
 duty to supply water for extingmshing fires, 318, n., 322, n. 
 
 rates and charges of companies, 318, n. 
 
 liabilities of companies for escape of water, 318, n., 322, n. 
 
 ■lis major, how far an excuse, 322, n. (3). 
 duty as to compensation under the Lands Clauses Consolidation 
 
 Acts, 322, n. 
 decisions as to duties of companies, 322, n. 
 companies having no parliamentary powers, 323 — 326. 
 rights and liabilities of, 323 — 326. 
 
 under the Gas and Water Facilities Act, 325. 
 local authorities empowered to supply water, 326 — 330. 
 under the Public Health Act, 1875. . 328. 
 
 meaning of "able and willing to supply," under s. 52 of 
 the Act, 329, n. 
 under the Labouring Classes Lodging House Act, 1851 . .330. 
 under the Municipal Corporations (Borough Eunds) Act, 1872. . 
 
 330. 
 under the Conspiracy and Protection of Property Act, 1875.. 
 
 330. 
 under the Limited Owners' Resei-voirs and Water Supply Further 
 Facilities Act, 330. 
 rateability of companies supplying, 635 — 641. 
 
 of tu-ban authorities, public bodies supplying, 641 — 646. 
 
 WATERWORKS CLAUSES ACTS, 171, 313—315. 
 jirovisions as to the restriction of pollution, 171. 
 See Water Supply. 
 
 WEIRS, 
 
 where obstructing navigation are illegal and a nuisance unless granted 
 prior to Edw. L, 357, 388, 431. 
 
 even if obstructing only part of the navigation, 432. 
 
 the statutes prohibiting them relate to navigable rivers only, 367. 
 
 and a right to, in a non-navigable river may be established by pre- 
 scription and is an easement within the Prescription Act, 232, n., 
 267, 368. 
 
 where obstructing ^fishery in public waters, semble, are illegal and a 
 nuisance, 358. 
 and are actionable by owners prejudiced, 359, 368.
 
 INDEX. 747 
 
 WEIRS— continued. 
 
 what kinds of, are actionable as obstructing passage of fish, 368. 
 enhancement of, such as the conversion of an ancient brushwood 
 
 passable by fish into a stone weir not passable is actionable, 368. 
 fishing, and dams, what are illegal within the Salmon Fishery Acts, 
 386—392. 
 fish passes in, 387. 
 privileged, what are, 388, 391. 
 what evidence will support a claim to, 388. 
 taking salmon witliin 50 yards above and 100 yards below, 387- 
 
 WELLS, 
 
 abstraction of water percolating into, is not actionable, 189—196. 
 
 nor of water actually in, 196. 
 long user gives no further right of action, 192. 
 pollution of, 199. 
 
 statutorv restrictions on pollutiag, 174, n, 
 right to'go on another's land to draw water from, 202, 203, 229. 
 
 is an easement within the Prescription Act and not a profit a 
 prendre, 202, 203, 229, 232, n. 
 effect of grants of, 211, 213, 214. 
 right of water companies to sink, 317. 
 
 See Spn>i(/ ; Percolating Water; Subterranean Water; Easement. 
 
 WHARF, 
 
 right of access of owner to a, 86, 420. 
 
 owner is entitled at common law to remuneration for use of, 565. 
 rates chargeable at a private, are a matter of bargain between the 
 parties, 50. 
 amount may be fixed by prescription, 566. 
 custom as to wharfingers in London, 567. 
 amoimt claimed at, must be set forth with certainty, 567- 
 rateability of a, 617. 
 
 WHARFAGE AND CRANAGE, 564. 
 
 are shore duties dependent sometimes on custom and sometimes on 
 
 statute, 564—569. 
 definition of, 565. 
 
 See Wharf; Tolls. 
 
 WRECK, 
 
 right to take, is a prerogative of the Crown, 15, 37. 
 in virtue of office of lord high admiral, 37. 
 but may be granted to a subject apart from the shore, 15, 37. 
 right to take, evidence of ownership of sea shore, 21, 38. 
 is not appurtenant to ownership of shore, 37. 
 
 but frequently exists as a franchise attached to a sea-coast 
 manor, 37. 
 right to take, implies right of crossing shore for the purpose of 
 
 taking, 38. 
 gi-ant of shore alone does not pass the right, 37, 38. 
 nor is the shore passed by a grant of, 37, 38. 
 meaning of, within Statute of Westminster 1st, c. 4. .38. 
 under 3 & 4 Will. 4, c. 52 . . 39. 
 17 & 18 Vict. c. 104.. 39. 
 owners may claim goods within a year and a day, 38. 
 if not claimed, goods to be delivered to officers of the Crown, 38. 
 where goods are perishable, they may be sold to prevent loss, 38. 
 where belonging to other than the king, he is to have them in the 
 same way, 38.
 
 748 . • INDEX. 
 
 WRBCK— continued. 
 
 flotsam, jetsam and ligan, being on the land, pass by grant of wreck, 
 38. 
 but only where ship perishes or owner of goods is not known, 38. 
 goods cast into the sea for fear of tempest not forfeited unless ship 
 
 be lost, 38. 
 grantee of, has a special property in all goods stranded in his 
 liberty, 39. 
 and may maintain trespass for taking them away, 39. 
 even though such goods are part of a cargo of a ship from which 
 
 persons escaped alive, 39. 
 and though owners identified them within the prescribed time 
 and before seizure by the grantee, 39. 
 removal of, when obstructing navigation, under Wrecks Removal 
 Act, 45, 400 and n. 
 
 ZEMINDAR, duty of- a, to maintain tanks on his zemindary according 
 to the laws of India, 141, n. 
 
 LONDON : C. F. EOWOETH, PEINTEE, BEEAM's BUILDINGS, CHANCEEY LANE.
 
 r— " 
 
 CO 
 
 CD
 
 H. SWEET & SONS' LAAV PUBLICATIONS, 
 
 Highways, Tb* Law of. — By R. H. Spearmax, Esi]., Banister-at-Law. IS.9. 1881 
 Horses, 01i])liant's Law of, including the Law of Innkeepers, Veterinary Surxeous, &c., 
 and of Hunting, Racing, Wagers and Gaming. 4th Edit. By Glemext ELPiiiN 
 STONE Lr.OYi), B. A. Oxon., of the Inner TemiHC, Esq. Demy 8vo. Price 21s. IBS 
 Husband and Wife. — Macqueen's(J. F.) Treatise on the Law of Husband and "VVif. 
 3rd Edit. By J. C. Russell and R. B. Russell. 1vol. Roy. 8vo, Price 2o«. 18> 
 Insurance. — Arxould's (J. ) Marine Insuraneeand Average. 2 vols. 8vo. 5th Ed. 60s, 187 ." 
 Joint Stock Companies Act. — Turing's (Sir H.) Law and Practice of Joint Sto( 1 
 Companies, containing all the Statutes, witli the Rules ; with Jlote^ and Forms. 
 Fourth Edition. In 1 vol. 8vo. Price 25s. 1880 
 
 Judges' Chambers and District Registries.— Coe's (W. E.) Practice at : with 
 Api)endix to Judicature Acts, and Rules and Orders. Price 10s. 1876 
 
 Judicature Acts. — Lelt (J, M.) and Foulkes' (W. D. I.) The Judicature Acts, 187S 
 and 1875, the Appellate Jurisdiction Act, 1876, and other Statutes, the Orders in 
 Council, and the Rules of the Supreme Court, 1883, with Notes : forming a Practice 
 of the Su]ireme Court. 4th Edition. Price 25s. nett. 188S 
 
 Justice of the Peace. — Stone's Practice for Justices of the Peace at Petty and 
 Special Sessions. Ninth Edition. By W. H. Maonamaua. Svo. Prici -■! 
 
 Landlord and Tenant. — Woodfall's Law of Landlord and Tenant. The h 
 
 Edition. By J. M. Lelv, Esq. Royal 8vo, Price IJ. 18«. 1886 
 
 Law Dictionary. — Containing Definitions of Terms in modern use. .and the Rules of 
 Law affecting the principal Subjects. By C. Sweet, I1L.B. Ziuperial Svo. In 
 half morocco, 40s. 1882 
 
 Liens of Attornies.— Stokes* (W.) Treatise on the Liens of Attomies, Solicitors and 
 other Legal Practitioners. 1 2mo. Price 8». 1860 
 
 Limitations.— Brown's ("W.) Treatise on the Law of limitations as to Rca' '" 
 
 including that of the Crown and Duke of Cornwall. Svo. Price 28s. 
 Lunacy. — Pope's (H.M.R.) Treatise on the Law and Practice of. Svo. Price :.'4,s. i-, 
 Marriage Settlements. — Peachey's(J. P.) Treatise on Marriage arid other Famii 
 Settlements ; Precedents and Practical Notes. Royal Svo. 1/. l^v- ■"■' 
 
 Married Women's Property Acts, 1870, 1874, 1882.— By C. - 
 
 'and Y. R. St. Clair Andrews. Second Edition. 8s. 
 Master and Servant.— Smith's (CM.) Law of Master and Servant, in 
 Masters and AVorkmcn ; with Statutes. Svo. Fourth Edition. 2^^" ■ I't'i 
 Mercantile and Maritime Law.— Smith's (J. W.) Compendium (>: 
 Tenth Edition. 
 Tudor's (0. D. ) Selection of Leading Cases on Mercantile and Mai 
 Notes. Royal Svo. Third Edition. Price 42s. 
 Merchant Shipping.— Maude (F. P.) and Pollock's (C. E.) Tre;. 
 Merchant Shipping. Fourth Edition. By the Hon. Baron Poi i 
 FORD Bruce, Esij., Recorder of Bradford. 2 vols. Royal Svo. Pi 
 Metropolitan Building Acts. — AVoolrvcii's. With Notes, &c. 'J 
 
 N. H. Paterson. Price Ss. 6tl. 
 Mortgage. — Coote's (R. H.) Treatise get the I^w of Mortgage. 
 
 By W. Wyllys Mackeson, Esq., Q.C, and H. Arthur Smith, Esq., Ijarriiitcr-;. 
 Law. 2 vols. Royal Svo, Price 3/. cloth. ■ - . ■ ^'^^ 
 
 Municipal Corporations.— Containing the Municipal Corporations Act, 1882, a-nd tlie 
 Enactments incorporated therewith; with a Selection of Supplementary Enact- . 
 ments, including therein the Electric Lighting Act, 1882 ; with Notes. By J. M.- 
 Lely, Esq. Demy 8to. Price 15s. 1882 
 
 Nisi Prius.— Roscoe'.s (H.) Digest of the Law of I^isi Prius Evidence. 15th Edition. 
 By M. Powell, Esq., Barrister-at-Law. 2 vols. 8vo, Price 2Z. 10s. 1884 
 
 Parish Law.— Smith's (J. Toulmin) Parish ; its Obligations and Powers ; its Ollicers 
 and their Duties. Second Edition, much Enlarged. Price 18s. 1' 
 
 Steer's Parish Law. 4th Ed. ByW. H. Maonamara, Esq., Barrister-at-Law. 16.y. 1; 
 Personal Property.— Williams's (Joshua) Principles of the Law of Personal P; 
 perty, intended for Students. Twelfth Edition. Svo. Price 21». lb 
 
 I
 
 <riU3HVS0)^ 
 
 "^/iWMNftiUV^ 
 
 
 
 
 vvlOSANCEl% 
 
 o 
 
 ^OF-CALIF0% .^jOFCAllFOff^ 
 
 '^/fJHAINftH*^^ '^/Jt^HVUflllVi^ *>&AMV>iJjnAS^ 
 
 v^ 
 
 CO 
 so 
 
 I 
 
 ^lUBRARYO^ <:^immYo/^ 
 
 xmmBs//, 
 
 ^lOSANCFlfx. 
 
 ^.l/OJIIVDJO'^ '^«!/0JnV3JO'»^ ^JTUDKVSOl^ 
 
 aofcaufo% aOFCAUFO^, 
 
 
 .5.WEUNIVERS/A 
 
 
 ^c^uawsov^ 
 
 
 
 ^\WEUNIVER% ^LOSAKCElfj^ 
 
 ^^UDNVSOl^ 
 
 .^WEl)NIVER% 
 
 > 
 
 ^lUSANCElfx^ 
 
 •<riliONVSO\^ "^/KUAINni^ 
 
 ^tUBRARYQc. 
 
 ^^IUBRARY<9/ 
 
 
 ^^.OFCAllFOff^ 
 
 ^;0FCAIIF0% 
 
 
 ^6'Aavyan# 
 
 •^ 
 
 rg 
 
 ^lUBRARYOc. 
 
 § 1 </-^ ^ 
 
 ^IUBRARY<?/^ 
 
 ^^OJnVDiO't^ 
 
 ^OFCAUFO/i^ 
 
 
 .^V\E■UNIVERS•/A ^vvlOSAWCElfj. 
 
 MSl 1^1 l(^i .
 
 ^ 
 
 U) 
 
 * " I " '! SO 5e 
 
 -< 
 
 ^4 ^lOS^Cflfj-^ 
 
 3d o. 
 
 V^ -V X W <> I 
 
 ^OFCAIIFO% 
 
 '4^ 
 
 
 "^/siiaMNa-avw^ '^^6>Aavaaii#' ""^c^AMv^aiii^ '^J'iuoNvsoi^ "^ 
 
 ^lUBRARYQ^ 
 
 >;,OFCAUF0/?;fc, 
 
 ■3^ -* I I' C7 
 
 
 O 
 
 4^^^UBRARYQc 
 
 ^^ojuvDJo"^ ^iSUQNVsov^ "^Aa^AiNn-iW^ \oi\m-:iQ^ ^ 
 
 ^OFCAllFOi?^ ^ 
 
 AMEUNIVERy/A 
 
 <I5U3KVS01^ 
 
 ^lOSMElfj-^ 
 o 
 
 o^ -I 
 
 ^^Aavaaii-^^ ^ 
 
 ^ ^lOSANCEl^^ 
 
 V ^lOSANCElfX* 
 
 ^ %iBAJNft-3AV^ 
 
 
 "^^iUivaaiii^ "^^AavaaiH^ 
 
 AWEI)NIVER% 
 
 '^.aOJIlVDJO'*^ '^itfOJIWJiO'^ <f3UONVS01^ 
 
 ^.OFCAIIFO/?^ ^OFCAllFOi?^ <^^WEUNIVER% 
 
 '^XiHONVSOl^ 
 
 ^ ^tUi}KARY(?/r 
 
 ^ ♦. 
 
 (Pi fee 
 
 ^ i 
 
 \\\EUNIVER% 
 
 vj^lOSANCEl^^ 
 
 o 
 
 ^^OilWDJO^ <QU3NVS01^ 
 
 V. ,^OFCAIIFO% AWEUNIVERiy/j 
 
 S3 
 
 > 
 
 c?-sr -i 
 
 ^10SANCEI% 
 o 
 
 ^^•UBRARYt?/ 
 
 "^^aOJITVDJO"^ ^ 
 
 aofcaiifo% 
 
 m 
 
 . 
 
 ^ i