UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE . ON THK AND OF SEWERS; INCLUDING THE LAW RELATING TO RIGHTS IN THE SEA, AND RIGHTS IN RIVERS, CANALS, DOCK COMPANIES, FISHERIES, MILLS, WATERCOURSES, &c. BY HUMPHRY W. WOOLRYCH, i'l OF THE INNER TEMPLE, BARRISTER-AT-LAW, AUTHOR OF THE " LAW OF RIGHTS OF COMMON," AND OF " THE LAW OF WAYS." LONDON: SAUNDERS AND BENNING, LAW BOOKSELLERS, 43, FLEET-STREET. 1830. 30 Copy LONDON: IBOTSON AND PAIMElt, PHINTEns, S.\VOY STREET, STRAND. WILLIAM HENRY TINNEY, ESQUIRE, ONE OF HIS MAJESTY'S COUNSEL, THIS VOLUME ON THE LAW OF WATERS AND OF SEWERS IS INSCRIBED, AS A TESTIMONY OF ESTEEM AND REGARD, BY HIS FRIEND, THE AUTHOR. PREFACE. IN offering the present volume to the attention of the Pro- fession, the Author feels strongly the necessity of soliciting their indulgence. The subject is as extensive as it is im- portant ; the different branches of it are, consequently, nu- merous, and the possibility of omitting some important point has, therefore, induced the writer to use a more than ordinary degree of carefulness. The plan of the work shall now be detailed, without fur- ther preface. There are two parts, the first relating to the Law of Waters, the second embracing the Law of Sewers. In the first chapter of the Law of Waters the various rights are numerated. Certain rights which may be enjoyed in the sea inde- pendently of, commerce, (the latter subject not forming any part of our inquiry,) and those also which may be had in rivers, will be mentioned in the second and third chapters : we then proceed, in the fourth chapter, to speak of Canals, Docks, and Waterworks. The next is devoted to the subject of Fisheries; and sixthly, we shall say some- thing of Water-mills ; for although a mill is not of course a right enjoyed in water, it is yet too nearly connected with the ownership of streams and rivers, to be omitted in this vi PREFACE. Treatise. The seventh chapter is on Watercourses, which, strictly taken, mean private rights of water. These chapters include the different privileges or owner- ships in water. We now come to speak of the incidents which belong to them. The eighth chapter, therefore, treats of the user of these rights, whether they be of navigation, of fisheries, of watercourses, or of any other such property. In the ninth, the important subject of Obstructions is discussed, together with the various remedies which are open to the king's subjects for the redress of any grievances happening by reason of such obstructions or injuries. The doctrine of extinguishment is explained in the tenth chapter ; and in the eleventh, several incidental matters, as the liability of these rights to pay tithes, to be rated, to be the subjects of a settlement, &c. is fully spoken of. We then proceed to the consideration of Pleading and Evidence, and thus conclude the first portion of our undertaking. The Law of Sewers is the second part of this volume. We have divided it into four chapters. In the first place, we speak of the origin of Commissions of Sewers, and of the Commissions themselves. The two next chapters regard the Duties and Powers of Commissioners of Sewers, and their proceedings in the execution of their duties. Upon this occasion the constitution of the Court, the appoint- ment of their Officers, and the punishments which the Commissioners may inflict, will, amongst other matters, be laid before the reader. Lastly, we shall notice the remedies which the public may have against these Commissioners of Sewers for in- juries of any kind committed on the part of the latter, and the work will terminate with this latter inquiry. 2, HARE COUBT, TEMPLE, JUNE 26 1830. ij}--v)'( ; ;--7^ IT v-'-v> },'}'!" .o?. : CONTENTS. CHAPTER I. O/' ^e Various Rights of Water. Fisheries .... Bathing ... Navigation . . . Watercourses . . .** Other rights CHAPTER II. Of Rights in the Sea ; the ownership of the Soil therein, together with the Right of Alluvion. Fisheries and bathing . . . _* Extent of our seas . . . ib. Jus Maris . . . . - *. No common law right of bathing in the sea 5 P" There may be a right to bathe by custom !gBO . , , f f j 40 Of the right of wreck ,, ^ . . 11 Flotsam, jetsam, and ligan Who may have wreck . . . .13 \Vhatgoodsmaybetaken . . . ib. Wreck, how recovered . . .14 Goods claimed as wreck, how recovered by the owner Wrecked goods to pay custom . . *t>. Custom of manors to take goods must be grounded upon a consi- deration . . .16 Swans . . . .17 Swan-herd . . . 19 Ownership of the soil under the sea . ib. Sea-beach not to be taken to mend roads . 21 Sea coasts . . . ib. Of land derelict Grants of land to be recovered from the sea . . 24 Of alluvion . 21,26 Avulsion . . . .28 Islands . . . ib. How these several rights in the sea may be claimed . . 29 tiii Contents. CHAPTER III. Of Rivers ; the Ownership of the Soil therein, and other matters. PAGE. What a public river .. . .31 What evidence of such .-, . .32 Rights enjoyed in rivers ,^,, - 33 Decoy ponds . . .34 Ownership of the soil in rivers . . . ib. Private rivers . . .36 Alluvion . "". ' . . 37 Islands \ .38 CHAPTER IV. Of Canals Docks Waterworks, fyc. Of Canals . " . .40 Canal calls . . . . . ib. Liabilities of canal proprietors . . . 42 Limitation of actions against them . . .44 Ownership of the soil in canals . . .47 Fishery therein . . . 48 Road trustees, being shareholders in canal campanies, when not liable to forfeitures .V . . . ib. Probate respecting canal shares . . . ib. Of dock companies . , . .49 Compensation clauses . . . 50 Waterworks . . .53 CHAPTER V. Of Fisheries. The various kinds . .. .55 In the sea and public rivers . . . 56 Taking fish out of the limits of the British seas . . 57 What fish may be taken at sea . . > . 62 Penalties . . . . 65 Conservators of rivers . . . . 68 Sale of fish . . . 71 Markets . . 72 Fish, how to be sold at market * , . .76 Bounties for bringing fish to market , . . . 80 How fish may be taken . . .81 Season for taking . . . ib. Salmons . . t ft Young salmons . . 83 Pilchards . . . jj 84 Lobsters . . .84 Particular fisheries . . #. White herrings . n,\ Whale fisheries . . Scotch fisheries . . Contents. .'" PAGE. Irish fisheries . .^^ .85 Southern fisheries . . . ib. Of private fisheries . I ' .86 1. Of a several fishery . . . . 87 Where enjoyed ' 4 .96 Extent of the fishery '; . . . .97 2. Of a free fishery . ; . . ib. 3. Of common of fishery . . . 101 4. Fishery in gross V - . . 102 Limited rights of fisheries . . . ib. Fisheries, how claimed '. . . 103 CHAPTER VI. Of Mills. The various kinds of water mills . . . 108 Of customs to grind at particular mills . . . 109 Unreasonable customs '. ' . . 114 Suit of mills, how claimed . . .116 CHAPTER VII. Of Watercourses. How claimed . . . .118 Force and effect of grants . . . 120 By whom claimed . . ... 122 CHAPTER VIII. Of the User of Rights connected with Water. User of fisheries . . . .24 Landing of fishermen in grounds adjoining to the water . 128, 133 Balkers, &c. in Somerset, Devon, and Cornwall . 130 User of private fisheries .' . . ., .' . 131 What nets to be used , . . , ib. What fish taken . . . .132 User of mills ... . 134 Miller to keep open a scuttle for salmon . . ib. What toll to be taken . . .135 Changing corn . . . *' . 137 Balances and weights to be kept at mills . . 138 No adulteration '*. . . . 139 Millers not to be common buyers of corn . . 141 when they may be said to steal corn . . ib. Repairs of mills . . .. . ib. User of Watercourses . ... 142 What an obstruction, and what not . . ib. 145 x Contents. CHAPTER IX. Of Obstructions and other Injuries, with the Remedies in such Casts, PAGE. Obstructions to navigation to docks > . .154 in public rivers - '. : .155 Weirs . - \ ' : * ' Banks ':". . >\'v ''--f 158 Wharfs . i \. 159 Throwing in ballast, &c. Diverting the stream . . 163 Materials for highways . ' v ^' Neglect to cleanse . . .164 No obstruction where the thing done is for the public good . 165 A fishery may be an obstruction . . 170 Remedies for obstructing navigation for injuries to locks . 172 Action on the case Obstructions to fisheries . - . 175 Nets . A, ' ' " ' ib - Wears . . . -^ . 176 Impressment . . . '. . 177 No licence nesessary forfishing i 'i ' ' . * 180 Quo Warranto , ' ' 181 Abatement . . y... . 182 Remedies for injuries to the Thames fishery . . 183 By-laws not favoured . . ' .187 Obstructions of private fisheries . . . 189 Nuisances . . . * '. ib. Remedies for these latter obstructions /-.,' i IJB 191 Trespass . . . . ib. Case . . A ;. . . 192 Trover .'. . . ' . . . 193 Not ejectment . . . ib. Remedies in equity ' , ^ . . . . 194 Abatement . ... . . 195 Seizing nets, &c. . . . . 196 Anglers .- ..?,-*. . . 197 Criminal proceedings j >*^ . . . ib. Stealing oysters . . "". . 201 Malicious injuries .... ib. Obstructions of mills ... T . . 202 Remedies . % .' . ib. Obstructions by mills ... . 205 of watercourses . ... 206 Twenty years' possession .... ib. Waterspouts . . . 208 Injuries to mills .''', . . ib. Mill obstructed need not be an ancient mill . .210 What not an obstruction . 218 Contents. xi PAGE. Cleansing rivers t . . . .219 Getting road materials * . . 220 Remedies for obstructing watercourses /-,.. ib. Pracipe quod reddat .... ib. Action on the case . . $? . . . ib. Trespass . . . : . ' '. { - "-'. . 222 Covenant "^ . '? '' '?'-';1 n . 224 Abatement . . . . , , . ib. Injunction . . *- '" . 226 Remedies in equity . i -/ . . ib. CHAPTER X. Of Extinguishment, Suspension, and Revivor. Extinguishment of rights in the sea . . . 277 in rivers ". : . 227, 228 Of rights of water ..'".". . . . 227 Fisheries . .^ . . 230 Privileges of mills . . . . . . 232 Watercourses 234 CHAPTER XI. Of Incidents to Rights connected with Water. Tolls on the sea ' -' i " . , . . 237, 240 On navigable rivers ' . . . . 240 Exorbitant tolls . . , ' . .243 Canal tolls . . . . . . 244 Dockage duties . . [1 *t ' . . 249 Rates . i v . . . .253 Rating fisheries . '. . . ... 254 Canal tolls, dock duties, waterworks, are rateable ^j . 255 Compensation duty rateable ... . 260 Where these rates are to be made, and in what proportions - . 261 Oftithes . ... . . .267 Tithes of fish . , . . . . ib. Fish in the sea . . . . . 268 in rivers . . . '. V .. , . 270 in private waters . V . ... 271 Tithes, where paid ii> \ . . . ib. Tithes in respect of mills > . , . P . 273 of what mills . . . -f. .- 276 where payable ., ... . . 285 How to prescribe against tithes fl$ at . it. xii Contents. PAGE. Settlement, in respect of mills . ; " ' . "* . 287 residence What mills give no settlement dower , .. : of fisheries of mills of canal tolls . New River shares -.- - Distress . : f ' Devise ' . . ' ib. ib. 289 ft 290 ib. 291 292 ib. CHAPTER XII. Of Indictments and Pleadings on the subject of Rights connected with Water. Indictments for obstructing navigation . '- ', ' . 294 Summary convictions . '!'- - 295 Indictments mills . .*" . 296, 297 Mill-pond jwfflv V> ^96 Watercourses . . . . .298 Pleadings respecting rights of navigation . . 299 Port duties . . '.'" - . 800 Fisheries . . _ . , . . 302 Continuando . . ' . . . 805 Pleas, fisheries . . ^ .g^ . ib. Replications . '--'* t ' 1) * . .307 Rejoinder . . ... . . 308 Trover fish 'n'-L . J ^- Pleadings, mills . "'." . . . 309 Watercourses r . *. t . .- . . 310 pleas, watercourses "*v '" ',, . . 320 CHAPTER XIII. Of Evidence. In indictments for obstructions of navigation . . 323 Fisheries, public ; '. ' .. .+* . . . 324 Private \ir#\* f tiwf . w *!- ^ ; - Summary convictions " . . . . ib. Breaking down fish-ponds , . . . >' . . ib. Miffs ..... 325 Watercourses . . . 326 In actions concerning rights connected with navigation . ib. Wreck . . . . . 330 Decoy ponds . '., , ~ . . ib. Port duties '-. \. .^ 331 In actions for calls . ib. Contents. xiii PAGE. Fisheries, public . . .332 Private ,-. .. .'. . 333 Mills . . . . . - 336 Watercourses . ', . !W . ib. Plea of judgment recovered . .: ., -, . . . .340 ADDENDA . - - - . 341 THE LAW OF SEWERS. CHAPTER I. Of Commissions of Sewers, and their Origin. Derivation of ' Sewer ' . ''' '^-'. . . 345 Origin of commissions '.". ; , ,? t . . 346 Commissions by statute .... 348 The great statute of 23 Hen. VIII. . . . 352 Duchy of Lancaster . ' . ' . . 353 Saving of fines t .- . . 354 Charges of commissioners . i T - . ib. Qualifications . . ib. Forfeiture for not being qualified . . . 360 Oath ,. . ,.- . . . . 359 Form of it . *' '. . . 360, n. Allowance of commissioners . . .361 Continuance of commissioners , , . 362 No certificate nor return of commission . . . 366 Demise of the crown does not determine commission 367 CHAPTER II. , - Of the Duties and Powers of Commissioners of Sewers. The commission ' ."- .. lt . . 370 Inquiry into annoyances . . ib. Assessment -V -j r . . "/. Repair . [W . . . . ib. Pulling down annoyances *. ' *. . ib. Appointment of officers . ." ib Distress for arrears ". .371 Taking labourers, &c. . v ''.' * . 16. xiv Contents. Making of laws . 371,372 Awarding of writs, &c. ib- Survey ... . ib. Compelling obedience to orders . . 372 Review of the commission . ib. Romney Marsh 374 Survey . '' ' 375 Walls . . .376 Streams and watercourses . . 377 Rivers ' ** Ditches " . . - 380 Banks . . . ' . ib. Gutters . ib. Sewers . .,_ ib. Gotes . ' . .383 Calcies . . ib. Bridges . . . 384 Trenches > - . 385 Annoyances Wjil* . , . ib. Outrageous springs - . . . ib. Mills and mill-streams , . " . ib. Wears, &c. '. .. * Jl . 386 Gotes, &c. . . . '. 'j ' ib. Hebbing-wears, &c. ' .'" : . . ib. Ponds . . . ib. Pools '. . ., . ib. Inquiry into the ownership of lands, and into defaults . 387 Repair, who liable to . . . 388 Person repairing must be benefited . ib. Frontage . . . 390 Use . . . . ib. Sewers . '. . . . 391 Prescription and custom . . V, , ; . ib. Covenant f . .'"_ . " . 393 Grant . . . ' . 393 Corporations, when liable . * ., 394 Townships . . . 395 Repairs, when to be made by the level . . 395 Ecclesiastical persons . . . 403 Lords of manors '' . '!'" K . ' . . ib. Copyholders . -*< * ' *,^ . ^ Reversioners ';.. . . ' . 494 Mortgagors . ,*;% . . . 405 Offices, &c. . -. . if, Annuitants . . ' . . ib. Tithes . . ' 406 " Goods . . . ' 4Qf Perpetual charge . z -j < Destruction of annoyances '. . 415 Private nuisances '*..- - ." Contents. xv CHAPTER III. Of the Proceedings of Commissioners of Sewers in furtherance of the powers intrusted to them. PAGE. They are a court of record . . . .421 Six form a court .... 422 Appointment of their officers . . ib. Officers punishable . . 423 Removal of officers . . . ib, Bond by them i, . . . 424 Jury . . . . 427 Surveyor's presentment . ';,. . 430 What presentments traversable :.t>". . a *^* Assessment, how made . . .431 Punishments by commissioners . . . 433 Fines . . . ib. Must be reasonable . . . 434 Fines, whether traversable . . . ib. Amerciaments . . . . 435 Imprisonment . . . . 436 Distress . . 438 Sale . . . 441 Replevin . ^ , . 442 Decrees of lands ... . 444 What lands to be sold . . . . 447 Who bound by the decrees . . . 448 To whom land may be decreed . . , . 449 Indictment ... . ib. No action of trespass . . ib. CHAPTER IV. Of the various Proceedings which may be had against Commssioners of Sewers. Certiorari . J ' . v . 457 Disobedience to the writ v . . . 457 Procedendo . . 453 Mandamus . . . . 459 Actions . . . . . 460 Notice of action . . . . . . 462 Injunction . . ^ J ib. ' FORMS AND PRECEDENTS. Law of waters . ... 465 Law of sewers . . .." . 478 ERRATA. Page 63, note (6) for Schulten, read Schultes ; note (e) for 3 Baize, 6 Hale, &c. read 3 Bulst. 6. Hale, &c. 303,/or Tho. Jures, read Sir Thomas Jones. 444,/or s. 13, reads. 12. A TABLE OF THE STATUTES CONTAINED IN THIS WORK. Hen. III. 9. (Magna Charta.) c. 15. (banks) (sewers) . 348 c. 16. (banks) . . .158 c. 30. (no toll upon the sea) 238 Ed. I. 3.( Westminster !.)( wreck). 11 c. 20. (fisheries) . .197 c. 31. (no toll on the sea) . 238 (Westminster 2.) . 13 c. 47. (salmon) 69. 82, 83. 181. 182 Ed. II. 9. (articuli cleri) . 108.267 17. c. 11. (whales, &c.) . 62 Ed. III. (sewers) . . .349 25. st. 4. c. 4. (wears) . . 155 (sewers) . . 349 27. c. l.(do.)(prsemunire) 366 459 31. st. 2. c. 1. (herrings) . 72 c. 2. (do.) . . ib. c. 3. (fish) . . ib. st. 3. c. l.(do.) . . ib. 35. (herrings) . ib. 45. c. 2. (wears) . . 156 (sewers) . . 349 Ric.II. 13. c. 19. (nets) 69. 82, 83. 182 15. c. 3. (wreck) . . 14 17. c. 9. (salmon fisheries) 68. 69.82,83.176.182 17. c. 19. (conservators of rivers) . . 68 Hen. IV. 1. c. 12. (wears) . . 156 (sewers) . . 349 4. c. 11. (wears) . . 156 Hen. V. 1. c. 2. (do.) . . . ib. (sewers) . . 149 Hen. VI. 2. c. 15. (nets) . . .175 3. c. 5. (River Lea) . 158 (sewers) . . 349 6. c. 5. (commission of sewers) 349. 369. 384 8. c. 3. (sewers) . . 350 PAGE Hen. VI. 9.c. 5. (Severn) . . 158 c. 9. (River Lea) . . ib. (sewers) . . . 349 18. c. 10. (do.) . . 351 23. c. 8. (do.) . . ib. Ed. IV. 12. c. 6. (do.) . . ib. c. 7. (do.) . . 349. 422 s. 3 & 4. (obstruc- tions to na- vigation) . 156 s. 5 & 6. (do.) . 157 22. c. 2. (salmons) . . 69 Hen.VII. 4. c. 1. (sewers) . .351 11. c. 17. (swans) . . 19 c. 23. (salmons) . 69 (herrings) . 84 19. c. 18. (Severn) . . 158 Hen. VIII. 6. c. 10. (sewers) . . 351 23. c. 5. (the bill of sewers) 174 s. 1. (preamble) .352 s. 2. (commission) . ib. s. 3. (power of com- missioners) 158. 353. 369 s. 4. (saving of fines) 354 (jury) . . 427 s. 5. (oath) . 360 s. 7. (making laws) 372 s. 8. (decreeing of lands) . 445 s. 9. (lands of the king bound) . ib. s. 10. (qualification of commis- sioners) . 354 s. 11. (avowry) . 444 s. 12. . ' . ib. s. 13. . . 362 s. 14. (Duchy of Lancaster) . 353 s. 15. (expenses of b Table, of Statutes. Hen. VIII. 23. c. 5. PAGE commissions) 354 s. 16. (continuance of commis- sions) . 362.365 s. 17. (continuance of laws) 362,363 s. 19.(certificatein- to chancery) 363 s. 20. (commissions Wales, Ches- ter.&c.) . 353 25. c. 10. (sewers) s. 1. (commissioners need not act out of the county where they live 360 s. 2. refusal to take the oaths) . ib. c. 18. (piles and fish- garths) . .177 31. c. 2. (fisheries) . 197 32. c. 34. (covenant to run with the land) . . 141 34 & 35. c. 9. s. 6. (obstruc- tions to naviga- tion) 149.161 Ed. VI. 2&3.C.6. (no licence for fishing) 180. 186 c. 13. (tithes) s. 7. (non deci- mando) . 277 s. 1 1 . (extent of act) . 268, n. 3 & 4. c. 8. s. 2. (sewers) (fees) continuance of commis- sions).. 362.372. 438 Mar. 1 . 1 . sess. 3. c. 1 1 . Glamorgan- shire sea sands s.l. 372, n. 415 Eliz. 1. c. 17. s. 1. (salmon) . . 64 s. 2. (size of fish) . ib. s. 3. (exceptions) 64, 126 s. 4. (do.) . ib. ib. s. 5. (penalty) . 64 s. 6. (jurisdiction) . 65 s. 7. (forfeiture) . . ib. s. 8. (do.) . . ib. 5. c. 5. s. 4. (herrings) . 72 (fish) . . 63 s. 6 & 7 (do) . . 84 c. 21. (fisheries) . . 197 13 c. 9. s. 1 . (sewers) (continu- auceof commissions) 363. 366 9. 2. (continuance of laws) . 363. 366 Eliz. 13. c. 9. s. 3. (justices of peace) . . 364 s.4. (qualification of commissioners) 355 s. 5. (certificate) . 366 s. 6. (fines) . 354. 423, n. s. 9. (decree of lands) 445 18. c. 5. (prosecutions qui tarn) 361 22. c. 4. (swans) . . 17 27. c. 24. (sea banks) . 21 31. c. 5. (prosecutions qui tarn) 361 43. c. 4. (charitable uses) . 407 Jac. I. 1 . c. 23. s. 3 & 4. (balkers) 130, 131 3.c. 12. s. 1 4. (nets) . 125 (sea fish) . 70. 383. 384, 385 c. 14. s. 1&2. (jurisdiction of sewers) . 379 7.c. 18. (sea sand) . 24 Car. 1.3. c. 4. (preservation of fish) . . 64 Car. II. c. 2. (sewers) . 383 13 & 14. c. 28. s.l. (pilchards) 84 s.3,4&5.(do.) 84, 85 15. c. 16. (Herrings. Newfoundland fisheries) 84, 85 16&17.C. 8. (jeofails) . 304 22 & 23. c. 25. (fisheries) . 197 30. c. 9. (Severn) 70. 187 Gul. III. 2. sess. 2. c. 8. s. 14. (new sewers) 382 4&5. c. 13. (gamekeep- er) repealed 196 c. 17. (whale fish- eries) . 85 c.23. (fisheries) 196,197 6&7. c. 16.s. l.(Thames) 35, n. 159 s. 1 9. (ratesof naviga- tion) . 244 10& 11. c.l. (River Tone) 158 c. 24. (Billingsgate) s. 18. . 72 s. 10. (toll) 73 s. 11. (mono- poly) ib. s. 15. (cod and ling duty ib. c. 25. (Newfoundland fisheries) repealed . Anne l.st. 1. c. 16. (whale fisheries) 85 4. c. 15. (Essex and Suf- folk fishery . 63 c. 16. (jeofails) s.l; 2. 304 Table of Statutes. xix PAGE Anne 1. st. I.e. 21. (Southampton and Wilts) 63. 83 s.5. (miller's scuttle) 134, 135 7. c. 10. s. 1 & 2. (sewers) 448 c.16.8. 3. (do.) . 438 9. c. 26. (Thames and Medway)68. 186,187 a. 2. (unsizable fish : season for sal- mon) . .69.82 i. 3. (unsizeable fish Billingsgate) . 73 s. 5&6. (sale offish, &c.) . . . ib. Geo. 1. 1 . st. 2. c. 5. s. 6. (riot act) rep. 260, n. c. 6. s. 14. (salmon) . 82 c.18.8.4. (sea fish) 64, 65.125,126 s. 7. (size of fish) 74 s. 14. (forfeiture) 64, 182 s. 18. (ancient wears) . 159 9. c. 22. (black act) rep. 197. 202 I3.c. 26. (Scotch fish- eries) . . 85 c.30. (do.) . ib. Geo. II. 2. c. 19. (oysters) . 68 9. c. 33. s. 4. (lobsters) . 84 13. c. 17. (exemption from impressment) . 180 19. c. 22. (obstructing havens, &c. rivers, &c.) . 161 5. 18. 150. 153, 154 22. c. 46. (rates of navigation) 244 c. 49. (Westminster fish market) . . 74 23. c. 16. s. 7 & 8. (oysters) . 68 23. c. 24. (herring fishery) 84 c. 26. s. 7. (River Ribble) 82 s. 8. (do.) . ib. 24. c. 44. (justices) . 185 26. c. 9. (herring fishery) 84 28. c. 14. (do.) . . 84 29. c. 23. (Scotch fisheries) 85 c. 39. (Westminster fish market) . . 74 30. c. 21. (Thames fishery) 68.183 s. 1. . 82.126 s.2. . . 69 8. 5. . 69. 127, 128 .6. . . 128 s. 10. . 128 Id. s.l 16 . 183.185 s.15. 17,18. 21. 186 PAGE Geo. 11.30. c. 21.8. 19,20. . 137 31. c. 29. s. 29. (adulteration of corn) . 139 s.31,32.34. (do.) 140 33. c. 27. (fish market) 70. 74 s. 13. (salmon) 64. 68 s. 15. (fish market) 66 s. 16. (inhabitants witnesses) ib. Geo. III. 2. c. 15. (fish market) s.l 21. . . 75 78 s.25. (deserter in fishing ship) 181 s. 26 35. (fish market) 78 80 s.37. (do.) . 80 c. 50. (southern fishery) 8,5 5. c. 14. (fisheries) . . 197 9. c. 29. (do.) . * . 204 11. c. 27. (Tweed fisheries) . 64 c. 31. (herring fishery) exp. 84 c. 38. (whale fisheries) rep. 85 12. c. 58. s. 6. (herring fish- ery) exp. . 84 1 3. c. 72. (fish) . . 85 c. 78. (highway act) s. 27. (materials) 163. 220 s. 28. (sea beach) . 21 s. 31 . ( pits in rivers) 1 64 s. 33. (mills) . 205 c. 31. s. 2. 7. 12. 13,14. 17, 18. (Newfound- land fisheries) rep. by5G.4.c.51. 85 c. 46. (Tweed fisheries) . 64 16. c. 36. (pilchard fishery) . 85 26. c. 26. ( Newfoundland fish- eries) rep. by 5 G. 4. c.5l. . . ib. c. 36. (River Ribble) . 68 c. 41. s. 7. (impressment) 180 s. 16 & 17. (whale fisheries) exp. . 85 c. 81. (Scotch fisheries) . ib. c. 106. (do.) . . ib. 27. c. 10. (herring fishery) . 84 28. c. 20. (southern fishery) . 85 c. 35. (Newfoundland fisheries) . . ib. c. 81. (herring fishery) . 84 29. c. 53. (whale fisheries) . 85 c. 57. (Newfoundland fish- eries) s. 1. rep. by 5G.4.C.51. . . ib. 30.C.54. (Westminster fish market) . . 74 31. c. 43. (pilchard fishery) 85 c. 59. s. 11. (local act) . 107 b 2 XX Table of Statutes. Geo. III. PAGE 32. c. 22. (whale fisheries) . 85 c. 80. (canal act } . 42 33.c. 42. (Whitstable fishery) 188 c. 76. (Newfoundland fish- ery) . . 85 35. c. 52. (canal act) . 44 c. 56. (herring fishery) . 84 c. 92. (southern fishery) . 85 36. c. 85. (millers.) s.l 3; 8,9, . 138 s .4_7. . . 136 c. 118. (Billingsgate mar- ket) s. 13. . 78. n. 37. c. 48. (Tweed fisheries) . 64 c. 95. (salmon) . . 68 38. c. 57. (whale fisheries) . 85 39. c. 69. s. 137. (West India Dock Com- pany) . 252 c. 100. (herring fishery) 84 39 & 40. c. 47. s. 151. (London Dock Act) 50 41. c. 99. s. 1 3. (bounties : fish) . 80 42. c. 22. (whale fisheries) . 85 c.77.(do.) . . ib. 48. c. 61. (pilchard fishery) . 68 c. 90. (whale fisheries) . 85 c. 124. (do.) . . ib. 44. c. 35. (do.) . . 85 c. 45. (Tweed fisheries) . 69 45. c. 45. (fisheries) . ib. c. 64. (bounties : fish) . 81 c. 102. (pilchard fishery . 85 46. c. 9. (whale fisheries) . ib. c. 19. (Pembrokeshire fisheries) . . 69 47. c. 29. (Tweed fisheries) . 64 c. 72. s. 34. (waterworks) 53 48. c. 34. (southern fishery) . 86 c. 68. (pilchard fishery) . 85 c. 110. (Scotch and her- ring fisheries) . 84, 85 c. 144. (oysters) rep. . 201 50. c. 108. s. 2. (impressment) 178 s. 5. (seamen fishery) 180 s. 6 St. 7. (do.) 179.181 51. c. 34. (whale fisheries) . 85 c. 60. (Bristol and Taunton Navigation Act) . 332 c. 101. (herring fishery) . 84 52. c. 163. (do.) . . ib. 53. c. 111. (whale fisheries) . 85 54. c. 159. (obstructions to na- vigation) s. 11 25. 150. 152 s. 27,28. . 153 Geo. III. PAGE 55. c. 39. (whale fisheries) . 85 c. 43. s. 2. (salmon) . 83 c. 45. (whale fisheries) . 15 c. 94. (herring fishery) . 84 67. c. 29. (local act) . 462 c. 69. (Irish fisheries) . 85 58. c. 15. (whale fisheries) . ib. c.43. (fish)s. 1. . . 68 s. 3. (nets, &c.) . 176 s. 4. (salmon) 64,65.82.83 s. 6 16. (fish) . 65.68 c. 94. (Irish fisheries) . 85 . 59. c. 38. (Newfoundland fisheries) . ib. c. 109. (Irish fisheries) . ib. Geo.IV.l.c. 33. (Greenland fishery) 341 c. 82. (Irish fishery bounties) ib. c. 103. (bounties, fish) . 341 3. c. 104. (Greenland fishery) ib. c. 112. (Irish fishery) . ib. c. 126. (turnpike act) s. 97. (road materials) 163 s. 99. (pits in roads) 164 s. 103. (reducing of tolls) . 249 4. c. 54. (fish) 197. 199. 202 c. 95. (turnpike act) s. 37. (trustee) . 48 5. c. 51. (Newfoundland fish- ery) . . 341 c. 64. (Irish fishery) . ib. 6. c. 107. (customs act) s. 52. 71 7 & 8. c. 27. (repealing act) 196, 198 c. 29. s. 18 20. (wrecked goods) 17. 20 s. 34. (boundary of parish) . 198 s. 35. (seizing nets) 196 s. 36. (oysters) . 201 c. 30. (malicious injuries act) s. 2. (mills) 203, 204 s. 8. (pulling down mills) 204. 296 s. 11. (wrecked ves- sels) . 17, n. s. 15. (fish-pond) 201. 204. 296 7. c. 34. 47. (Irish fishery, bounties) . 341 c. 64. (criminal justice act) s.18. (sewers) 449 9. c. 39. (Scotch fisheries) 341 10. c. 17. (Newfoundland fishery) . ib. c. 33. (Irish fishery) . if>. GENERAL INDEX OF CASES. A. ABBOT of Peterborough's case .... 26 Ramsay's case 23 St. Austin's case 33 Adley v. Reeves 188 Admiral, The Lord, v. Linsted .... 14 Agar v. Morgan 46 Aire andCalder Navigation, Rex v. 261. xxx i Alant v. Janen 112 Alder v. Savill 123.147 Alderman de Londres v. Hasting . 89 Allen v. Carter [Sewers] 456 Annesley, Rex v 196 Anonymous [ Fishery, several] 90 [Fish-pond privilege] 96 [Fishery mooring of ship] .. . . 131 [Obstruction of navigation] .... 170 [Ancient mill] 211 [Injunction watercourse] 224 [Tithes of fish] 268. 270 [Tithes of mills] 278 [Number of fish pleading] .... 303 [Taking accounts sewers].... 423 [Refusal of distringas'] [sewers] 439 [procedendo] [sewers] 455 [Objection to return of certiorari\ [sewers] i)>. [Removing orders] [sewers] . . . 456 Ansell v. Adman 277 Anselm v. Barnard [sewers] 388 Apsley, Rex v. [sewers] .... 456, 457 v. Armstrong 256 Arthur v. Commissioners of Sewers in Yorkshire [sewers] .... 424. 454 Atkins v. Davies 261 Attorney General v. Erittain 163 PAGE Attorney General v. Brown 54 Farmer, Sir E. 26 Johnson .... 174 May or of D ub- lin 54 Philpot 172 Mayor of Ply- mouth 167 Richards, 25. 172. 329 Turner, Sir E. 26 Austen v. Nicholas 371 Austin, Abbot of, case 33 Austye v. Fawkener 391 Ay lett v. Charlesworth 112 B. Back ex parte 53 Bagottv. Orr 62.307 Baker v. Hercy 97 Ball v. Herbert 8. 129 Partridge [sewers] . . 452, 453 Balston v. Bensted 1 19. 207 Banks and Arthur, Rex v. [sewers] 424 Banne, case of the piscary of the ... 60 Bath, Mayor, &c. Rex v 262. 265 Bealey v. Shaw 207. 215. 338 Bell v. Partridge [sewers] 452 Benett v. Costar 303 Beswick v. Combdon 223 Biccot v. Ward 209.316 Biddleford v. Onslow 223 Biddulph v. Ather 330 Birkett v. Crozier [sewers] 429 Birmingham Canal Company v. Hawkesford 43 Rexv. . 2.J7 XX11 Index of Cases. PAGE Bishop, Rex v. [sewers] 459 Blackett v. Smith 253 Blakemore v. Glamorganshire Ca- nal Company 45. 50 Blundell v. Catterall 2. 7. 20. 130 Boothby v. Morton .... 50 Borlase v. Batten 273 Boston Corporation, Rex v 241 Bourne's case 15 Bow v. Smith [sewers] 432 Bradbury v. Grinsell 208 Breedon v. Murphy [sewers] 462 Brent v Haddon 317 Bressey v. Humphreys 310 Brett v. Cumberland 142 Bridger, q. t. v. Richardson 71 Bridgewater, Duke of, Trustees of, Rexv 265 Bristol Dock Company Directors, Rexv 51 City v. Morgan 172 Dock Company, Rex v. [sewers] 368. 419. 460 and Taunton Navigation v. Amos 332 Brittain v. Cromford Canal Com- pany 245 Attorney General v 163 Brocke, ex parte 180 Bromley and East Marsh Inhabi- tants, case of [sewers] 456 Broughton v. Manchester Water- works Company 54 Browne, Lady, case of 236 Brown, Valentine, case of 23 v. Best.. 142. 206. 219.312.320 v. Hamond [sewers] .... 447 Attorney General v 54 Brucklesbank v. Smith 162 Brungy v. Lee [sewers] 422 Brewster, The Protector v. [sewers] 434. 438. 458 Buckeridge v. Ingram 291 Bugby v. Hall 170 Bulbrook v. Goodere 69.127 Bulstrode v. Hall 35 Bush v. Western 120. 195. 225 Bushey's case 23 Butler, Rex v. [sewers] 452 Butley Inhabitants, Rex v 287 C. Calder Navigation Proprietors, Rexv 256 Cann, Sir R., Rex v. [sewers] .... 458 Capel v. Buszard 292 Caradice, Rex v 197, n. PAGE Cardington Inhabitants, Rex v. . .. 261 Carleton v. Brightwell 274 Carlisle, Mayor, &c. of, v. Blamire 226. 340 Carlyon, Rex v 255 Carrington v. Taylor 34. 331 Case of Commissioners of Sewers for Yorkshire [sewers] 454 of Level of Hull [sewers] 432 Chad v. Tilsed 328 Challenor v. Thomas 22 1 . 235 Chamberlayn v. Newte.. 274. 276. 278 Clifton 274 Plympton ib. Chapman v. Flexman . .. 110. 112. 309 Pilcher 286 Chester Mill case 157 Child v. Greenhill .. 91.94.98. 192. 196. 304 Chinnery v. Fisher 102 City of London v. Greyme 232 Clark, Rexv 159.171.323 Colton v. Smith 239 Combs v. Cheny [sewers] 442 Commins v. Massam [sewers]. 366. 393 Commissioners of the Fens, Rex v. [sewers] 453 Commissioners of Sewers for Essex, Rexv 401 v. New- burg 396.432 Rex and Day v. 401 for Lin- colnshire, Rex v 454 for So- merset, case of [expiration of commission ] 363. 365 for So- merset, Rex v. [new wall inevi- table accident] 399 [Jury] 428,429 [Rate] 460 for the Tower Hamlets, Rex v 409 Wilmore431. 453 for York- shire, case of 454 Congleton, Mayor of, v. Pattison.. 147 Conisby's case [sewers] 395 Conservators of the River Tone, Rexv 158 Constable's case 15. 20 Cooke v. Derby 275 Cooper v. Barber 144,145 Coppard v. Page 272 Corden, Rex v 296 Index of Cases. \xiii PAGE Corporation of Romney's case .... 23 Cort v. Birkbeck 113. 336 Cory ton v. Lithebye 111. 203. 309 Cottel v. Luttrel 211.316 Courtney v. Bower 16 Collet 142. 222 Cranley Parish v. St. Mary Guilford Parish 287 Crunden, Rex v 7 Currier v. Cryer 233 Custodes, &c. v. Outwell Inhabi- tants [sewers] 396. 427, n. 429 D. Daman, Rex v 296 Danderidge v. Johnson 284 Davies, Rex v 72 Davis v. Morgan xxxi Dawes v. Huddleston 270 Day v. Commissioners of Sewers 401. 454 Debenham v. ; Bateman 210 Dersingham Inhabitants, Rex v. .. 286 Devonshire, Earl of, v. Gibbons [sewers] 394 Digges v. Haruond 23 Dimock's case [sewers] 412 Dodderhill Inhabitants, Rex v. ... 288 Dodson v. Oliver 274 Doe. d. Fisher v. Giles 313 Donalt v. Lowther 274 Dore v. Gray [sewers] 382 Dorset, Duke of, v. Girdler .. 195.225 Douglasand Aston Navigation Com- missioners, Rex v 229 Drake v. Wiglesworth .. 112.115.234 Dry butter v. Bartholomew 291 Dudley Canal Navigation, Rex v. . 258 Duncombe v. Randall 142 Dyer, The Queen v 298 Dyson v. Collick 47 E. East London Waterworks Com- pany v. Bailey 53 Edgar v. Miller 34 Edwards, Rex v 295 Egremont, Lord, v. Pulman . .. 220, n. Ellis, Rex v 103. 255 Ely, Isle of, case 163 Essex Commissioners of Sewers, Rex v 401 : [sewers].... 388.395.414 Evelin Parish v. Rentcomb Parish . 287 Exeter, Mayor of, v. Trimlet 239 F. Fallowes v. Taylor 173 Farmer, Sir Edw., Attorney Ge- neral v 26 Farmers of Hampstead Water, case of 321 Farr v. Crisp [sewers] 440 Farrington's case 204. 296. 525 Fennings v. Grenville 58 Fens, Commissioners of, Rex. v. . . . 453 Fentiman v. Smith 119.315 Fenton v. Boyle [sewers] 444 Finch v. Birmingham Canal Com- pany 43. 257, n. v. Resbridger 120 Fishing in the river Thames, case of 1 75 Fishlake's case 12 Fitzjames v. The master of St. Mark [sewers] 391 Fitzsimons v. Inglis 318. 337 Fitzwalter, Lord, his case 332 Fitzwilliams's case [sewers] 404 Foiston v. Cracthrode 102 Folkes v. Chad 328, n. Fontleroy v. Aylmer 304, 305 G. Gaby v. Wilts and Berks Canal Company 45 Caches v. Haynes 275 Geere v. Burkensham 16 Gibbs v. Woolliscott 100 Gildart v. Gladstone 251 Gile's case 313 Gill v. Dunlop 86 Gillon v. Boddinglon 50 Gilpin v. Cookson 290 Gipps v. Woollicot 92. 95. 100 Glamorganshire Canal Company, Bex v 247 Justices Rex. v. .. 249 Glynne v. Nicholls 31 2. 314 Godfrey's case [Sewers] 430 Goodwin v. Smith 280 v. Wortley 283 Goslin v. Horden 269. 272 Gould v. Arthur 268. 271 Gramvel v. Rhobotham 309 Grand Junction Canal Navigation, Rex v 258 Gray v. Bond 130.134.328 v. Chaplin 46 Greasley v. Codling 173 Imlc.v of Cases. PAGE Green v. Robinson 111. 205 Rex.v 171 Greenslade v. Halliday 224 Greye's case 97 Griffith's case [sewers] 398 Griffiths v. Marson 318. 337 Grosvenor, Lord, Rex v 160 Guernsey, Lord v. Rodbridges . .. 339 Gamble v. Folkingham 282 Gumley v. Falkingham 275. 282 Guy v. Brown 224 Gwavas v. Kelynack 268. 273 v. Teage 273 Gwy dir, Lord, ex parte 329 H. Haddock, Rex v 162.294 Hall v. Machett 276 v. Mason [Sewers] 417 Hamer v. Raymond 300 Hamilton v. Donegall, Marq. of . . 190. 300, n. v. Stow 243 Hammersmith Inhabitants Rex. v. 288 Hampstead Water Farmers' case . . 321 Harbin v. Green 115 Harden v. Smith 252 Harmond v. Pearson 1 63 Hart v. Hall 285 Haspurt v. Wills 240 Haward v. Bankes 145 Haynes,Rexv 138.298 Heart v. Commissioners of Sewers . 455 Hebblethwaite v. Palmes 211. 315 Hely v. Raymond 306 Henley v. Magor, &c.of Lyrae [sew- ers] 394. 399, n. Herbert v. Laughluyn 193 Heshord v. Wills 240 Hetley v. Boyer [sewers] 366. 438. 457 Hewlins v. Shippam 119 Heal v. Reynolds 305 Hicks v. Triese 277.283 Hide, Rex v. [sewers] .. 378. 418. 449 Higges v. Gardener Ill, 112 Hilton v. Lord Scarborough 225 Hind v. Manfield 163 Hix v. Gardiner 111.310 Hoare v. Dickinson 322 Hogarth v. Jackson 59 Holder v. Coates 37 Holland v. Heale 269 Hollis v. Goldfinch 48. 329, n. Holmes v. Holmes 123 Home, ex parte 49 PAGE Homedon v. Pain 210 Hovel v. Reynolds 303 Howard v. Wright 217 Huddersfield Canal Company v. Buckley 41 Hughes's case 293 Hughes v. Billinghurst 278 Hull Dock Company, Rex v. . 257. 206 Level, case of [sewers] 432 Hungate's case [sewers] 456 Hunger's case [do.] ib. I. &J. Jackson v. Savage 312 Jacob v. Jansen 86 Jake's case 274. 278 Jebbv. Povey 340 Johnson v. Barrett 20 v. Dunridge 279,280 Att. Gen. v 174 Jones v. Bird [sewers] 462 Ipswich Inhabitants v. Browne . .. 133 Isle of Ely, case . . . 163 [Sewers] 388.395.414 Juxon v.Thornhill 159 K. Keble v. Hickringill 34 Keblethwaite v. Palmes 211 Keighley's case [sewers] 374. 398 Kemp v. Gord 114,115 Kent Canal Company v. Robinson . 42 Kerrison v. Sparrow [sewers] .... 463 Kidden v. Edwards 278 Kingswinford Inhabitants, Rex v. . 258 Kinnersley v. Orpe 94 [Proof of Notice, &c.] 200 Knighton Inhabitants, Rex v 287 L. Lacon v. Hooper 85, 333 Leech, The Queen v 155 Leeds and Liverpool Canal Com- pany v. Hustler 246 Rex v. 258. 261 Lees v. Manchester Canal Naviga- tion 248 Leigh v. Burley 6 Leveridge v. Hoskins.. 222. 300, n. 316 Lincolnshire Commissioners of Sew- ers. Rex v 454 Lisle v. Brown 199 . Index of Cases. PAGE Littledale v. Scaith 59 Liverpool Docks Trustees v. Glad- stone 250 Lloyd v. Wigney [sewers] .... xxxi Lluellin, &c. Rex v. [sewers] .. .. 367 London, City of, v. Greyme 232 Dock Acts, Commissioners, Mayor of, Rex v 262 Rexv 52 Mayor of v. Hunt 23& Londonthorpe Inhabitants, Rex v. 288 Long v. Dircel 268 Lonsdale, Earl of, v. Nelson 302 Lower Milton Inhabitants, Rex. v. xxxi Luttrel's case 236.316 Lynn, Mayor of, v. Turner 32. 219. 223. 320 M. Macdonald, Sir Archibald, Rex. v. 263 Maiden, Mayor of v. Coates ...... 1 70 Mallinson, Rex v 290 Manchester Mills case 113 and Salford Water- works, Rex v 267 Manby v. Taylor 282 Manning v. West India Dock Act Commissioners 53 Masters v. Scroggs [sewers] 389 Matson v. Scobell 242 Matthews v. West London Water- works Company 54 Mayor of Bath, Rex v 262 Carlisle v. Blamire . 236. 340 Congleton v. Pattison .. 147 Dublin, Att. Gen. v 54 Exeter v. Trimlet 229 London v. Hunt 239 Rex v 262 Lynn v. Turner 32. 219. 223. 320 Maiden v. Coates 170 Nottingham v. Lambert 241 Orford v. Richardson 61. 308 Scarborough v. Skelton . 206 Yarmouth v. Eaton 239. 301 York v. Pilkington 195 Mellefont, Abbot of, his case [sew- ers] 434 Mellor Inhabitants, Rex v 289 Mersey and Irwell Navigation Pro- prietors v. Douglas . . . 300. 314. 317 Rexv. 265 Mildmaye, Sir A. Rex v. [sewers,] 458, 459 Miles v. Rose 33. 326, 327 PAGE Milton Rex v 263 Min worth, Inhabitants, Rex v. .. 287 Molineux v. Molineux 193 Monmouthshire Canal ^Navigation v.Kendall 246 Montague, Rex v 230 Moore v. Browne 223. 311 Morgan v. Evans 220 Murgatroid v. Law 219. 321 N. Netherton v. Ward, [sewers] 403. 409 Newcastle, Duke of, v. Clark [sew- ers] 450 Newcastle, Town of, v. Johnson ..172 Newport v. Nevil 12 Newton and Tyd Vills, case of 412 New River Company, Rex v 265 Newton v. Chamberlain 277 Nicholas v. Elliott 271 Nicholson, Rex v 261 Norfolk, Duke of v. Myers 114 Norwich and Lowestoft Navigation v. Theobald 42 Nottingham, Mayor of, v. Lambert 241 Nulmes v. Heblethwayte 212 Old Alresford Inhabitants, Rex v. 92. 193.286 Oldbery Inhabitants v. Stafford [sewers] 388.418.437.453 Oldsworth, Rex v 26 Ord & others, appellants, Buck & others, respondents 113 Orford, Mayor of, v. Richardson 61, 308 Outwell, &c. Inhabitants, Custodes, &c. v. [sewers] 396. 427. 429 Ovell v. Langden 305 Owst, ex parte [sewers] 450 Owen v. Dunch 97 Oxford Canal Navigation, Rex v. . . 260 P. Page, Rex v 261 Pain, v.Evans 277,278 Palmer v. Kebelthwayte 211. 312 Rexv 263 Palmes v. Kebelthwayte 211 Parmeter v. Attorney- General 172. 329 Parson of Sutton's case 20 Partheriche v. Mason 1 65 Index of Cases. PAGE Patrick v. Greenway .... 192.303. 334 Partridge v. Bere 313 Paton v. Brebner 122 Payne and Thoroughgood's case .. 179 Peak v. Tucker 98.100 Peck v. Turner 98 Pen, Rex v 341 Pepyn v. Busline 312 Peter v. Kendal 133 Peterborough, Abbot of, case .... 26 Petre, Lady, v. Clarkson 1 14 Philpot, Att-Gen. v 172 Pi Ikington v. Webster 114 Playter's Case 303 Polev. Jonson 242 Polixphen v. Crispin 96 Pollexfen v. Crispin 96. 304 Portmore, E. of v. Bunu 1 22 Rex v 263 Power v. Portman 16 Pratt'scase 179 Pratt, Rex v. [sewers] 425 Prescott v. Phillips 214. 338 Presley v. Hurofries 310 Preston v. Mercer 142 Prickman v. Trip 313 Prideaux v. Warne 239 Prince v. Moulton 143 Pritchard v. Stephens [sewers] . . 444 Protector, The, v. Bruster .... 434. 438 [sewers].. 458 Q. The Queen v. Constable, Sir John 13 v. Dyer 298 v. Leech 155 Westham Inhabitants [sewers] 415 R. Raikes v. Townshend 224 Ramsay, Abbot of, case 23 Rayl and Mannings case [sewers] . 456 Reeve v. Digby 96 Regent's Canal Company, Rex. v. 258 Rexv. 1 Show, 392 73 Aire and Calder Navigation 261. xxxi Annesley ] 96 Apsley [sewers] .... 456,457 Banks and Arthur [sewers] 424 Bath Corporation .... 262. 265 Birmingham Canal Com- pany 257 Bishop [sewers] 459 Boston Corporation 241 PAGE Rex v. Bristol Dock Company Di- rectors 51 Bristol Dock Company [sewers] 868.419.460 Burdett 136 Butler [sewers] 452 Butley Inhabitants 287 Calder v. Hebble Naviga- tion Proprietors 256 -Cann,SirR 458 Caradice 197, n. Cardington Inhabitants . . . 261 Carlyon 255 Channel 137 Clark 159.171.323 Commissioners of the Fens [sewers] 453 Commissioners of Sewers for Somerset [new wall] [sewers] 399 Corden 296 Crunden 7 Daman 296 Davies 72 and Day v. Commissioners Sewers 401. 454 Dersingham Inhabitants . . . 286 Dodderhill Inhabitants. . . . 288 Douglas and Aston Navi- gation Commissioners . . . 229 Dudley Canal Navigation. 258 Edwards 295 Ellis 103.255 Essex Commissioners of Sewers 401 GlamorganshireCanal Com- pany 247 Justices 249 Grand Junction Canal Pro- prietors 258 Green 171 Grosvenor, Lord 1 60 Haddock 162. 294 Hammersmith Inhabitants 288 Haynes 138.298 and Heart v. Commissioners of Sewers for Lincolnshire 455 Hide [sewers] . . . 378. 418. 449 Hull Dock Company. 257 [poor's rate deducted] .... 266 Kingswinford Inhabitants.. 258 Knighton Inhabitants .... 287 Leeds and Liverpool Canal Company 258. 261 Lincolnshire Commissioners of Sewers 454 Lluellin, &c. [sewers] .... 3G7 London, Mayor of 262 Londonthorpe Inhabitants . 288 Index of Cases xxvii PAGE Rex v. Lower Milton Inhabitants xxxi Macdouald, Sir Archibald . 263 Mallinson 296 Manchester and Salford Waterworks Company . . . 267 Mellor Inhabitants 285 Mersey and Irwell Naviga- tion 269 Mildmaye, Sir A. [sewers]458.459 Milton 263 Minworth Inhabitants .... 287 Montague 230 New River Company 265 Nicholson 261 Old Alresford Inhabitants 92. 193. 286 Oldsworth 26 Oxford Canal Navigation.. 260 Page 261 Palmer 263 Pen 341 Portmore, Earl of 263 Prat [sewers] 425 Regent's Canal Company 258 . -Ridley 296 Rochdale Waterworks Com- pany 262 Russell 170 Sadler 199 St. George, Middlesex, In- habitants 260 St. Peter the Great in Wor- cestershire Inhabitants .. 259 Sailer's Load Sluice Navi- gation 256 Sculcoate's Churchwardens 256 Smith [River Thames] ... 36 [sewers] 367. 457 Somersetshire Commission- ers of Sewers, Rex. v. [sewers].. 399. 428. 429. 460 Sorill 299 Staffordshire and Worces- tershire Canal Navigation 261 Stanton 171 Tardcbigg Inhabitants 288 Thomas 265 Tone River Conservators.. 158 Tower Hamlets Commis- sioners of Sewers 409 Trent and Mersey Naviga- tion Company 263 Trinity House 35 Trustees of the Duke of 265 Bridgewater 265 Turner 201 Vachel 378 PAGE Rex v. Wadsworth 135 Walford 201 Watts 162 Weaver River Navigation . 265 Wetwang t 91.295 Wetwine 91 Wharton 36.164 White 254 Whitstable Free Fishers, &c. 341 Wbittaker [sewers] 296 Wilson and others 200. 204. 298 Winstanley 251 Wood 137 Wright [sewers].... 388.454 Yarborough, Lord 27 Rey nell v. Cbamperuoon 196 Reynolds v. Clarke 145, 222 Richardson v. Capes, Add. 341 Mayor, &.c. of Or- ford 98. 308 v.Walker 336. Add. 341 Attorney General v. 25. 172. 329 Richardsv.Hill 316.319 Ridley, Rex v 296 Roberts v. Read 50 Rochdale Waterworks Company, Rexv 262 Rogers v. Allen 61. 98. 231. 292. 335 Rolfe v.Rolfe 223 Romney Corporation case 23 Rooke's case [sewers] 350. 409,410. 443 Rase v Miles 161 Ross's case 202 Ross v. Windsor 279,280 Russel v. Handford 210 Russell v. More 275 Rexv 170 Rutland, Earl of, v. Bowler 211 S. Saint Katharine Dock Company, in the matter of 53 Sadler, Rex v 199 Saint George, Middlesex, Inhabit- ants Rex v 260 St. Peter the Great, Inhabitants, Rexv 259 Sailer's Load Sluice Navigation, Rex v 256 Sands v. T refuses 211. 315 Sapcotts v. Grantham [sewers].. .. 410 Sargent v. Reed 239 Saunders's case 16 Saunders v. Newman .... 213. 315. 338 xxviii Index of Cases. PAGE Saunders v. Taylor [sewers] ..... 425 Say well v. Thorpe 96, n. Scales v. Pickering 53 Scarborough, Earl of, v. Hunter . , 270 , Mayor and Burgesses of, v. Skelton 116.206 Schroeder v. Smith 252 Scoble v. Skelton 312 Sconie's case 277 Scratton v. Brown 27. 95 Sculcoate's Churchwardens, Rex v. 256 Seigneur, Admiral, v.Linsled 14 Seigneur de Dunbarr's case [sewers] 454 Seintley v. Bendel 110 Seymour v. Lord Courtney 93. 99 Shand v. Henderson 46 Shandrigany Vill v. Shoedam Vill [sewers] 347 Shaw v. Wrigley 317 Shears v. Wood 319.337 Sheppard v. Gosnold 16 v. Penrose 269 Sbury v. Piggot 235 Simpson v.Bith wood 17 Skinner v. Chapman 59 Sly v. Mordant 142 Smart v. Corporation of Dundee . . 27 Smith's case [watercourse indict- ment] 220 [sewers] 367.457 v. Kemp 91.95.99 Rex v. [River Thames] ... 36 v. Stafford 49 [sewers] 367 Snape v. Dobbs 107 Somerset, Duke of, v. Fogwell .... 106 Somersetshire Commissioners of Sewers, case of, [sewers] [expira- tion of commission and decrees] 363. 365 [jury] 423,429 [rate] 460 Sorill, Rex v 299 Stafford v. Hamston [sewers] 389. 409 Staffordshire and Worcestershire Canal Navigation v. Proprietors of Trent and Mersey Navigation. 247 Rexv 261 Stamford, Lord, v. Luke 270 Stanton,Rexv 171 Steinson v. Heath 242 Stone v. Bromwich 312 Struttv. Bovingdon 215. 339 Sury v. Pigot 231. 235 Sutton, Parson of, his case 20 Poolcase 106 PAGE Swans, the case of 18 Swatman v. Bonner 269 Swayne v. Falkener 291 Syson v. Johnson 165 [sewers] 390 T. Talbot v. May 282 Tanner v. Kirkham 277 Tardebigg Inhabitants, Rex v 288 Taylor, ex parte [sewers] 459 Teynham, Lord, v. Herbert 195 Thames Tunnel Company v. Sheldon 42 Thirsby v. Warn and another 367 Thomas v. Price 275. 280 Rexv 265 Thompson v. Field 269 Thorne and Tyler's case [sewers] . . 440 Trent and Mersey Navigation, Rexv 263 Trimlet, Mayor of Exeter, v 239 Trinity-House v. Clark 243 v. Sorsbie ib. Rexv 35 Turner, Rex v 201 U and V. Vachel, Rex v. [sewers] 378 Valentine Brown's case 23 Ubiv.Lux 284 Vaughan v. Mansel 115 Velthasen v. Ormsley 173 Vinkensterne v. Ebden 239. 301 Vivian v. Blake 99 Vooghtv. Winch 218. 340 Vowles v. Miller 311.314 Upjohn v. Dawkins 98. 192. 304 Upton v. Dawkin 91.94.98.100 Vyvyan v. Arthur xxxi W. Waddy v. Newton 193 Walford,Rexv '201 Walmesley v. Marshall 114 Ward's case 110 Ward v. Creswell ....... 104. 300, 307 v.Scott 47 Warren v. Dix [sewers] 431 ,n. 442. 462 v. Matthews 63. 182 v. Prideaux 239 Warrington, E. of, v. Moseley, Bart. 113- Index of Cases. PAGE Watts, Rex v 162 Weald of Kent Canal Company v. Robinson 42 Weaver River Navigation, Rex v. . 265 Weld v. Hornby 61. 177 Weller v. Smeaton 225 Wells Harbour case 328, n Westborn v. Mordant 142. 31 1 Westham Inhabitants, the Queen v. [sewers] 415 Wetwang. Rex v 91 . 295 Wet wine, Rex v , 91 Wharton v. Pits 173 Rex v 36. 1 64 Wbitchurch v. Hide 225 White and Snoak v. Potter. . . . 205. 233 v. Shirland 102 Rex v 254 Whitley v. Fawsett [sewers] 402, n. 432. 441, 442 Whitstable Free Fishers, &c. Rex v. 341 Whitaker, Rex v. [sewers] 396 Wickes v. Clutterbuck 199 Wigford v. Gill 224 Wiggan v. Branthwait 13 Wikes v. Serle 316 Wilkes v. Kirby 239.301 Williams v. Baron 272 . Morland 219.312.337 Wilson v. Mason 275. 283 Rex v 200.204.298 Wine v. Rider 306 Winstanley, Rex v 251 Wislake v. Arthur 271 Wine v. Rider 98 Wolrige v. Kenna 273 Wood v. Veal 207 Wright v. Howard 217 Rex v 388 [sewers] 454 Wyat v. Thompson 161 Wykev. Serle 210 Wyrley Canal Company v. Bradley 43 Y. Yarborough, Lord, Rex v 27 Yarmouth, Mayor of, v. Eaton 239. 301 Year Books Edw. I. 1.24.37 62 Edw. III. 4. 48 98. 191 5. 3 12 6. 46 290 17. 9 189 64 109.310 67.. . 233 PAGE Edw. III. U. 22 ^08 23 [sowers] . . . .348. 398 29. 12 233 39. 3 3 63 40. 45 90. 97 44. 13 309 45. 17 60.290 46. 11 98 15 12 28 88.302 48. 27 209. 221 Assisarum. 9. 19. 21. 22. 32. 34. 37. 38. 42. 44. 46. 48. Hen. IV. 2. 11. 3. 7. 11. 86. 12. Hen. VI. 4. 7. 18. 20. 22. 35. 39. Edw. IV. 4. 8. 17. 18. 19. Rich. III. 2. Hen. VII. 5. 7. 8. 10. 10. pi. 19 221 pi. 6 35 [sewers] 417 pi. 23 309 pi. 93 31.37. 229 pi. 2 220 pi. 11 106 pi. 10 165 [sewers] 290. 395 pi. 15 [sewers] 347. 390 pi. 14 [sewers] 417.435 pi. 27 309 pi. 9 190 pi. 4 221 8 107 B 209.220 5 22O 12 98 31 [sewers] 391 16 11 34 [sewers] 460 83 142.220 3 142 7 [sewers].... 347. 391 11 90.303 27 18 29 88 1. [sewers] . . . . , 347 4 88 14 110. 203.209 27 12 32 244 29 101,102 5 224 19 129 35 142.209.224 6 91.98 4 91.305 4 92 15 19 3 [sewers] 430, n. 13 91.98 5 91.220 [sewers] 388 6 30.91. 97 24 91.305 XXX Index of Cases. Hen. VII. 28. 11. 20 . 25 . 12. 4 . 18. 26 . 21. 16 . 26 . 30 Hen.VIII.13. 15 '. 14. 31 . PAGE 91 192 .... 235 . ... 235 206. 220 .... 241 97 .210.222 102 .... 221 PAGE Yeaw v. Holland [sewers] 378 York, Duke of, v. Linstred 14 Mayor of, v. Pilkington .... 195 Yorkshire, Commissioners of Sew- ers, case of 414 Z. Zwinger v. Samuda 53 XXX MEMORANDA ET ADDENDA. That indebitatus assumpsit may be maintained by a reversioner against the successor of the lessee of a watercourse after the death of a cestui que vie. See 4 B. & C. Davis v. Morgan. That a covenant to do suit to a mill will run with the land. See 1 B. &C. 410, Vyvyan v. Arthur. . Rateability. CHAP. XI. p. 262, n. (b) add S. P. 9. B. & C. 810, Rex v. Lower Milton Inhabitants. P. 265, note (c) add S. P. 9. B, & C. 820, Rex v. Aire and Calder Navigation Company. P. 462. See Lloyd v. Wigney, 6 Bingh. 489. A TREATISE, ETC. CHAPTER I. Of ike various Rights of Water. A RIGHT to use water may be either public or private. From some privileges of this kind none can be excluded ; they are the common birth -right of his majesty's subjects ; but others are capable of being reduced into individual possession, and these are incorporeal hereditaments. The chapter now before the reader will contain a mere summary of the rights which may be thus exercised by the public, or by private persons. In subsequent pages, each privilege will be dis- cussed upon its own merits. But prior to our entering upon the proposed list, it is desirable Naviga- to mention, that the law of navigation does not belong to the tion. subject of this work; to say more upon that point than that the " sea is the great highway of the world," and that public navigable rivers are considered in law as "highways," would be invading the province of writers on the Commercial Law. Incidental considera- tions, such as the right to demand toll under certain circumstances, the making of ports and harbours, with others of a similar nature, will be occasionally touched upon, to illustrate individual rights upon these public waters ; but, as a general principle, it must be laid down, that a right of passage over the sea and great rivers is free, common, and universal. Those important advantages, public rights of fishery, or, to Fisheries, speak more technically, public fisheries, deserve a very particular notice. Fisheries are either enjoyed in common with others, or they are confined to the exclusive enjoyment of an individual. The various Rights connected tvith Water. [CHAP. I. As a general doctrine, fisheries in the sea, and in public navigable rivers, are open to all ; but we shall find that particular rights may be successfully maintained even in these ordinarily public waters, by prescription, or by royal grant, beyond time of memory. In rivers not navigable, the fishing is usually a private right ; but custom will vary the general rule. If, therefore, the public should be found upon any occasion to claim a right, of piscary in rivers, which, prima facie, would be considered as private by the law, we must attribute the unusual privilege to the force of custom, which militates against common right, or the every-day usages of things. . A private man may, consequently, be entitled to fish in streams which are in their nature public, while the people at large may by chance be discovered in possession of a river which the owner of the soil may, from time immemorial, have neglected, or which he may have dedicated to them. Another valuable enjoyment of water, is the privilege of bathing. This may exist by custom or prescription, but it has lately been decided that there is no common law right of bathing in the sea, (a) and, by inference, there can be none such in a river. If, however, the inhabitants of a particular vill, or place, or a certain class of individuals, have from time immemorial partici- pated in the enjoyment of an easement of this kind, it may well be questioned how far such a right can be disturbed, either by the building of houses contiguous to the spot, by claims of ownership of the soil, or any other circumstances. For objections which may be very successfully raised in derogation of a common law right to bathe will be deprived, for the most part, of their influence, when weighed against the important consideration of custom or prescription. The same observations which have been made regarding these rights at sea, are also applicable to navigable rivers. There exist the same rights of passage, and of fishing, and the restriction as to bathing is confined within the same limit. And by prescrip- tion, a watercourse, (an easement, concerning which much will hereafter be said,) may be claimed in public rivers. In rivers, however, which are not navigable, and which may be said to be private, because the soil belongs most commonly to an individual, other rights prevail. There may be at least three kinds of fisheries in such a river, namely, a fishery enjoyed by the owner himself, as the territorial possessor ; a right of fishery granted by him to another person ; and a right enjoyed in common with others, either by virtue of a grant or by prescription. (a) 5 B. & A. 268, Blundell v. Catterall. CHAP. I.] The various Rights connected with Water. That very important easement a watercourse, is inseparable from the consideration of private rivers. We shall explain by and by, more fully than in this place, in a chapter devoted to the subject, that the possessor of such a right cannot use it to the de- triment of his neighbour, any more than that he, in turn, can be molested with impunity in the exercise of his own lawful user. Questions upon the use or misappropriation of these waters must frequently arise between the owners of mills, who occasionally interfere with each other's respective rights, either by taking too much water from the original channel, er^hrowing back too great a quantity upon the machinery of another mill by penning it im- properly back. Inhabitants, or particular persons residing in certain vills, may also have a right to water their cattle in rivers at spots where they have had an immemorial usage to do so ; and there may be other customs and prescriptions to use water in various ways, which are, of course, too numerous and diversified to be contained in a general treatise. B 2 . CHAPTER II. Of Rights in the Sea ; the Ownership of the Soil therein, together with the Rights of Alluvion, fyc. THAT the king's subjects have a right to use the ocean for the purposes of commerce ; that upon paying certain duties for the use of ports and harbours, they become entitled to the shelter and con- veniences of those works ; that the sea, in a word, is open and common to all for the accomplishment of lawful and useful under- takings, is so familiar to every one, as to need no further confirma- tion nor authority. The right of fishery, already alluded to in the preceding chapter, is a very important privilege, and we shall devote a considerable space to the careful investigation of that sub- ject in a future part of these pages, (a) There is, however, no common law right to bathe in the sea, as we shall presently take occasion to show. Other matters which will form the subject of this chapter, are the right of taking wrecked goods, by which we assume the absence of any owner, the property of the soil of the sea itself, and of the sea-shore, concerning which some questions have arisen rights of alluvion the ownership of ground left derelict by the sea and of islands arising therein.' Upon these latter topics much discussion has occasionally prevailed, and we shall lay the cases before the reader in the course of this inquiry. Prior, however, |o the consideration of these several heads, a general outline of the extent of our seas, in which the rights above referred to are exercised, may not be inapplicable here. The words, " infra quatuor maria," are said to mean, within the kingdom of England, and the dominions of the same kingdom. (6) The four seas are 1. The Atlantic, which washes the western shore of Ireland, and which comprises, as it were by way of sub- division, the Irish Sea, or St. George's Channel, and the Scottish Sea to the N. W. ; 2. The North Sea on the coast of Scotland ; 3. The German Ocean on the east ; and 4. the British Channel on the south, (c) The jurisdiction of the king, as lord and sove- (a) Chap. v. (b) Co. Litt. 107. (.c) Co. Litt. 107. (a) Note 7. CHAP. II.] Rights in the Sen. reign of the sea, has been defined, with respect to the Channel, to extend between Britain and France, and to the middle of the sea between Britain and Spain, (a) With respect to the Western and Northern Oceans, greater difficulty has arisen in determining the limits of British dominion, and the point does not seem to be entirely set at rest. The great Selden has contended for the fullest exercise of dominion over the seas of Britain, both as to the pas- sage through, and fishing in them ; while Sir Philip Medows con- tents himself with suggesting more confined rights, as, to exclude all foreign ships of war from passing upon any of the seas of Eng- land without special licence, to have the sole marine jurisdiction within those seas, and also an appropriate fishery. (6) And Roll. C. J. observes in his abridgment, that Selden told him of a record in the Tower of London, (34 E. 1,) where it appeared that all the princes of Christendom had agreed, that the narrow seas, and the sea round England, were within the jurisdiction of the king of England. ( scription (the title to which must accrue from the crown) it be- long to a subject, we proceed to show the consequences of natural changes, effected in or by the sea, as they affect the property of (a) Callis, p. 54. (6) Id. p. 55. ( c) Id. p. 54. (i Norfolk, at spring tides, or otherwise, are not derelict lands, because they are easily distinguishable, and the courses of the ocean are in this case no other than ordinary. (/) Being derelict, and not appertaining to any original owner, land so gained from the sea becomes vested in the king; and it remains, therefore, to be observed, that this right also is transferable, and that lords of manors and other persons, frequently claim it by grant or prescription. Thus, the abbot of St. Peter's was pre- sented for taking three hundred acres of waste land in Lincoln- shire, without the king's licence ; and an immemorial custom was alleged, that all the lords of manors, lands, and tenements on the (a) Callis on Sewers. 48 ; Sir Valentine Brown's case ; Bushey's case. (bj Hale de Jure Maris. p. 34 ; and see post, ch. 13, on Evidence. (c) By Coke and Foster, 16 Vin. Ab. 574. Hale de Jure Maris, p. 15. (d) Dy. 326. (b). The Abbot of Ramsay's case cited there. S. P. in the Exchequer. Digges v. Hamond, cited there; and see Hale ut supra, p. 15, &c. (e) Dy. 326. (a.) n. 2; Corporation uf Romney's case, S. P. 2 Ro. Ab. 1C8 ; Callis, p. 51. (/) Callis on Sewers, p. 50. in the Sea: [CHAP. II. sea coast there ought to have waste land and gea sand, derelict, or thrown up at the flux and reflux of the sea ; and that he, the said ahbot had a manor, c. And thereupon a jury were directed to come, &c. (a) But it seems, that no prescription can extend to lands farther than the low-water mark, because a subject can have no use of such as are beyond ; although between the high and low-water mark a pre- scription of that kind may exist, because the lands are dry for twelve hours in every day. \b) Some few words may properly be said here upon a subject very nearly allied to the present, namely, upon grants of land to be re- covered from the sea by embankments, or otherwise. And it has been determined, that in order to maintain a good title to such grant, the land must be reduced into possession within a reasonable space of time. The defendants were charged in an information with erecting a wharf, &c., between high and low-water mark, in Portsmouth harbour, adjoining to Gosport, so as both to prevent vessels from sailing over that spot, or mooring there, and also to endanger further damage to the harbour, by preventing the free current of the water to carry off the mud. The information prayed, that the defendant might be restrained from making any further erections, that those made might be abated, and that the harbour might be restored to its ancient situation. The de- fendant set forth a grant from the crown, of certain lands overflown with the sea on each side of Gpsport, under letters patent, dated in 4 Car. 1., rendering a certain rent for every acre recovered tfll 1630, and thereafter, a certain other rent. Two. of the defendants pleaded possession for more than sixty years, and it was admitted that there had been such a possession of a piece of mud-land adjoining to the piece in dispute. The ground in question, however, had never been recovered from the sea, till the erections complained of by the bill, and these were made after notice of the intention to dispute the right ; but the defendants had for some time before kept possession by means of floats of timber moored there. It was also found, that the em- bankment now made was highly prejudicial and dangerous to the harbour, and hurtful to Gosport, as stated in the information. There was even some doubt upon the evidence, whether the place in question had or not been included in the grant. However, it was argued for the crown, that by the nature of the grant, it ap- peared that this land should have been reduced into possession in a reasonable time, if 'at all ; that the embanking within a reason- able time was a condition annexed to the grant, and which was (a) 16 Vin. Ab. 574. pi. 3; see also, 7 Jac. I.e. 18. An act for tlie taking, lancling, and carrying of sea-sand for the bettering- of ground, and for the increase of corn and tillage within the counties of Devon and Cornwall. (6) Callis, p. 49. CH.U'. U.] R/f/hts in the Sen. left unperfonned for one hundred and fifty years, and that the non- payment of rent during that period, showed that there had neither been an actual nor a constructive possession. It was said on the other side, that from the circumstance of part of the land men- tioned in the grant having heen embanked for a considerable'tune, (and which was so,) the immediate embankment of the whole was not expected, and that as no time had been limited, it was still open to the grantee's successors to take advantage of it. But the court were of opinion against the defendant. They noticed, that part of the grant exempted the new land from tithes for seven years,,and said, that the intention clearly was, to have the soil put into a state to produce titheable matter. The rent also proved, that the embankments, and regaining from the sea, were the condition and spirit of the grant. That condition had not been complied with. Moreover, the place had been suffered to remain open as a public passage since 1629, and that circumstance would preclude any right to question the title of the crown. It would be ex- tremely inconvenient if old dormant grants of the crown could be thus enforced, when the evidence of their nature and extent is lost by lapse of time. The soil was, therefore, decreed to be the property of the crown, and the buildings were ordered to be abated, (a) There is a difference, as it seems, between a grant of so much land covered by the sea to be presently redeemed from it, and a grant of land which may by possibility be so recovered, because a bare possibility does not lie in grant. In the former case, the land was at once made the subject of the grant, although overflowed with water; but, in the following, the deed was to-operate in future. It was a grant of certain marsh land near the sea, together with all the soil, ground, land, sand, and marsh-land adjacent, which were then covered with water, or which at any subsequent time might be re- covered by the reliction of the sea, or otherwise, not naming the value, quantity, or quality. After this, one hundred acres were left derelict by the sea adjoining to the marsh-land so particularly granted, and the question was, whether the king or the patentee should have this soil. It was insisted, that the grant was void by reason of the bare possibility. On the other side it was urged, that here there was such a certainty as the thing itself was capable of having; and it would be difficult to say, that the king has an interest in a thing, and yet that he cannot dispose of it. And, moreover, it was observed, that even taking the grant to be un- certain, the omission to name the worth, quantity, or quality, would cure any default for want of information in the king. But, notwithstanding this, the court held, that as to the one hundred acres, the patent was void, and that nothing passed by those general (a) 2 Anstr. 603. 614, Alt. Gen. v. Richards. Rights in the Sea. [CHAP. n. words (a). In this case also it was said, (6) that there was a custom in Lincolnshire for the lords of manors to have derelict lands ; and that it was a reasonable custom ; for if the sea wash away the lands of the subject, he can have no recompense, unless he be entitled to what he may gain from the sea. This, probably, was the custom of frontagers referred to above, and which was held to be an invalid custom ; but there might be a prescription to that effect, for a previous grant from the crown could then be supposed. Concerning alluvion, Fleta writes thus : " We acquire a right to things, according to the law of nations, by accession. That which a stream has added to our land by alluvion, for instance, belongs to us by virtue of the same law." (c) Now, we have seen, that the meaning of alluvion is the secret accession of soil to other soil. This newly -acquired land, therefore, does not belong to the king, but to the owner of the ground to which it attaches itself. So, again, the distinction between derelict land and alluvion is drawn thus : If the sea leave the land gradatim, and but for a little quan- tity only, the owner of the soil shall have it ; but if for a great quantity, and at a time, it goes to the king, (d) This increase per alluvionem is when the sea, by casting sand and earth, in- creases the land by degrees, which, consequently, protrudes itself out further than its ancient bounds, (e) The reason of this indifference on the part of the crown to alluvial soil is said, by Sir William Blackstone, to be either be- cause de minimis non curat lex, or because owners of land being often losers by the breaking in of the sea, or being at charges to keep it out, have thus a possible gain as a reciprocal consideration for their possible charge or loss, (f) This subject underwent some consideration in a recent case, and the distinction above adverted to was fully recognized. An inqui- sition was taken in Lincolnshire, by which it was found, that cer- tain land had been derelict by the sea, and consequently the com- missioners seized it for the crown. Lord Yarborough, the defend- ant, traversed this inquisition, alleging that the land said to have (a) 2 Lev. 171, Alt. Gen. v. Sir Ed. Farmen, in the Exchequer. 2 Mod. 106. S. C. nom. A. G. v. Sir E. Turner. Sir Tho. Raym. 241. S. C. nom. A. G. v. Sir E. Farmer. (b) 2 Mod. ID7, by counsel arg. (c) Fleta, lib. 3. c. 2. s. 6. Bract, lib. 2. c. 2. s. 2. (rf) Callis, 51 . Hale de Jure Maris, p. 28. (e) Hale de Jure Maris, p. 29. Abbot of Peterborough's case, id. p. 14. 30. Rex v. Oldsworth. See Dy. 326 (b). (/) a Comm. 262. Callis, p. 51. CHAP. II.] Rights in the Sea. been derelict had been formed by alluvion ; and issue was joined. It appeared at the trial, that the alteration had been slow and gradual, that the gain in twenty-six or twenty-seven years was on the average of about five yards and a half in a year ; but that this increase had been imperceptible, that is to say, imperceptible in its progress. A verdict was found for the defendant, and after an argument in support of the motion for a new trial, the court gave judgment against the crown; for the distinction between land de- relict in consequence of the retiring of the salt water, and land gained by alluvion, or the projection of extraneous matter, pre- sented itself too clearly to be misunderstood ; and it was very plain, that the land in question was of the latter description, and there- fore that it could not belong to the crown, (a) It has been held also, that the grantee of premises situated on the shore has no right to follow the sea, or take the land acquired from it, where a corporation had a right to the whole territory of the burgh vested in them by their charter. The case was first decided in Scotland, and the appellant, the grantor of premises as before described, sought to reverse a decree given there against him. He possessed a small enclosure situated within the burgh of Dundee, bounded by the sea floods. The water receded, in con- sequence of embankments and other improvements, and a tract of dry ground was left between the sea or high-water mark, and the appellant's inclosure; and the corporation exercised rights of owner- ship, from time to tune, over this derelict land. This ground, called the shore, was claimed by the appellant ; but it was insisted on the other side with effect, that the boundary by those floods was merely made use of as a term of description, and that the descrip- tion in question was to be considered as accurate only at the date of the first conveyance ; and, moreover, that by the uniform and unvaried usage of the town of Dundee, no right to the sea shore could by possibility have been granted by the conveyance under which the appellant claimed. And it was accordingly ordered and adjudged, that the interlocutors should be affirmed, (b) It has been held in equity, that the right of the subject to tra- verse an inquisition extends to every case in which property is found in the crown ; and not merely to cases of a claim by the crown by reason of incidents of tenure, as escheat. But the court will not quash an inquisition on the prayer of the subject; as in the case of the crown ; the only course is a traverse on the be- half of the subject. And the court held, moreover, that in order (a) 3 Barn. & Cres. 91. The King against Lord Yarborough, S. C. affirmed in the House of Lords. 5 Bing. 163. S. C. 2 Bligh. N. S. 147. 1 Dow. N. S. 176. S. C. 4 D. & R. 790. S. P. 4 B. & C. 485. Scratton v. Brown. (6) 8 Brown. Cases in Parl. 119. Smart v. the Corporation of Dundee. Rights in the Sea. [CH.VP. II. to obtain leave to traverse, the petition must show a primd facie against the crown (a). Sir William Blackstone observes, that if the alluvion or dere- liction be sudden and considerable, it goes to the king ; because as he was owner of the soil when covered with water, it would be but reasonable that he should have the soil when the water has left it dry. (b) This forcible direption of the land is, however, styled avulsion by most writers, to distinguish it from alluvion, the cha- racteristic of which latter is imperceptible increase. And thus Fleta writes, that the property in land severed by avulsion is quite different from alluvion, for here the increase is not hidden, but manifest, (c) Upon such an accident, therefore, the crown will be entitled to land so forcibly surrendered and left derelict. Lastly, with respect to islands which rise up in the sea, * the same principle which has been above adverted to, will be found applicable upon this occasion also. For such an island belongs primd facie to the universal occupant, and he is the king. He owned the soil of the sea, which flowed before over the soil of these newly risen lands, and, therefore, his property must continue the same ; and the construction of islands is either by the recess or sinking of the water, or the accumulation of sand and earth, which becomes, in process of time, solid land environed with water, (rf) Britton says, that if an island grow up in the sea, it shall belong to that lord who shall be found to be the possessor of it ; and that if it be torn off from the continent, it shall appertain to the former owner of the adjacent ground, (e) This latter case, however, is a species of avulsion ; and upon the same principle by which a man is enabled to repossess himself of his own land when the sea has left itself, it seems that he may lay claim to an island thus created, not by rising up in the sea, but by separation from the main land. Fleta again says, that upon the rise of an island in the sea, it shall be given to the occupant, that is, provided it be severed, and not held to the main land by twigs or branches, (f) This occupant must be understood to mean the king, as universal occupant, for otherwise the doctrine thus laid down cannot be reconciled with our law, which clearly concedes all such property absolutely to the crown ; and, indeed, Mr. Callis considers that these writers have misconceived the law in this respect, (g} By the civil law, cer- (a) 4 Madd. 281. Ex parte Lord Gwydir & another, and see post. ch. 13. Evidence. (A) 2 Comm. 262. (c) Lib. 3. c. 2. s. 6. Bract, lib. 2. c. 2. s. 2. See Dy. 326 (b). * This seldom happens, on account of the great depth. Schultes, p. 117. (d) Hale de Jure Maris, p. 17. 36. Or by the separation of land from the continent, vide infra. - (e) DePurchas. fol. 86(b). (/) Lib. 3. c. 2. ss. 6. 9. (g) On ISewers, 44. CHAP. II.] Rights in the Sea. 29 tainly such islands were deemed to be the property of the first taker. Mr. Callis observes, that if an island have risen as aforesaid, although it be within the realm, yet it is not within any county, parish, or town, until the king so declare it by his edict or pro- clamation, (a) Nevertheless, where the interest of that part of the sea, or arm of the sea, or creek, or haven, where the island rises, shall happen to belong to a subject, either by charter or prescription, the islands rising within the precincts of such private property will belong to the subject, according to the limits or extent of his property (6). And in this sense both Bracton and Fleta must be understood, when they speak of specified limits, where the right of alluvion is not applicable. Thus, in grounds which are marked out by boun- daries, (private property,) the right to an island is not governed by the mere reason of contiguity to a public stream, which in ordinary cases gives the soil thereof to the king, on account of his royal privilege, (c) The law, however, prejudices no man, and therefore, if the sea, or a stream, should encircle a field, the case is taken out of the ordinary rule ; and the field, now become an island, shall not be the less his to whom it originally belonged, (d) Thus much concerning the maritime incrementa, or sea ac- quests. * -.- - __'-; _. -..-^_.-.-7- , The last point in this chapter to which we propose to direct the How these attention of the reader, is the manner of claiming these several several rights in the sea ; and for the sake of brevity, those also in public f igh . ts . ma j rivers, more especially as the same principles belong to both. With regard to navigation, and public fisheries, they are the inheritance of the subject, by virtue of the general title, or jus publicum, which every one possesses. But all maritime rights are not demandable by virtue of this universal exercise of privilege. Supposing that a right of bathing should exist on any particular coast, or on the banks of any public river, it must be claimed by (a) Id. 45. That the laws of England are in force in such newly risen islands, when it pleases the king to declare that such shall be the case, see Callis on Sewers, p. 46 ; see also Bract, lib. 2. c. 2. s. 2. fol. 9. (6) Hale de Jure Maris, p. 36. Cited by Holroyd, J. 5 B. & A. 293. (c) Bract, lib. 2. c. 2. s. 2. Fleta, lib. 3. c. 2. s. 9. (d) Fleta, lib. 3. c. 2. s. 6. * That islands in the sea belong to the next adjoining continent, see Craig. Jus. Feud. lib. 1. Schultes. p. 120. And with respect to the theory of the general occupancy of the crown, see id. 128. Rights in the Sea. [CHAP. n. custom, because there is not any common law right of this na- ture. So again with regard to wreck. If any lords of manors should lay claim to such a privilege, they must do this by custom ; as where they claim it on a certain coast ; or by prescription, which belongs to the person of each ; or by express grant. So, again, a right to have marked swans must be sustained in like manner by grant or prescription. If a private person claim the soil of the sea, or of a branch of it, exclusively of others, he must make out his title by the king's charter, or grant (a), or prescription. And if he claim a several fishery in the sea, the same mode of claim must be adopted ; but it should be added, that the king can- not at this day grant a several or free fishery in the sea. * So, again, with respect to derelict lands, they must be claimed, if by a subject, by grant, inasmuch as until they be derelict, they cannot be the subject of transfer ; but there may be prescriptions on some coasts, as in Lincolnshire, or on the banks of some rivers, forjords of manors, or inhabitants of tenements, &c. to have such lands wheij relinquished by the sea, instead of the crown. (6) As to lands which it is proposed to recover from the sea, or islands which are newly risen therein, or in rivers ; it seems also that no other than an express grant will make a claim to such sustain- able ; and the property so conceded must be acquired, or taken possession of within a reasonable time afterwards, or the right to the crown will be held to revive. (a) Hale de Jure Maris, p. 17. A grant of a manor or land contiguous to the sea, unacum maritimis incrementis,vii\\ pass the right of alluvion, though not lands derelict. Id. 17, 18. * See the fifth chapter, where the subject of fishery is discussed sepa- rately. (6) Callis, p. 48. CHAPTER III. Of Rivers ; the Ownership of the Soil therein, and other matters. A RIVER has Been defined to be a running stream, pent in on either side with walls and hanks, and it hears that name as well where the waters flow and reflow, as where they have their current one way. (a) Rivers are either public, as where there is a common right of navigation exercised, and then the soil is in the king, or in the lord of the manor ; or private, where "the soil is tHe property of the individual who owns the land on both sides, or of each pro- prietor, ad medium jRlum aquae, where the same person is not owner of the shore on either brink. (6) A mere enumeration of the public and private immunities enjoyed in rivers has already been attempted ;(c) but there are other important matters con- nected with the subject which it is desirable to introduce here, as, for instance, the nature of a public river ; the ownership of the soil in rivers generally ; the property in soil which has been created by alluvion, or broken away from its original position, &c. A public navigable river frequently owes its title to be considered What a as such from time immemorial, by reason of its having been an public ancient stream ; but very many acts of parliament have been nver * passed to constitute those navigable rivers which were not so before, (d) Waters flowing inland where the public have been used to exercise a free right of passage from time whereof the me- mory of man is not to the contrary, or by virtue of legislative enactments, are public navigable rivers. This is the most unfailing test to apply, in order to ascertain a common right ; others have been attempted, and frequently without success. Thus, it has been said, that in the case of a river which flows and reflows, and is an arm of the sea, it is, primd facie, common to all ; (e) and upon the strength of this position, it was urged upon one occasion, (a) Callis, p. 77. (b) See Schultes, 134. (c) Ante, ch. 1. (d) " Few of our rivers besides the Thames and Severn, were naturally navigable, but have been made so under different acts of parliament." 3 T. R. 255, by counsel, arg. (e) 22 Ass. pi. 93, by Holt, C. J. 1 Mod. 105. I Rivers. [CHAP. in. that an action on the case could not be sustained against the cor- poration of Lynn for the non-repair of a certain creek, because the tide of the sea had been accustomed to flow and reflow therein ; consequently it was said, that this non-feasance was punishable by indictment only, because the water must be deemed public. But this argument was treated by the court as a fallacy ; for they denied that the flowing and reflowing of the tide constituted a navigable river, there being many places where the tide flows which are not navigable rivers, and the place in question might be a creek in the private estate of the corporation, (a) The words of Mr. Justice Bayley also are very illustrative of this point, in a case where a public channel, once navigable, had been blocked up by mud, and the right extinguished. The flux and reflux of the tide had been relied upon in favour of the public right. " The strength of the primd facie evidence, arising from the flux and reflux of the tide," said the learned Judge, " must de- pend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it had been a public navigation ; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a very short time, and for only small boats, it is difficult to suppose that it ever has been a public navigable channel." (b) Still it ought not to be withheld, that, where there are no cir- _, cumstances from whence an extinguishment of the public right can be presumed as in the last case, the flowing of the tide is strong primd facie evidence. It is not absolutely inconsistent with a right of private property in a creek, or other such water ; but, unan- swered, it would be difficult for a jury to resist such testimony. Thus, the plaintiff" sued the defendant for obstructing his barges in a certain navigable river, called Rainham Creek, and he ob- tained a verdict. He proved that the place was a creek, running down from a bridge in Essex to the Thames, and that the tide flowed and reflowed in the creek as far as that bridge ; and that boats and vessels came up the creek ; also, that parties of pleasure had been known to sail up the creek ; and that boats had come there with persons who had cut reeds along the banks of the creek. The defendant elicited, by cross examination, that nearly all the vessels alluded to eame to load or discharge cargoes at a wharf of - the defendant's on the side of the creek ; and they showed, by evi- dence, that they had purchased their premises for a large price, which were conveyed to them by the description of Rainham Wharf and Creek ; that the creek was not navigable until the predecessors of 'the defendants had, at a very considerable expense made it so, ; (a) The Mayor of Lynn v. Turner. Cowp.86. Lofft. 556. Scmbl.S.C. (/>) 4 B. & C. 602. CHAP. Hi.] Rivers. and erected a wharf; and that the defendant had received, not only wharfage but tolls also for navigating the creek ; and that such supposed dues had even been paid by the plaintiff himself. The court, after hearing a statement of these facts, declared, that the case of the defendants was extremely doubtful, upon their own showing. They said, that the defendants might provoke another action, if they thought to produce stronger evidence in support of their right ; for that the judgment, though strong, would not be conclusive against them. A rule to set aside the verdict was there- fore refused, (a) L. C. J. Gibbs considered the cutting of reeds as a very strong act ; and with respect to the pleasure-boats, he said, that if a person wishes to protect his exclusive possession, he must keep up the evidence of his right, by guarding it against in- truders.^) And Heath, J. adverted to the fact of the defendants having at some time scoured the channel, observing, that they might have done so for their own convenience.(c) The circumstance, therefore, of the flow and reflow of the tide is one of the strongest in support of a public right, but so far from being conclusive, we have mentioned a case, in which such a test has been found to be fallible. Public user for the purposes of commerce is, consequently, the most convincing evidence of the existence of a navigable river, and that fact being established, the accompanying rights of fishery, and of ownership of soil, &c. are easily defined. It follows from hence, that a river is a common highway, or, as Lord Coke expresses it, a common river is as a common street, (d) And, by analogy to the case of highways, there may be a dedica- tion of a private right in a river to the public. But it seems that it must be absolutely devoted to the general use, the evidences of which would be works at the common expense, public authority, or some unequivocal act of dedication ; for Lord Hale says, that if a private person make a stream navigable 'by making locks, &c., he may pull them down again, and convert them to his private use, there being no proof of a public right. (e) Other evidences are men- tioned, namely, the stopping of another stream for private conve- nience^/") or the purchase of a charter for the taking of reasonable tolLfa) As to the rights which may be enjoyed in rivers generally, they Rights eii- have x already been detailed in the first chapter. Other rights de- joyed in serving particular mention, as fisheries and watercourses, will be Kivers treated of in subsequent pages, set apart for that purpose : we, therefore, propose to say a few words on the subject of decoy (a) 5 Taunt. 705. Miles v. Rose, S. C. 1 Marsh, 313. (b) Id. 706. (c) Ibid. (d} 13 Rep. 33. Noy. Rep. 103. (e) De Jure Maris, p. 9. ( /) Id. 10. Abbot of St. Austin's Case Canterbury cited there. (g) Id. Ibid. !U Rivers. [CHAP. in. ponds, and then to proceed to the consideration of the ownership of the soil in rivers. Decoy Ancient decoys may be said to be rights connected with our pre- Ponds. S ent subject, and they have always received protection from the law. The owner of the decoy pond is at the expense of servants, engines, &c., for the purpose of furnishing the markets of the na- tion with wild-fowl, and it is, therefore, reasonable that encourage- ment should be given to such artificial contrivances. (a) It has, however, been contended, that wild ducks were not such fowl as the law would take notice of, and that an action upon the case for shooting at, disturbing, and scaring them, could not be sup- ported. But the court repelled the objection. Even had the de- fendant shot in his own ground, with an intention to damage the plaintiff, it would have been a wrong, although if he should have had occasion to shoot, it would have been otherwise. But here the defendant had manifestly done an injury to the plaintiff's pro- perty, by frightening away his birds, and judgment was accordingly given for the plaintiff, (b) A similar right was recognized by the court in a more recent case. There it appeared, that the plaintiff had a right to a decoy, which was ancient, that the defendant gained a livelihood by shooting wild fowl from his boat on the water, and that he had a licence from the Admiralty to fish and coast along the shores of Essex in a boat with small arms. The decoy was situated on one of the salt creeks, called the Blackwater river, where the tide ebbed and flowed. The disturbance complained of was, that the defendant had fired his fowling-piece within about a quarter of a mile of the decoy, when two or three hundred wild fowl came out, that he then approached nearer, and killed several widgeons, and that four or five hundred wild fowl took flight from the pond on the noise of the gun, but there was no evidence to show that he had fired into the decoy. The matter having been left to the jury, they found for the plaintiff, with 40s. damages. It was moved to set aside this verdict, on the ground that the defendant had a right to shoot at the place where he was, it being an open creek or arm of the sea, where the tide flowed and reflowed ; and it was urged, that he had neither gone upon the plaintiff's land, nor fired into the decoy. But the court declared, that there was no pre- tence for disturbing the verdict, and Mr, Justice Le Blanc referred to an old precedent of such an action, followed by one or two others within his remembrance, on the Norfolk circuitfcj. Ownership As a general principle, the soil of ancient navigable rivers, of the Soil where there is a flux and reflux of the sea, belongs to the crown, (d] in Rivers. ail( } that of other streams to the subject, that is, to the owners of (a) By Holt, C. J. 11 East 577, cited there, from MSS. (6) 11 Mod. 74, 130. Keble v.Hickringill. S. C. 3 Salk. 9. S. C. Holt 14, 17, 19. Bull. N. P. 79. (c) 11 East, 571. Carrington v. Taylor, (rf) 1 Sid. 86. CHAP. HI.] Rivers. the adjacent grounds, to each respectively, as far as the middle of the stream. (a) So that, as concerning public streams, we must go further than merely to call them highways, for they are also the King's highways. And so it was found in former days, that the river Lea was the king's high-street. (b) Again, inasmuch as rivers, as far as the flowing and reflowing of the tide extends, participate in the nature of the sea, and are, indeed, considered as branches of the sea, they are called royal streams, (e) So, upon another occasion, where there was a dispute concerning some houses at Blackwall, (the city of London claiming them under a grant from the crown, and the lord of the manor of Stepney as built upon his own soil,) it was said several times without contradiction, that all rivers as high as the flux and reflux of the sea belong to the king, arid not to the lords of manors, unless by prescription. (d) So again, it was distinctly affirmed by Hale, C. J., that the soil of the river Thames was in the king, the lord mayor being the conser- vator of the river. (e) Again, the king granted the lastage and bal- lastage of all the vessels in the Thames to the Trinity House, to- gether with the soil. Quo warranto was brought against the de- fendants for taking gravel and sand from the river according to this grant, and, although they were turned round upon a point of pleading, the court were quite clear in favour of their right to take this gravel and sand, for it was admitted that the soil of all navi- gable rivers in England belongs to the king.(/' ) A case occurred, however, where it was attempted to be argued, that the right of the crown to the soil of the Thames extended no further than London bridge, that the sea did not properly flow beyond the bridge, and that the tide, above that limit, was occasioned by the pressure and accumulation backwards of the river water. The defendants' were indicted for obstructing the mayor and commonalty of the city of London, by cutting down a wooden pile fixed for the purpose of making a horse towing-path on the soil of the Thames, under powers vested in the corporation by certain statutes. The fact was, that the city of London had erected piles on the bed of the river near Richmond, within the high water-mark, and adjoining to a wharf in the possession of the defendants ; and the question was raised, whether the right of the soil in the bed of the river, usque ad filum aquae, was in the owner of the ground adjoining to (a) Hale De JureMaris, p. 1. (b) 19 Ass. pi. 6. Dy. 1 12 Inst. 38. (c) See Dav. Rep. 55. Ow. 123. Schultes, 132. But the banks of rivers, together with the trees, &c. belong to the owner of the soil adjoining, and so also do sea banks. Callis, p. 73. 115. But the owners cannot justify the digging or casting them down. Id. p. 74. (d) 1 Sid. 149. In Bulstrode v. Hall. See also 1 Mod. 106. 2 Mod. 107. (e) 1 Mod. 106. The river Thames has been declared by statute to be navigable from the city of London to the village of Bercott in Oxfordshire, and from Bercott westward, somewhat further than Lechlade in Gloucester- shire. 6&7W. 3. c. 16. . 1. (/) 1 Sid. 86. Rex v. Trinity House. 1 Keb. 300. S. C. D 2 Rivers. [CHAP. in. the rivei. The counsel for the defendant observed, that the soil must have some owner, that the city had no claim to it, that they did not pretend to any ownership in the soil, and that there was this distinction with respect to the right of the crown, namely, that it existed in navigable rivers as far as the ebb and flow of the sea, but not beyond that limit, and that such a right did not depend 'alone on the circumstance of the river being navigable. He insisted that the Thames above London bridge might be con- sidered as having been kept in a navigable state by art, and that the flux and reflux did not properly happen there. But Lord Mansfield stopped the counsel in reply, and said, that the distinc- tion between rivers navigable and not navigable, and those where the sea does or does not ebb and flow, was very ancient, but that this distinction seemed to be entirely new, and there were no new facts in the case which let in the difference contended for between the flux of sea-water and the pressure backward of the fresh water of a river. A verdict of guilty was accordingly entered, (a) However, the king possesses certain rights in fresh rivers, as, 1st, a right of franchise, that no one should set up a ferry without prescription, or a charter, unless it be for the use of his own family. Next, an interest or pleasure, as to bar fishing or fowling for a cer- tain tune, although this prohibition was narrowed by the Great Charter to such rivers as were thus under the prerogative in the reign of Henry II. Lastly, an interest of jurisdiction, as to reform nuisances in rivers, either by a commission of sewers, or otherwise. The commission of sewers had its origin from the continued neglect of drainage, (b) vate The soil beneath rivers which are not navigable, belongs, as we ;rs. have already explained, to the owners of the land, on either side of the stream. These proprietors are very frequently the lords of manors, and, by prescription, they may also have a title to the soil of public rivers. Thus, it was said by Lord Chief Jus- tice Holt, that if a river run contiguously between the land of two persons, each of them is, of common right, owner of that part of the river which is next to his land, and he may let it to the other, or to a stranger, (c) And so again, the banks, d fortiori, belong to such proprietors, together with the grass, trees, and other profits growing thereon, (d) There is the same law with respect to lands left derelict by the recess of a navigable or other stream in rivers as in the case of a reliction by the seas, which we have discussed already, (e) And (a) Dougl. 441. Rex v. Smith. (b) Halede Jure Maris, p. 6, &c. (c) In Rex v. Wharton, 12 Mod. 510. (rf) See Callis, p. 73. (e) Ante, p. 22. CHAP. III.] Rivers. so again, with respect to alluvion, avulsion, the creation of islands, &c. We will notice each of these points in their order; and, first, with respect to lands left derelict, it is observable, that the right of property follows the nature of the stream, so that, in the case of a private river, the right to the soil will belong to the owners of the banks on each side, according to the extent and situation of the land thus relinquished, (a) However, as upon a recess of the sea after an encroachment, land covered by it may be reclaimed if it can be identified ; so if a stream deprive a man of his ground by making a channel, and it subsequently return to its ancient bed, the original ownership will not be lost, if it be satisfactorily ascertained. (6) If a stream, by making an alluvial deposit, secretjy add any thing Alluvion, to my land, it belongs to me as my property, and Fleta calls this alluvion a silent increase, (c) So subtle, indeed, is this increase, that it is impossible to perceive at what instant of time the addition has taken place, (d) So Britton : if the increase should be such as that no one can perceive it as it advances by degrees after many years, and not in one day, nor even in a year, it belongs to him to whose soil it has attached itself, (e) So it was decided in an old case, that if water run between two lordships, the soil and the water belonging entirely to one of the lordships, and then it encroach upon that lordship to which the water does not belong, the land relicted on the other side shall be his who owns the water, that is to say, if the increase be imperceptible. (/) But if this event had happened suddenly, by the force of an inundation, so as to deprive the opposite lord, whose the water was not, of part of his soil, as for instance, if part of the opposite shore were divided impetuously, and forced upon the land of the other lordship, in this case the soil thus formed should not be divested out of its original proprietor, (g) For Fleta writes, that if the force of a river should detach any part of your field, and increase that of your neighbour, surely it shall, nevertheless, continue yours, this being not a secret, but a manifest accession, (h) But if it remain so long attached to the soil of your neighbour, as to draw thither trees which have taken root in his land, these trees shall continue to be his property.(i) according to the principle, that trees belong to that person in whose land they are first sown or planted. (k) (a) Fleta, Jib. 3. c. 2. 10. Sclmltes, p. 121. (6) Schultes, p. 122. (c) Fleta, lib. 3. c. 2. 6. (d) Ibid. M De Purchas, fol. 86. (/) 22 Ass. pi. 93. (g) Ih. Hale de jure Maris, p. 6. (A) Fleta, lib. 3. c. 2. 6. () Ibid. (k) See Moo. audMalk. 112. Hodler v. Contes. Rivers. [CHAP. m. This forcible dissevering of land and adhesion to the property of another, is called avulsion. Nevertheless, Lord Hale observes, that the case may be altered by a special custom. For example, the Severn below Gloucester bridge is the common boundary of the manors on either side, whatever course the river may take, (a) But further, islands may appear in rivers, and, indeed, the creation of these new properties is more frequent in rivers than in the sea, because of the great depth of the sea, and the ebbing and flowing of the tides there, (b) In determining the property of islands in rivers, it is desirable to consider the principle, that the estate of each owner extends to the middle of the stream ad medium Jihim aquee. Therefore^ if an island, or eyot, arise in the midst of a river, it shall be common to the proprietors of land on either side, according to its breadth near the banks, (c) And this means, that if it should be nearer to one side than the other, the greater part will consequently belong to him whose possessions are the nearest, (d) Thus it becomes necessary to take into consideration the vicinity or remoteness of the island from the main land, (e) Further, supposing that another island should arise between an island already risen on one side of the stream, and which be- longs wholly to the estate which it adjoins, and the opposite banks, it is declared, that the admeasurement of property in the new eyot shall be made from the first, and not from the shore to which it belongs. (_/") And if the island should be round, the same rule is adopted, the proprietor of each bank acquiring so much as may be nearest to the soil. Yet, sometimes the whole of the river belongs to one seigniory or manor, and in that case, it seems clear that the property in an island would pertain entirely to one person, namely, the lord of that soil over which the river should happen to flow, (g) However, notwithstanding this rule, it has been remarked, that some persons claiming several fishery, have asserted a right to islands or eyots risen up in rivers, although the adjacent banks on both sides belonged to other individuals. The claim, it seems, was made on this principle, that 'ownership of the soil followed the several fishery as of common right. If the soil of the fishery itself had been granted in such cases 1 , this demand could not cer- tainly have been resisted, but in the absence of any such grant the property would be vested in the owners of the adjacent shores. Sup- fa) Hale de jure Maris, p. 6. (b) Schultes, 117. (c) Fleta, lib. 3. c. 2. 6. (d) Ibid. (e) Id. 8. (/)Id. Ibid. (g) See 2 Comm. 261. CHAP, in.] Rivers. ;>i) posing the doctrine to be true, (of which, as we shall see hereafter, there is much reason to doubt,) that a several fishery cannot exist without the soil, the claimants upon this occasion must have mis- taken the nature of their right, (a) Such are the fluvialia incrementa, or accessions of rivers, to- gether with the legal ownership of each ;(&) and with regard to the mode of claiming the respective rights alluded to in this chapter, the reader is referred back to the second chapter, where he will find the course/ which is to be pursued where rights in the sea are claimed. The same law is applicable to the case of rights in public rivers. (a) See Scbultes, 97. (6) As to the reasons for considering the crown to be the proprietor of the soil of navigable rivers, see Scbultes, p. 128. 10 ,-r CHAPTER IV. Of Canals Docks Waterworks, fyc. l. Of canals. MANY of the points relating to canals will be discussed in a sub- sequent part of this treatise, such, for example, as the liability to contribute to the payment of rates, the subject of toll, and other matters. Canals are for the most part regulated by the respective acts of parliament which have constituted the companies generally known by the name of " Canal Companies," and these acts are, of course, numerous and diversified, so as to preclude a separate mention of each in a general work. But there are, nevertheless, some common rules which govern the construction of statutes which concern canals, and, occasionally, decisions have taken place upon particular clauses, of which it may be desirable that the reader should be informed. Thus, in the first place, disputes respecting calls for the amount of subscriptions due on shares are regulated .and settled by courts of law upon principles which have reference to that particular subject. So again, the limitation of actions against the proprietors of canal-shares, &c., the liability of such proprietors, &c., for injuries done under their management, with other such matters, come at tunes under the consideration of the courts, either upon the principles of law generally, or upon the construction of real special act of the legislature. An action on the case in tort was brought by the Huddersfield a s * Canal Company for several sums which it was alleged the de- fendant had subscribed towards making and maintaining the Huddersfield canal. By the act of parliament which incorporated the subscribers, the shares were declared to be vested in such sub- scribers, their executors and assigns, and the proprietors were enabled to sell their shares, the purchasers being thereafter in- titled to have shares in the profits. Power also was given to a committee to make calls for money on the proprietors, and an action of debt, or on the case, was given as a remedy in cases of default. The defendant had been possessed of eight shares, but he sold five of them, and duly transferred his interest therein. The breach stated in the declaration was, that although the de- fendant had paid his proportion in respect to three shares, (the three which he still held,) he had not paid in respect to the five others, which he had also subscribed for. The defendant objected, CHAP, iv.] Canals. that he was not liable to further calls after the assignment, and upon a special case the court were of the same opinion, as it was clear that the legislature meant that the parties should be liable only as long as they continued individually to be members of the company. The act vested the property sold in the assigns of the vendor, and it would be ridiculous to determine, that a per- son, after he has sold his shares, in respect of possessing which only he became a proprietor, should still continue to be a pro- prietor. It would be strange to say, that after disposing of the shares, the seller should still continue liable to all the burdens which are thrown on the owners of the property. But the court held, that an action on the case would lie, for the words of the act, they said, were general, and, therefore, the form of the action being deemed correct, the postea was delivered to the plaintiffs, because interest on a sum acknowledged to be due by the payment of money into court, had not also been paid, (a) Upon another occasion, it was holden, that the administrator of a subscriber to a projected canal could not be sued for calls, the party proposing to subscribe having died before the passing of the canal act. The action was brought in debt, and it appeared at the trial, that the intended subscriber died, as is before men- tioned, that letters of administration were granted to the defendant and others, and that the defendant paid a certain deposit on the shares to the bankers of the subscribers. But the defendant paid no money subsequently to the passing of the act. The receipt for the deposit was given to the defendant in the name of the party deceased; although wishing himself to be an adventurer in the scheme, he had requested that it should be given in his own name. The defendant sold the shares afterwards to a person who, not liking the speculation, treated the purchase as a nullity, as not having been effected according to the forms prescribed by the act, and the canal company made a call upon the defendant, in his in- dividual capacity, for money due upon these shares, treating his sale as void for want of compliance with the above forms. It was insisted, that the defendant was not chargeable, for he was not an original subscriber, nor a person advancing money towards the shares in his own right, his request to have the receipt in his own name not having been complied with ; nor had he been personally admitted as a proprietor. A verdict having been found for the plaintiffs, it was moved to set aside the verdict, and a nonsuit was subsequently entered, the court being of opinion that the action could not be maintained. The defendant neither filled the character of any subscriber named in the act, nor of any who had subscribed since the act passed. When the receipt in the name of the deceased person was tendered to the defendant, he might have objected, and might have desired to have his money back, but, instead of that, (a) 7 Term Rep. 36. The Huddersfield Canal Company v. Buckley. Canals [CHAP. iv. he kept the receipt, and thus acquiesced in the share as adminis- trator. Had the company intended to charge him as administrator, the mode of doing so was pointed out by the act, namely, to give the shares to another, in case of the defendant's refusal to pay, or of want of assets ; or to declare them forfeited ; for the act indem- nified executors and administrators paying calls upon the shares of deceased persons. Had the undertaking proved profitahle, the de- fendant must have been accountable to the effects of his intestate for the proceeds, and the plaintiffs consequently should have sued him, if at &ll, as administrator, (a) The Company of the Norwich and Lowestoft Navigation brought an action for the amount of calls before the whole capital men- tioned in the act had been subscribed. The act provided, that the subscription should be full before any calls were made, and it was objected that the statutory provision had been violated. Of this opinion was the court, and the plaintiffs were nonsuited, (b) The meaning of the word, " subscriber" underwent some consideration in a late case. An action was brought to recover the amount of two calls. The defendant had applied for eight shares in the in- tended capital of the .Thames Tunnel Company, and the number of shares was set against his name, and he then gave a check for the deposit, and took a receipt. He, however, never signed the contract under the act subsequently passed for incorporating the company, although a space was left opposite to his name for the purpose of his seal and signatured The court held, that he was not liable ; for the word " subscriber" in the act applied to those only who had stipulated to make a payment, and not merely to such as had made a payment. Judgment was therefore given for the de- fendant, (c) The liabilities of canal proprietors for injuries done by them or their servants, come also occasionally under the cognizance of the courts ; and here again, the liabilities themselves, as well as the li- mitation of time within which actions should be commenced are con- strued in general according to the provisions of the respective acts of parliament. And so again, actions brought by such proprietors are subject to a similar construction. The following reservation was made in a canal act:(rf) Pro- vided, that nothing in this act contained shall entitle the company, on purchasing any lands for making the canals to any mines of coal, &c. which shall be found in cutting, or shall be under the same, but that all such mines shall belong to such persons as would have (a) 5 Taunt. 801. The Weald of Kent Canal Company v. Robinson. (6) Moo & Malk. 151. The company of proprietors of the Norwich and Lowestoft Navigation v. Theobald. As to the evidence in cases respecting calls, See post. ch. xiii. (c) 6 B. & C. 341. The Thames Tunnel Company v. Sheldon. (d) 32 G. 3. c. 80. CHAP, iv.] Canals. been entitled to the same in case this act had not been made. But another section declared, that as often as the owner of any mine of coal, &c., lying under or within the distance before limited from the said canal, should be desirous of working the same, (sucli dis- tance having been fixed by a previous section at ten yards distance of the canal,) that then the owner should give notice in writing under his hand of such intention, to the clerk of the company, at least three calendar months before he should begin to work the mine. Upon the receipt of the notice, it should be lawful for the company to inspect the mine, in order to determine what coal, &c. might be got without prejudice to the canal, and upon refusal or neglect of the company to inspect within thirty-one days after no- tice, the owner of the mine might work such part of it as lay un- der the canal, or within the distance aforesaid, &c. It became desir- able for the defendants to work their mine within the given distance of the canal, and they accordingly gave notice of their intention to the company, who, after sending persons to examine the plan, de- clined purchasing the rights of the defendants. The defendant then continued working till a partial damage occurred by reason of the sides and bottom of the canal giving way. Upon this an ac- tion on the case was brought against the defendants. But the learned judge nonsuited the plaintiffs at the trial, conceiving that the legislature had left to the owners of the lands the entire domi- nion and benefit of their property, and that it had been the fault of the defendants not to purchase the rights tendered to them for sale. It was contended, however, upon a motion for a new trial, that the act did not authorize these owners of mines to work at all hazards, but only, as in other cases, at their own discretion and peril. And the counsel for the plaintiffs urged a case which, he said, had been tried by the same learned judge, (Lawrence, J.,) under similar circumstances, though under a different act of parliament, when the company had obtained a verdict, (a) Mr. Justice Lawrence said, that he had no distinct recollection of the former case, but that unless the act of parliament in that case was very different from the present, he thought his former opinion not so well founded as upon this occa- sion. And the court entertained the same impression, considering the coal-owners to have been left to their common law rights, as if no canal had been made, so that they might take away every part of their coal in the same manner as they might have done before the act had passed. And this case, they added, was not like that where damages were recovered against Lord Lonsdale, for un- dermining a person's house, since there the party claimed un- der a grant from the owner of the land, and the injury done was against the land-owner's own grant. (6) (a) 7 East, 371. Birmingham Canal Company v. Hawkesford, cited by Dauncey,arg. (6) Id. 308. The Company of Proprietors of the Wyrly and Essington Canal Navigation v. Bradley and others. See also 5 B. & C. 821, Finch v. Birmingham Canal Company, and post, ch. xi. Canals. [CHAP. iv. If an act of parliament concede a limited protection to persons in doing something which may. at one time be proper, though un- justifiable at another, such persons may be so far said to carry on their work in pursuance of the act, as to come within the relief afforded them by the limitation of time for bringing actions, al- though the course they have pursued may not be borne out in its full legality. Thus by the 35 Geo. 3. c. 52, the Wiltshire and Berkshire Canal Company were empowered to make a canal, and to supply it with water from all rivers, &c., within two thousand yards from the canal. Then followed an exception of certain streams between certain periods of the year, save that if a fall of rain should occasion one of the excepted brooks to overflow its banks, the same might be taken into the canal so long as such overflowing should continue, but no longer. Then the statute pro- ceeded to point out a limitation of time for bringing actions against the company, giving six calendar months next after the fact com- mitted, in case of any thing done in pursuance of the act, or in the execution of its powers and authorities, or three calendar months, in case of a continuation of damages next after the doing or committing of such damage shall have ceased. The plaintiffs sued the canal company for diverting the water of the interdicted streams at a time when their banks were not overflowed, and a verdict was entered for them subject to an award. It was found, that after the passing of the above statute, and after the making of the canal, and more than six calendar months before the com- mencement of the action, the defendants had taken the water from the forbidden streams at the wrong period, and after the brook in question was not overflown, and that the defendants took such water for divers long spaces of times, all of which expired more than three calendar months next before the commencement of the action. The arbitrator considered, however, that the act of the defendants had not been done in pursuance of the statute, and that, consequently, they were not protected by the limitation pointed out as to the time of suing them. But a rule having been ob- tained to set aside this award, on the ground that however the com- pany might have been mistaken in their proceedings, their taking the water was yet within the general powers vested in them, the court made it absolute. First, the company had a general power of taking water from all streams whatsoever within certain pre- scribed limits. Then came a proviso excepting certain waters, but yet containing a saving if there should happen to be an over- flow. Here the company were not wholly precluded from inter- meddling with these streams, but they had a kind of hazardous authority to take water thereout as long as the overflow should continue. And, moreover, the company were permitted to convey the water in its regular channel by culverts, drains, &c., if they thought necessary, even, during the interdicted periods, and al- though there were no overflow. So that they were concerned in the conveying of the water at times when they could not take it. CHAP. IV.] Canals. ) 2 Dow. 519. Shand v. Henderson. (c) 2 Russ. 126. Gray v. Chaplin. (rf) See the marginal note of the reporter. Ibid. CHAP, iv.] Canals. 47 as between two individuals the title would have been defective ; but it was contended, that the act for establishing the Grand Junction Canal Company had cured the defect. The provisions cited were, that the company might buy land for the working of the canal, and might resell parts not wanted for that purpose ; and that such sales, conveyances, and assurances, should be valid and effectual in law, to all intents and purposes whatsoever. And further, that any sale and conveyance to a purchaser should be valid and effectual. But it was argued, that according to such a doctrine, all the defec- tive or wrongful titles in England might be completely cured by being drawn through the Grand Junction Canal Company. And by Lord Ellenborough : " I must suppose that the words in the statutes relied upon, refer only to the mode in which the convey- ances are made, without having any operation upon the title to the subject-matter conveyed. A contrary construction would be alarm- ing to every landholder in the kingdom." (a) The acts of parliament which enable canal companies to purchase Ownership lands, thus empower them to gain also the ownership of the soil, of the soil But they may have a possession of land, under some circumstances, f ca nals - without being the owners of it ; as where the proprietor of the soil gives permission to a company to make erections upon it. And so the contractors for making a navigable canal have been deemed competent to maintain trespass upon such an occasion. The plaintiffs, who had made a contract with the Portsmouth and Arundel Canal Company, brought an action for breaking and entering a cut or watercourse belonging to them ; and the only question was, whether they had such an interest in the land as to enable them to sue in trespass. It appeared, that hi the course of performing their contract they had erected a dam upon the locus in quo, by permission of the owner of the soil. It had been repaired by them since its erection. A verdict having passed for the plaintiffs, the objection was resumed, upon motion in the Court of King's Bench, to enter a nonsuit, or have a new trial ; but the Court refused the rule ; for the dam had been erected by the plaintiffs at their own expense, and with their own materials, and with the consent of the owner of the soil, for a special purpose. Until the completion of that purpose, the plaintiffs were entitled to the possession of the dam. A person in possession, whether rightfully or wrongfully, being entitled to sue a mere wrong doer, the plaintiffs might recover in this action. And had they any other, indeed, than a partial or subordinate interest in the dam, trespass was the proper remedy. Here then was not a mere right to enter upon the locus in quo, but an absolute occupation of it, with licence, (b) (a) 3 Campb. 284. Ward v. Scott. (6) 5 B. & A. 600. Dyson and another v. Collide. S. C. 1 D. & R. 225. Canals. [CHAP. iv. But whether the ownership or occupation of the soil be thus acquired, depends mainly upon the respective acts of parliament. Certain persons were authorised to make the river Itchin navigable, to cut and make new channels, &c., and, in fact, to do all that was fit for navigation. But they were not to make any trench, &c., without a full agreement with the owner of the land, and satisfac- tion made him. By a subsequent clause, certain commissioners were authorized to determine the amount of the compensation, in case the undertakers should not have done so. The owner of the adjoining land having cut some trees and bushes upon the bank of a channel made under the act, the proprietor of the navigation brought trespass. The court held that the action would not lie, in this case, and that the proprietor did not necessarily acquire an interest in the soil ; and they held, moreover, that as the purchase of the soil was not necessary for the purpose of the act, the fact of such a purchase ought not to be inferred ; and that the improba- bility of such a purchase ought to have been pointed out to the jury. The plaintiff having obtained a verdict, the rule for a new trial was made absolute, (a) The rights of fishing in canals are of course incident to the soil, in the first instance, and are of that description which we shall in the next chapter call territorial, as being identified with the owner- ship of the soil. But it is clearly competent for canal proprietors to let their right of fishery if they should see fit ; although this is rarely done, by reason of the obstruction it would occasion to the canal navigation. It having been declared by the Turnpike Act of 3 Geo. 4, that no trustee or commissioner of the road should have any interest or share in the making or repairing of the roads, &c., under the penalty of 100/., it was enacted by 4 Geo. 4, c. 95, s. 37, that no such -trustee or commissioner should be liable to that forfeiture by reason of his being only a proprietor or holder of any share in any canal or railway company which should contract with the trustees or commissioners of the road for which such person might act as a trustee, &c., for the carriage or conveyance of any materials for the repair of such road. Some cases on the subject of probate, respecting canal shares, shall close this part of our subject. A motion was made for the payment into court of the purchase-money of certain canal shares ; and the question was, whether the will of the person, to whom the shares had belonged, and which had been proved in the Preroga- tive Court of Canterbury, should be proved in that of York also, the canal being situate in both provinces. The office where the document was kept was in London. The Lord Chancellor was of (a) 1 B. & C. 205. Hollis v. Goldfinch. CHAP, iv.] Dock Companies. 49 opinion that tbe probate obtained was sufficient ; but he added, that if the parties would not be bound by his opinion, there must be a reference to the Master to settle a proper conveyance, (a) An act for making a canal from Birmingham to the Severn, near Worcester, declared the shares therein to be personal estate, and transmissible as such, and not in the nature of real estate. A subsequent act directed that the original deeds of bargain and sale or transfer of any shares, should be filed with and kept for the use of the company. The transfers of shares were filed and kept by the clerk appointed for that purpose, at Birmingham, where also the dividends were paid, the books of account kept, and the general business transacted. It appeared that the canal passed through several parishes in the diocese of Worcester, and also through the parish of Birmingham, in the diocese of Litchfield and Coven try ; and that the rates and duties for tonnage and wharfage were collected at different places in each of the dioceses. W. H. having died in Birmingham, possessed of a share for 100/., the transfer of which had been regularly filed at Birmingham, his executrix proved the will in the Consistory Court of the Bishop of Litchfield and Coventry ; but the company refused to pay her the dividends upon the share, on the ground that she ought to have taken out a prerogative probate. It was urged, that the profits were ascer- tained at the head office, until which the proprietor had no claim, and that the deed, the evidence of the testator's title, was there at the time of his death. By the Court. The right to the share of the profits is personal property, which may be considered as locally situated in Birmingham, for the purposes of probate, (b) As we have already said on the subject of canals, many of the Of Dock points relating to dock companies will be discussed in other parts Companies, of this work. These, like canal companies, are, for the most part, incorporated by various acts of the legislature, and their public as well as private liabilities are in general regulated by the provisions of those statutes. They are bound to be careful in the exercise of their duties, and to exercise the powers entrusted to them in such a manner as to occasion no injury to their neighbours, or to the public. Where they are permitted by special enactments to invade the property of others, a compensation, regulated by a certain propoition, which we shall presently notice, is usually awarded to the owners of such property. A limitation is commonly prescribed as to the time for suing (a) 2 Wils. Ch. Co. 166. Smith v. Stafford. (6) 7 B. & C. 632, Exparte Home. E .")O Dock -Companies, [CHAP. iv. such companies, in respect of any unjustifiable act which thev may have committed : very frequently six calendar months after the fact in question. " Upon this part of our subject a case occurred not long since, in which the doctrine of consequential damage, as it relates to the limitation of actions, came before the court, and in which the case of Roberts v. Read, upon the Highway Act, was recognized and approved by Lord Tenterden. It? was an action against the treasurer of the London Dock Company, to recover a compensation in damages for an injury to the plaintiff's reversion, occasioned by certain works earned on by that company, adjoining to the plaintifPs wharf. In deepening the foundation of a dock close to the wharf, the defendants had undermined a Avail belonging thereto, so that every tide which brought water into the clock washed away some of the materials along with it, upon its return. The mischief arising from this appeared to be so great, that surveyors called on the part of the plaintiff, who had seen the wall in Novem- ber 1822, declared it to be impossible that it should last for any length of time. In 1824 part of the wall actually fell, and the action was~ forthwith commenced. It was objected for the defen- dants, that inasmuch as the act complained of was done in 1822, and the action was not brought until 1824, the plaintiff mnst. be nonsuited, because the London Dock Act, 39 and 40 Geo. 3, e. 47, s. 151, ordains a period of six calendar months as the time of limitation. It was answered on the other side, that this period had reference to the period when the damage happened, and not to the doing of the act. Abbott, chief justice, said, that Roberts v. Read was, in point of authority, an answer to the objection, and that upon that occasion the wisdom of the common law had been interposed to prevent the injustice which might arise from too literal an adherence to the words of an act of parliament. Another objection was pressed upon the court. It appeared that the plaintiff's father was alive when the act was done in 1822, and that the father died in 1823; and it was urged, that the plaintiff could maintain no action, except for some injurv done to his reversion after he became possessed of it. But the court as to this said, that notwithstanding the alteration of title, by the death of the father, the son might maintain the action ; and the plaintiff had a verdict for a considerable sum. (a) Compensa- Cases of compensation for injuries done by dock companies have tion. been adverted to. They are, of course, regulated in general bv the peculiar circumstances which appear upon each occasion. Commissioners of compensation are appointed by clauses in the (a) Ry. & Moo. 161. Gillon v. Boddington, S. C. 1. C. & P. 16 East. 215. Roberts v. Read, 3 Y. & J. 60 Blajtemore v. Glamorganshire Canal Company. But see the opinion of Gibbs, C. J. 1 Marsh 437 ; and see also 3 li. & B. 239. Boothbv v. Morton. CHAP, iv.] Dock Companies. respective acts, whose duty it is to examine the claims tendered, and award compensation or not, as they may see fit. Should they refuse to assess a compensation, the usual course is to apply to the Court of King's Bench for a mandamus to compel them to do so. In considering, however, the propriety of allowing this claim, commissioners would do well to ascertain whether the injury com- plained of is in reality a damage to private rights ; and it is a good test for this purpose to be satisfied that an action would have lain before the passing of the act, at the suit of other persons than the company. Certain brewers in the neighbourhood of Bristol occupied premises for their business, which were supplied with fresh water fit for brew- ing from the river Avon. By means of the works and improvements authorized by the Bristol Dock Acts, especially by the damming up of the river, for the purpose of forming and floating the harbour, the water in the river, at the point of communication with the pipes, became brackish and noxious, so as to render the water unfit for brewing. The applicants were ultimately compelled to abandon their premises, in consequence of this damage ; and having applied to the defendants for a compensation without effect, they applied to the court for a mandamus, for the purpose of trying their right to receive it. The court, however, interposed an objection at the opening of the case, to which no sufficient answer was returned to their satisfaction. They asked whether the claimants could esta- blish such an interest or easement annexed to their premises, in the water of the Avon, which was a public river common to all the king's subjects, as would entitle them to compensation, under the general words of the clause ; and they further inquired, whether, if any person, before the act passed, had done any thing to dete- riorate the water of the river, these parties could have brought an action as for a private injury to their property. It being replied to these questions, that persons having acquired a right to use the water of rivers for their own purposes, had maintained actions for disturbance in the enjoyment of their rights, the court said, that there were cases of special rights, where, by long enjoyment; the parties had obtained particular easements appertaining to their premises. Here, however, the injury, if any, was done to all the king's subjects, and then an indictment,* and not an action, would be the remedy ; otherwise every person who had before used the water of the river might equally claim a compensation. The rule for a mandamus was therefore refused. (6) A question arose upon one occasion, whether thr devisee or thu * The remedy by indictment, it was admitted, was taken away by the express words of the act. (6) 12 East. 429. Rt-x v. the Directors of the Bristol D>jck Compauy. E 2 Dock Companies [CHAP. iv. executor of the owner of the inheritance was to receive the com- pensation. No compensation was to be made until three years after the opening of the docks. After the expiration of the three years, the owner of the property in the particular case died, and the commissioners of compensation under the London Dock Acts re- sisted the claim of the devisee, saying, that, if at all, it could be made only by the executors. On the other hand, it was insisted, that the executor could not support a claim for an injury to the reversion and inheritance. The statute, in pointing out the persons entitled to this compensation, used the words, " owners and occu- piers." It was the opinion of the court, that the devisee was en- titled to his claim. To be sure, no clause provided in tern\s for the present case, where the owner died after the three years without having made any claim ; but it must have been intended that no injury should be sustained without compensation. Then, who was the party entitled ? No other person than the devisee could an- swer the character of owner of the land. The testatrix might have given contingent directions by her will as to the produce of the claim, if allowed, but, in absence of such a disposition, the right must be considered to have passed with the estate. The rule for a mandamus to the commissioners was, accordingly, made abso- lute, (a) Then as to the criterion, for estimating the yearly receipts of property diminished by the making the docks ; that also must de- pend on the wording of the respective acts. The compensation clause of the West India Dock Act directed, thal^ if any ware- houses, &c. used for holding West India produce before the act should be rendered less valuable by reason of the diversion of the West Indian trade by the intended docks, than they were before the passing of the act, &c., that then the owners of such warehouses should be compensated. The plaintiffs were the owners of a ware- house which they had used for the reception of West Indian pro- duce, and their profits had progressively increased for many years in consequence of the increasing importation of colonial produce, and the consequent increased demand for warehouse room. This progressive advance was said to have taken place from four years before the passing of the act in 1799, till the opening of the docks in 1802. It being clear at the hearing of the case, at the Guild- hall sessions, holden before the Recorder, that the plaintiffs were entitled to some compensation, a question arose as to the time from which the average value of the premises was to be computed. The Recorder, looking to the words of the act, told the jury, not to take into their consideration any profits made subsequent to the passing of the act, but to confine their attention to such profits as had been made prior thereto. The jury having followed this di- rection, a rule was obtained to set aside the inquisition, and have (a) 12 East, 477. Rex v. The Commissioners of Compensation under the London Dock Act. CHAP. IV.] Waterworks, a new assessment; but the court were of opinion, that the criterion adopted by the Recorder was the right one ; for if it had been al- lowed to calculate the subsequent profits, a different standard of valuation from that prescribed by the act would have been adopted, namely, a calculation of the value at the time of the claim, instead of the value before the passing of the act. (a) ' Again, with regard to water companies; they have been incor- Water- porated by several acts of parliament respectively applicable to works, each, and their duties and liabilities are likewise pointed out, either by the statutes which create them, or by the principles of society at large, and by which they are of course restrained from exer- cising their privileges to the injury of others. The East London Water Works Company were empowered by an act of parliament to break up the soil and pavement of roads, highways, footways, &c., provided that they should not enter any private lands without the consent of the owner. It was held, that the company could not enter a field belonging to the plaintiff, over which there was a common foot-path, for the purpose of laying down their pipes. The words, " highways and footways," had re- ference to public rights only, according to the principle, noscitur a sociis ; and besides this, there was an express reservation in the 34th section of the act, (6) of private rights, for there it was declared, that the company should not invade the property of individuals without leave, (c) An act of parliament enabled the directors of a water company to make " contracts, agreements, and bargains with the workmen, agents, undertakers, and other persons engaged in the under- taking." The company entered into a contract for the supply of pipes, which was not under seal, and having sued the defendants lor the delivery of these pipes, and gained a verdict, it was moved to enter a nonsuit, because this body, being a corporation, could not depart from the usual custom, namely, that their contracts should be by deed. And the court were of that opinion, holding, that the words of the statute only enabled the directors to regulate the internal concerns of the company without calling all the mem- bers together, (d) (a) 9 East. 166. Manning & others v. The Commissioners of Compensation under the West India Dock Act, S. C. 3 Smith 17. See also 2 Y. & J. 152. In the matter of the St. Catharine Dock Company. Exparte Back. That the warrants of the West India Dock Company are equally negociable with bills of lading. See 1 Moore, 12. Zwinger v. Samuda. See post in the Law of Sewers, as to the liability of the Bristol Dock Company to make sewers. | . (6) 47 G. 3. Sess. 2. c. 72. An act for better supplying with water the inhabitants of the parish of Stratford-le-Bow. (c) 4 Bing. 448. Scales v. Pickering. (rf) 4 Bing. 282. East London Water Works Company v. Bailey. But it seems that they might make themselves parties to a bill of exchange or a Waterworks. [CHAP. iv. With regard to the liability of these companies for injuries occa- sioned by negligence, Lord Ellenborough declared, in the case of the West London Water Works Company, who were sued for the carelessness of their servants, in consequence of which a serious accident happened to the Liverpool coach, that he had no doubt of their being answerable, (a) According to a late decision of the House of Lords, recourse may be bad to the Court of Chancery, in order to compel an ac- count from water companies. An information and bill had been filed against the corporation of Dublin, on behalf of the inhabit- ants of that city, which stated various acts of mismanagement and misappropriation concerning the funds arising from the payment of water-rates. These rates were payable by virtue of certain Irish acts passed in the reign of Geo. 3. It was suggested, that the corporation were trustees of these imposts for uses which wero charitable in their nature, and the inhabitants prayed not only for a declaration and execution of the trust, but also for accounts of the various sums received, and an explanation of the purposes to which they had been applied. It being declared by the legislature, that these accounts should be furnished annually to the Lord-Lieu- tenant, in order to their being laid before parliament ; the defendants insisted, that the Court of Chancery had been thus barred of its jurisdiction ; and the court decreed, that the information should stand dismissed with costs for want of such jurisdiction. This de- cision, however, was appealed from, and the House of Lords reversed the judgment, holding that the trust of these rates was charitable in its nature, and that the proposed remedy against the corpo- ration ought to have been entertained. (6) promissory note, payable more than six months from the date. 3 B. & A, 12. By Best, J. in Broughton v. Manchester Water Works Company. (a) 3 Campb. 403. Matthews v. West London Water Works Company. (fe) 1 Biigh. N. S. 312. The Kight Hon. W. Plunkett, Att.-Gen. of Ire- land, Appellant, the Mayor, &c. of Dublin, Respondents. See 1 Sw. 265, the Att.-Gen. v. Brown. CHAPTER V. Of Fisheries. ' THE kinds of fisheries mentioned in our books are five : namely, a common fishery, a several or separate fishery, a free fishery, a common of fishery, and a fishery in gross. But we shall find, in the progress of our inquiry, that these several kinds may be resolved into four, namely, a public, a several, a free, and a common of piscary. All these rights may be respectively enjoyed in the sea, and in public navigable rivers. For, although the waters of the sea and of public rivers are the birth-right of all his majesty's subjects, yet that must be considered as a general rule, to which there may be exceptions, and accordingly we shall find occasions upon which an individual has successfully claimed a separate and exclusive privilege in part of these (otherwise public) places. And upon the same principle, other private rights of fishery may be occa- sionally found to belong to persons, who, but for the immemorial custom, or ancient grant, would be trespassers upon the public. A common fishery, however, (which is obviously distinguishable from a common of fishery,) cannot, of course, be claimed in pri- vate waters ; for, if it should have happened that any line of fishery has been neglected, or left open to the public, the law will presume a grant or dedication by the owner of the soil, but will not recog- nize the user of the water as of common right. Thus it follows, that in the sea and other public waters, each species of fishery may be exercised, but that in private streams, that first mentioned, namely, the common fishery, must be ex- cluded. It should be observed here, that confusion and difficulties have arisen in defining the precise meaning of the terms, several and free fishery ; but, perhaps, it may be better to postpone the discus- sion upon that subject until the private rights of this nature come under our consideration, because we shall find but few instances in which a private right of monopoly in public waters has been main- tained, and in those, the right has most frequently been considered to be a several fishery, with the ownership of the soil annexed. Of Fisheries. [CHAP. v. fisheries ^ e ptoceed, therefore, first, to consider the right of fishing in n the sea the sea, and in public navigable rivers, md public ivers. Having thus assumed in what places the fish are to be taken, our inquiries may be, I. Who may fish in the sea, &c. II. What fish may be taken ; and how they may be disposed of, as by sale, &c. III. How they may be taken, and IV. W 7 hen the privilege may be enjoyed. Certain statutable regulations concerning particular fisheries, and also for the encou- ragement of fisheries in general, will be added. With regard to the first question, it is an established principle, that the sea and navigable streams are open and common to all the king's subjects, (a) This is a general rule of practice ; and whe- ther the opinion of those writers who class this right amongst the jura regalia be preferred, or that, on the other hand, of such as hold the right to be jus publicum vel commune, it is, nevertheless, certain, that prima facie, the liberty in question is general. And although we do not profess to enter theoretically into an investigation of this subject, it cannot but be remarked, that the absence of any impost for taking fish in this manner is a strong argument to show, that the right under discussion was never vested exclusively in the crown. "As a public right belonging to the people, it prima facie vests in the crown, but such legal invest- ment does not diminish the right, or counteract its exertion."(&) But another inquiry naturally arises here, and it is this to what extent the dominion over the sea extends on behalf of the subjects of the realm. First, there may be a certain limit within which no stranger can intrude, so as to participate in the profits of fisheries enjoyed within that limit ; and, secondly, there may be a right to take fish in places without that limit, subject to certain regulations and courtesies which are recognized among nations. With respect to the second point, namely, the taking of fish without the limits of the British seas, it has alwavs been con- (a) Bract, lib. i. c. 12. s. 6. Publica vero sunt omnia flumina et porlus, ideoque jus piscandi omnibus commune est in portuetin fluminibus. 8 E. 4. 18. 1 Mod. 106. G Mod. 73. 1 Salk. 357. Holt. 323. Wiliest 268. 4 Burr. 2164. (b) Scbviltes' Aquatic Rights, p. 15. See Hale de Jure Maris, p. 11. CHAP, v.] Fisheries in the Sea and Public Hirers. 57- sidered, that the captors must in some measure accommodate them- Taking of selves to the customs and courtesies of other nations. And, fis houtof therefore, it is not competent for the subjects of one country to fish l r e J lin !j*. *\. 1- i_ i i j j ^ i_ J i i of the Bn- in those seas or rnrers which are acknowledged to be under the ^^ seas> control of another sovereign, unless they obtain his consent prior to their undertaking, (a) Moreover, the customs of other nations must be respected, even in places which are free to all the world. Thus, in the case of a particular trade which is carried on by the subjects of several countries, those of one nation cannot agree among themselves to make an alteration in their rules, and so to deprive others, who have not assented to the change, of the advantages of the old rules. - Trover was brought for a whale, the half of a whale, and certain quantities of whale flesh, blubber, oil, spermaceti, and whalebone. The plaintiffs were owners of a ship employed in the southern whale fishery among the Gallipagos islands ; the defendants owned another. While the captain of the plaintiff's ship was engaged in killing a whale, he struck another with a harpoon made fast by a short line or warp, to a small buoy called a droug. The fish last struck struggled for a considerable time, its course in the water being clearly marked by the droug, and then, upon a signal made by the plaintiff's captain, the master of the other ship followed, and killed the fish. Having extracted the oil, and other valuable matter, he refused to allow the plaintiff to participate in any part of the capture ; upon which the action was brought. It was proved, on the part of the plaintiff, that a custom had obtained universally in those seas, that whoever struck a fish with the droug should receive one half from the party who killed it. The de- fendant's witnesses gave in evidence, on the other hand, that about fifteen years since, several captains of ships employed amongst the Gallipagos, (of whom one was an American,) had usually agreed, that the striker of a fish with the droug should not be entitled to a share. The master of the defendant's ship had acceded to these terms, but the plaintiff's captain had not done so. The jury found, that by the custom the plaintiff was entitled to half the fish, and they gave him the value of a moiety for his damages. A new trial was, however, moved for, 1st, because this was not such a custom of a particular trade as to be binding in law ; Sndly, that the verdict was contrary to the evidence of the present prac- tice of the "fishery ; and 3dly, that the dissent of the captains remitted all the parties to their common law rights. The counsel for the defendants also applied to enter a nonsuit, because the parties were tenants in common. It became unnecessary for the court to decide upon the questions which affected the new trial, because they held the last objection fatal, and were unanimous (a) See upon this subject, Selden. Mare Clausum, lib. 2. c. 21. fisheries in the Sea and Public Rivers. [CHAP. v. that a nonsuit should be entered ; but with regard to the custom, Lord Chief Justice Mansfield seemed to incline, that it might be difficult for the defendant to get rid of the merits of the case on the part of the plaintiffs, though he admitted that a considerable degree of doubt might be created by the change of practice. But Chambr, J. held the custom to be absolutely good, and said, that had the case rested on that ground alone, he should have been unwilling to have granted a new trial. The words of the learned judge are worth transcribing. " There must of necessity be a custom in these things to govern the subjects of England, as well amongst themselves as in the intercourse with the subjects of other countries. The usage of Greenland is held to be obliga- tory not only as between British subjects, but as between them and all other nations. I remember the first case upon that usage, which was tried before Lord Mansfield, who was clear, that every person was bound by it, and said, that were it not for such a custom, there must be a sort of warfare perpetually subsisting between the adventurers, and he held it strongly binding, from the circumstance of its extending to different nations. The same necessity must prevail in the South Seas, although the fishery has not been so long in use, in order to regulate our inter- course with the French, Americans, and otheys who resort thi- ther. A few persons may, by compact among themselves for a particular reason, renounce any advantages, and subject them- selves to any disadvantages that they please ; and this would bind all those who assented to it : but Luce was no party to this com- pact." (a) The rule for entering a nonsuit was made abso- lute, (b) The customs in the Greenland fishery differ from the above. They have occasionally come under consideration in actions to re- cover the value of whale blubber, &c. ; but there seems to be some discrepancy in the customs found in different cases. Thus, in a case where the whale had been struck first by a harpooner belong- ing to the ship of the plaintiff's, and afterwards by one of the de- fendant's harpooners, it was agreed by the counsel on both sides, that the following, as practised in Greenland, and settled by deter- mination, at Guildhall, was the right custom. While the harpoon remains in the fish, and the line continues attached to it, and also continues in the power or management of the striker, the whale is a fast fish ; and though during that time struck by a harpoon of ano- ther ship, and though she afterwards break from the first harpoon, and continue fast to the second, the second harpoon is called a friendly harpoon, and the fish is the property of the first striker, and of him alone. But if the first harpoon or line break, or the line attached to the harpoon be not in the power of the striker, (a) 1 Taunt. 248. (b) Id. 241. Jennings v. Lord Grenvilleand others. CHAP, v.] Fisheries in the Sea and Public the fish is a loose .fish, and will become the property of any other person who strikes and obtains it. (a) Nevertheless, it was con- tended much more recently, that the custom was for the whale to continue the property of the first striker, not merely while the harpoon continued in the fish, and the line remained attached to it, but even, although the harpoon should have come out of the fish, or have been detached from the line, provided the fish be en- tangled in the line, and the line continue, in the power or manage- ment of the striker. It appeared, that the whale was so far entangled in the rope of the first harpoon, when the second was struck, as to carry out 250 fathoms of rope, with such velocity as to endanger the burning of the rope, and upon this, L. C. J. Best said, that, if the custom as proved were understood to extend to all cases where the whale was so far entangled in the rope of the first striker, as that they might thereby have a reasonable expectation of se- curing her, he thought that it was a more reasonable custom than that in Littledale v. Scaith. The jury, which was special, then found for the plaintifis. (b) But an unsolicited and intrusive interruption, while the fish remains fast to the harpoon of the first striker, will not entitle the trespasser to the fish, although he thereby succeed in detaching it from the first harpoon. In trover for a whale, it was proved beyond doubt, that the fish was fast, and that while it was in that condition the boat of the defendants came up. The crew of that boat struck the fish with a lance ; and they subsequently struck it with a harpoon, and thereby gained possession of it. The blow given with the lance was in no wise serviceable towards the secur- ing of the whale ; but it made the fish struggle violently, so as to disengage the harpoon of the plaintifis. Whether the detaching of the plaintiffs' harpoon happened before or after the blow of the harpoon of the defendants, was not clearly ascertained. Mr, Jus- tice Bayley told the jury to consider, 1st. Whether the harpoon of the plaintiffs was fast when the defendants struck the whale with theirs ? and that if they thought not, then, 2d. Whether the plaintiffs could have secured the fish, if the lance of the defendants had not been used ? The learned judge held, that if a party come unsolicited, and do an act which prevents the first striker of an animal from killing it, and he then kill it himself, he kills it not for his own benefit, but for that of the first striker. The jury found, that the fish was loose at the time of the striking by the defendant's harpoon, but that it had become so in consequence of the blow given by the lance ; and therefore a verdict was entered for the plaintiffs, (c) (a) 1 Taunt. 243, n. Littledale & others v. Scaith & others. (A) Mood & Malk. 58. Hogarth & others, v Jackson & others. S. C. 2. C. & P. 595. (c) Mood. & Malk. 59, n. Skinner and others v. Chapman and others. Fisheries in the Sea and Public Rivers-. [CHAP. v. ;scrip- There may be a vested right in a particular individual to ex- Q to fish elude the public from fishing in a certain part, for example, in the sea. ^ arm o f tne se a.(o)* And so again, it is competent for the crown to exclude the public from a river which is parcel of the king's ancient inheritance ; as in the case of the fishery of salmon in the river Banne, which appeared by the Pipe rolls to be originally vested in the crown. Here, one Sir R. M. Donel had obtained a grant from the crown of a certain territory adjoining to the Banne river, with all fishings, &c., except three parts of the fishery of the Banne. Upon this, Sir R. petitioned the Lord Deputy that he might be put into quiet possession of the fourth part. But the Attorney General being apprized of the claim, obtained the reso- lution of the chief judges who were of the privy council, and they considered that no part of the fishery in question had reference to the grant. For this was a piscary in gross, and the several inherit- ance of the crown, and was by no means appurtenant to the lands which had been granted to Sir R. And, moreover, general words in such a grant, it was said, should never pass special royalties which belong to the crown by virtue of its prerogative. And, lastly, although three parts only of the fishery were reserved for the crown, yet no such profit as that demanded could be allowed to pass by implication, (b) The defendant pleaded, to an action of trespass, that the 1. i. q. was a navigable river, and also an arm of the sea, in which every subject had a right to fish. The plaintiff replied, that it was part of the manor of A.; that Mrs. Y. was seised of that manor; and a prescription for a" several fishery was alleged. Lord Mansfield observed in this case, upon a motion in arrest of judgment, that if any one would claim such a privilege exclusively, he ought to show a right, the presumption being against him. But here, said the learned lord, the right is claimed and found. The rule was there- fore discharged, (c) So, to trespass for fishing in the plaintiffs' free fishery, and also in their several fishery, in Orford Haven, the defendants said, thai Orford Haven had been from time immemorial an arm of the sea, in which every subject of the realm ought to have the liberty of free fishing. The plaintiffs replied, that the corporation of Orford was a corporation by prescription, and also by charter granted by (a) Dav. Rep. 56 (a). Hale, De Jure Maris, p. 18. * " Fishing may be of two kinds, ordinarily," says Lord Hale, " viz. the fishing with the net, which may be either as a liberty without the soil, or as a liberty arising by reason of and in concomitance with the soil, or interest or propriety of it ; or otherwise, it is a local fishing, that ariseth by and from the propriety of the soil. Such are gurgites, weares, fishing-places, horachiae, stacchise, &c." De Jure Maris, p. 18. See also p. 19, for prece- dents of such rights. (i) Dav. Rep. 55. Le Case del Royrall Piscarie de la Banne. (c) 4 Burr. 2163. CHAP, v.] Fisheries in the Sea and Public Rivers. Queen Elizabeth, and that they had immemorially enjoyed, &c., the exclusive liberty of dredging and fishing for oysters there, at all seasonable times of the year. The court were of opinion in this case, that there could be no doubt but that a subject might have a prescriptive right to a .fishery in an arm of the sea ; and judgment was given in their favour, (a) So again, the plaintiff declared for an injury to his sole and several fishery, and also to his free and common of fishery, in certain parts of the river Ribble, lying within certain manors contiguous, and also in a certain part of the river Hodder. The mischief complained of was, that the defendant had erected a dam or wear across the liibble, lower down the stream than the plaintiff's fisheries, so that salmon and other fish were prevented from coming up to the plaintiff's fisheries and spawning there. A right of fishery was proved on the plaintiff's behalf at the trial ; and no objection was made to his claim, as enjoyed in a navigable river. He reco- vered a verdict, although the defendant insisted upon the legality of his wear, (b) Then again, in another case, there was a repli- cation in trespass, to the following effect : that the plaintiffs had a prescriptive right, under the persons seised in fee of the manor of tiurnham, for the sole, several, and exclusive liberty and privilege of fishing for, taking, and carrying away, all oysters and oyster spats in and upon the several parts of the fishery mentioned in the declaration. Here, indeed, the plaintiffs, although they recovered a verdict, were ultimately unsuccessful, upon a motion for a new trial ; but the right of fishery was not repudiated, but was, on the contrary, recognized by Heath, J., who said it might still pass as an appurtenance of the manor ; and the ground of the plaintiffs' failure was, that, in the opinion of the court, the prescription had b eennegatived by the evidence, (c) . The same principle applies to the taking of fish between high and low water-mark. Trespass was brought for taking the plain- tiff's shell-fish and shells. The defendant, in reply, set up his general right to take these shells, &c., in an arm of the sea. The plaintiff then newly assigned, stating the plaintiff's closes to be " certain closes lying within the flux and reflux of the tides of the sea, in the plaintiff's manor of K." The defendant pleaded to the new assignment, a general right to take shell-fish and fish-shells. The plaintiff replied, traversing the general right, and the defendant de- murred specially to the replication, because it traversed a matter of law. It was agreed, however, that the replication should be abandoned ; and the plaintiff's counsel proceeded to argue against the plea, urging very strongly, that, although the common law of the subject to take might be established, it by no means followed that the subject might take shells thrown upon the sea-shore. And the court were of Ca) 4 T. R. 437. The Mayor and Commonalty of Orford v. Richardson. (A) 7 East. 195. Weld v.' Hornby. (c) 1 Campb. 309, 311. Rogers v. Allen and others. 2 Fisheries in the Sea and Public Rivers. [CHAP. v. opinion, that as no authority had heen cited to support the defen- dant's claim to take shells, they would pause before they established a general right of that kind. However, as the plaintiff had omitted to reply his exclusive right specially, it was clear that the defen- dant's plea was unanswerable, as far as it related to the taking of fish only ; and the court therefore offered the defendant to amend his plea, without costs, by striking out his claim to the fish-shells, and shaping his justification as he should be advised. The offer was accepted, (a) . What Secondly, we come to inquire what fish may be taken in the ib may be gea> an( j j n nav igable livers, by virtue of the public or private rights above alluded to. In the outset of this inquiry, we find that whales and stur- geons are excepted out of these general privileges. They are royal fish, and, as such, belong to the king, by force of his preroga- tive, (b) * These are called royal fish, in preference to all others ; and, as Mr. Schultes expresses it, their epithet denotes their owner, (c) This right, moreover, is wholly vested in the crown, (d) the subject having no participation in it, unless, as we shah 1 see by and bye, by special grant. It is said to be sufficient, if the king have the head, and the queen the tail of a whale, but that the king, by his royal privilege, shall have the whole of a sturgeon, (e) That the right stood acknowledged at common law, before the passing of the statute of Edward II., we find by a very early case. A whale was taken in Essex, and the Barons of the Exchequer immediately issued their precept to the Sheriff to seize the animal into the king's hands ; and, further, to inquire by good and lawful men of his bailiwick, whether any mischief had been done to it. (/") Then, by 17 E. 2, c. 11, it was declared, that the king shall have wreck of the sea throughout the realm, whales and great sturgeons taken in the sea, or elsewhere within the realm, except in certain places privileged by the king. The words " within the realm" are deserving of attention here, because they confine the prerogative to places within the jurisdiction of the Lord High Admiral ; and, consequently, the whale fisheries abroad (of which we have been speaking,) are not affected by the exercise of this authority. (a) 2 B. & P. 472. Bagott v. Orr. (b) See Bract. Brit. 27, fol. 14 and 55. * Lord Hale says, " Sturgeon, porpoise, and baloera, which is usually reu- dered a whale ." De Jure Maris, p. 43. And grampus post, in the same page. (c) On Aquatic Rights, p. 13. (<*) 6 Mod. 73. () Seld.Fleta, 61. (/) 24 Ed. 1. 37 Plowd. 315. ace. & 3 13 & (*; CHAP, v.] . Fisheries in the Sea and Public Rivers. The latter part of the statute leads us to speak of the king's grant of these royal fish. At common law, this royal privilege, according to Staundtbrde, might have heeu granted to an indivi- dual ; (a) and it is now understood that the right is stisceptihle of delegation. In the hands of a subject it is called a franchise. (6) So that in some places or districts the king might, before the statute, have delegated, restrained, or relinquished his right to royal fish to another person ; (c) and since that time it is consi- dered, that although every subject may fish with lawful nets, &c., in a navigable river, or in the sea, yet that the crown only has a right to royal fish, and that the king alone can grant them to another. (?,{: oata*8 *f . .M . . CHAP. v.J Fisheries in the Sea, and Public Rivers. &c., where the judgment has been given, at the sessions then next, or next but one. Previously, however, to entertaining this appeal, the appellant must, within ten days next after the judg- ment, and twenty days at least before the holding of the sessions, give and leave notice in writing of his intention at the office of the clerk of the peace, and also to the informer, either personally or at his dwelling-house. He shall also enter into a recognizance before the justice, in such sum, not exceeding 20/., as the justice shall think fit ; the condition being to try the appeal, and likewise to pay the costs, within ten days after the determination, in case judgment be given against him. The justices, upon due proof of the notice, shall determine the appeal in a summary way, and shall award costs, in their discretion, to the successful party. If the costs so awarded be not paid within ten days, they may then be levied by distress of the goods of the person ordered to pay the same, or his surety or sureties, in like manner as all distresses are ordered to be taken by virtue of the act. (a) With respect to actions against parties for any thing done in pursuance of the act, one calendar month's notice must be given to the person against whom it is intended to bring the action. It may be left at his last or usual place of abode, and it must set forth the cause of action, contain the name and place of abode of the plaintiff or plaintiffs, and also of his or their attorney. The action must be brought within three calendar months next after the cause of action, and laid in the county, &c., where the fact shall have been committed. The defendant may plead the general issue, and give the act and special matter in evidence, and may, before action brought, tender amends to the party or his attorney ; and if the same be not accepted, may plead the tender in bar to the action, together with the plea of not guilty, and any other plea, with the leave of the court. Further, if it shall appeal- at the trial that the action has been brought before the expiration of one calendar month after the notice, or at the end of three months after the cause of action, or in any other county, &c., than as aforesaid, or after a sufficient tender of amends, the jury shall then find a verdict for, and acquit the defendant. If the plaintiff discontinue after the defendant has appeared, or be nonsuited, or if judgment be given against him upon demurrer, the defendant shall have double costs, with the usual remedies for recovering the same. Lastly, no action, suit, information, or other proceeding, shall be brought or commenced against any person, for any offence against the act, unless com- menced within six calendar months next after the commission of the offence, (b) It is declared by the next section, that no provision of any former act for the regulation of any fishery, shall be altered or extended by the present, (c) The fifteenth section is on the right (a) 56 G. 3. c. 43, s. 12. (A) Id. s.1 3. (c) Id. s. 14. See also 33 G. 2. c. 27, s. 13, to the end of the statute. F2 Fisheries in the Sea, and Public Rivers. [CHAP. v. of lords and ladies of manors ; but they are required to appoint conservators for the protection of rivers within their respective manors. The sixteenth section saves the rights of corporate bodies ; the seventeenth those of the city of London. It may be remarked, that as the provisions of former acts are left untouched by the express words of the 14th section, the statute of 1 Geo. 1. s. 2. c. 18, after prescribing the penalty and the mode of levying it by distress and sale, goes on to enact, that the party making default shall be sent to gaol and kept to hard labour, and suffer such other corporal punishment as the justices shall think fit. The latter punishment is not mentioned in the new act, but it nevertheless remains unrepealed. General conservators, or overseers, for the preservation of the salmon, and fish of that species, and of the spawn, brood, and fry thereof, and for preventing the destruction of the dams, and also for enforcing the provisions of the act in question, are to be appointed by the justices at sessions, from time to time, (a) Other conservators are appointed by local acts, as the lord mayor of London (6) for the rivers Thames and Medway, certain resi- dents in Hants and Wilts, for the preservation of the salmon fisheries within those counties, &c. ;(c) but the statutes above referred to respect these public rights at large ; and we have thus ascertained that certain young fish may not be legally taken in public rivers ; which is an exception to the general rule above laid down, that all fish except royal fish may become the property of the first taker. There are several local statutes which impose restrictions similar to the above on the taking of small and young fish, but as we do not purpose, in a general work of this nature, to enter into the particu- lars which concern all such rivers as have been made the subject of separate enactments, the reader will he referred in the note to some of the principal acts upon this subject, (d] and we shall con- tent ourselves with giving a brief notice of the regulations which affect the Thames and Severn. (a) 58 G. 3. c. 43, s. 1. Conservancy on rivers was of two kinds con- servancy with respect to nuisances, and to fishing. See Hale de Jure. Maris. pp. 2325. (6) 17 R. 2. c. 9 ; 9 Ann. c. 26 ; 30 G. 2. c. 21. (c) 4 Ann. c. 15. Slower Fishery, in Essex and Suffolk. 4 Ann. c. 21. Conservators for the rivers Thames, Humber, Ouse, and Trent, and those in Lancashire, 17 R. 2. c. 19. (d) 4 Ann. c. 21. An act for the increase and hetter preservation of sal- mon and other fish, in the rivers within the counties of Southampton and Wilts., and 37 G. 3. c. 95; 2 G. 2. c. 19. Oyster Fishery in the Medway, 23 G. 2. c. 26. s. 7. & 8. River Kibble, 16 G. 3. c. 36. Pilchard Fishery within the bay of Saint Ives, in Cornwall, 43 G. 3. c. 61. As to the rivers Seyne, Dort, and Plym, in Devon. CHAP, v.] Fisheries in the Sea, and Public Rivers. Indeed, with respect to the Thames, it was observed by Lord Coke, (when speaking of the statute of Westminster the second, c. 47, concerning the preservation of salmon in particular rivers therein named,) that inasmuch as the Thames was not named there, it should not be included in general words following afterwards in the same statute, and therefore the Thames is added by another act in " the first place." (a) Thus no fisher, garthman, nor any other, shall from henceforth put in the waters of Thamise, &c., nor any other waters of the realm, any nets, &c., by which the fry or the breed of the salmons, lampreys, or any other fish, may in any wise be taken or destroyed, upon pain of the same punish- ments as are awarded by the statute of Westminster. (b) A subse- quent statute recognizes this, and confers the conservancy of the Thames and Medway upon the mayor, or warden of London. The limit of the jurisdiction is stated to be, from the bridge of Staines to London, and from thence over in the same water, and in the said water of Medway, as far as it is granted to the said citizens, (c) Then, in an act for the better preservation and improvement of the fishery within the Thames, &c. it was ordained, that no one should wilfully kill, or expose to sale any spawn, fry, or brood of fish, or spatt of oysters, or any unsizeable, small, or unwholesome fish, or catch, kill, or destroy any fish out of season, or expose such fish to sale, or wilfully or knowingly buy, harbour, receive, or use as food for hogs, or otherwise, any such spawn, &c. And for the pre- servation of the fry, &c. the lord mayor is authorised, upon ap- plication to him by the court of assistants, to order stakes to be driven into the river between the London mark-stone, above Staines Bridge and London Bridge, so as, nevertheless, that the navigation of the river be not hindered ; and no person is to pre- sume to meddle with such stakes waithout lawful authority. (d) The same prohibition is continued by a subsequent act, (e) and power is also given to the water-bailiff to enter into the boats of fisher- men, and to seize prohibited fish. Such unlawful fish are to be brought before a magistrate, and, being found to be so, either on view, or upon oath, are to be forthwith burnt. (/) With regard The acts for encouraging the fisheries in the river Tweed have been already referred to. ante p. 64. 44 G. 3. c. 45, as to the fisheries in the arm of the sea below Cumberland and Dumfries, and Wigtonshires, and the Stewartry of Kirkcudbright. 45 G. 3. c. 45, as to the salmon in rivers in Carmarthen- shire. 46 G. 3. c. 19. Pembrokeshire fisheries in the harbour of Milford. As to the talcing of salmons, see 22 Ed. 4. c. 2. ; 11 H. 7. c. 23. (a) 2 Inst. 478. (6) 13 R. 2. c. 19. The punishments were, the burning of the nets and engines, for the first offence ; imprisonment for a quarter of the year, for the second ; and for a whole year, for the third ; and according to the words of the act, as their trespass increaseth, so shall their punishment. (c) 17 R. 2. c. 9. The conservancy of the River Thames above Staines- bridge seems to be in the crown. It was so admitted by the plaintiff in his replication, in a great case concerning the power of the water-bailiff, 3 Burr. 1768. Bulbrook v. Goodere. Chitty's Fisheries, p. 262. (d) 9 Ann. c. 26. s. 2. (e) 30G. 2. c. 21.S.2. (/) Id. s. 5. Fisheries in the Sea, and Public Rivers. [CHAP. v. to the penalties for disobeying these statutes, it is provided, that the court of the mayor and aldermen may make certain rules for (amongst other things) the preservation of the spawn and fry of fish, and may annex reasonable forfeitures for breaches of the same, so as the penalty do not exceed the sum of five pounds for any one offence, (a) And then it is declared by the second section, that for every offence of destroying spawn, &c. such a sum of money shall be paid as is directed by the rules and ordinances aboveinen- tioned. There is also a special act for the preservation of fishing in the river Severn. A penalty is awarded against such as destroy the spawn or fry of fish, and unlawful instruments to be destroyed. Conservators of -the river are appointed, and there are surveyors of the jurisdictions of the lords of leets and franchises, and of the king's rights, (b) The statutes to which the attention of the reader has been above invited, seems more especially to concern fish which are taken in rivers and arms of the sea ; the next which we shall notice is " an Act for the Preservation of Sea-fish." It declares, that any one who shall erect or set up any new wear along the sea-shore, or in any haven, harbour, or creek, or shall willingly take, destroy or spoil any spawn, fry, or brood of any sea-fish, in any wear or other engine, or devise whatsoever, shall forfeit for each offence the sum of 10, one half to the king, and the other half to him who shall sue for the same, (c) The taking prohibited by this statute has been held to mean a taking for the purpose of destruction. Debt was brought to recover a penalty of 10 for taking three gallons of oyster fry and spat, in Colchester harbour, with a dredge. There was a se- cond count for taking 100 bushels of spawn, and 100 bushels of brood of sea-fish, to wit, oysters, with a drag. The defendant was a Colchester fisherman. The brood oysters in question were young spawn, fit to be laid down on beds, to grow till they came to be oysters. It appeared, that the small fish would thrive if laid down on proper ground, and that the defendant took the brood, which he had removed, to Colchester, to be laid down there on private lands for further growth and maturity, and to make them marketable. It was objected, 1st, that the taking must be with intent to destroy ; and, Sridly, that the act applied to floating fish only. A verdict was taken for the plaintiff" on the second count, with leave for the defendant to move to enter a nonsuit. ' The court were of opinion, that the rule should be made absolute for enter- ing a nonsuit, on the ground that the acts of parliament intended to punish those only who took the young fish for the purpose of (a) 30 G. 2. c. 21. s. 1. See the st. 33. G. 2. c. 27. (6) 30 Car. 2. c. 9. (c) 3 Jac. 1. c. 12. s. 2. CHAP, v.] Fisheries in tfie Sea, and Public Rivers. destruction. For the object was to preserve, with a view to the more beneficial nourishment and growth of that species of fish. Lord Ellenborough was strongly of opinion, and the rest of the court inclined the same way, that the statute was confined to float- ing fish ; but it was not necessary to decide that point, because the fisherman had taken these young oysters with the express in- tention of doing an act quite contrary to the offence prohibited, (a) Mr. Chitty observes upon this statute, that it is very inaccurately framed, in not giving a jurisdiction to convict of the offence against which its provisions are directed, and that the action of debt, qoi tain, is, consequently, the only remedy. (6) The kind of fish which may be taken having now been men- Sale of tioned, it remains to say something of the disposal of them, when fi sb - caught ; and here, their marketable size, together with the mode of selling them, demand our consideration. The policy of the law in respect of fish sold here in our own markets, has been for many centuries to exclude foreigners, as far as might be, from any participation in the profits of sales ; and also to establish a free market for fish, to the exclusion of mono- polies. The offence of forestalling the market was also regarded with peculiar jealousy by our ancestors, and the laws which forbid the anticipation of a free traffic are still in force against such as violate them. Before we proceed to speak of the fish markets, and of such fish as may be sold there, we will just dispose of the two points above alluded to : first, as to restrictions upon foreigners ; and, secondly, as to the offence of forestalling. It had been forbidden, as early as in the reign of H. 6, to buy any fresh fish of foreigners ; and there was again another prohibi- tion in the reign of H. 8. (except as to sturgeon, porpoise, and seal,) against buying of any stranger in Flanders, Zealand, Picardy or France, or upon the sea between shore and shore. When these acts expired, others succeeded, armed with similar restric- tions, till at length, by the last celebrated statute for repealing the laws relating to the customs, and consolidating those provisions within a reasonable compass, the restriction imposed upon the importation of fish in the ' Table of Prohibitions and Restrictions inwards,' is as follows, and comprises the fish named underneath, that is to say, fish of foreign taking and curing, or in foreign ves- sels, except turbots and lobsters, stock fish, live eels, anchovies, sturgeon, botargo, and caviare, (c) () 2 M. & S. 568. Bridger 9. t. v. Richardson. (A) Chitty on the Game LHWS and Fisheries. 2nd Ed. p. 251. (c) 6 G. 4. c. 107. s. 52. Fisiieries in the Sea, and Public Rivers. [CHAP. v. The forestalling the fish-market was considered to be an offence in very old" times. It was declared, that no herring should be bought or sold in the sea, till the fishers were come up into the haven with their herring, and that the cable of the ship should be drawn to the land, (a) However, by 5 Eliz. c. 5. s. 4, this pro- vision seems to be somewhat qualified. It is enacted thereby, that no purveyor or other person shall, by virtue of any commis- sion or otherwise, take any herring or sea-fish, otherwise than by agreement of the owners or sellers of the same fish, upon pain of forfeiting double the value of the herrings so taken. And any person, being the owner or seller of any such fish, may withstand such demands, or the demand of toll, without the goodwill of such owner or seller as aforesaid. Another enactment appointed certain great officers of the realm to take order for the selling and buying of stock fish of St. Botulf, and salmon of Berwick, and fish of Bristuit, so that there might be a better market for the king and his people (b] Independently, however, of these statutes, the offence in ques- tion is punishable at common law, by fine and imprisonment, (c) Having mentioned the restrictions which are imposed upon fish, which, but for such prohibitions, would be brought into this country by foreigners, we come to speak of our markets, and of one or two incidental matters. A very general abridgment, however, must suffice for the consideration of this topic, by reason of the nume- rous provisions which the legislature has ordained on the subject of sales of fish. Statutes have certainly been passed at different times to regulate the market for this commodity, as, for instance, those relating to the buying and selling of herrings at Yarmouth fair; (d) but the first remarkable act upon this point, was that for making Billings- gate a free market for the sale of fish. Thus, by s. 1. of that statute, (ome other justice of the county where the conviction took place.. In default of sufficient distress, and on proof of conviction and non- payment, the justice shall commit the offender by warrant to the common gaol of the county, &c., where he shall be found for one calendar month, unless payment be made after the commitment within the month. Lastly, all such penalties and forfeitures are to be paid to the informer. It has been said by Dalton, that millers are not to be common Millers not buvers of corn, to sell the same again either in corn or meal, but common that they ought only to serve for the grinding of corn that shall bu yers of be brought to their mills, (a) corn - If a miller take any part of the corn entrusted to him for the Miller may purpose of stealing it, it seems that he may be deemed guilty of com mit fe- larceny, although a felonious taking is an ordinary incident to ^ ^ larceny, and the corn be delivered to the miller by the party re- quiring him to grind it. (b) A case on the repair of mills is deserving of attention here, al- Repairs of though it is of course a general rule that repairs of mills must be mills, done by such lessees as covenant to that effect. An action of co- venant was brought against the defendant for the non-repair of a water-mill, and the covenant was, that one William Cumberland should leave sufficiently repaired the mill, house, and buildings, and the mill-stones. The reversion of the mill had been granted to the plaintiff, and the defendant was the executor of W. C. The de- fendant pleaded, thatW.C. assigned over all his estate to W.F.,who entered and paid rent, and subsequently to the assignment of the re- version, paid rent to the plaintiff. The plaintiff demurred to this plea. The principal question was, whether the assignee of the rever- sion, who had accepted rent from the assignee of the term, and so had recognized bun as a tenant, should charge the lessee's exe- cutor for a breach of covenant made after the assignment of the term, and after the assignment of the reversion. The court deter- mined, that the executor was so chargeable, for this covenant was by st. 32 H. 8. c. 34, en fait, and would run with the land, and the covenantor and his executors were held to be always answerable notwithstanding the assignment, the executor being liable not by reason of the privity of the contract, but by reason of the covenant itself. But the court added, that it would be otherwise of a cove- nant in land, which is only created by the law, or of a rent, which is created by reason of a contract, and is by reason of the profits of the land, wherein no one is chargeable longer than the privity (a) C. 112. p. 253. (6) 1 Hawk. P. C. C. 33. s. 5. User of Watercourses. [CHAP. vin. of the estate continues with them,* and judgment was given for the plaintiff, (a) The maxim, " sic utere tuo, ut alienuin non Icedas," applies very strongly to the user of a watercourse. It was, indeed, ex- pressly cited in a case where the plaintiff complained of the de- fendant for diverting and stopping a river. The court laid it down as a rule upon that occasion, that if one have ancient ponds re- plenished by channels out of a river, he is not at liberty to change the channels, if prejudice accrue thereby to another person, al- though the effect would be no more than to feed the ponds ac- cording to the usage, (fc) This position was established at a very early period. Thus it is laid down in the year book of Ed. IV., that if one stop a stream which runs through his land, so that the land of another is thereby surrounded, it is a nuisance to the prejudice of that other person, (c) Again, it was said in a previous case, that if a man should throw down a fosse or hedge where water ran, by which a meadow were surrounded, an assise would lie. (c?) And so it was, where the defendant cast soil and filth into a sewer, so that the water, no longer keeping its original course, surrounded forty acres of the adjoining land, (e) So again, an action on the case was said to lie against a defendant, who built a mill to the hindrance of a river which ran by a certain mill, so that the stream ceased to run as it had been wont, and by reason of the making of flood-gates, surrounded the plaintiff's meadows, (f ) So again, the plaintiff had judgment in an action upon the case for stopping a watercourse, by which means his land was drowned, (g) So again, trespass was brought against the defendant for an in- jury to the plaintiff's fishery, by throwing down a certain weir, by which an unaccustomed and overwhelming flow of water was occa- sioned ; and although some discussion took place on the propriety of the form of action which had been adopted, (/*) no doubt what- ever transpired as to the plaintiff's right to recover for the mischief which had been done, (t) * But if there be a covenant to pay rent, the liability continues, not- withstanding an assignment of the term by the lessee. (a) Cro. Jac. 521, Brett, v. Cumberland. S. C. 2 Ro. Rep. 63. Thi* case was cited by counsel arg., 5 B. & C. 596, but not upon this point. (4) Hetl. 32, Buncombe v. Sir Edward Randall. See 1 Wils. 174. Brown v. Best ; and post, in the next chapter. (c) 9 E. 4. 35. (d) 11 H. 4. 26. 83. (e) 12 H. 4. 3. See Hardr. 60. Preston v. Mercer. (/) 16 Vin. Ab. 30. pi. 28, in the note. (g) I Leon. 247, Sly and Mordant's case. S. P. 3 Leon. 174, Weshborn and Mordant's case, S. C. Cro. El. 191. 1 Ro. Ab. 104. S. C. (A) See post, Ch. 9. (0 1 Ld. Raym. 274, Courtney v. Collet. S. C. 12. Mod.: 164. S. C. Carth. 436. CHAP, vin.] Vser of Watercourses. 143 The building of a new mill by a person entitled to the ancient watercourse may be productive of the same effects. The plaintiff complained, that he was possessed of a meadow, near to which there was a river, which ran to an ancient mill, that the defendant built a new mill, thereby raising the water, and drowning the meadow; and that he, the plaintiff, consequently had lost the profits of his meadow. Upon not guilty pleaded, the plaintiff had a verdict ; and although judgment was arrested on another ground, it was agreed that this injury was quite sufficient to warrant the bringing of an action, (a) The immemorial enjoyment of water will not, therefore, justify the party who possesses it, in performing any act to the prejudice of his neighbour ; and this rule applies to protect a newly-erected house from any injury sustained by the flow of such an ancient stream. This was decided in an action of trespass, for breaking down the plaintiff's pen-stock. The defendant justified, for that he was possessed of a dwelling-house, situate near the place where the supposed trespass had been committed, and also near to a certain watercourse ; and that the water, which would otherwise have flowed away from that dwelling-house, was obstructed and kept back by the plaintiff's pen-stocks, weirs, and dams ; in con- sequence of which the house was damaged by the water, and so he, the defendant, abated the nuisance. The plaintiff replied a prescription, and denied any undue or unaccustomed obstruction. It appeared that the defendant's house had been erected within six or seven years prior to the action, and that the soil on which it stood had been excavated, and so lowered about two feet, a short time before the building of the premises. Nearly four feet below the surface, the floor of the defendant's underground cellar and kitchen, had been sunk, and he was warned at the time that it would be subject to floods. During a very wet season, when the stream in the neighbourhood had become veiy copious, the defend- ant found water seven inches deep in the kitchen and cellar ; and conceiving that it proceeded from the stream penned back for the purpose of watering the meadows, he destroyed two pen-stocks, one of which was that of the plaintiff, and the subject of the action. The water, in fact, soaked through the bank of the nearest water- course, namely, one hundred and eighty yards of feeder parallel to the back of the house ; and it was shown, that the banks of the feeders in the neighbourhood consisted of a porous gravel, easily percolated by water. From the time of destroying the pen-stocks, the water sank rapidly, and the floor at length became dry. It was also in evidence, that although the plaintiff's pen-stock had not been repaired, the cellar of the defendant became again full of (a) 1 Ld. Raym. 248, Prince v. Moulton. S. C. 2 Salk. 663. S. C. Carth. 386. S. C. 12 Mod. 131. S. C. Comb. 442. S. C. Holt, 192. User. [CHAP. vm. water, and continued so for a considerable time, in consequence of a general flood, occasioned by the melting of snows. The plaintiff was, however, unsuccessful in attempting to show that the inunda- tion had occurred from other causes than the creation of his pen- stock. But he proved that his pen-stock had been made thirty or forty years since, that it had been used uninterruptedly for thirty years, and that a pen-stock had been remembered there for seventy years. The defendant contended that the pen-stock had been en- hanced, and he also called witnesses to show that the inhabitants of Chichester, (which is subject to floods from the Lavant, the river which supplied the feeders above mentioned,) had at different times abated pen-stocks, and amongst others, the pen-stocks which the defendant had destroyed. Mr. Justice Heath, who tried the cause, put it to the jury, first, whether the flooding had been created by the penning back of the water, and said he thought the subsiding of the water left no doubt upon that point. Then the question would be, whether the pen-stock had been properly kept shut, or shut for an unreasonable length of time, so as to occasion an an- noyance to the defendant's house. If the plaintiff had possessed an uninterrupted right to raise the pen-stock to a certain height, it would not derogate from that right, that the defendant had thought proper to build a house, and make his kitchen deep in the ground : but the plaintiff's enjoyment had not been peaceable, for the in- habitants had from time to time abated the pen-stock whenever they found it inconvenient. The learned judge considered also, that there had been conclusive evidence, that the pen-stock had been enhanced from one foot eight inches, to three feet five inches, and said, that if the jury should be of that opinion, they ought to find for the defendant, which the jury accordingly did. But a new trial was moved for, first, because the defendant's rejoinder had not denied the plaintiff's right to the pen-stock ; next, because the pen- stock had not been, as it was urged, the cause of the mischief; and lastly, because a right to destroy a prescription could not be esta- blished in respect of a newly-built house, or, indeed, under any circumstances. The court, upon this, although they agreed that the pen-stocks could not be continued, much less enhanced to the prejudice of another person, observed that such of the issues should, nevertheless, have been found for the plaintiff as went to deny the plaintiff's right to erect any pen-stock, because without them he could not have the benefit of the cut which must have been made at some time out of the river, for the benefit of the land ; and they made the rule for a new trial absolute, (a) And Mr. Justice Lawrence held upon the main point, that the plaintiff might pen the water as he would, until he should damage his neighbour, but that his right must terminate as soon as injury should arise. Had there been an ancient house, added the learned judge, into which (a) 3 Taunt. 99, Cooper v. Barber. . CHAP. VIII.] User. the water flowed immemorially by reason of the pen-stock, it would have been evidence of a grant, (a) * The law respecting water-spouts is in principle the same. Where one had a right to enter the yard of another, and he fixed there a water-spout, by which the rain fell upon the land of the plaintiff, although there was some dispute as to the form of the action, the right to sue was clearly admitted. A man might have a right for the rain water to fall from the eaves of his house into a yard be- longing to another person, and yet cannot justify putting up a spout, and thus collecting the water in a larger body to fall into that yard, (ft) This last, together with the following case, although, strict! v r speaking, they do not concern the user of watercourses, are in- troduced here as being illustrative of the subject under considera- tion. An action was brought on the case for damage done to the plain- tiff's colliery. The defendant had caused great quantities of water to be conveyed through other collieries into that of the plaintiff, and this he had done in his own colliery within his own soil ; and al- though there was much discussion upon the debated question, whether trespass or case were the proper remedy, it was not doubted but that the action lay for the damage sustained ; and, in effect, the plaintiff was permitted to enter up his judgment, (c) If there be evidence of a grant, the user of a watercourse in a what is particular manner might be sanctioned, which, but for such evi- not an ob- dence, would be illegal. This principle may be collected from a struction. decision recently quoted, (d) And it seems to have been recognized in a subsequent case, where the plaintiff's cause of action was (a) 3 Taunt. 110. * The court did not seem, upon this occasion, to have been unanimous as to the illegality of this pen-stock under the circumstances. Mr. Justice Heath clearly seems to have thought that the plaintiff might have persisted in penning back his water, according to the immemorial usage, while Law- rence, J. as obviously maintained, that such an usage could not be tolerated to the prejudice of a neighbour, who had newly built a bouse into which the water flowed. Reason seems to point out, on the one hand, that if a man wilfully resolve to build on a spot where he knows that he shall be molested by the exercise of an immemorial right, he must abide the consequences of his folly, unless, indeed, the other party, as in the principal case, exceed the extent of his ancient custom. On the other hand, there would be a check to all improvement, if a proprietor of water, even although be should act consistently with the usage, were warranted in continuing a nuisance to a neighbouring dwelling, when he might probably at a small expense to himself avert the mischief, and direct his stream into a different channel. This would be consonant to the maxim, that he ought so to use his own privileges, as to avoid an act of prejudice to others. (6) 2 Ld. Raym. 1399, Reynolds v. Clarke. S. C. 1 Str. 634. S. C. 8 Mod. 272. S. C. Fort. 212. (c) 2 Burr. 1113, Haward v.Bankes. (rf) Cooper v. Barber, ante, p. 144. User. [CHAP, vin. stated to be, that the defendants, by a wrongful construction of their flood-gates and machinery, so penned up and obstructed the course of a river, as to occasion an overflow of water upon the plaintiff's farm. The matter was referred to arbitration, and it then appear- ed, that the defendants were occupiers of a mill, and that the plaintiff was the occupier of certain meadows adjoining to the de- fendant's mill pond, and situate a mile higher up the stream than the mills. Certain ditches traversed these meadows, the level of which was below the water level of the full mill-pond, and they were intended to discharge the drainage of the country into the river. The former occupiers of the plaintiff's land had, about thirty years before the action, erected at the mouths of these ditches certain pen-stokas and valves,* and had occasionally re- paired them, although they were disused and in an inefficient state at the time of the dispute in question. The plaintiff's land had been partially injured by the stagnation of the water. The defendants had recently purchased an interest in the mill. In the time of the old tenant the machinery was in a very imperfect state, the water-wheels and waste hatches were much out of repair, and thus a great waste of water, ensued. The level of the head of water in the mill-pond Was then drawn down in a few hours below the level of the meadows, and the water from the ditches being consequently discharged with ease into the bed of the mill-pond, the plaintiff's land sustained but a small damage. But the defendants had, since the plaintiff's occupation, rebuilt the mills on an improved principle, and had tightened the waste water gates and mill- hatches ; and so, using their water economically, it was rarely drawn down, the mill-pond being accordingly, for the most part, at the same level. Thus it happened, that the water in the ditches accumulated, and stagnated for a much longer time than formerly on the land of the plaintiff; whilst, on the other hand, it was shown to the satisfaction of the arbitrator, that the improved mill and waste-water gates did not confine the water in the mill- pond to so high a level as before. The ground sills had remained unaltered. No evidence was given as to the state of the mill, an- terior to the occupation of the last tenant previous to the defendants. The arbitrator awarded, that the defendants should, within four months, make an over-fall or tumbling bay for the discharge of the water of the river at a convenient place, between the plaintiff's mea- dows and the waste gate of the mill, and that the defendants should pay 150 to the plaintiff, upon which mutual releases were to be executed up to the date of the submission. It was moved after- * ' They freely opened to the river whenever the water on the land side ' was so high, that its pressing the valve outwards overcame the contrary ' pressure of the water in the river, and thereby let out the water from the ' ditches into the bed of the river; and whenever the water in the river was higher than the water in the ditches, its pressure on the outside of the valves kept them closely shut against the upright posts to which they were applied, and prevented any water from the river from entering the ditches." 5 Taunt. 456. \: CHAP, viii.] User. wards, to set aside this award, amongst other objections, because, to make a tumbling bay would be waste on the part of the defend- ant, they having sworn, that they had no permission from their lessor to erect it. And the court considered this objection good ro tanto, and set aside the award as far as it regarded the tumbling ay, but confirmed it as to the residue. Mr. Justice Heath ob- served, that damages could not be given unless it were for penning the water too high, and that if it were not penned higher than usual, the keeping it for a longer time, than usual would not en- title the plaintiff to recover any thing, (a) Here, as the water of the mill had always flowed over the ad- joining meadows, there seems to be clear evidence of a grant ; and then this case is reconcileable with Cooper v. Barber, inasmuch, as in the latter case, the injury complained of was done to a new house. The user of a watercourse, if enjoyed under a lease, must be subject to the covenants contained in the lease, as far as they respect the thing demised. In the following case the judgment of the court was for the defendant, because the covenant imposed upon him did not affect the subject of the property leased. In the demise, by which liberty was given to erect a silk mill and make a watercourse, there was a covenant against hiring any per- sons to work in the mill who were settled, in other parishes, with- out a parish certificate. The lessee covenanted for himself, his executors, administrators and assigns, and the premises came to the defendant by assignment. The declaration was demurred to generally. The court were of opinion, that, as the assignee was specifically named, although the thing were not in esse at the time, it would bind him, if it affected the nature, quality, or value of the thing demised, independently of collateral circumstances ; or if it affected the mode of enjoying it. But in the case in ques- tion, the covenant did not immediately affect the thing demised, but only, if at all, in respect of collateral circumstances. If there had been a covenant by the lessee to make a communication by- water from the demised premises, through other persons' lands to another place, to facilitate the access to a market, the value of the reversion would be materially affected by the performance or non-performance of such a covenant ; but it could not bind the assignee, because all the cases show that the assignee is not bound, unless the thing to be done is upon the land demised. The de- fendant accordingly had judgment. (6) (a) 5 Taunt. 454. Alder, v. Savill and others. See also, 7 East, 195, and post, Ch. IX. (6) 10 East, 150, the Mayor, &c. of Congleton v. Pattison. L 2 CHAPTER IX. Of Obstructions and other Injuries, ivith the Remedies in such IT will be readily conceived, that many mischiefs, and various descriptions of damage, are occasionally committed, in derogation of the rights concerning which we have been treating. Our object will be to enumerate the principal of these damages in the follow- ing chapter, not forgetting the remedies which may be found ap- plicable to the respective injuries detailed. To take a short general view of the subject, before we proceed to particulars, there are, in the first place, obstructions to navigation, such as toll improperly demanded, duties, and other exactions not warranted by acts of parliament. So again, there are many nui- sances against which the legislature has provided expressly, as the choking up of public waters with ballast, slate, gravel, &c. ; the erection or continuance of weirs which cannot be legally kept up to the hindrance of navigation, locks set up without proper autho- rity, wharfs, &c. So, further, there may be a serious obstruction by diverting the stream of a public river ; and such an offence has always been severely visited. A neglect to cleanse a river often creates an obstruction ; and, consequently, the party upon whom the obligation of repair lies, must be punished for the default. The undue exercise of a right of fishery, it will be found, may occasion the commission of this offence, for the public benefit must supersede a private privilege, when it becomes necessary that the one should yield to the other. Having considered the obstructions to navigation, and detailed their incidental remedies, we shall proceed to a similar inquiry with regard to fisheries, and we shall find, that many such mischiefs, as weirs, nets, &c., are occasionally made the subjects of complaint and punishment. So again, there are several injuries to private rights of fishery, which it will be necessary to notice, as the lar- ceny of the fish, malicious mischiefs done to fish-ponds, nuisances of various kinds, &c. Injuries done to the miller will next claim our attention, and we shall almost unavoidably touch upon obstructions to water- courses in considering this point ; for there are few mischiefs so commonly sustained by the ownei's of mills, as the disturbance of CHAP. ix. J Obstructions to Navigation. 149 their waters. And, lastly, the damage occasioned by an illegal stoppage, diversion, or misuser of private streams, will come before the attention of the reader. This last is a subject of considerable importance, and the consideration of it is of no infrequent oc- currence. Obstructions to navigation have always been regarded with great Obstruc- jealousy. In whatever shape the mischief appears, both the com- tions to . mon and written law are always prepared to check its advance ; for navi f> atlon< the prosperity of the people depends too much on their commercial advantages, not to make them sensible of the value which a free and uninterrupted intercourse confers. Thus it is, that impedi- ments occasioned by the demand of toll have frequently been re- sisted with success ; or, where toll has been suffered to exist, that the imposition of it has not been conceded by the legislature, without great accompanying benefits. So it is again, that piracy (a subject with which we do not profess to meddle here) is uni- versally denounced as detrimental to the best interests of com- merce. The principal annoyances, however, which it falls within the scope of our undertaking to notice, are found to occur in havens, roads, channels, docks, or navigable rivers. The legislature has Interposed its authority on many occa- sions, to prevent nuisances to these public rights. Thus, for the preservation of channels, havens, &c., it was enacted, that no person shall cast or unlade out of any manner of ship, crayer or any other vessel, being within any haven, road, chan- nel, or river, flowing or running to any port town, or to any city, borough, or town within this realm, &c., any manner of ballast, rubbish, gravel, or any other wreck or filth, but only upon the land above the full sea-mark. The penalty for this offence was declared to be 5, half for the king, and half for the informer, who might sue by bill, plaint, original writ, or infor- mation, in any of the king's courts of record, no wager of law, essoin, or protection, being allowed, (a) Next followed the statute of George II. explaining this offence more particularly, and providing against the inconveniences of sunk or stranded ships. The offence of casting out ballast having increased, the last- mentioned statute ordained, that if any master or owners, or any person acting as master of any ship, pink, crayer, lighter, keil- boat, or other vessel whatsoever, shall cast, throw out, or unlade, or, if there should be cast out, &c., from any such ship, &c., being or riding, within any haven, port, road, channel, or naviga- ble river within England, any ballast, rubbish, gravel, earth, stone, (a) 34 and 35 H. 8. c. 9. s. 6. Obstructions to Navigation. [CHAP. ix. wreck, or filth, but only upon the land where the tide or water never flows or runs, any justice for the county, city, &c., where or near which the offence is committed, may, upon information given, and such justice is authorized and required, to summon or issue out a warrant to apprehend and bring before him the master, &c. of any such ship, &c., against whom the complaint may have been made. The justice is empowered, upon appearance, or default, to examine into the facts ; and if it appear, that any ballast, &c., has been cast, unladen, or thrown out of any ship, &c., whether the proof be by confession, or on view of the justice, or on the oath of a witness, the master or masters, or persons acting as such, shall be adjudged to be the offenders against the act, and shall, on conviction, incur a forfeiture of not more than 5, nor less than fifty shillings, at' the discretion of the justice, one half to be paid to the informer, and one half to the overseers of the poor of the parish, town, or place, where the conviction shall be pronounced, for the use of the poor there, (a) The next action provides for the recovery of the penalties. They are to be levied by distress and sale, either of the goods and chattels of the persons so convicted, or of the ship, &c., or of their tackle, apparel, or furniture, by a warrant under the hand of the justice, which he is empowered and required to make, and to deliver to the con- stable, or tythingman, or other private officer of the parish, &c., where such wan-ant is to be executed. The overplus (if any) after the distress and sale, is to be rendered back to the owner ; and for want of sufficient distress, the justice shall commit the master, or person acting as such, so being convicted, to the gaol of the county, city, or town corporate, or to the house of correc- tion for the county, there to remain for two months, or until pay- ment be made of the penalties and forfeitures, or so much, as for the non-payment of which such commitment shall be. (/;) Subsequently another statute was passed, some of whose pro- visions relate to this subject. Thus, by 54 G. 3. c. 159. s. 11, it was declared, that if the owner, master, or other person, having the charge of any private ships of war, transport, or other private, or merchant ship, &c., or craft whatsoever ; or any person working any quarry, mine, or pit, near to the sea, or any harbour, haven, or navigable river, shall cast, throw, empty, or unlade, or cause, &c. out of any vessel, or from the shore, any ballast, stone, slate, gravel, earth, rubbish, wreck, or filth, into any ports, roads, road- steads, harbours, &c., so as to obstruct the navigation, or in any place where the same may be liable to be washed into the sea, or into such ports, &c., either by ordinary or high tides, or by storms or land floods, such person shall forfeit a sum not exceeding 10, besides all expenses necessarily incurred in removing such matters (a) 19 G. 2. c. 22. s. 1. (fc) Id. s. 2. ciui'. IX.] Obstructions to *\'aviyation. to a proper place, to be recovered in such manner, and with such ibrni of commitment for non-payment, as in cases of penalties, &c. under the act. Except stones, rocks, hricks, lime, or other mate- rials used towards the building or repairing of any quay, pier, wharf, drawbridge, or other building, on the banks or sides t)f any port, &c., or any materials for repairing any highway. The next section prescribes the mode of unloading ballast. It ordains, that no ship, &c. or craft whatsoever, shall unlade on any part of the shore (except on some wharf properly constructed for the purpose), any ballast, &c., except at high water, or within two hours before or after ; and that, for any such purposes, such ships, &.e., shall approach the shore as far as the tide and draught of water of such ships, c., will admit, and shall, under no circum- stances, in no situation, deposit any of the said matters below low- water mark at neap tides ; and that eveiy vessel drawing above eleven feet of water at the stern, shall unlade all such materials into some lighter, barge, or boat, in order that the same may be con- veyed as near to the shore as possible at, the time of high water, (a) Moreover, all such ballast, and others matters shall, upon such occasions, be only cast on shore from the side of the ship, &c., nearest to the land, and not otherwise, upon pain of forfeiting a sum not exceeding 10, besides the expenses of removal, to be recovered in the same manner as has been mentioned in the eleventh section. (6) And further, to prevent damage to the shores or banks of the ports, harbours, or havens in the kingdom, no person shall take any ballast, or shingle, or any portion of the shores or banks of any port, &c., from which the commissioners, for executing the office of lord high admiral, shah 1 find it necessary for the pro- tection of any such port, &c., or the limits thereof, by order under their hands, or any three of them, or of his or their secretary, and published in the London Gazette, shall prohibit the taking or removing of such shingle or ballast, upon pain of forfeiting 10 for every offence, (c) The next section directs the use of one or more tarpaulins, properly stretched and spread, for the purpose of taking in or discharging ballast, in order to prevent the ballast from falling into the sea, or into any harbour, &c. ; and the forfeiture for dis- obedience to this order is 5 for each offence, (d) But the lord high admiral, or the commissioners, &c., may dispense with these provisions relating to ballast by licence under hand and seal, (e) The act then proceeds to guard against the improper sinking of vessels. It declares, that as often as any ship, &c., or any craft, (a)s. 12. (6) s. 13. ' (c)s. 14. (d)s. 15. (c) s. 16. Obstructions to Kairigation. [CHAP, ix shall be sunk or stranded in any port, &c., where there may be a harbour-master, the harbour-master, or any commissioner of the navy residing near, shall, in case the owner, master, or other per- son in charge of such ship, &c., shall refuse or neglect to weigh and raise the same for twenty-eight days following, to cause such ship, &c. to be weighed and raised, and shall cause the same, with all the furniture, &c., and all goods, &c., found in the same, to be sold by auction, or otherwise, and thereby to pay the expenses of weigh- ing and raising the ship, &c., and dealing the port, &c., and also the charges of the sale, returning the overplus (if any) to the owners, (a) The harbour-master, and other officers, are declared to be indemnified for any thing done in pursuance of the act. (b) However, if the harbour- master, &c. shall not proceed to weigh or raise the vessel, &c., within two calendar months next after the twenty-eight days, the owner, &c., may proceed to weigh and raise it, as if the act had never been passed, (c) Cofnmissionersof the navy, residing at any port, are declared to be justices for the purpose of exe- cuting the act. () For a more detailed account of the jurisdiction of these com- missioners, and of the mode of executing the authority delegated, the reader may be referred to the second part of this treatise. We have said, that an injunction may be asked to restrain ob- structions. Thus, the attorney-general filed an information and bill for a perpetual injunction to restrain the defendants from choakiug up the bed of the Thames at Milbank, and from doing other damage there, or that they might be restrained until the trial of an indictment against them. The vice-chancellor having refused the motion, the application was renewed before the lord chancellor, who thought that under the circumstances, an injunc- tion ought to issue in the first instance, until answer or further order. The relator subsequently filed a supplemental information and bill, and the defendants then moved to dissolve the injunction, on affidavits that the course that had been pursued would be bene- ficial instead of injurious to the navigation ; but the lord chancellor considered, that matters ought to remain as they were, until the indictment had been tried. There had not been any previous writ of ad quod damnum. All the defendants were afterwards found guilty upon the indictment, and the proposed alterations were abandoned, (c) (a) 23 H. 8. c. 5, the bill of sewers. (6) 10 Rep. 138; 13 Hep. 36. (c) 2 Wils. Cb. Cz. 87, Att. Gen. v. Johnson. CHAP. IX.] Obstructions, fyc. to Public Fisheries. 175 In former parts of this work we have spoken at large upon the Obstruc- mode of using rights of public and private fishery ; our intention t' 008 * here is to point out what the law deems to be obstructions of those les ' rights, and also the remedies for such interruptions. Injuries may be committed against public rights of fishing in various ways, as by throwing nets across a river to the hindrance of persons en- gaged in fishing, by erecting wears whereby fish cannot escape, by taking fish at improper and unseasonable times, &c. Thus with respect to nets, it is ordained, that the standing of Nets, nets and engines called trinks, and all other nets, which are or may be fastened and hanged continually, day and night, by a cer- tain time in the year, to great posts, boats, and anchors, over- thwart the river of Thames, and other rivers of the realm, which standing is a cause of as great and more destruction of the brood and fry of fish, and disturbance of the common passage of vessels, as be the wears, kydels, or any other engines, be wholly defended for ever. Every person setting or fastening them to such posts, &c., continually, to stand as is aforesaid, and being duly convicted, shall forfeit 100 for each offence. Provided, however, that the possession of such trinks, if they be of assize, may fish with them in all seasonable times, drawing and pulling them by hand, as other fishers do with other nets, and not fastening or tacking the said nets to posts, &c., as aforesaid. Saving to every subject also his right, title, and inheritance in his fishings in the said water. (a) The remedy under this statute is by indictment or information. In an information upon this statute, the word continually having been left out, the question was, whether the statute had been com- plied with. The defendants were charged with having set and fastened nets, called trinks, in the river Thames, to boats, day and night, for so Ivng time as the tide did serve. It was resolved, that the information was good, for the nets could not stand but for so long as the tide served ; and the word continually should be taken to mean, continually so long as they may stand to take fish, and as the time of fishing may endure, whether in the day or night, for lex non intendit aliquid impossibile. (b) Another, and, comparatively, a recent statute, has included the Nets, and improper use of nets amongst a great variety of injuries to the other mis- salmon-fisheries. It is declared, that whoever 'shall take, kill, &c., chlefe - or endeavour to take, &c., pursue, hurt, or injure any salmon or salmon kind, by laying or using any hot lime or filth, or material or drug pernicious to fish, or using any water in which any green lint or flax has been steeped, or letting off stagnated water, or any water impregnated with any material or drug pernicious to fish ; or (a) 2 H. 6. c. 15. (b) 12 Rep. 89, Fishing in the river Thames. 176 Obstructions, fyc. to Public Fisheries. [CHAP. nr. if any person shall use or employ any such means as aforesaid, or use any fire or light, or white object, or lay down any kind of net, engine, or device, or wilfully do or commit, or cause, &c., any act, in any river, water, rivulet, stream, mill-dam, mill-sluice, cut, pool, or pond communicating therewith, for the destruction of the brood, spawn, or small fry of salmon, therein (angling excepted) ; or if any person shall make, erect, &c., any bank, dam, hedge, or stank, or net, or place any fire, light, or any white object, so that the young fry or salmon be prevented from going down from such rivers, &c., he shall forfeit a sum not exceeding 10, nor less than 5 ; and for a second or subsequent offence, a sum not exceeding 15, nor less than 10. The penalty is to be at the discretion of the justice before whom the offender shall be committed, and he shall, moreover, forfeit all the fish, spawn, &c., and all the nets, &c., or things used in the taking thereof, (a) Wears. Wears which disturb the proper exercise of public fishing, are also prohibited. The setting up of new wears along the sea shore, has been already mentioned; and we have also shown, that in the Severn and other rivers, such obstructions are equally unj usti- fiable. . It is moreover ordained, that justices of peace, being the con- servators of the Thames and of other rivers within the realm, shall survey and search all the wears in such rivers, that they shall not be very straight for the destruction of the fry and brood of fish, but of reasonable wideness, after the old assize used or ac- customed, 17 R. 2. c. 9. Indeed, the erection of wears, so as to injure the fish, is a public nuisance, it is in itself illegal, and against the rules of the com- mon law ; and no length of time will legitimate or sanction the continuance of such an obstruction. The following case, which arose concerning a fishery in the river Kibble, deserves to be mentioned here, although the injury complained of was alleged to have been done to a several fishery , inasmuch as the decision pro- ceeded upon public grounds. The defence, in fact, made to an action upon the case for damaging the plaintiff's fishery, amounted to a justification of a public nuisance. The plaintiff's complaint was, that the defendants had wrongfully continued a wear or dam across the river, lower down the stream than the plaintiff's fisheries, by which salmon and other fish were prevented from coming to the fisheries, and spawning there. It appeared at the trial, that till about forty years since, the defendant and the prior owners of a certain mill had always possessed a brushwood wear across the (a) 58 G. 3. c. 43. s. 3. HAP. ix.] Obstruction of Public Fisheries. 177 river, near the mill. The defendant showed, by the production of old deeds, that he had a right to a wear for the convenience of his fishery, and that the right expressed therein was not limited as to the height, nor I'estricted as to the materials of the wear. How- ever, no witness could remember any other than a brushwood wear prior to 1766, which was about forty years before the action. At that time a solid stone wear was erected two-thirds across the river, in lieu of the former brushwood wear ; but the remaining third of the brushwood was left. No objection appears to have been made to this. But in 1784 the remainder of the brushwood was taken away, and the stone wear carried quite across the river. The new wear was a solid piece of masonry, but was not broader nor higher than the brushwood, making an allowance for the sinking of the latter. The action was brought within three months before the expiration of twenty years from the last alteration. The jury found for the defendant, stating, that they thought the change of the wear in 1784 prejudicial to the plaintiff's fishery, but that the defendant's right was, in their opinion, established by length of possession and other evidence of title. A motion being made to set aside this verdict, Lord EUenborough declared, that it could not be sustained, for the stone wear was plainly an encroachment. The learned chief justice observed, that wears had been con- sidered from the earliest times to be public nuisances, that the public had an interest in the suppression of such nuisances, and that even had the action not been commenced within the twenty years, as is before mentioned, the public would not have been concluded, although an acquiescence for twenty years might bind parties whose rights were merely private. Now, in this case, there had always been an escape for the fish over the brushwood wear, and it was not competent for the defendant to erect an im- pervious wall of stone, through which the fish could not insinuate themselves, (as they may through a brushwood wear,) and over which, except in extraordinary times of flood, it was in evidence that the fish could not pass. The rule was, consequently, made abso- lute, (a) Other injuries to public fisheries may be by illegally taking the fish at unseasonable times of the year, by using nets of improper dimensions, &c. ; but the reader will recollect, that we have already entered upon these subjects at length in a prior chapter on fish- eries, as well as in that upon user, (b) It should be remarked here, that the government has afforded Impress- many facilities to public fishing. Some of these have been already ment - (a) 7 East, 195, Weld v. Hornby, clerk. S. C. 3 Smith, 244. For pull- ing down piles and fisbgarths in the rivers Ouse and Humber. See 23 H. 8. c. 18. (bi) See ante, Chap. v. and viii. N 178 Obstruction of Public Fisheries. [CHAP, ix attended to in that part of our work which treats of British fishe- ries, (a) Let us add to these the privilege of exemption from im- pressment. By 50 G. 3. c. 108. s. 2, it is enacted, that certain persons employed in the fisheries of Great Britain, should be free from impressment. 1. Every master having the care or conduct of any fishing vessel, or boat, employed as aforesaid, and who, or some owner of which vessel, &c., shall have, or within six calendar months before application for a protection shall have had one ap- prentice or more under sixteen, bound to him, or to such owner, for five years at least, and which apprentice shall actually serve, or have served in the business of a fisherman pursuant to his binding. II. Every such apprentice, provided that the number do not exceed eight, and the fishing vessel be of the burthen of fifty tons and up- wards ; or seven, if the vessel be of thirty-five tons burthen and upwards, but under fifty ; or six, if the vessel be of thirty tons, and under thirty-five ; or four, should such vessel be under the burthen of thirty tons. But to gain this exemption, the apprentice must be in the actual service of his master, or of his representatives or assigns, in the business of a fisherman, and in no other service, and also until he shall have attained the age of twenty years. III. One mariner for every such vessel or boat of ten tons burthen or up- wards, besides the master and apprentices, such mariner being employed to navigate or fish in such vessel, and actually continuing in the service of fishing. IV. Landmen above the age of eighteen, and under thirty, who shall enter on board such fishing vessel or boat, of the burthen of ten tons or upwards, and shall be actually employed in navigating or fishing therein, for two years, to be com- puted from the time of their first going to sea, employed as aforesaid, and to the end of any fishing voyage they may then be engaged in, continuing and being truly employed in such service. The third section of the same statute provides, that an affidavit shall be made and sent to the Admiralty, describing the vessels, and persons to be protected, and then a separate protection shall be granted to each person, without fee or reward. The production of this protection shall be a ground for discharge by any commanding officer who may have the custody of such impressed person, taken contrary to the act. The fourth section provides a punishment for such as per- sist in impressing, or detaining an exempted person after the ex- hibition of his protection; or refuse to examine, or detain his pro- tection, whether the offender be the commanding officer of the press-gang, or the captain of one of his majesty's ships, unless it be in the case of an actual invasion, or imminent danger thereof. Should the protection be taken away by any one from the party so impressed, an affidavit may be made before a justice, that the pro- tection was so granted, and that it continued in force, and was taken away either at or after the time of the impressment. It shall be tendered to the captain, or other officer, having the command on (a) Chap. v. CHAP. IX.] Obstruction of Public Fisheries. 179 board of the ship, and then, if the captain, &c., do not discharge the individual impressed, lie shall be subject to the same penalty. This penalty in all the above cases is 20, to be paid to the party impressed, if not an apprentice, or if an apprentice, to his master, and to be recovered and levied by distress and sale. If the money be not paid, the offender may be imprisoned for any time not ex- ceeding one month, in the house of correction, and kept to hard labour, (a) A mariner and apprentice, fishing off Heligoland, were held to be within the provisions of this act. On the 1st of June, 1812, the Adventure, of the burthen of fifty tons, was in the North Sea, with a licence to fish for lobsters at Heligoland. An officer of the Musquito came on board, and impressed the two men in question, who were brought up by a writ of habeas corpora, for the purpose of being discharged. The words of the preamble spoke of the deep seas beyond the coasts. It was contended, that lobsters were a species of fish only to be found in shoals amongst rocks, and that they were not caught by boats which fished in deep waters, so that the impressed men could not be said to come within the act. But the court made the rule absolute for their discharge, since the act must be taken to mean all such fisheries, within the neighbour- hood of these kingdoms, as contribute to the better supply of our markets with fresh fish. All who are engaged in such fisheries, under certain limitations, are within the policy of the act. (6) A mariner, on board of a fishing smack, had a protection granted to him by the board of Admiralty, upon the application of the master of the vessel, under the statute 50 G. 3. c. 108. By some accident the vessel sailed before the protection reached him, and on the 6th of January he was impressed, the circumstances being mentioned to the impressing officer at the time, and the protection being then in force. The court directed that he should be discharged ; for, although the impressing officer was warranted in taking the man at the time, he not having his protection with him, yet, as it turned out that he really had a protection under the act, the court were bound to give effect to it. There was another point, namely, that this person being a mariner, and the statute allowing but one ma- riner to each smack, there were more mariners on board when he was impressed. The court said, however, that the protection afforded could not be abrogated by the act of the master in taking others on board, and the rule was made absolute for his dis- charge, (c) It had previously been declared by an act for encouraging the Greenland fisheries, that no harpooner, line-manager, or boat- steerer in that trade, should be impressed. Such persons, when (a) s. 7. (b) 1 M. & S. 223. Samuel Payne and John Thoroughgood's case. (c) 16 East. 167, Pratt's case. N2 180 Obstruction of Public Fisheries. [CHAP. ix. unemployed, may sail in the colliery trade, upon giving security to return in the next season ; and common seamen are protected from the 1st of January till after the end of the then next season for the fishery, and until the completion of the voyage home, (a) It is ohservahle, that the word " apprentices" is not mentioned in this section ; nevertheless, a writ of habeas corpus was issued for the purpose of discharging an apprentice in the Greenland fishery on that ground only ; and on a motion to quash the writ quia, im- provide emanavit, Lord Ellenborough said, that the several pro- visions against impressing particular descriptions of seamen in the Greenland fishery, without naming apprentices, showed that the legislature meant to leave this exemption upon the general law of 13 G. 2. c. 17.* (6) No licence Moreover, it is declared by 2 & 3 Ed. 6. c. 6, that, inasmuch as necessary great complaints had been made of exactions by officers of the in order to Admiralty, from merchants and fishermen adventuring into Ice- * s k- land, Newfoundland, Ireland, and other places commodious for the getting of fish, neither the admiral, nor any officer, or minister, &c. of the Admiralty, shall exact, either for himself, or his servants, any sum of money, &c., for any licence to pass the realm to the said voyages, nor upon any respect concerning such voyages. The forfeiture is double the value of the thing taken ; to be sued for by the party grieved, or any other person, by information, bill, &c., the king to have one, and the party complaining the other moiety. No essoin, &c. to be allowed. For the second offence, the party offending shall lose his office in the Admiralty, and make fine and ransom at the king's pleasure. Seamen in fishing trade held to their agfee- ments. Seamen, who agree to embark on fishing voyages, are held strictly to their agreements. Thus, it is declared, that if any sea- man, or marine, after he shall have entered into any agreement, or taken any earnest for the performance of any fishing voyage, or for any stipulated term of any fishing season, shall neglect or refuse to proceed on the intended voyage, he shall forfeit 5, and may be apprehended upon a warrant from a justice on complaint made ; and if he shall not pay the penalty, he shall be sent to the house of correction, and be kept to hard labour for any time not exceed- ing thirty, nor less than fourteen days, (c) And if any master, or owner, of any ship, vessel, or boat, shall hire, entice, harbour, entertain, or employ in any such ship, &c., any apprentice, seaman, or landman, belonging to any fishing vessel, or boat, or (a) 26 G. 3. c. 41, s. 7. * That statute exempts persons under eighteen, and those who, not having before used the sea, shall bind themselves apprentices to serve at sea, during the first three years of such apprenticeship. The individual in question was more than eighteen, and had been bound for more than three years. (6) 6 East. 238. Exparte Biocke. (c)50. G. 3.c. 108. s. 5. CHAP IX.] Obstruction to Public Fisheries Remedies. 181 who shall have engaged to join any fishing voyage, knowing such apprentice to helong to the fishing vessels, &c., or after notice thereof, he shall, on conviction (before a justice) forfeit 20. (a) On the other hand, if any master, or owner, of any fishing ship, &c., shall knowingly harhour, &c., in any such fishing ship, &c., any seaman, or landman, who shall have deserted from his majesty's service, every such master, or owner, shall, on conviction (before a justice) forfeit 20, to he levied by distress. (6) The chief remedies for obstructions and injuries to public fishe- ries, appear to be by indictment, or information, by quo warranto, and by abatement. Summary remedies are also given by various acts of parliament ; for instance, by proceedings before a magistrate, actions to recover penalties, &c. These statutory provisions have already been, for the most part, alluded to in former pages. Where, however, it is either thought unadvisable to proceed summarily, or in cases where this speedy mode of punishment will not apply, the course fit to pursue is most frequently by indict- ment. We have seen, that by the statute of Westminster the second, c. 47. it was forbidden to take salmons at certain periods of the year, and that certain punishments were awarded for dis- obeying that act ; (c) but no summary mode of conviction was in use at that period. Lord Coke, therefore, says, that the offender ought to be proceeded against by indictment at the suit of the king, and that punishment cannot be inflicted upon the delinquent before due conviction, (d) So again, the remedy under the sta- tute of Henry VI., for throwing nets across a river, so as to obstruct the fishery, seems to be by indictment, or information; and an indictment will lie at common law against such as violently obstruct parties in the exercise of their public rights. Care, however, must be taken not to frame an indictment for disobedience to a statute, 4 unless it be clear that such a proceeding can be sustained, for an- other kind of remedy is not infrequently prescribed, (as in the statute of 3 Jac. 1, for the preservation of sea-fish,) (e) and the prosecutors would, in such case, fail in their object. Another mode of redress is by a writ of quo warranto. Thus, Quo war- where one claimed to have a several fishery in the river Ex, by a ranto. grant from the crown, Lord Chief Justice Holt said, that the sub- ject had a right to fish in all navigable rivers, as well as to fish in (a) s. 6. To be levied by distress, and in default thereof the punishment to be one month's imprisonment, with hard labour. Sect. 7. (6)2G. 3.c. 15. s. 25. (c) Ante, p. 82. (rf) 2 Inst. 479. ( to exclude from the above penalties and punishment any person angling in the day-tune ; and then it is provided, that if any person shall by angling in the day-time unlawfully and wilfully take or destroy, or attempt, &c. any fish in any such water as first men- tioned, (that is, adjoining to a dwelling house,) he shall, on con- viction before a justice, forfeit and pay a sum not exceeding 5 ; and if in any such water as last mentioned, (that is, in any private fishery,) a sum not exceeding 2, at the discretion of the justice. Boundary Moreover, if the boundary of any parish, township, or vill, shall of parish, happen to be in or by the side of any such water as is hereinbefore mentioned, it shall be sufficient to prove that the offence was com- mitted either in the parish, township, or vill, named in the in- dictment or information, or in any parish, &c. adjoining there- to, (a) The common law upon this subject had been much amended and altered by statutes passed before the 7 & 8 G. 4. c. 27, (and which this latter statute repeals,) but those provisions treated the taking of fish as a felonious act, whereas by the present law such an offence is a misdemeanor only ; and the taking of fish is, upon some occasions, punishable by a summary conviction. The doubts regarding the description of ponds in which felony might have been committed, or whether a person might be convicted of larceny for stealing fish in any pond, have long been set at rest ; and the present enactment, it will be observed, has the general words, " water, in which there shall be any private right of fishery," which seem large enough to obviate all future objections on that This universal description of private waters seems to avoid the painful difficulty which occurred a few years since, in a case where a respectable magistrate was held liable in an action of trespass for false imprisonment, because the statute 5 G. 3. related to water in inclosed grounds only. The matter was decided upon the legality of a warrant of commitment which was issued against the plaintiff, after a conviction for attempting to destroy fish in a private fishery. The offence was described to be for fishing with a rod and line in a pond or pool of water, commonly known by the name of the Reservoir in the parish of Aldenham, the right of fishing in the (a) 7& 8G. 4. c. 29, s. 34. < MAH. ix.] Obstructions, fyc. to Private Fisheries Remedies. 199 s;iid pond or pool being the private property of the honourable and reverend William Capel. It was objected for the defendant, ui. the trial, that the conviction was conclusive evidence in his favour, and that the plaintiff could not controvert the facts alleged there; hut the learned judge said, that the plaintiff might show the reservoir not to have been within inclosed ground; that the conviction did not bring the case within the act of par- liament, and that the case itself, not being within the jurisdic- tion of the magistrate, the plaintiff was entitled to a verdict. A rule having been obtained to set aside the verdict for the plaintiff, and to have a new trial, the court held that the warrant of commit- ment was illegal, because the pond or pool was not inclosed ground, being private property, and therefore not within the protection of 5 G. 3. ; and although the direction of the leamedjudge at the trial might have been wrong in stating, that the conviction was conclu- sive evidence of the facts contained in it, yet the warrant of com- mitment ought always to show an offence. The defendant having refused to go to a new trial upon the merits, as the plaintiff had proposed, his rule was discharged, and the verdict for 35 damages was consequently established, (a) This decision is introduced here for the purpose of showing, that as the commitment was considered there to be vicious, because the injury was not done in an inclosed place ; according to the present act, the provisions are sufficiently ample to comprehend any kind of private fishing. The summary of the new act may, therefore, be taken to be as follows : The penalties consequent upon a misdemeanor are awarded against such as catch fish by day or night from water ad- joining, or belonging to a dwelling-house, or attempt to commit such an offence. Then follow the convictions before a magistrate ; first, of such as take, or attempt to take fish by day or night from any private water, other than the above, the penalty being 5. Secondly, of such as take, or attempt to take fish by day, by ang- ling, in water adjoining to a dwelling-house, and the penalty is in this instance also 5. Lastly, of such as angle in like manner in other private water than the above. * The following case occurred under the 5 G. 3. (an act which (a) 2 Bingh. 483, Wickes v. Clutterbuck. See also, 5 Taunt. 440, Lisle v. Brown. S. C. 1 Marsh, 127. 2 Chip. Rep. 519. R. v. Sadler. These being also decisions concerning fishing in inclosed grounds, are materially affected by the present statute. * It is worthy of notice, that the capital offence of stealing fish out of a pond, or river, hy persons armed, or disguised, contrary to 9 G. 1. c. 22, no longer exists. The st. 4 G. 4. s. 54, extended the benefit of clergy to that offence s , and the new act of 7 and 8. G. 4, has abolished the act of G. 1 alto- gether. 200 Obstructions, fyc. to Private Fisheries Remedies. [CHAP. IX. -iLsM .C -u\ai 211013 ol son .85.' is now repealed), respecting an assertion of right to fish. It was an action of debt, for a penalty of 5 for killing fish. The defen- dant was servant to Dr. C., who claimed a right to the fishery. An action of trespass had been brought against some of the doctor's servants previously to this time, and a verdict had been found for the plaintiff. A new trial had also been refused. The doctor, how- ever, was not satisfied, and gave notice to the plain tiff that he should order one of his servants to fish in the same place, in order that he might have an opportunity to try the right again. In obedience to these orders the defendant committed the fresh trespass ; but in- stead of trespass, an action of debt was brought under the above statute. The defendant's counsel offered to show this notice on the part of Dr. C., observing, that he should contend, upon such proof, for a nonsuit, there having been an assertion of a right, which was not an offence within the act, and was besides within the express exception in section 5, in favour of persons having a just right, or claim. Nevertheless, Mr. Baron Perryn, who tried the cause, refused to hear the evidence; and the learned judge, more- over, admitted the record of the verdict and judgment in the former cause, to show the plaintiff's exclusive right to the fishery, although it was objected, that the former action and this were not causes be- tween the same parties, the name of the present defendant being Thomas, and that of the other William. A verdict having, accord- ingly, been found for the plaintiff, it was moved to have a new- trial, on the ground of a misdirection in the above particular ; and after hearing the counsel against the rule, the court did not think it necessary that the plaintiff's counsel should reply. They thought that the defendant should have been let in to prove the notice of Dr. C. ; for that, had such notice been proved, the case would not have been within the act. And Mr. Justice Buller added, that to construe the clause in the manner contended for by the plaintiff, would be to read the words " right and claim," instead of " right or claim." The court also considered, that the record of the former verdict, though admissible, was not conclusive evidence, (a) There remains, however, still, as at common law, the remedy by indictment for a forcible entry and detainer, although such outrages upon fisheries are seldom, if ever, heard of at present. (6) But, it seems, that an indictment would not lie for a conspiracy to commit a trespass upon such property, because in general the object of the combination must be effected by some falsity, in order to create such an offence ; and upon the consideration of a case against per- sons for taking hares in a preserve, the court said, that persons agreeing to go and sport upon another's ground, or, in other words, to commit a civil trespass, ought not to be in peril of an indictment (a) Dougi. 517, Kinnersley v. Orpe. (b) See 8 T. R. 357, TU-x v. Wilson. Chit, on Fisheries,' p. 308. CHAP. IX.] Obstructions, %c. to Private Fisheries Remedies. 201 for an offence which would subject them to infamous punish- ment, (a) The recent enactments above referred to, have repealed the old 2. Stealing laws respecting the unlawful taking of oysters ; and now, by 7 & 8 oysters. G. 4. c. 29. s. 36, if any person shall steal any oysters, or oyster- brood, from any oyster bed, laying, or fishing, being the property of any other person, and sufficiently marked out or known as such, every such offender shall be deemed guilty of larceny, and, being convicted thereof, shall be punished accordingly; and if any person shall unlawfully and wilfully use any dredge, or any net, instru- ment, or engine whatsoever, within the limits of any such oyster fishery, for the purpose of taking oysters, or oyster brood, although none shall be actually taken, or shall, with any net, instrument, or engine, drag upon the ground or soil of any such fishery, every such person shall be deemed guilty of a misdemeanor, and, being convicted thereof, shall be punished by fine and imprisonment, or both, as the court shall award, such fine not to exceed 20, and such imprisonment not to exceed three calendar months ; and it shall be sufficient in any indictment, or information, to describe, either by name, or otherwise, the bed, laying, or fishery, in which any of the said offences shall have been committed, without stating the same to be in any particular parish, township, or vill ; provided always, that nothing herein contained shall prevent any person from catching, or fishing for any floating fish within the limits of any oyster fishery, with any net, instrument, or engine, adapted for taking floating fish only.* Various statutes on the subject of malicious damages to fisheries 3 M a ij_ having been repealed, it was enacted by 7 & 8 G. 4. c. 30._s. 15, cious inju- that if any person shall unlawfully and maliciously break down, or ries to otherwise destroy the dam of any fish-pond, or of any water which I 1 "!^' shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or de- struction of any of the fish, or shall unlawfully and maliciously put; any lime, or other noxious material in any such pond, or water, with intent thereby to destroy any of the fish therein, or shall un- lawfully and maliciously break down, or otherwise destroy the dam of any mill-pond, every such offender shall be guilty of a mis- demeanor, and, being convicted thereof, shall be liable, at the dis- cretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two ' (a) 13 East. 228, Rex v. Turner, and others. Chitty, p. 308, vt supra. * This offence was declared by 31 G. 3, to be a misdemeanor, and, subse- quently, it was declared to be felony by 48 G. 3. c. 144 ; but both those sta- tutes are repealed. Rex v. Walford, 5Esp. 62, was determined under the 31 G. 3. ; but that case does not apply now. 202 Obstructions, fyc. Mills. [CHAP. ix. years ; and, if a male, to be once, twice, or thrice publicly or pri- vately whipped (if the court shall so think fit), in addition to such imprisonment. This new act has abolished the 9 G. I.e. 22., (the Black Act,) which prescribed capital punishment against offenders of the above description. The Black Act had been previously modified by 4 G. 4. c. 54. which extended benefit of clergy to the offence. The words " with intent to take or destroy/' seem to avoid a difficulty which arose under the old law, and occasioned the ac- quittal of a prisoner, charged with breaking down the mound of a fish-pond, whereby the fish were lost or destroyed; for the judges held upon that occasion, that as the object of the purpose had been to steal the fish, with a view to do which act he had broken down the head of the pond to let the water out, he could not be said to have broken it maliciously, so as to promote the loss, or destruc- tion of the fish, (a) Obstruc- tions of mills. Remedies. Secta mo- lendini. It is evident, that the chief injuries sustained by millers, arise from the disturbance of their streams, in consequence of which they are hindered from working their mills as they otherwise would. Of these mischiefs we shall treat at some length when we come to consider the obstructions of watercourses, under which head they more properly fall. But there are other damages which are occasionally committed upon this description of property, and of these, together with the remedies for removing them, we pro- pose to speak in the first instance ; after which we shall mention, incidentally, some instances in which the mills themselves have been deemed to be obstructions. As to the first point, it is ob- servable, that a house may be so built, as to be a nuisance to a mill ; and in such a case it is clear, that an action will lie for the mischief. (6) So again, injuries frequently happen to a property of this kind, through the wilful neglect of persons, who, instead of grinding their corn there, according to the custom, take it else- where ; and for this offence, also, a remedy may be had. And there are, moreover, many wilful damages which have been made the subjects of particular indictments l)y the legislature, and which come principally under the description of malicious injuries. Such, for example, as the burning of mills, riotously assembling and pulling them down, or beginning so to do. The chief civil remedies for the mischief above enumerated, are the old writ secta molendini, the proceeding by distress, the assise of nuisance, and, which is now the more usual remedy, the (a) 2 East. P. C. 1067, Ross's case. (b) See 3 Salk. 248. CHAP, ix.] Obstructions, ) So also in the converse is this case. For if water run over the land of another, and he so stop it in his course, as that it surrounds my land, it is competent for me to abate the obstacle which hinders (a) 8 East, 487, Mayor, &c. of Carlisle v. Blamire and another. (6) 9 E. 4. 35. CHAP. IX.] Obstructions Remedies. the escape of the water. () And thus again, if water running near to a vill should by any means be checked in its flow, each inhabitant is empowered by law to destroy whatever impediment there may be, because the town would otherwise be'inundated. (b) And, on the other hand, if a lawful watercourse be impeded, it is competent to the party injured quietly to abate the nuisance. Thus where the tenant of a house had a conduit for the purpose of conveying water tlicreto, which ran through the land of a copy- holder, it was held, that he might dig the copyholder's land, for the purpose of amending his pipe, (c) So again the plaintiff had erected a dam for supporting a fish-pond on his own soil, but this erection stopped a rivulet which the defendant enjoyed for the benefit of his cattle, and diminished the water, upon which he en- tered and abated the nuisance, and the court refused to set aside a verdict in his favour, (d) However, the thing complained of cannot be abated until it actually becomes a nuisance ; so that if one see his neighbour erecting that which it is probable will uti- timately be such, it cannot be abated as long as it continues in an inoffensive state, (e) Moreover, if the person injured abate no more than is necessary, any damage resulting from the act will not be laid to his charge. As 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 the stream, and occasionally, a board or fender, and he fastened the board with two stakes, which he had no right to do, the defendant was held liable in case for pulling down the board, as well as the stakes, although, as owner of the adjoining land, he had a lawful power to abate the latter, (g) Nevertheless, it must immediately occur to the reader upon this point, that a remedy by injunction is open to the person who is thus disadvantageously situated. -A. court of equity will judge, from the several affidavits on both sides, whether the thing in question will be injurious, and will discriminate between a malicious attempt to frustrate the pros- pects of the defendant by the injunction, and a well-founded reason for apprehension. However, it has been declared, that if a party look carelessly on whilst an injury is carried on, and he wilfully permit its accom- (a) 8E.4. 5. (6) 9E. 4. 35. (c) Mo. 644, Guy v. Brown ; and see 39 H. 6. 32. Br. deson tort, pi. 43, cites S. C. > (d) 2 Smith Rep. 9, Raikes v. Townshend. (e) 12 Mod. 510. Holt's Cases, 499. (/) Cro. Ed. 269, Wicfovd v. Bill. (g) 6 Bing. 379, Creensdale v. Halliday. U 226 Obstructions Remedies. [CHAP. ix. plishment, his application to equity will be unavailing. Thus, upon the diversion of a watercourse, it appeared, that the plaintiff at law had been put to great expense by reason of the injury, but also that he saw the work whilst it was proceeding, and connived at it, by testifying his assent, rather than disagreement. Lord Somers, therefore, granted an injunction ; for any continuance would in this case be a fresh nuisance, and so the party would be continually liable to actions, which would be unfair after the en- couragement which the plaintiff at law had held out. (a) Equity. This naturally leads us to consider the equitable remedies, ap- plicable on these occasions. And it seems that an injunction will be granted where the parties have ascertained their rights at law, although the court makes a great difficulty in granting it before, unless, indeed, where new works are in progress upon an old pos- session. Thus, where a bill was brought, founded on the right of the mayor of the city of London to supply Southwark and other places with water, and an injunction was prayed against the de- fendant, to restrain him from raising engines, laying pipes, and breaking up the ground to the injury of the plaintiff's right, the court allowed the demurrer to the bill. For the plaintiff should first try his legal remedy ; and besides, this being a monopoly, there would be a good chance of his failing at law. (6) So where the plaintiff brought his bill as lessee of an ancient mill, and prayed that the defendant might be decreed to pull down certain flood- gates, and other works which he had erected, and be restrained from erecting new, the court referred the party to his remedy at law. In this case the works had been erected for three years ; and the Lord Chancellor said, that the court might have interposed by injunction, had there not been laches, because these were new works upon an old possession, and it might also be had if the party should commit trespasses after the trial. The demurrer to the bill was then allowed, (c) However, upon one occasion, where there had been a possession for sixty years, a bill was allowed to be maintained against the mortgagee who had foreclosed an equity of redemption, although the right had not been established at law. (d) (a) 2 Eq. Ca. Ab. 522, pi. 3. Anonymous. (6) 2 Atk. 391, Whitchurch v. Hide. (c) 1 Cox, 102, Weller v. Smeaton. S. C. 1 Bro. C. C. 572. (n the canal, and not on the rates, duties, and personal estate of the company, as provided by the act. But although they might impose rates in an amended fonn, the learned judge added, that they could not ultimately suc- ceed, for the reasons above referred to. (a) Again, a canal act di- rected, that the company should be rated to all parochial taxes in respect of their lands, in the same proportion as other lands lying near the same should be rated, if in the hands of individuals in their natural capacity. And a subsequent act relating to the same canal, alter re-enacting the above provisions, went on to say, that the company might agree with any owner of "lands adjoining their lands, taken for the purpose of the navigation, for an exemption from all rates in respect of such last-mentioned lands, so as to charge the same upon the adjoining lands ; in which case the rates should be charged upon the adjoining lands, according to the agree- ment, and then the lands belonging to the navigation were to he held exempted and discharged. Upon this it was contended, not- withstanding the former decision, that the tolls were to be taken into consideration in fixing the rate, the first statute being only confirm- atory of what the common law would have directed namely, that the rate should be equally laid upon all the property assessed. It was further argued, that the latter statute repealed the first, inas- much as the words " as the same would be rateable if they were the property of individuals in their natural capacity," were there omitted. The first point was merely to call for a revision of the former opinion of the court, and they declared themselves satisfied, as to that, with their original decision which we have just cited. As to the second, the court observed, that had the legislature in- tended any repeal, it would have been expressed in unambiguous language. The power given was to make specific bargains for the purchase of lands exempt from rates, and to shift the rates from lands taken by the company, placing them upon other lands in the hands of individual proprietors. Then the value at the time of the sale would remain the rateable value, and there was no reason for supposing that a different rate would be payable in the absence of any such bargain. (6) The London dock company were assessed for property in the sum of 975 ; it was a rate of Is. 3d. in the pound upon 15,600 annual value. The sessions reduced the rate to 139. 8s. Id. In pursuance of an act of parliament, a bason, a large dock, quay, &c. had been erected by the company, and had been so far completed as to be lit and proper for the reception of certain goods. Works were also proceeding so as to complete the undertaking with the greatest (a) 1 B. & A. 298. (b) 5 B. & C. 476, The King against the Inhabitants of St. Peter the Great, in the county of Worcester. S. C. 3 D. & R. 331. s 2 ' 260 Incidents Rateability. [CHAP, xi Compensa- tion duty rateable. possible expedition. The company had paid from Midsummer 1801, until the making of the rate appealed against, 139. 8s. Id, quarterly, being calculated on the old premises which the company had destroyed, and being at the rate of 8|rf. in the pound per quarter upon 3,966, the average rental calculated upon the ten years preceding the act of parliament, and the rate appealed against being at the rate of Is. 3d. in the pound upon a rental of 15,600. The court held, that the assessment appealed against was bad, be- ing at a higher rate than the legislature had warranted, but that the sessions were also wrong, because they had reduced the stun to what a rate of 8|rf. in the pound would produce upon a rental of 3,966, instead of reducing it to what a rate of 8rf. in the pound would produce on a rental of 15,600. This latter sum the court assumed to be the fair rental of the productive works, (a) If a canal be used, the profits arising therefrom are rateable ; a compensation duty was, therefore, considered liable, where one canal company permitted another to have the enjoyment of their water. The Oxford canal company were authorized to take a certain milage duty. The Grand Junction canal was created by a subsequent act, and as the proprietors of the Oxford canal con- sidered that the new company would be prejudicial to them, it was arranged, that an indemnity should be made them as a compensa- tion for the supposed inj ury. Instead of the mileage duty payable to the Oxford canal proprietors, they were authorized to take so much per ton for coals and other goods which should pass from the Oxford into the intended new canal, or vice versa, or from any other navigable canal through the Oxford into the new canal, with- out any regard to the distance the same should pass upon the Ox- ford canal. The Oxford canal company were rated in respect of this compensation rate, and the court held, that they were liable to be so assessed. It was attempted, in argument on their behalf, to show, that the compensation was merely for passing in and out of the canal, that the tolls became due for the use of the sluice, and so rateable only in the parish of Braunston where the sluice is si- tuate. But Mr. Justice Bayley said, that there was a fallacy in those premises, for the compensation was given in regard of the use of the canal, not for passing into or out of it. In point of fact, although called a compensation duty, this was a rate for coals pass- ing along the canal. (6) (a) 9 East, 127, Rex v. St. George, Middlesex Inhabitants. See the sta- tute in question, 39 & 40 G. 3. c. 47. (6) 4 B. &C. 76, The King against The Company of Proprietors of the Oxford Canal Navigation. The trustees of the London Bridge Works were held liable under the Riot Act, 1 G. 1. st. 2. c. 5. s. 6, on the ground that all persons having any personal property within the district assessed were rateable as inhabitants, whether resiants or not, and the Court of Exchequer Chamber, which reversed the judgment of the Court of King's Bench, de- CHAP. Xl.j Incidents Rateability. 261 Having now shown that canal, dock, and water companies are Where the rateable, but that they may be exempted by acts of parliament, rate is to be having shown the force and extent of those exemptions, together made, and with tlie construction of the local statutes which apply to the sub- 1D wnat ject, it remains to point out more particularly the places where the rate is to be made, and the proportions which must be attended to in distributing it. There is this difference between a sluice and a navigation : in the former case the proprietor must contribute to the relief of the poor in that, parish where the sluice is situate, but in the latter the land is to be rated to the relief of the poor of that parish where it is productive of profit to the proprietor, and in proportion to that profit, which may be considered as in the nature of a rent received by the proprietor for the use of his land within the parish, (a) It was formerly holden, that the tolls of a canal navigation were as- sessable in the parish where they became due, upon the completion of the voyage, (b) But these decisions took place before the case of Rex v. Nicholson (c) was determined, and in which the court resolved that tolls per se were not rateable. It therefore became necessary to adopt a new rule, because, although some rateability must be incurred at the place where the voyage finishes, there being the use of the canal at that spot, yet the proportion would be highly unequal, estimating the rateability as arising from the occupation of land, according to the modern cases. And there- fore canal tolls are now deemed to be rateable in every parish through which the canal passes in respect of the land there situate, and so used for the canal. This was, in effect, only reconciling the principle of cases con- cerning canals with that which respects other rateable properties. For the difficulty originally was, how. to rate tolls, qua tolls ; as soon as it was held that tolls per se were not rateable, the original principle of rateability in respect of land became extended. Thus it had been resolved, that the tolls arising from a sluice were rate- able in the parish where it was erected, although the proprietor resided elsewhere, and the tolls were collected in another parish, (d) Some years afterwards, a barge-way and toll-gate in the hamlet of clared the construction of this statute to be widely different from that of the 43 Eliz. The Riot Act speaks of ability in general, and not of specified property as liable to the rate. Caldec. 15. Atkins and others v. Davies. (a) 1 B. & C. 550, By Abbott, C. J. Cowp. 581, Rex v. Cardington Inha- bitants. The sluices were local and visible property, producing profit within the parish. (b) 2 T. R. 660, Rex v. Aire and Calder Navigation. 4 T. R. 543, Rex v. Page. 1 Nolan's Poor Laws, 107. S. C. 8 T. R. 340, Rex v. Stafford- shire and Worcestershire Canal Navigation. 5 East, 325, Rex v. Leeds and Liverpool Canal Company. (c) 12 East, 330. (d) Cowp. 581, Rex v. Carding ton Inhabitants. 262 Incidents flateability. [CHAP. XI. Hampton-Wick, which had been purchased by the city of London, were rated to the relief of the poor in that hamlet, for such part of the tolls as became due there, the tolls being collected in another parish; and it was contended, that the corporation were not rate- able, on the ground that if so, they might be rated for the same tolls in each of the several districts through which the river passed ; and it was added, that it would be impossible to ascertain the exact proportion which might become due in each. But the court held, that the corporation were rateable : true it was, they were not called on to say how much the city should be taxed in one parish, or how much in another, for the city had, in fact, the ownership and in- heritance of the soil, the subject matter of the rate j* and they con- firmed the order of sessions, (a) Now, here the principle respect- ing land was clearly recognized, and the only difference between this and cases on canal navigation would be, that the canal is rate- able in proportion along its whole line, as we shall proceed to prove. The principle was more clearly adopted in a case where the corporation of Bath were assessed, as occupiers of certain springs and reservoirs. An act of parliament gave them authority to convey water from the springs in the neighbourhood to the city. The court held, that they were not only liable to be rated in respect of these springs, but also for the reservoirs made by them in the neighbouring parishes, as for land occupied by them. And the court resolved further, that the corporation were not rateable for the whole of the entire profit in the palish where the springs were conducted into the reservoirs, because a proportion of the profit accrued to them from aqueducts and pipes underground, and laid into the soil of other parishes. The rate was imposed upon them to the full amount of the profits in the parish whence the springs issued. It was quite clear, the court observed, that the corpora- tion were not residents or inhabitants within the statute 43 El. and also that they were rateable as occupiers of land where the springs arose ; but the main question was, whether they should be rated there for all their profits. As the corporation of Bath used so large a portion of their apparatus in other parishes, in the soil of which that corporation were authorized to lay their pipes and aqueducts, it would be impossible to say, that they ought to be rated solely in the first mentioned parish. The rate was therefore quashed. (6) It is very easy to discern from hence, that as soon as tolls were held rateable only in respect of land, they must come within the principle of the preceding case, and so it happened. Thomas Milton was rated for " river tonnage at 100 6." The ses- (a) 4 T. R. 21, Tbe King v. tbe Mayor, &c. of London. (6) 14 East. 609, The King against tbe Mayor, Aldermen, and Corporation of Bath. S. P. 1 M. & S. 634, Rex v. Rochdale Waterworks Company. CHAP. xi. J Incidents Rateability. 263 sums confirmed the rate. The river navigation in question ex- teiicled through several parishes, and certain tonnage dues became due along the line. The appellant was rated for the whole amount of the dues in the parish which imposed the assessment, and he contended, that he was only proportionally liable. The court were quite clear against the rate, for the profits accrued in respect not only of the use of that part of the navigation which was within the parish in question, but also from the use of the other parts of the navigation situate in the different parishes through which the goods had passed. To say that the tonnage dues were subject to this rate, would be to overturn the case which had decided that tolls per se were not rateable. The order was therefore quashed. (a) Again, where the proprietors of an inland navigation, which ex- tended through several parishes, were assessed in one to the entire amount of their tolls, the court held, that the rate could not be. supported, for the proprietor of the navigation ought not to be assessed at that amount hi any one of the parishes through which the canal might pass. ( b) And, according to the above principle, although no dues be received in any one particular parish, yet that parish is liable to contribute in proportion to the profits upon the whole line of navigation, (c) It is worthy of remark here, that although tolls are not rateable per se, yet they are so, as we have shown, when connected with land ; and it may be added, that a lock has been considered a real and substantial property, so as to warrant a rateability of tolls re- c-eived in respect of it. It was argued, that such a rate would be upon the dues payable at the lock, and not upon the lock itself; and thus as tolls had been held not rateable, that these profits were exempt. But the court considered, that the lock, in this case, was a thing locally situate in the township, and producing profit ; and that the addition of dues or rates was merely giving other names for the same subject, (d) Indeed, as to the case of the King against the Aire and Calder (a) 3 B. & A. 112, Rex v. Milton. (b) Rex v. Palmer, 1 B. & C. 546. (c) Id. 551, Rex v. the Earl of Portmore and another. See also Id. 545, The King against the Company of Proprietors of the Trent and Mersey navi- gation. In this last case the rate was admitted to be good, because the com- pany were rated for a certain number of acres of land situate within the township, through which part of the canal passed, producing an annual profit exceeding the sum in respect of which they were assessed, ft is dif- ficult to apply this reasoning : the rate might have been right in this parti- cular case ; but as the principle is, that the rateability is to be in proportion to the profits along the whole line of canal, it might follow that the profits of a company might exceed their assessment in one parish, and yet be quite out of proportion to such as should he received in other parishes. (rf) 12 East, 324, Rex v. Sir A. Macdonald. 264 , Incidents Rateability. [CHAP. xi. navigation, (which, as far as it related to assessing the whole amount of profits in two parishes, according to the proportion col- lected in several intervening parishes, has heen overruled,) Lord Ellenhorough took an occasion lo observe, at another time, that the undertakers of that navigation had real property in the parishes where the tolls were collected, that the rate was upon the tolls conjoined with that property, which property was rendered so much more productive by reason of the tolls collected there, (a) So that, in all the cases, however erroneously some might have been decided upon other grounds, it is clear, that the principle of rating land was recognized as far as it was. possible. Having now pointed out the place where the respective dues above alluded to may be demanded, it remains to add a few words respecting the proportion of assessment. And this to a certain extent has been explained already, because we have shown, that a canal company is rateable in each parish through which their water runs, according to the amount of their general profits. Looking to the land covered with water as the guide, the rate is demandable according to the proportion of such land used for the purposes of navigation. There is, however, another principle of proportion worthy of attention, and it is this : admitting that the company are rateable throughout all the parishes where their pro- perty lies, whether they collect the tolls in one of those parishes, or not, or whether, in fact, not in any one still are they to be rated in respect of the improved value which the land has attained in consequence of the canal, or as mere soil unconnected with the consideration of any materially profitable right ? Now, many acts of parliament have been referred to, in which it has been expressly declared, for the benefit of canal companies, whose 'exertions tend very much to the public convenience, that land used for canals shall be rated as land used for husbandry purposes, and not in respect of its unproved value. But in the absence of any such provision, it is quite clear, that as the land proportionally increases in real value, so it shall be rated higher in proportion. The New River company were rated for land in Chadwell Mead, in their oc- cupation ; which land, without the spring rising there, and if not covered with water, was found by the sessions to be of the annual value of 5 ; but connected with the advantage derived from the use of the spring, were estimated at 300 per annum. It ap- peared, that none of the profits became due, or were received in the parish which imposed the rate ; and it was therefore contended, that here was no beneficial occupation so as to charge the com- pany. The court observed, that they had no concern with the quantum of the rate ; the sessions might, or might not, have rated the adjacent property too highly ; but the question was, whether the land, which included a valuable spring of water, was to be (a) 12Eait,-337. CHAP. XI.] Incidents Rateability. 265 charged in a more advanced proportion, by reason of its increased profits. They gave judgment in favour of the rate, and Lord Ellenborough observed, that in Rex v. the Corporation of Bath, it had been assumed in the decision, that the water was the subject of rate in the parish where it was impounded in the reservoirs, (a) Lands are, in fact, rated according to the amount which can be obtained by letting them at a rent ; and this rule has been said to be a good criterion, in order to ascertain the amount of a rate, (b) And hence, it should seem, that whether it be a right of common, or a right of way, or of fishery, or a canal property which is attached to land, such land may be rated according to the value which the profit or easement may happen to confer upon it ; and if the test of this principle be applied, the fact, that the place where the common and way may be enjoyed, is quite distinct from the premises to which they are appurtenant, will probably make no difference. Consequently, incorporeal hereditaments, although enjoyed at a distance from the land to which they belong, * will raise the value of property, so as to make it the subject of a higher rate, than it would be if considered independently of them. But as soon as the ownership of the land comes to be considered as distinct from the water over which these rights are claimed, the privileges in question come under the denomination of easements, and consequently cannot be rated. So that where certain naviga- tion proprietors were rated as owners and occupiers of land taken and used for the navigation of the rivers Mersey and Irwell, and for towing paths, locks, and tonnage, the court quashed the rate. For these persons could not be rateable for the ancient bed of the navigable part of the river. Still, however, the court said, that they were rateable for new cuts made through the mill of which they had been the purchasers ; and, moreover, that they were also liable for the locks. The order of sessions was accordingly quash- d. (c) There is one other principle in rating these properties, which it is desirable to mention ; and it is, that the assessment upon a com- pany should not be made upon the profits in the aggregate, without first deducting the sum which they are liable to pay for poor's rate. The Hull dock company were assessed to the poor's rate in the sum of 8,900, their net profits, after making a fair allowance in respect of repairs and other expenses, but without making any (a) 1 M. & S. 503, Rex v. The Governor and Company of the New River. (6) 4 B. & C. 82, by Abbott, C. J. 9 B. & C. 68, Rex v. the Trustees of the Duke of Bridgewater. * For instance, common land in another parish. See 2 Sir W. Bl. 1245. By De Grey, C. J., and 1 Nolan, Poor Laws, p. 81, n. 5. ( c) 9 B. & C. 95, Rex v. The Company of Proprietors of the Mersey and Irwell Navigation. Id. 114, Rex v. Thomas. S. P. 7 B. & C. 70 note (c) Rex v. River Weaver Navigation, S. P. 266 Incidents Rateability. [CHAP. xi. deduction in respect of the sum with which they were chargeable to the rate. That sum amounted to 2,225. If that amount ought to have been deducted, the net profits of the company would amount to 6,674 only, or thereabouts. The sessions confirmed the rate so made on the full profits, without deducting the rate. It was contended, that such a deduction was new in principle, and had not been before made ; but the court quashed the sessions' order. Other real property, they observed, was rated at three- fourths, or any other part of its value, deductions being virtually made in respect of parochial demands, and there was no reason why this company should not be charged in the same proportion. Land intrinsically worth 40 a year can only pay a rent of 30, if it is to pay 10 per annum in other ways; and in estimating a rent, both landlord and tenant look to the value of the thing on the one hand, and to the outgoings on the other ; and the out- goings must be deducted from the value, before the rent can pro- perly be fixed. The court added, that the suggestion in the case (what we have Stated above) was clearly wrong, for if 2,225, the present rate, were deducted from 8,900, the rate upon 6,675 only would leave part of the rateable proportion of 8,900 free from rate. The allowance should be so made, as that the sum upon which the annual rates were made might, with the amount of the rate, make up the 8,900. That sum, according to the present rate, would be 7,120, and the sum to be paid by the com- pany 1,780. The court further decided, upon this occasion, that a lessee whose under-tenants had been excused from rates, by reason of their poverty, was not liable to be assessed ; for as the dwner fixes his rent upon the supposition that the rate is his tenant's burden, it would not be right to make the landlord surety for the tenant. The rate was, therefore, directed to be reduced to 1,780, and the order of the sessions confirming the rate was quashed. () Rateability, upon other occasions than for the relief of the poor, must be considered with reference to the statute which imposes the tax. A water company at Manchester were held to be exempted under the following circumstances. An act was passed for the better cleansing, lighting, watching, and regulating the towns of Man- chester and Salford, and the defendants were assessed in respect of their pipes, trunks, apparatus, works, and tenements. They had liberty to break up the soil for the purposes of laying down their pipes, and conveying water ; and the question was, whether this privilege constituted a tenement within the meaning of the act. Lands, in general, it was understood, were not intended to be rated. But it was contended in support of the rate, that the words " tenement" was of a more extensive signification than land, and that the right exercised by the company implied a domi- nion over the land, thus constituting a tenement ; whilst, on the (a) 3 B. & C. 516, Rex v. the Hull Dock Company. CHAP. XI.] Incidents Rateability. 267 other hand, it was said, that the company had a mere licence of removing the land for the purpose of laying their pipes, and so had a mere easement only. The court adverted to the principle of the act, in giving judgment against the rate. The principle was, that the description of property mentioned should be sufficiently protected. And thus the words, " messuages or tenements" " lodg- ings or tenements,'' were introduced. So gardens and garden- - grounds were comprehended, for the object of the statutes was to give security and accommodation to the residents and to their pro- perty. But the, word " lands" was omitted, and therefore lands were not to be the subject of a rate. So were pasture grounds, and quarries, because, though included in the 43 Eliz. as afford- ing income, and so supplying the means of contribution, those properties would derive no material equivalent or protection from the act. The court considered, consequently, that the word, " tenement" was here used in a very limited sense, and the order of sessions was quashed, the company's apparatus being expunged from the rate, (a) Some of the kinds of property enumerated in this treatise, are Oftitbes. liable to the burthen of tithes. We shall show, that fish may be the subject of such a charge ; and as mention has already been made of mills, on account of their close connexion with rights of water, it may not be improper to explain under what circumstances they also may be compelled to contribute towards the parson's mainte- nance. The tithes, both of fish and of mills, are considered as great tithes. First, with respect to _fish. It is worthy of observation, that the Fish, when foundation of the parson's claim to receive a tithe for fish is custom, liable to Whether the fish be caught in the sea, or in a public river, or in a pa ^ t^' 16 - several fishery, or a store 'pond, or inclosed river, the same prin- ciple prevails, that the profit is not titheable otherwise than by an usage to that effect. Fish, therefore, are not thus chargeable de jure, for tithes de jure arise from such fruits of the earth as renew annually, or from the profit which accrues from the labour of a man. Further, the usual division of tithes is thus : personal, predial, and mixed. The tithe of fish caught in the sea, pr in open rivers, is called a personal tithe ; that of fish taken in private waters, may be said to be a mixed tithe. Dr. Burn observes, that personal tithes are payable only by a special custom ; and, perhaps, are paid no where in England, ex- () 1 B & C. 630, Rex v. The Company of Proprietors of the Manchester and Salford Waterworks. 268 Incidents Rateabilify. [CHAP. xi. cept for fish caught in the sea,* and for corn-mills, () And the mixed tithe, as it regards fish, is payable also, as we above-men- tioned, by custom alone. It follows from hence, that the tenth part of fish taken in private rivers or ponds (where titheable by cus- tom), should be set out in kind, according to the common law ; for the statute of Ed. VI. extends to predial tithes only, f and the safer course is, to give notice of the setting it out. The personal tithe, being a tenth part of the clear profits arising over and above all incident charges, is a payment in money, unless there be an ex- press custom to the contrary. Of fish in It was said by the court in an old case, that the parson could not the sea. have the tithes of fishes taken in the sea, because it is not within any parish, (b) And again, that no tithes should be paid in kind, without a custom, for fish taken in the high sea out of any parish, (c) These opinions, however, were delivered, assuming that no custom existed ; for, first, it will appear presently, that fish, taken from the sea, may be tithed by custom, and next, that by a special custom they may be set out in kind. A prohibition was applied for to stay a suit upon an appeal here to the delegates from a sentence in Ireland, for tithes offish taken in the sea, because fish in the sea were j era; -natures, and so not titheable, and because no spiritual person could say, that the fish were taken within his parish. But the prohibition was denied, for, by Jtoes,, J. tithes of fishes are usually paid in Ireland ; and it was said, that tithes were payable in Cornwall, for fishing in the sea, to the parson of the parish where they are landed, and that it was the custom in Yarmouth to pay tithes for herrings, (rf) And for salmons also in the river of Exeter, (e) It was said, moreover, in the same case, that tithes personal taken in the sea, out of any parish, are due deductis ex- pensis, and that they are not tithes in kind. (/) So it had pre- viously been laid down by Mr. Justice Doderidge, that tithes of * And public rivers might have been added. See 1 Ro. Ab. 636. pi. 7. (a) Ecclesiastical Law, vol. iii. p. 521. f It is declared by 2 & 3 Ed. 6. c. 13. s. 11, that the act shall not extend to any parish which stands upon and towards the sea-coasts, the commodities and occupying whereof consist chiefly in fishing, and have by reason thereof used to satisfy their tithes by fish ; but that all and every such parish and parishes shall hereafter pay their tithes according to the laudable customs, as they have heretofore of ancient time within these fifty years been used and accustomed, and shall pay their offerings as is aforesaid. See Bunb. 239. 256, Gwavas v. Kelynack, S. C. Gwill. 691. (6) Noy. 108. (c) 1 Ro. Ab. 636, Long v. Dircell. (d) Cro. Car. 264. Anon. See Litt. Rep. 147. (e) Palm. 527. (/) 1 Ro. Ab. 636. pi. 6, Gould v. Arthur. Id. 656, citing Co. Magna Charta, 621. CHAP. XI.] Incidents Rateabilily. 269 fish taken at Island, or of herrings or pilchards upon the sea, wen: personal tithes, (a) It has been further resolved, that inasmuch as the right to tithe sea-fish at all, depends wholly upon custom, an usage to take them in any particular manner, or even to take less than the tenth part, is a good usage. Thus, a prohibition was ap- plied for, and a custom was surmised, that the owner of the fishing- boat had one moiety of the fish, and the fishermen the other moiety, and that the owner had been accustomed to pay the tenth of his moiety in discharge of all. The court held this, to be a good sur- mise, for as the parson of common right had no claim to the impo- sition, if he availed himself of a custom, it was necessary that he should abide by the custom ; consequently the tenth of the moiety might be a discharge of the whole, (b) So again, a prohibition was prayed to stay a suit for tithes of fish taken in the sea, and of corn, and the question was, whether twenty fish might be consi- dered a good payment in satisfaction of all, and so twelve sheaves in respect of the corn ; and the court were of opinion, that the custom, as to the fish, was valid, because the payment would not be due without usage ; but as to the corn, they said, that the twelfth part might be due of common right, and that a custom to pay nothing would not be good without more. The prohibition , was, however, granted nisi, (c) Cause was afterwards shown against the rule, on the ground that tithes were due of common right in respect of com, and the court being of the same opinion, discharged it. (t it could not be a personal tithe in respect of locality, inasmuch as it had been decided, that a modus for land would cover a mill erected thereon. As to the deductions, no other ex- cept the annual deductions could be claimed as such. The lord chief baron, after adverting to the mixed nature of this tithe, con- sidered it as settled, that the payment of tithe should be made to the rector of the parish where the mill was. With regard to the deductions, the court thought it would be hard on the incumbent, if the whole expenses of building the mill were to be deducted in the first instance ; his chance of being ever benefited by it would in such a case be probably destroyed. But until some retribution should be made for the original expense, the miller ought not to be charged. If, as in Chamberlayne v. Newte, the mill had heen in the hands of a tenant, there would not have been any difficulty, because the clear gain would be that which might remain to the tenant after the payment of his rent and other expenses. But the same measure of justice could be applied, as though the property were out on'lease. An annual value or rent might be set upon it ; and when ascertained, it might be deducted, as though rent were actually paid. The counsel for the plaintiff then suggested, that the valua- tion should be made upon the machinery only, for in many places the principal part of the rent arose from the value of the fall of water, and that being the natural benefit arising from the free- hold, would be most properly the subject of tithes ; and thus, the deduction ought only to be proportioned to the recompense for erecting the machinery. But the court intimated their resolution to lay down a general rule, and they directed the deputy remem- brancer to set an annual value or rent upon the mill, then to de- duct the whole rent and other incidental expenses of servants, &c. ; after which, the defendant, the owner of the mill, should account for the tithe of the clear profits, (a) The result, therefore, of these authorities is, that the tithe must be considered as personal with reference to the individual who is to pay it; but that as it regards the parson who is to receive it, the tithe is predial, that is to say, it must be paid to the incumbent of the parish where the mill is situate. Tithes pay- Q ur nex t question is, to inquire as to the kind of mills which Sble 't * f rC " are li a bl e to tn i payment. It seems to be agreed, that before the what mills, statute Articuli Cleri, (b) tithe was due in respect of some mills, (o) 3 Anstr. 915, Hall v. Machet. S. C. 3 Gwill. 1460. (b) 9 Ed. 2. c. 5. CHAP, xi.] Incidents Tithes. 277 although not of common right ; (a) and after that law, it Was un- derstood that none excepting such ancient mills as had never paid tithes were exempted. Thus, a prohibition was awarded to the bishop of St. Asaph, on the ground that tithes were not payable in respect of ancient mills. (6) And this means, of such mills only as existed before 9 Ed. 2, that is, of very ancient mills ; for alter that, even though they be before memory of our ancestors, they niay be liable to the charge, (c) A mill, therefore, erected since the statute referred to, according to the better opinion, is titheable in pursuance of the express pro- visions of the act. Although a man may prescribe generally con- cerning a mill in nonjdecimando, (d) leaving it to the rector to show that tithe has been at some time or other received in respect of it. Some observations are necessary here to explain that which we mean by the better opinion. The words of the stat. of Ed. II. are, that if any do erect in his ground a mill of new, and after that the parson of the same place demandeth tithe for the same, the king's prohibition doth issue, &c. But it was answered, that in such case the king's prohibition was never granted by the king's assent, nor ever shall, which hath decreed, that it shall not here- after lie in sur.h cases. To this succeeded the act of Ed. VI., and it was thereby enacted, that every person exercising merchandize, bargaining and selling, clothing, handicraft, or other faculty, being such kind of persons, and in such places, as heretofore within these forty years have accustomably used to pay such personal tithes, or of right ought to pay (other than such as be common day- labourers) shall yearly, at or before the feast of Easter, pay for his personal tithes the tenth part of his clear gains, f his charges, and expenses, according to his estate, condition, of degree, to be therein abated, allowed, and deducted, (e) Upon this, the two chief justices, Holt and Trevor, held in the case of Newton v. Chamberlain, above referred to, that no tithe at all was payable in respect of the mill in question, because such tithe would be due only where it had been paid for forty years before. The other judges (Powell, J., excepted) held, that the tithe was personal. However, the cases agree that new mills- (/) are titheable by virtue of the statute; and Sir Samuel Toller observes, that this latter act * (a) 12 Mod. 243, per Holt, C. J. (6) Pain v. Evans, cited in the note to Dy. 170, (b) pi. 5. (c) Ib. Tanner v. Kirkham, cited Co. Entries, 463. S. P. Dy. 170. (b.) Sconies' case. S. P. Mar. 15. S. P. 1 Wood, 352, Ansell v. Adman. S. P. Hicks v. Triese, 3 Wood, 363. (d) Comb. 404. By Holt, C. J. (e) 2 and 3 E. 6. c. 13. s. 7. (/) 9 Vin. Ab. 40. 280 Incidents Tithes. [CHAP. xi. the personalty, and savour more of tke personal than the predial character. The plaintiff in prohibition was nonsuited at nisi prius, issue having heen taken upon the modus, and (the point above having been raised upon demurrer) he was nonsuit as to that also, and a consultation was awarded. Nevertheless, the court expressed a disposition to hold that the modus should not extend to the new mills, (a) Then followed a decision, which at first sight might seem to agree with the last ; but as, in effect, it will be found' to have proceeded from an impression on the mind of the court, that the defendant had diverted a current of water, near which he built a new mill, for his own private purposes, the rule laid down in Johnson v. Dunridge will exactly apply, and as Goodwin v. Smith was not actually decided, the cases will be consistent. The plaintiff was vicar of Cadoxton, near Neath. There was a custom that he should have the tithe of mills within the parish. The defendants occupied certain water grist-mills in the parish. The bill, after stating these facts, went on to allege, that the de- fendants pretended to an exemption from tithes by reason of an ancient mill, which through length of time had decayed, and had been taken down, and in whose place new mills had been erected. But the plaintiff insisted, that the mills for which he demanded tithes had been erected on a part of the parish where an ancient mill had never stood, being erected on a new channel or current of water which had been diverted from its ancient course into a new cut, made for some private purposes of the owner of the soil on which the same had been built. The bill then prayed a discovery of the quantities of corn and malt ground oh the premises ; the value of the toll or mulcture; and a just and fair account of the value of the tithes. The defendants, after several admissions, answered, that the mill mentioned was an ancient mill, immemo- rially free from tithes, that it had been pulled down, and that another had been built upon the stream of the brook with some part of the old materials, and on lands which also had been imme- morially exempt from tithe. The defendants added, that if the mills were liable to the payment of tithe, it was a personal tithe, and that the expense of building ought to be cleared, before the charge ought to accrue. The defendants also, insisted on their not being inhabitants of the parish, and that their tithe was due, if any where, to the rector of the parish where they resided. The court said, that the plaintiff was entitled to the tithe of the toll of the newly-erected mill, as a personal tithe only, namely, the tenth part of die clear profits ; and they made a decree accordingly. (6) (a) Goodwin v. Smith, 1 Ro. Ab. 652. pi. 3. See also, Ross v. Windsor, 1 Eagle and Young, 661, where a mill rebuilt upon another a^ot was held titheable. But the case as cited from the MSS. of L. C. B. Dod. does not seem to be very distinct, for it does not appear under what circumstances the mill was removed, which might make all the difference. (6) 2 Gwill. 871, Thomas v. Price. , ^ CHAT. XI.] Incidents-* Tithes. 281 It seems clear, that the court entertained an idea that this alteration of the mill and stream had been accomplished for the private advantage of the owners, and, if so, the case clearly falls within the exception ahove alluded to, and, consequently, is not by any means subversive of the old law. Jt may be added, that it is not otherwise than a reasonable doctrine, for a party, whose ancient mill is in decay, to be allowed the immemorial exemption attached to it, if he should re-edify it. The law is, that estovers may be spent upon a new chimney in an ancient house, (a) that ancient lights may be enjoyed as before, notwithstanding the re- building of a dwelling ; and there does not seem to be any just reason, why an ancient mill should lose the benefit of a modus, because it becomes necessary to make a new one 'upon its site. This position has been ratified by authorities ; and it is submit- ted, that hitherto there have been scarcely any irreconcileable deci- sions on the subject of titbing-mills. We have therefore ascertained, that these tithes are predial, as thev respect the person to whom they are to be paid, and so far are connected with the land ; and thus it is that the alteration of a null is regarded with so much strictness. We have proved, that if the mill be taken down, and another built on the same site, no tithe will be payable, if the land have been before exempt, or dis- charged by a modus ; or if, in consequence of a change in the course of the stream, it become necessary to alter the position of the mill, still no tithe is due, under such circumstances. But if a mill be taken down and built elsewhere, to suit the private conve- nience of the owner, a tithe will arise. It is difficult to conceive any other principle upon which a mill would be removed, other- wise than for private convenience, except on account of the altera- tion of the current of water. We have hitherto treated of the entire abolition or renovation of the whole mill ; the next point will be to consider how far an alteration in the nature of the mill will affect its liability to tithes. And it may be observed, as a general principle, that such an alter- ation will subject the mill to payment, or to a new mode of account- ing for the profits. The authorities on the subject are, however, coutradictorv. As, for instance, there was a mill for corn, for which a modus was paid. The party added two new mill-stones. The parson then sued for tithes. It was urged, that the tithe was only personal, and that there ought not to be a double tithe, which would be" the case if these mills were charged. But by Holt, C. J., the tenth toll-dish is the tithe ; it is not the owner of the mill, nfr the owner of the grain, who has the profit, but the miller ; it is a predial tithe, being payable to the rector of the (a) 2 Leon. 45. GAdb. 97. 282 Incidents Tithes. [CHAP. XI. place where the mill is, and not merely where .the party lives, (a) It appears, however, that a prohibition was subsequently granted ; but the difficulty which the court felt was as to the personality or prediality of the tithes, (b) a question which, as we have seen, is now settled. Other decisions are contrary to this resolution. Thus, it was resolved that a modus for a water-mill was not de- stroyed by the addition of another pair of stones under the same roof, (c) A bill was brought for tithes, and a plea of a modus of j)s. Sd. was offered, when the mill was partly a com, and partly a fulling-mill. The fulling-wheels were taken away, upon one occa- sion, and a pair of millstones put in their room ; and since that time, the mill continued to be a corn-mill. It was argued, that the modus could* not extend to cover a newly-erected mill ; for, being altered to a corn-mill, it ought to pay tithes in kind. The lord chancellor said, that the reason why a modus was destroyed, where two stones were erected in the room of one, was because the miller can grind a double quantity. There were formerly two fulling-mills and a corn-mill under the same roof; the fulling- mills are now turned into two new corn-mills ; it was the same thing as though the defendant had erected two new mills. It became necessary to show so much, that there was a custom in the parish for fulling-mills to pay tithes, otherwise they did not pro- perly pay them. The lord chancellor added, that the only colour- able thing was, that there was an ancient modus for the land, and that the mill was but an accidental quality. But being pleaded as a conjunct modus for both land and mill, the plea must be over- ruled, (d) Upon the authority of this case, the master of the rolls (Sir Win. Grant) decided a suit, in which it appeared that an ancient corn-mill had been rebuilt, and two pair of new stones added. An account was decreed as to the two pair of new stones, and the judge took occasion to observe, that the cases upon the subject were not easily reconciled, (e) A fortiori, if two fulling- mills be under one roof, and a rate tithe be paid for the im'lls, and then an alteration be made, one of them being converted into a corn-mill, the rate is gone, and tithes must be paid in kind. If, again, you have but one pair of stones in your mill, for which a rate is paid, and another pair is added, new tithes must be paid in kind. (/) But where a third pair of stones had been added to a mill which originally had two pan* only, the whole being carried by the same frame and wheels which carried the former stones, (a) 1 Show. 281, Gumley v. Falkingham. (6) Cartb. 215, Gumble v. Falkingham, S. C., where the court are reported to have said, that the modns was not destroyed by the new pair of stones. S. C. 4 Mod. 45. . (c) 1 Ro. Ab. 652. (d) 3 Atk. 17, Talbot v. May. S. C. 2, Gwill. 782. (e) 3 Ves. & B. 71, Manby v. Taylor. 4 Gwill. 1720. (/) 1 Brownl. 32. CHAP, xi.] Incidents Tithes. 283 and the mill not being able to work more tban two pair at the same time, the court established a modus which had been alleged, and directed the original bill to be dismissed with costs, both in law and equity, (a) With the exception of the case in Carthew, it then appears, that an alteration in the poioer of the mill, so as to occasion the grinding of a larger quantity of corn, will destroy a modus, and introduce a demand of personal tithes ; that is to say, a charge of that description, all expenses being first deducted. Another kind of alteration has, nevertheless, been presented to the attention of the court. A case came into the Exchequer, where an ancient water corn-mill had been occasionally used as a lead-mill. The plaintiff brought his bill, as vicar of Deptford, for the tithes of two mills, the one an ancient water-mill, and the other a wind-mill erected about thirty years. The water-mill was shown to have been a very ancient mill. The southern wheel of the mill was, however, used as a lead-mill about forty-five years since ; it was subsequently ued again wholly as a corn-mill. The defendant never lived in the parish of Deptford. It was urged, that by the change from a corn-mill into a lead-mill, the exemption was destroyed, and that it could not revive by re-converting it into a corn-mill. But the court were of opinion, that the mill being the substance and thing exempted, the using one of the wheels as a lead-mill, for a time, would not put an end to the exemption. Had the ancient mill, indeed, been wholly used as a lead-mill, there would have been a suspension, but not an extinguishment, of the privilege, (b) If a greater profit had not been derived from the lead- mill, this decision is not inconsistent with the preceding authorities. There must be some derivable profit. Where the plaintiff claimed the tithes of two mills, and it appeared that one was an ancient mill, and that the other had been a tacking mill, but that the defendant had .converted it into a corn-mill, and had used it for the sole purpose of grinding oats for his hounds, the court consi- dered that the latter mill was not titheable, inasmuch as it yielded no profit, and, of course, held the ancient mill to be exempt, (c) It appears from the above decisions, that mills used for the grinding of corn and grain, by which a profit is gained, are subject to tithes. But it still remains open to our consideration, whether all mills are so liable. The better opinion seems to be, that full- ing-mills, copper-mills indeed, all mills which do not grind meal (o) 2 Gwill. 715, Goodwin v. Wortley. (6) 2 Gwill. 974, Wilson v. Mason, (c) Id. 1022, Hicks v. Triese. Incidents Tithes. [CHAP. xr. for food are exempt from tithes, unless by special custom, (a) Thus, where tithes were demanded for a copper-mill, a prohibition was granted, for that the gain arose from the labour and industry of man ; and the same exemption was said to apply in favour of a fulling-mill, shaving-mill, glass-house, &c. (b) A prohibition was prayed to stay a suit in the spiritual court, for the tithes of a full- ing-mill ; and it was suggested, that the defendant fulled forty cloths every week, and that he gained two shillings by every cloth. The prohibition was granted upon a surmise, that by the law, tithes were not demandable in respect of such mills, for the gain comes only by the labour of men ; and tithes, said Doderidge, J., are not payable except for things renovant, &c. (e) So also it was said, that tynn-mills, lead-mills, or plate-mills, or rag-mills, should pay no tithe, and that the usage of the country should be respected in this matter, (d) However, the exemption of fulling-mills was ,not agreed to, as it seems, without a struggle. For it is asserted, that two judges * had been of opinion, in the 12th Jac., that a tenth penny of the gain should be paid in respect of a fulling-mill, being in the nature of a predial tithe ; and so of a corn-mill, the tenth dish of corn, (e) And a case is cited where that doctrine was actually held. (/) But Mr. Just. Doderidge subsequently observed, that if this were to be considered as a pre- dial tithe, the person who sheared the cloth, and the dyer also, might be called on to contribute for tithes, in regard of the same cloth ; and he added, that it must be a personal tithe, because it accrued only by the labour of man (g) In another report of the case, it appears that the learned judge observed upon the inconve- nience which would ensue, if fulling-mills were held titheable ; because, in that case, paper-mills, iron-mills, and tin-mills, might be charged. And he did not know in what manner tithes could be paid of fulling-mills, since it would not be reasonable that they should be paid of the tenth cloth, (h) " The generality of this " reason/' says Sir Samuel Toller, speaking of the above exemp- tion of fulling-mills, by reason of the spring of their profits from manual labour, '' would not only preclude the profits of any manu- " facturer from being titheable, but would also exempt fish." ( i ) (a) See Id. 979. (6) Litt. Rep. 314. (c) Cro. Jac. 523, Danderidge v. Johnson. S. C. Semb. 2 Ro. Rep. 84. But it seems that the prohibition had been denied a few years before, in a suit between these parties. 1 Ro. Ab. 641, pi. 19. (d) 2 Ro. Rep. 84. * Warburton and Nichols. (e) Ibid. (/) Ubi v. Lux, cited ibid. (*) IbW. (A) 1 Gwill. 357. (f) On Tithes, p. 47. ' til 4 P. XI.J Incidents Tithes. 285 The learned author, therefore, rather prefers to consider the non- liability of these mills as a primd facie exemption, hut < that they may, nevertheless, be subjected to tithe, by showing a custom, (a) And so, again, Gibson, in his Codex, lays it down, that corn- mill^ only arc within the act of Ed. II. ; tithes being due for full- iug, tin, and other mill?, if at all, by custom, (b) Lord Coke had expressed his opinion doubtfully upon the subject ; although, not- withstanding the perplexity which afterwards succeeded, he seemed to intimate, that if any tithe were payable, it would be a personal tithe. The- authors whom he quotes held the words of the act* of Ed. II. to be general, and to extend to all mills, public as well as private, fulling-mills, paper-mills, &c. And, said they, it ought to be of corn-mills ; for if the parson should have the tenth toll-dish, then he would have not only tithe corn, but also tithe of the same corn, ground at the mill, and so a double tithe, which he ought not to have of a fulling-mill, paper-mill, &c. (c) And so, in another book, Lord Coke observes, that the tithes of fulling-mills and .paper-mills are personal tithes; (d) although he allows, in his Institute, that the cases of tithes had never been (within his know- ledge) judicially determined, (e} These tithes are payable yearly, before Easter ; (/) indeed, Easter offerings have been said to be a compensation for personal P avable - tithes, (g) however inadequate the exchange may appear. (A) In suggesting grounds for a prohibition, it has been holden bad How to to say that it was an old mill, because, before the statute Articuli prescribe Cleri. some mills were chargeable, though some were not. And a f amst *i_ c + -L i i tithes, therefore, the more proper course is to prescribe in non decimando, and to bring an affidavit of the truth of the fact, (i) In that case, in the absence of any proof to the contrary, the court, as we have seen, will presume the antiquity of the mill. It has been held, that the defendant, in his ' answer to a bill for tithes, must state the quantity of meal ground and sold at his mill, the plaintiff having a right to that information, as a check upon the miller ; but the court said, that the price of the meal need not be disclosed. It was so determined, upon a demurrer to the plain- Id. 48. 3 Atk. 19. (6) P. 666. (c) 2Inst. 621. (d) Co. Magu. Ch. 621. (e) 2 Inst. 622. (/) Id. 621. (g) Bunb. 174. By Lord C. B. Gilbert. (A) Toller, p. 48.- (i) 12 Mod. 243, Hart v. Hall. 286 Incidents Tithes. [CHAP. XT. tiff's bill, and the demurrer was accordingly overruled, because it covered too much, (a) Settle- Settlements are acquired by the ownership or possession of some ment. o f f ne kinds of property mentioned in this work. Thus, the renting of a fishing in a pond has been held to give a settlement. The pauper's father took, and held during two years, under a parol agreement, the fishery of the pond in Old Alresford, containing sixty acres, with the grates, &c., and also all the spear- sedge, flags, and rushes, growing in and about the said pond ; to- gether with the right of cutting the sedge growing on a piece of rough meadow, or sedgy ground, which latter was distinct from the pond, and was held under a different right. The pauper's father agreed to pay 10 a-year for the premises, and to supply his landlord's house with fish. The same person held, at the same time, under a parol demise, the fishery in the causeway river in New Alresford, with the grates to a small fish-house, for which he paid 3 per annum. It did not, however, appeal- from the case stated by the sessions, whether the fishery in question was a several, free, or a common of piscary ; and it was urged, that an incorporeal hereditament was not within the statute of William III. But the court gave judgment in favour of the settlement, Lord Mansfield observing, that they would intend the fishery and soil to have passed together, (b) H^re the court laid great stress upon the occupying of land ; but Mr. Justice Buller said, he was by no means prepared to allow, that if it had been any other kind of fishery, it would not have given a settlement, (c) Such a fishery, the learned judge might have meant, as would be matter of tenure. A common in gross, to illustrate this point, has been held a suffi- cient tenetoent for the purpose of acqmring a settlement, because it lies in tenure, and a preecipe quod reddat may be brought for it. (rf) Upon the same principle, therefore, a fishery not appendant nor appurtenant to any lands, nor annexed to the soil, might be deemed sufficient for the same purpose ; such as a fishery granted by deed to the person of an individual, but not in any way con- nected with lands, and exclusively enjoyed, as it respects the owner of the soil. But a mere right to fish will not have that effect ; and therefore, the privilege of a commoner entitled to piscary in the lord's river will not enure to give him a settlement. It should however be added here, that, in estimating the value of a tenement, a thing moveable in its nature may be attached to (a) Wight, 15. Chapman v. Pilcher. S. C. 4 Gwil. 1653. (b) 1 T. R, 358, Rex v. Old Alresford Inhabitants. (c) Id. 367. (d) Rex v. Dersingham Inhabitants, 7 T. R. 671. . I) \1>. XI.] Incidents Settlement. 287 it, as an accessary, for the purpose of enhancing the yearly worth of the tenements. Therefore in a case, where the court held, that the renting a dairy (including the cows and their pasture) would not confer a settlement, unless the land, upon which the cows were depastured, was ahove the annual value of 10. Lawrence, J., took occasion to observe, that this was quite different from a warren or fishery, for the rabbits and the fish were the produce of the land, but this was merely a contract for the hire of cows, (a) Fish in a fishery, therefore, may be said to augment the inheritance, so as to increase the estimated value of a tenement, in questions of settlement. (b) The renting of a mill of the value of 10 a year will certainly Mills. confer a settlement. This is, however, a general proposition sub- ject to qualifications which we shall mention immediately. For it is necessary, that the mill which gives this privilege should be. a tenement. Thus, upon a question concerning the renting of a water mill, the court declared, that a mill was a tenement, and consequently that the renting of it would gain a settlement, (c) This having been determined concerning a water-mill, a question was made as to a windmill, but the court affirmed thte settlement in respect of this mill also, (d) Yet there need not be a residence on the premises, in order to Residence. come within the provisions of the statute of Will. III., provided there be a residence in the parish. It was urged as an argument against the settlement in one of the above cases concerning a wind-mill, that water-mills were always habitable, but windmills often not. The court, however, paid no regard to this objection, as the pau- per lived in a cottage which he rented in the same parish, (e) Then again, where the pauper rented a windmill of the value of ten guineas, and occupied it for one year, it was objected, that he had not resided in any part of the parish where the mill was ; and this difficulty was considered insurmountable. But the court inti- mated, that a residence in the parish, although not upon the pre- mises, might have been sufficient, (f ) We proceed to show, that the occupation of some mills will not No settle- be productive of a settlement, and the reason is, because they cannot be considered as tenements. Thus, the pauper built a post windmill, and worked it for some time. It was constructed upon (a) 2 East, 201. In R. v. Minworth Inhabitants. (6) 1 Nolan, 36. (c) 2 Salk. 536, Between the Parishes of Evelin and Rentcomb. (d) Rex v. Butley Inhabitants. 1 Str. 1077. S. C. Burr. S. C. 107. S. C. Ca. Temp. Hardw, 391. S. C. Andr. 3. See also, 1 Str. 502, Between the Parishes of I'ranlev and St. Mary, Guildford. (e) Rex v. Butley, ut supra. (/) 2 T. R. 48, Rex v. Knighton Inhabitants. 288 Incidents Settlement. [CHAP. xi. cross traces, laid upon brick pillars, but not attached or affixed thereto, and it was considered to be removable at the tenant's (the pauper's) pleasure. The value of this mill, together with the land rented by the pauper, would be more than the annual sum of 10, but less if the worth of the mill should be deducted. The court lield, that no settlement had been acquired. They said there was no doubt but that the taking of a windmill attached to the ground, and of 1 annual value, would confer a settlement ; a prtecipe would lie for such a windmill. But here the mill was nothing but a chattel, it was the property of the tenant himself, not fixed in the ground but detached from it. It was no more a tenement than a large coffee-mill put up by the tenant in his house, (a) li ihrw A fortiori, the mere renting 1 of working or grinding places at a mill will be ineffectual for this purpose. Thus, with respect to the grinding at a corn-mill, the pauper covenanted, under seal, with the owner of such a mill, that he would, with horses and carriages, at his own costs, deliver at the mill three load and a half of wheat, weekly, and grind the same into flour at his own costs, and pay the said owner eight shillings per load at times stated in the agreement. The counsel abandoned this case, and the court said, there was no colour for construing this agreement into the taking of a tenement, (b) So where a needle-maker rented two out of six pointing places in the mill of another, and agreed to do his land- lord's work in preference to that of strangers, the court said, that there was no pretence for calling this agreement to work in a mill the taking of a tenement, and R. v. Hammersmith was cited as expressly in point, (c) So where the pauper rented certain run- ners for scouring needles in the mill of another, and a settlement was claimed fpr him in respect of these," the court asked, how the case could be distinguished in principle from that of Rex v. Dod- derhill. The counsel in support of the settlement answered, that there the pointing places in the mill, which were equivalent to the runners, were not in the exclusive possession of the pauper ; but the court were quite clear against the settlement. In effect, this was not taking part of the mill as a tenant, but it was a licence to use a particular part of the machinery of it for the purpose of manufacture, and for no other purpose, (d) Lastly, it was con- tended, that the renting of a standing place in a room for a card- ing machine belonging to the pauper, but in the mill of another person, gave a settlement. It was said, that the pointing places and runners were mere chattels, and no part of the mill ; whereas here was no standing place in the mill, which was necessarily a taking of part of the mill itself. But the court observed, that there was no solid distinction between this and the other cases ; it was a mere liberty to go and stand -for the purpose of working at (a) 6 T. R. 377, Rex v. Londonthorpe Inhabitants. (b) S T. R. 450, n., Rex v. Hammersmith Inhabitants. (c) 8 T. R. 449, Rex v. Dodderhill Inhabitants, (rf) 1 East, 528, Rex v. Tardebigg Inhabitants. CHAP. XI.] Incidents Dower. 289 the trade, a licence to use the machinery of the mill, but not a letting of the mill itself, (a) Tenant in dower is, where a man is seised of certain lands or Dower. tenements in fee simple, fee tail general, or as heir in special tail, and takes a wife and dies, the wife, after the decease of her husband, shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, cc. (b) From hence it appears, that the ownership of the soil in the hus- band is necessary to support a claim of dower. Where, therefore, Piscary. we hear of a right to dower in respect of a fishery, we must under stand it to mean a several fishery, or at least such an one as draws with it the property of soil. And Bracton observes, that dower cannot be received of fish which are in enclosures, (c) Provided, however, that the ownership of the land be united with the profits of the fishing, a woman may be endowed of the fruits of this pri- vilege. The common assignment of dower is, " by metes and " bounds ;" but it is clear that a fishery cannot be so divided, and therefore a special endowment must be made in this respect, (d) This is done by assigning her the third fish, or the third throw of the nets, * (e) in like manner as the third part of the profits of a store-house, or of the keeping of a park, may be conceded to her. (f) And upon the principle, that dower may be had of a common certain in contradistinction to a common sans nombre, of which latter a woman is not dowable, (g) it seems, that such a claim may be made in regard of a common of fishery. It follows, from the above considerations, that of fish taken in the sea, and in navigable rivers, dower cannot be taken, (h) It may just be added here, that where there are coheirs of a fishery, they shall have the second, third, or fourth fish, according to the number of persons entitled, (i) But a piscary uncertain, or a common sans nombre, cannot be divided between co-parceners, for that would be a charge to the tenant of the soil, (k) The eldest shall have those profits, making contribution, or an allowance, to the others ; and if the common ancestor have left no other inheritance, then one co-parcener shall (a) 2 East, 189, Rex v. Mellor Inhabitants. (6) Litt. s. 36. (c) Lib. 2. c. 40. s. 3, Schirites's Aquatic Rights, p. 102. (tf) Park on Dower, p. 252. * Tertium piscem veljactem retis tertium. (e) Co. Litt. 32 (a). Plow. 179. (/) Co. Litt. 32 (a). (g) Ibid. (A) See Schultes, p. 102. (i) Ibid, citing Fleta, lib. 4. c. 9. s. 24. Bract, lib. 2. c. 34. s. 1. (k) Flet. lib. 8. c. 9. Co. Litt. 104 (b). u 290 Inciden ts Dower. [CHAP. xi. Mills. Co- parce- ners. Canals, and other companies' tolls. have the uncertain piscary for one year, and the other for another, and so on. And in the case of the piscary, the one may have one fish, and the other the second ; or the one may have the first draught, and the other the second, &c. (a) A special endowment also must be made of mills, as their profits are not capable of being ascertained by metes and bounds, more than fisheries. Mills, therefore, being liable to dower, it remains to show how the assignment should be made. And it seems to be agreed, that Lord Coke's doctrine is the true one, namely, that the woman shall neither be endowed of a mill by metes and bounds, nor in common with the heir; but she may either be endowed of the third toll-dish, or of die whole mill for every third month, (b) The latter was the mode of assignment of dower in respect of Wade's mill in Hertfordshire, as we are informed by Serjeant Bendlows, who reported the case, (e) The matter came to be considered subsequently, in a case where the judgment was to recover seism of the third part of the said tenements in severally by metes and bounds, and errors were as- signed, that a mill could not be divided in that manner, &c., but that the judgment should have been of the third part only. And the judgment was accordingly reversed. ( Pleadings Watercourses. [CHAP. XIT. We now come to the account of the defendant's injury, so that the declaration may be said to resolve itself into two principal divisions, namely, the plaintiff's property, and the damage done to that property by the defendant. The mala mens of the de- fendant being stated, the particular damage is set forth, whether by" cutting channels, &c. or otherwise ; and it is usual to lay the mis- chief complained of with a continuando, although the omission of the latter will not vitiate the declaration, (a) The usual expression concerning the diversion of the stream is, " divers large quantities " of water," and the old authorities agree well with this mode of pleading. As where it was alleged, that the defendant much diverted the course of the water, by erecting a dam across the current; (b) and so again, that he diverted the major part of the course of the water, (c) In another case an exception was taken, because of the uncertainty of the words magna pars aqute, it not being known how much water was comprehended within those ex- pressions ; but it was resolved, that although the declaration might have had a better form, it was good in substance, for that it was impossible to show how much water ran to mills, and because the quantity of water was not material, (d) In an old case it appeared, that one had an ancient watercourse, and the banks of the. river having become false and hollow, a dam was made by the direction of certain justices, and so the river was holden in. Another person, who was not the owner of the ground, having cut this dam, an action on the case was brought for sub- verting the bank of a certain river. But the declaration was deemed insufficient, and the plaintiff was allowed to have a new writ concerning a certain dam holding in the said river, (e) It is customary to say, that the water has been diverted from the plaintiff's mill; but a case has occurred, in which an objection taken by reason of the omission of that statement, was disallowed, it being sufficient to say that the water was turned from its usual ancient course, (f) It is, nevertheless, unwise to depart from the usual course of precedents. It was objected upon one occasion, that no place had been men- tioned where the nuisance had been erected ; and it was said, that it might have been in another mill. But the court denied the objec- tion, observing, that the damage should be intended in the same . (a) 11 Mod. 257, 258, Leveridge v. Hoskins. The words " kept and " maintained" were once objected to. Mo. 449. (b) Dy. 248 (b). (c) Ibid. Wikes v. Serle, cited there. Cro. Jac. 324. 4 Rep. 89. (d) 4 Rep. 89, in Cottel v. Luttrel ; Luttrell's case. (e) Hob. 193, Biccot v. Ward. Some sort of obstruction, or injury, must be specified, 1 Ld. Raym. 452. (/) 5 Mod. 206, Richards v. Hill. CHAP, xii.] Pleadings Watercourses. vill where the mill was. It was further excepted, that the action might not to have been against the defendant, a lessee, because he had the demise subsequently to the injury complained of, for the lessee could not abate that which was done in the time of his lessor, and the request to abate should have been made to the lessor. But this difficulty was also set aside, for the court held this to be a con- tinuance of a nuisance by the lessee, and so the plain tiff had judg- ment, (a) However, if the plaintiff undertake to name the place where the mischief occurred, and he do it inaccurately, he will be in imminent danger of a nonsuit. As in an action for a nuisance in erecting a wear, and thus injuring the plaintiff's mill. The wear was described in the declaration, to be at the Hulbrook, but it was proved, in fact, to have been erected at a lower part of the same water, called the Tame Water. Upon this the plaintiff was non- suited, and the court of King's Bench refused to interfere. ( 6) The particular mode of obstruction cannot be too carefully de- scribed. Some of the following cases on this subject do not relate to mills ; but they are so intimately connected with the point of variance, as to render it desirable that all the decisions relating to that matter as to watercourses, should be consolidated. These are the cases which have already been hinted at in a recent page, (c) and as they do not seem to be quite consistent with each other, they deserve a particular attention. In the first case, the plaintiff declared for a nuisance. He alleged that he had a certain channel or watercourse, whereby all the surplus or refuse water of his house was accustomed to be carried off, and he complained of the defen- dant (treasurer of the London dock company) for throwing a quantity of earth, gravel, &c., near his house, which obstructed the free passage of the water in its former course. It appeared in evi- dence, that the plaintiff had a house in a court, situate in a row, having a steep descent of three or four feet between one end of the court and the other ; that a wall stood across the lower end, and that, at the bottom of this wall, there was an aperture to let the rain and other surplus water of the court flow through it into a ditch which ran at the back of the house, serving as a sewer to them. The London dock company had some land on the oppo- site side of the ditch from the court, and they had heaped up a con- siderable mound of earth which had been taken out in excavating their dock. The base of this ground was at the part nearest to the ditch, nearly as high as the plaintiff's house ; but it was ori- ginally several feet from the ditch. It appeared further, that much of this earth had been trodden down by boys and cattle, beaten (a) Cro. Jac. 555, Brent v. Haddon. (6) 2 East. 500, Shaw v. Wrigley, cor. Wilson, J. York Summer Assizes, 1790, cited there. See Id. 497, The Mersey and Irwell Navigation Com- pany v. Douglas. (c) Ante, p. 309. Pleadings. Watercourses. [CHAP. XII. down by carriages, and washed down and mouldered by the rain and the weather. The ditch, partly from the fall of this soil, and partly by ihe rubbish which had been placed by other persons at the side of it, had become greatly impeded and choked up. The inhabitants of the court had been used to cleanse the ditch ; but this act had, of late, been twice done by the dock company. A ver- dict was found for the plaintiff by consent, in order to take the opinion of the court, whether, under these circumstances, the action could be sustained ; and the court held it impossible that evidence could be admitted to show an injury by suffering the fall of the earth, under a statement that the defendants had heaped up earth. The declaration had stated, that the company had placed this rub- bish so as to obstruct the ditch ; but the mischief had been occa- sioned by other causes, namely, by the elements and the boys. This was a consequential injury in its strictest sense, and not an immediate act of the company. The rule was accordingly made absolute to enter a nonsuit, (a) In the next case the declaration consisted of three counts ; but the two first having been abandoned at the trial, need not be fur- ther noticed. The third count stated a diversion of the water- course. The evidence in support of this was, that the defendant's son had let down the wear of a darn, so that the plaintiff 's meadow was flooded and damaged, the course of the sti'eam having been thus checked. The learned judge upon this directed a nonsuit ; and the court sustained the opinion, that the count relied on in a case of this nature ought to be so framed as to meet the particulars of the fact more distinctly, and with greater certainty. (6) However, the following decision, subsequent in point of time to the above cases, seems hardly to be reconcileable with them. An action on the case was brought for diverting water from the plain- tiff's mills. The obstruction laid in the declaration, was the put- ting a dam across the stream, and cutting above and higher in the stream than the mill-sluices, trenches, channels, &c., so that large quantities of the plaintiff's water were thereby diverted, and the accustomed flow of the watercourse was stopped. There was a general count for turning the water out of its usual course. The evidence was, that the defendant had put down the dam in question about a mile above the plaintiff's mills, and this had prevented the water from being regularly supplied, but that the water was not thereby diverted, because it returned to its regular course long be- fore it reached the plaintiff's mills, and there was no waste of the water. It was proved that the plaintiff had sustained injury by reason of the interruption of his regular supply. It was upon this objected that the mischief had been misdescribed in the declara- tion, for the complaint should have been that the water had been (a) 5 Taunt. 534, Fitzsimons v. luglis. (6) 6 Price 1, Griffiths v. Marson. CHAP, xii.] Pleadings Watercourses. 319 irregularly or insufficiently supplied, or that it did not reach the plaintiff's mills at the proper and usual time. The jury having found for the plaintiffs notwithstanding, it was moved to enter a non- suit upon the above objection, but Mr. Justice Burrough said, that it was in fact stated in the declaration, that the water did not run to the plaintiff's mills as they were accustomed to have it, and that this was a mere technical objection, which ought not to be allowed after verdict. The rest of the court concurred in this view of the case, and the rule was refused, (a) The gravamen, or result of the damage done by the diversion or obstruction of the watercourse, comes lastly to be stated. It is usual to insert this statement, although there are authorities to show, that the omission of it would not be fatal. As where the plain till' declared for a diversion, and actually left out this part of the pleading. The objection was taken, but the court would not entertain it. For as the act implied a tort in itself, the per quod was not necessary to support the action ; it only served to aggravate the damages. The allegation was, that the watercourse could not flow to the plaintiff's mill by reason of the obstruction, and thus a tort was disclosed which dispensed with the further statement, at least, as far as the necessity of it was concerned, and especially again, after verdict. Judgment was given for the plaintiff, (b) Other counts, varying the matters charged against the defendant, are commonly introduced. For example, there may be one alleging a general diversion of the water, without showing the means ; ano- ther for widening cuts from the stream, &c. ; and a count for not keeping the banks of the river in repair, is said to be proper, in order to avoid a risk, namely, of not being able to show that the defendant made the cuts or channels stated in the first count, (c) Perhaps, too, there may be a right in the defendant to irrigate his fields at certain seasons of the year. It is advisable to insert a qualification or exception to this effect in a separate count, and care should be taken to preserve the exceptive statement throughout the count. The above may suffice as an example of the declarations upon this subject. But there are many others, in which the causes of complaint and the resulting injuries may be infinitely diversified. To some of these the reader is directed in the note, (d) The counts are in many instances very special, and must be adapted to the peculiar circumstances of each case. As in a declaration at the (a) 7 Moore, 345, Shears v. Wood, cor. Wood, Baron, at Guildford. (6) 1 Ld. Raym., 102, Richards v. Hill, S. C. 5 Mod. 206. See also, 1 Ld. Rayrn. 274. Id. 493, ace. Skin. 65. 175, although there seemed at one time to have been a different opinion upon this subject. See Palm. 504. (c) 2 Chit, on Pleading, p. 387, note (d). (d) See 8 Wentw. Index, p. Ixv. 3 Chitty, 438. 320 Pleadings Watercourses. [CHAP. xn. suit of a miller against the occupier of another mill lower down the stream. The first count set out the damage generally ; the second was for keeping the tumbling bay narrower than it might have been ; a third, for wrongfully continuing a mill, injurious to the plaintiff', lower down the stream ; the fourth, for erecting three large wheels ; the fifth for keeping one wheel of a certain large admea- surement. There were other counts for keeping conduits, water- gates, &c. (a) We have just drawn the attention of the reader to a count for keeping the banks of the river in repair. In an action against a corporation, for not repairing a certain creek, it was objected, that the plaintiff' had shown no special reason, or tenure, why the corporation should repair, and it was urged that they were not bound of common right. But the court answered, that an imme- morial usage to repair had been proved, which showed an obliga- tion and prescription, and the very condition and terms of their creation, or charter might have required this liability on their parts, (b) Pleas &c. 1* now becomes our duty to mention some of the answers which may be given to the complaints 'above stated in declarations. Mis- takes have been sometimes made by pleading, which, at most, amounts but to the general issue, and too much care cannot be had to deny the plaintiff's right in a clear and effectual form. The defendant pleaded to an action for diverting a watercourse, that all the water alluded to sprang in his own ground ; that certain pits mentioned in the declaration had been there immernorially for the benefit of the meadows and cattle ; and that the pits being choked up with mud, he dug other pits, and made dams and banks, &c. ; and the defendant then denied that any other ponds had been ob- structed. The plaintiff protesting that this plea amounted to the general issue, replied de injurid, concluding with an averment, upon which the defendant demurred. And the court held, that the plea amounted in reality to a confession of the plaintiff's action, and that the plaintiff could not conveniently take issue on such a plea. The defendant, in point of fact, had claimed a right to keep out all the water if he pleased, and thus had done no more than plead the generaf issue, inasmuch as if the case had gone to trial, and it had appeared that the defendant had this exclusive right, there must have been a nonsuit. The course which the defendant should have pursued, ought to have been to deny the plaintiff's right.' (c) Another thing worthy of observation is, that one prescription can- not be pleaded against another without a traverse ; and this mistake may be said to be in some respects similar to that just mentioned, since the allegation of such a prescription, without a traverse, would (a) 8 Wentw. 535. (ft) Cowp, 86, the Mayor of Lynn v. Turner in error. (c) 1 Wills. 174, Brown v. Best. CHAP, xii.] Pleadings Watercourses. 321 bean informal general issue. Tims in a case where the plaintiff had set out a title in his declaration, the defendant by his plea set forth another prescription for the convenience of watering his cattle, and the plaintiff demurred generally. The plea was adjudged to be bad, because it neither confessed nor avoided the declaration, nor yet traversed the matter alleged there, (a) In this case, also, it was holden by the court, that if, upon the general issue pleaded, it had been proved that the water did not always run to the plaintiff's house, but that it was usually dried up in the summer, or drank up by the defendant's cattle, the plaintiff would have failed in his prescription; (6) whence it follows, that the greatest accuracy is requisite in setting forth a prescription, (c) However, it is now very unusual to put in any other plea than V^ that of not guilty to an action on the case, which, as we have before observed, is the course of proceeding almost universally resorted to upon occasions of the disturbances of watercourses. But, secondly, we proceed to the pleadings in those cases where the improper uses of the watercourse itself has occasioned the damage, as by diverting it to the injury of another person's pro- perty, in which case the aggrieved party has a full title to damages. And here we must refer back to those decisions which have been cited in a previous page, for the purpose of showing the parti- ticular injury complained of, it being necessary to adopt great strictness in describing the wi'ong, whatever it may be, for which the action is brought. With respect to the continuando, it is cus- tomary to allege it in actions on the case ; but as trespass is one entire act, it seems better to abstain from it in declarations of that sort. And there is a case to justify this position. For upon exe- cuting a writ of inquiry of damages in trespass for digging a hole in the plaintiff's soil, whereby his land was overflown, continuing the trespass for nine months, it was insisted that evidence might be given of a consequential damage after the nine months, as well as in the case of a nuisance which continues for nine months, where, the cause being removed, the effect nevertheless continues. But Holt, C. J. would not agree to this, observing, that in the case of a nuisance, the damage was. the gist of the action ; but that in trespass the tort was the material point, and he doubted whether an action would he for the continuance of a trespass as of a nuisance, (d) The same rules-relating to declaring upon the possession, apply . (o) Carth. 116, Murgatroid v. Law. (6) Id. 117. c) Id. Ibid. d) 12 Mod. 51 9, The Case of the Farmers of Ham pstead Water. 322 Pleadings Watercourses, [CHAP. xn. upon these occasions, and upon the same principle, namely, that the defendant is a wrong doer, (a) In this last case, the plaintiff had brought an action on the case, against the defendant, for causing water to flow through pipes near the foundation of the plaintiff's house, and for neglecting to repair them, hy means of which the water flowed through, and sapped the foundation of the house. After a verdict for the plaintiff, it was objected, that there was no allegation that the pipes in question were the defendant's, or that he laid them on the place where the injury occurred, and that, therefore, it could not appear, that he was either bound to repair them, or responsible for any conse- quences. But the court disallowed the objections, and affirmed the judgment, (b) (a) 2 Ld. Raym, 1568, Hoarev. Dickinson. (6) 2 Ld. Raym. 1568, Hoare v. Dickinson in error. > 3 .boM 323 CHAPTER XIIT. Of Evidence. IT is not necessary to say more, by way of preface to this chap- ter, than that we propose to follow the same course of inquiry as in the last ; that is to say, to detail the evidence necessary upon the trial of indictments, and then to mention those proofs which declarations and pleadings require, so - far as they are connected with the subjects of this treatise. In indictments for obstructions of navigable rivers, the partica- Obstruc- lar nuisance is set out ; and issue being commonly joined upon tions of . Not Guilty, it becomes the duty of the prosecutor to prove the allegations which he has made. Upon proof that the mischief has been done upon a navigable river, and of the nuisance complained of, the defendant must give some reason for his acts ; as, that he was employed in repairing the ban*ks of the river, or cleansing the stream, &c. In default of any evidence to counteract the pro- secutor's proof, the defendant will, of course, be convicted. Very slight testimony will suffice to show the general user of the great rivers; and with respect to the Thames, Mr. Justice Chappie observed, upon one occasion, that the court would take notice of that river, (a) More particular evidence certainly be- comes necessary when the user has been less frequent ; but as the public right in rivers will be further considered when we come to speak of the proof necessary to establish pleas of that nature, and as the testimony is the same upon both occasions, the considera- tion of it shall be postponed a little, for the sake of brevity. It was said in one case, by Holt, C. J., that any thing which aggravated the fact of the obstruction might be given in evidence, although not directly to the issue, as, the taking of money to let people pass, which was the complaint then before him. It had been excepted to a witness in the same case, that he had contri- buted to carry on the suit, and that the public nuisance affected him also as a private nuisance ; but the chief justice said, that these objections could not prevail against his competency, (b) \ The observations which we have made respecting obstructions (u) Andr. 150- (.6) 12 Mod. 615, Rex v. Clark. y 2 324 Evidence Indictments Public Fisheries. [CHAP. xin. Public fisheries. Private fisheries. Summary convic- tions. Breaking down fish* ponds. to navigation, apply in a great measure to the subject of evidence upon indictments for disturbing public fisheries. The interruption cannot be created by taking the fish, because the privilege is general ;* but wilful obstructions may be raised, or damage committed to the prejudice of parties who are exercising a lawful user of a public right ;~ and in such a case, evidence similar to that required concerning hindrance to navigation, namely, evidence of the public fishery, and of the particular annoyance complained of in the indictment, -should be tendered. The offence of taking fish from private enclosed waters, is now punishable as a misdemeanor, under the Larceny Act, instead of a felony as formerly ; and it is necessary to give such evidence as will as nearly as possible satisfy the words of the statute. The place where the offence has been committed must appear to have been a fishery adjoining or belonging to the dwelling-house of the owner of the water, or of some person having a right of fishery there. It therefore becomes proper to prove that the fishery in question corresponds with the description given by the act of parliament, and that set out in the indictment ; and such a taking should be shown, either by actual or presumptive evi- dence, as would satisfy a jury, if the offence were felony. The fact of the defendant being found engaged in taking the fish with- out licence, is, of course, the best proof which can be obtained, but any other testimony which would connect him with an unlaw- ful seizure or possession of the fish, would be sufficient for the consideration of a jury. The taking of oysters is a larceny. In this case it is only need- ful to observe, that a felonious taking of the oysters must be shown ; that the property of the oyster bed from whence the fish have been taken must appear to be in the proprietor, or in some other person ; and, moreover, as the statute designates the oyster bed as one sufficiently marked out or known as private property, it would be desirable to give in evidence the distinguishing marks of the bed mentioned hi the indictment, (a) In cases which call for a summary conviction before a magis- trate, according to the provision of the clause which forbids the illegal taking of fish, the private right of fishery should be estab- lished, together with the improper invasion of that right. The same kind of evidence presents itself when it is found necessary to punish persons angling without leave, in the day-time. Lastly, upon the trial of an indictment for breaking down the * Except at particular seasons, and then the offence of taking fish is spe- cially regulated and punished under particular Acts of Parliament, (a) See Archbold's Criminal Pleading and Evidence, 2nd ed. p. 151. CHAP, xili.] Evidence Indictments Mills. 325 dam or mound of a fish pond, after proving the ownership of the property stated in the indictment, the proprietor must show that the defendant committed the act charged against him. And it is not necessary to adduce proof of express malice against the owner, since the very fact of pulling down the dam is sufficient to enable the court and jury to draw an inference of malice, so as to satisfy the word "maliciously," as stated in the indictment, (a) With respect to evidence upon indictments concerning the Mills, burning of mills, it is, for the most part, similar to that adduced generally in cases of arson. The felonious mischief, and the pro- perty in the mill must be proved, and the situation of the mill must be shown according to the description of it in the indictment ; and then the prisoner's guilt must be ascertained by further testi- mony. Something, however, should be brought forward to satisfy the jury that the burning has been wilful ; for a mere accidental conflagration will not constitute this offence. Circumstantial evidence will, nevertheless, be sufficient for the above purpose. (6) Then, again, upon the trial of persons charged with riotously de- molishing a mill, or beginning so to do, it should be proved, that the prisoner, with others, making altogether three at the least, were assembled in a riotous and tumultuous manner at the par- ticular place mentioned in the indictment, and that they then did the injury complained of, being either the perpetrators themselves, or present, aiding and abetting the deed, (c) With regard to other offences on the subject of mills, it should seem, that a miller may be indicted for delivering bad corn in the room of good which he has received under the following circum- stances, which must be disclosed on the record, and established by evidence. It must be proved, that the defendant has been in possession of an ancient mill, to which the neighbouring inhabi- tants, or tenants of a manor, or others, have, from time immemo- rial, been accustomed to resort for the purpose of having their corn ground, thus showing the defendant in possession of a soke-mill, or one of that description. Having thus, laid a foundation for insisting upon his responsibility, by giviag such evidence as will show to the court that the resiants or tenants are compellable to use the mill, the offence, committedy as it were k by means of a false token, is next proved, namely, the delivery of the good corn in ._,. the first instance, (care being had to prove the parcels accurately,) and the re-deliver} 7 of an inferior kind of grain, or of part of the same in an adulterated state. Such evidence would, probably, (a) See Farrington's case, 1 Bum's Justice by Chetwynd, p. 418. And see also, Archbold, ut supra, p. 221. (6) See on this subject, Aichbold, pp. 205, 206, &c. (c) See Archbold, p. 2 16. 326 Evidence Actions Navigation. [CHAP. xin. 5es ' In actions nectedwith navigation, be available to procure a conviction for such an act of disho- nesty. (a) The evidence applicable to indictments for obstructing public watercourses, seems to be nearly allied to that which we have already mentioned concerning navigation. The public user of the pond, or stream, whatever it may be, must be brought forward, and then the obstruction complained of, together with the fact that it was occasioned by the defendant. Actions for obstructing a public right of passage over a river, it has been said, are not common, because a particular damage must ^ e snow11 to sustain such suits. If, however, such an injury be individually suffered, an action will undoubtedly lie. It is abso- lutely necessary to fix upon the proper person to be sued, and to show that either he, or some one for whose acts he is responsible, has occasioned the mischief; the public use of the river must be shown ; and, lastly, the peculiar damage which the plaintiff has sustained by reason of the obstruction. A few observations may be aptly subjoined here on the evidence which is required to prove that a river is navigable, together with certain matters which may be alleged in answer to such proof. The flow and reflow of the sea is primd facie evidence that a river is navigable, and may be said to be strong evidence for that purpose, (b) And a general and uninterrupted user by the public, for some time, affords conclusive proof of the universal right. But although the flux and reflux establishes a fair ground of presump- tion, it is by no means conclusive, for the opposite party may have recourse to various defences in order to rebut this plausible proof. Thus, an action on the case was brought for obstructing the plain- tiff's barges in Rainharu creek. An user with certain boats was shown, and it was also found that parties of pleasure had been known to sail up the creek, and that boats had come with persons who had cut reeds along the banks of the creek. The defendants proved, that they had bought their premises for a large sum, which premises were conveyed to them by the description of Rainhani wharf and creek, that, the creek had not been navigable until it had been made so by the defendant's predecessors at a considerable expense, and that they had received wharfage and tolls for navigating the creek from the owners of vessels frequent- ing the wharf which they had erected there, and also from the plaintiff himself. The jury found for the plaintiff. A new trial (a) See Ante, pp. 138, 298. As to the evidence on a forcible entry. See Archbold, pp. 386 390. (b) 5 Taunt. 705, Miles v. Rose, 1 Marsh. 313. S. C. CHAP, xni.] Evidence Actions Navigation. 327 was then moved for, and although the court refused to disturb the verdict, Lord Chief Justice Gibbs said, that the flowing of the tide, though not absolutely inconsistent with a right of private property in the creek, was strong prima facie evidence of a navi- gable river, (a) So that it clearly appears from hence, that an answer of exclusive property may be set up in opposition to the evidence of flux and reflux. And it was said again by Gibbs, C. J. in the case last mentioned, that the cutting of reeds was a very strong act indeed ; and that should a person wish to protect his exclusive possession, he must keep up the evidence of his right by guarding it against intruders. (6) The defendant's counsel in this case raised another difficulty, namely, that the judgment would bind the right of the defendants for ever. But the court, while they admitted that the judgment would be evidence, .and strong evidence too, declared, that it would not be conclusive evidence, and that they had so determined it in a watercourse cause thirty years since, (c) The losing party, however, would be bound to adduce better evidence in support of the right, or the judgment could not be considered less than conclusive, (d) And if a verdict were obtained by a defendant, he might plead it by way of estoppel, and so succeed absolutely, (e) We have also seen, that an exclusive right of fishery may be prescribed by for an individual against the public. Usage is the strongest evidence which can be adduced upon those occasions, whether it be relied on by the public, or by the individual. In the following case, an ancient usage was presumed from the cir- cumstance of an uninterrupted enjoyment, and it was, moreover, held to be elucidatory of the terms of a grant, which might, other- wise, have been doubtful without such an exercise of the privilege. An action of trespass was brought quare clausum fregit. Amongst other things, a public right of fishery was pleaded. It appeared, that the plaintiff was the proprietor of Brownsea Island, that those from whom he claimed had had a grant of wreck in 1154, from Henry II., which had been confirmed in the reign of H. VIII. by inspeximus. At the extremity of the island there is the bay of St. Andrews, which at low water displays an expanse of mud, intersected by a kind of lake. There appeared to be about three or lour feet water in this lake at low tide, and about the same depth over the adjacent mud at high tide. About forty years since, an embankment had been constructed at a great expense across the chord of St. Andrew's Bay, with the view of reclaiming the mud. In doing this", the sea weed, mud, and gravel within the (a) 5 Taunt. 705, Miles v. Rose, 1 Marsh. 313. S. C. (6) 5 Taunt. 706; 1 Marsh. 315. (c) 5 Taunt. 70C. (rf) 1 Marsh. 315. (e) 2 B. & A. 668. 328 Incidence .fictions Navigation. [CHAP xin. bank, had been frequently made use of. The bay was about a mile and a half from Poole, and in full view of the town ; but no opposition was made to this undertaking. The bank was subsequently broken in upon by the sea at high tide, in consequence of a storm. The bay was, nevertheless, treated as exclusive property, no fish- erman or other' person being permitted to enter there without con- sent. Thus, assertion of property, and acquiescence in that claim-,, were proved ; and it was further admitted, that this bay formed no part of the harbour of Poole, and that vessels of burthen could not float there. The defendant's evidence was, that two grants had been made by the crown of the locus in quo, for a limited number of years, which had expired; (the grantor in the latter case having covenanted to endeavour to reclaim and bring the ground into cultivation within seven years ;) moreover, that the place had been commonly fished on, and in defiance of the assertion of property. This evidence, however, not being satisfactorily established, the jury found for the plaintiff. The court having heard the argu- ments in support of, and against a new trial, were of opinion that the verdict ought to stand. True it was, that the evidence of the plaintiff's assertion of right had been very strong, but still his supposed title might not have amounted to more than usurpation, if it had been shown that the public had had the locus in quo before the making of the embankment forty years since. But the modern usage of forty years was evidence from whence it might be presumed, that the same course had been pursued in earlier times, nothing having appeared to the contrary, (a) In this last case Mr. Justice Richardson quoted the evidences mentioned by Lord Hale as applicable to a right similar to the present, and observed, that most of them existed in favour of the then plaintiff. These were " constant and usual fetching of gravel and sea-weed and " sea-sand, between the high-water and low -water marks, and licen- " sing others so to do ; inclosing and imbanking against the sea, "and enjoyment of what is so inned; enjoyment of wrecks hap- " pening upon the sand." (&)* (a) 2 B. & B. 403, Chad, Bart. v. Tilsed. (ft) Hale de Port Maris. pt. 1. c. 6. p. 27, cited 2 B. & B. 409. And see 2 B. & B. 667, Gray v. Bond. * In an action of trespass for making an embankment, an engineer was allowed to show from his own experiments, the effects of natural causes upon that harbour, and also on others similarly situated, arid also to give his opinion, that the removal of the embankment wou'.d not restore the harbour. (Phil, on Ev. 4th Ed. p. 299, Folkes v. Chad. S. C. referred to by Buller, J., 4 T. R. 498, by the title of the Wells Harbour case.) The evidence of usage must, however, it should seem, be confined to the particular place, for where evidence of acts of ownership by the proprietor of a navigation upon different parts of a bank adjoining to new channels, was admitted to show his right to the soil ofanother bank, which was in dispute, three judges were of opinion, that it was improperly received. ( Abbott, C. J. doubting.) The ground of their decision was, because no preliminary evidence had been ad- CHAP, xill.] Evidence Actions Navigation. 329 Upon a question concerning an alleged nuisance in Portsmouth harbour, the defendants relied upon a title to the soil as derived from a grant by letters patent of King Charles I., for the purpose of reclaiming land from the sea. The purposes of the grant hail not been fulfilled. In 1784, after notice from the crown that the right of the defendants would be disputed, they made the erections which were the subjects.of the information. There was much con- tradictory evidence on the question of nuisance. But the court of Exchequer decided that the non-user of the defendants under this grant, precluded them from seeking to avail themselves of it at that late period, and a decree was made that the building should be abated, (a) The decision being appealed from, Lord Eldon declared, that there had been no sufficient possession on the part of the defendants, for the crown had remained in possession for one hundred and fifty years, and thus a presumption arose against its own grant. Had there been an adverse title for sixty years against the crown, it would have been enough ; but here no greater length of time than nineteen or twenty years could be shown on that behalf. The decree was affirmed, on the ground of non-user only. (6) We have seen in a former chapter, that the subject may -tra- verse an inquisition in all cases where property is found in the crown, but that a prima facie case must be made out by the indi- vidual for that purpose. The following evidence was held to establish such a case. The jury found, that the land in question had in times past been covered by the sea, but that it had been for some years derelict ; that the land had ever since been unoccu- pied, but that the herbage had been eaten by the cattle and sheep belonging to the different tenants or occupiers of land situate within the said sea-mark, &c. This was the finding. Lord Gwydir, who applied to traverse the inquisition by petition, made an affidavit, declaring, that the knds in question were parcel of his manor, and that the tenants of the manor had for a great length of time enjoyed rights of common upon the lands. This, said the vice-chancellor, was not only a primd facie title, but a title not expressly negatived by the finding of the jury. The land might formerly have been within the high and low-water mark, and those under whom Lord Gwydir claimed might have acquired a title by grant from the crown. It might have been recovered from the sea by gradual alluvion, and thus have become part of the manor, the crown being only entitled to new land which has become derelict, (c) duced to show that the whole line of the bank had ever been one property, belonging to one person, or held under one title, before the existence of the navigation. (1 B. &C. 205, Hollis v. Goldfinch. S. C. 2D.& R. 316.) (a) 2 Anstr. 605, Att. Gen. v. Richards. (b) 1 Dow. 316, Parraeter v. The Attorney General. (c) 4 Madd. 281, Ex. parteLd. Gwydir and another. 330 Evidence Actions Navigation. [CHAP, xili- Wreck. Now that we have mentioned wreck, -it may not be improper to insert a case here which occurred on that subject, and which es- tablished the principle so often contended for, and which is very consistent with reason and good sense, namely, that usage is the best evidence to rely upon before a jury. In trover for a sloop, the plaintiff claimed, by prescription, all wreck of the sea thrown upon his manor, and showed, that the lords of the manor had taken and enjoyed wreck thrown there, since 1663, until the time of bringing the action, being ninety-two .years. The defendant claimed, on behalf of the Duke of Norfolk, all wreck within the rape, barony, or honour of Bramber, in Sussex, and it was found, that the plaintiff's manor lay within that rape, &c. The defend- ant also produced records, by which it appeared, that wreck had been claimed in Eyre in former times, in respect, amongst others, of the plaintiff's manor, and that those claimsliad been disallowed. A judgment in trespass also, four hundred years back, was pro- duced, in which the defendants appeared to have been found guilty of taking and carrying away divers quantities of goods cast by the sea upon the land at several places, amongst which the plaintiff's manor was mentioned. It was then urged for the defendant, that these three records established this point, that the plaintiff's usage must have commenced subsequently to the reign of Rich. I., and so within time of memory, and thus his supposed prescription fell to the ground as a necessary result. But Mr. Justice Wilmot, who tried the cause, considered that these records were not con- clusive, but only evidence for the jury ; and damages to the amount of 50 were awarded to the plaintiff. And the rule for a new trial was afterwards discharged, some of the judges doubting whether the records were evidence in any way, but all agreeing, that the usage proved for the plaintiff, was much the stronger proof; and judgment was accordingly given for the plaintiff, (a) Decoy l n an action brought some years since for firing at wild-fowl on ponds. aai O p en cre ek, so as to disturb the plaintiff's decoy, the following evidence was given. First, the plaintiff 's right to the decoy was proved, and it appeared, probably on the cross-examination, that the defendant made a livelihood by shooting at wild fowl on the water, and that he had a licence from the Admiralty, for fishing and coasting along the shores of Essex. The decoy was situated on one of the salt creeks of that county, called the Blackwater river, and the tide ebbed and flowed there. The disturbance made by the defendant was then proved, and it was shown, that he had fired so as to occasion the flight of several of the fowl from the decoy, but it did not appear that he had fired into the decoy. This evidence having been left to the jury as proof of a wilful dis- turbance of the plaintiff's decoy, and the jury having found for the plaintiff, the court held, that the course pursued by the judge (a) 2Wils.28, Biddulpb, Esq. v. Atber. CHAP, xiii.] Evidence Actions. 331 in that respect was proper, and they refused a rule to set aside the verdict, (a) Having now mentioned the evidence necessary in actions for ob- Port structing navigation, and also the ordinary proof requisite to show duties, a puhlic right in navigable rivers, which led us to wander, as it were, for a moment, and to glance at private rights, as prescrip- tions to exclude the king's subjects from particular parts of rivers, wrecks, and decoy ponds, we will now return, for a short time, to evidence of the same nature with that at the commencement of the chapter. First, as to the recovery of port duties. Here, in an avowry justifying the taking of goods, it is proper to prove the custom to repair the port, and then to show that something (such as a toll of so much per chaldron for coals) (6) has been taken in respect of the repairs ; and afterwards to con- nect the plaintiff in replevin with the transaction, bv bringing witnesses to state the circumstances under which the liability arose which occasioned the making of the distress. But it need not be shown that the port is in repair, because the consideration is not the actual repairing, but the obligation to keep up the port for the public convenience, (c) And it is further observable, that the port itself implies a con- sideration, although it is of course necessary to show the duty which is claimed, in order to adduce the further testimony of an omission or refusal to pay it. The same rules will, it seems, apply to the case of assumpsit for the non-payment of these dues. V/oaa The evidence in actions for calls upon navigation shares being Actions for the same as in other actions respecting calls in general, it does not calls, belong to this Treatise to enter into that subject more particularly. But it is desirable, nevertheless, to mention a case in which the register book of the Bristol Canal Company was held to be ad- missible. The action was debt to recover from the defendant, as one of the proprietors of the Bristol and Taunton navigation, 270 in respect of twenty-seven shares in that navigation, for a call made, at the rate of 10 per share. The act of parliament incorporating the company was produced, and the defendant's name appeared in it as one of the original proprietors. His name also appeared upon the register book as the proprietor of twenty-seven (a) 11 East. 571, Carrington v.Taylor. , (6) 1 Lord Raym. 384. (c) Id. 385, per Holt, G J. 332 Evidence Actions Fislterics. [ > anc * tne st - *3 H. 8. c. 5, was thereby or- dained, with all its clauses, articles, and provisions, to endure for ever.* And here it becomes necessary to observe, that by the sixth section of the statute of H. 8, all previous statutes, not there- fore repealed, were declared to be for ever good and effectual, and to be put in due execution according to the true meaning and purport of the same. These words, it is said, do not set on foot statutes expired as to time; (b) but inasmuch as by a previous section, the commissioners are authorized to do after the form, tenor, and effect of all and singular the statutes and ordinances, made before the 1st "day of March in the three-and-twentieth " year of our reign, touching the premises," &c., they may act according to the tenor of expired statutes, although these acts are not positively in force. And, therefore, this section did not merely ratify the statutes in being concerning sewers, but also enabled commissioners to act according to the effect of others which, from lapse of time, were no longer in existence, (c) It must, however, be distinctly stated, in order to understand the subject of the continuance of commissions, concerning which we are about to speak, that there was always a difference between the continuance of the commissions of sewers, and the acts of par- liament by which they were established. For by the statute of H. 8, it was enacted, that every commission made by the authority of the act, should continue for three years next after the teste of the commission, (d) And the next section provided, that the laws and ordinances made by the commissioners, should stand good as long as their commission, but no longer, (e) Then followed the 3 and 4 Ed. 6. c. 8. s. 2, by which the continuance of the commis- (o) 23 H. 8. c. 5. s. 13. * Other statutes, passed from time to time on this subject, as 12 Car. c. 6. (now expired) mention the perpetual continuance of the statute of sewers. (6) Callis, p. 254. (c) Id. p. 95, and see 10 Rep. 142. (d) s. 16. (e) s. 17. CHAP. I.] Commissions of Sewers. 363 sions was prolonged to five years, unless discharged by supcrsedeas. This limitation of time being found inconvenient, the duration of the commissioners was further extended by 13 El. c. 9. By s. 1, all then present and all future commissions of that nature were to continue for ten years, unless determined by any new commission, or by supersedeas. Further, all such laws, ordinances, and con- stitutions,* being written in parchment indented, and under the seals of the said commissioners, or six of them, (whereof the one part shall remain with the clerk appointed for the commission of sewers for the time being, and the other part in such place as the same commissioners, or six of them, shall order and appoint,) shall without any certificate thereof made into the court of Chancery, and without the royal assent to the same had,t stand and continue in full force and effect, notwithstanding the determination of any commission by supersedeas, until such time as the same laws, &c. shall be altered, repealed, or made void by the commissioners after to be assigned and appointed for sewers, in those parts where the same laws, &c., were made, ordained, and constituted, or by six of them. There is a very important case upon this part of our subject, which, in order to be the more perfectly understood, we will post- pone for a moment, while we examine the season prescribed by statute for the continuance of the laws of the commissioners. For it has been observed, that the expiration of the laws, and of the commission which gives birth to them, is not coextensive. We have above quoted part of the 17th section of 23 H. 8. c. 5, to the effect that the laws and the commission should expire at one and the same time, which law is now altered. The rest of the sec- tion contains an exception to this expiration of the laws, namely, " except the said laws and ordinances be made and engrossed in " parchment, and certified under the seals of the said coinmis- " sioners into the king's court of Chancery, and then the king's " royal assent be had to the same." This provision, however, is itself repealed by 13 El. c. 9, as we have seen ; and it would not have been introduced here, but that it is much referred to in the case which we are about to cite. To proceed concerning the laws : it being found impolitic that the laws made by persons in office should determine with their commissions, the statute of Elizabeth directed, that the orders of commissioners of sewers should con- tinue in force for one year next ensuing the expiration of their commissions at the end of ten years, such orders being written in parchment, indented, and sealed ; without a certificate, or the assent royal (a). And notwithstanding the determination by supersedeas, * The word " decrees " is omitted here, but that is of no consequence. See post, the Case of the Commissioners of Sewers for Somerset. f For the stat. of H. 8, required that the king's assent should be certified into chancery. See 23 H. 8. c. 5. s. 19 and 17. (a) c. 9. s. 2. 364 Commissions of Sewers. [CHAP. i. the old laws were to stand in force until altered by the new com- missioners, as we have above mentioned. The second section pro- ceeded to enact, that the justices of peace in the counties where the same laws, &c. are to be executed, within their several com- missions and limits, or six of them, whereof two to be of the quorum, shall have power and authority for one year next after the expiration of every such commission, to execute the same laws, &c. as fully as the former commissioners would have been able to execute them, had their commission remained in force. Never- theless, by section 3, if any new commission of sewers be made within the said year, then immediately and from and after such commission newly made and published, the power of the said jus- tices of the peace, and every of them, in anywise concerning the execution of any such laws, &c. shall utterly cease. . The obvious construction of the above statute of Elizabeth, re- garding the- validity of the laws after the determination of the commission, would be, that they should remain in force one year subsequently, but no longer ; and it was so decided in a case where a mandamus had been issued to certain commissioners in Somer- setshire, commanding them to make a certain rate therein men- tioned. The writ recited an order made by the former commissioners of sewers for the county, by which they had decreed, that a sea wall should be refounded, and the expense attending the construction should be paid by those who were previously under an obligation to repair it ratione tenures. It was further recited, that the wall had been partly rebuilt, and that a part of the money had been raised and expended upon the repair ; and further, that a man- damus had issued to the former commissioners, commanding them to make a rate ; and that certain proceedings had before them con- cerning the making of the rate, were subsequently quashed for ille- gality by the court of King's Bench. The present writ then went on to state, that the new commissioners had been required to make a rate on the level, for the reimbursement of the complainants, who had expended their money; but that they had refused so to do, and the new commissioners were now commanded to make such a rate for repaying the money as aforesaid. The commissioners newly appointed made a special return to this writ. They stated, they had been appointed on the 15th April, 1806; and that the former commission had expired on the 13th of April, 1805, (so that more than a year had elapsed between the death of the old, and the creation of the new commission.) The commissioners further alleged, that there had been no proper presentment by a jury from the body of tke county of Somerset, (a) But when the case came on for argument, the court intimated great doubt whether the (o) 7 East, 72. CHAP, i.] Commissions of Sewers. 365 new commissioners could, under any circumstances, carry into operation the old decree, because the provisions of the 13 Eliz. limited the operation of the ordinances of commissioners to ten years, and to one year after the expiration of the commission. It was contended for the prosecution, that the ascertainment of the right or obligation on the level, together with the amount of the sum to be expended on the repair, were the essential parts of the decree ; and that these had been executed, and consequently that the reim- bursement by a rate on the level was merely a legal result. It was further urged, that the particular decrees of commissioners, of which this was one, might be available by the common law, and need not necessarily derive their force from the statutory provi- sions, and therefore that the expiration of the commission did not affect the decree in question. But the court said, that no authority could be found to warrant the distinction contended for between decrees and other laws. The acts of parliament meant to express the same things by the different words used ; the laws, acts, de- crees, and ordinances, mentioned in the act of Hen. VIII. must mean the same thing as laws, ordinances, and constitutions, men- tioned in the act of Queen Elizabeth ; and nothing is to be found in the acts of parliament to restrain the generality of the expression. With regard to the apprehension of danger by those persons who had acted under the decree of the cemmissioners, during the exist- -ence of the commission, or whilst the decrees continued in force, it was clear that they were in the situation of persons who had acted under the authority of the law whilst it was in force, and which had since expired ; but which was of force to protect them during the time they had acted, and required its protection. So much, therefore, of the decree as had been acted upon, and car- ried in execution, during the time of the late commissioners,- was effectual, and done under a competent authority ; but that part of - it which was left unfinished, could not be enforced on the foot of that order or decree, because it had ceased to have any authority. An application to the new commissioners became necessary, in order to re-enact it. The return to the mandamus was accord- ingly held good, and allowed, (a) The discharge of commissioners, independently of the expira- tion of the commission, is given by the stat. of Hen. VIII. thus : Nevertheless, after any commission made and delivered out of the court of Chancery, the king may always, at his pleasure, by his writ of supersedeas, out of the court of Chancery, discharge both the commission and the commissioners, and this shall determine the power of the commissioners at once, (b) However, we have seen, that the laws and decrees made at the time of such svper- (a) 9 East, 109, The King against the Commissioners of Sewers far the county of Somerset. (6) 23 H. 8. c. 5. s. 16. 366 Commissions of Sewers. [CHAP. i. No certifi- cate or re- turn of commis- sion. sedeas shall not be thereby abrogated ; but shall continue in force until altered, repealed, or made void by future commissioners, (a). The old commission may, consequently, be terminated either by a supersedeas, or the issuing of a new commission. The statute of Elizabeth, moreover, expressly enacts, with re- spect to the certificate and return of the commission, so much alluded to in a former page, that the said commissioners shall not be compelled to make any certificate or return of the said commis- sions, or of any of their ordinances, laws, or doings, by the autho- rity of any of the said commissions, nor shall have any fine, pain, or amerciament, set upon them, nor shall be any ways molested in body, lands, or goods, for that cause. (6) Nevertheless, the commissioners must be careful to act within the scope of their authority ; for, to use the words of Lord Coke, they have not such an absolute authoiity, but that their proceed- ings are bound by law. (c) And upon one occasion, in old times, where commissioners had been exceeding their powers, the court nctt only firied some of them, but an indictment of pr- -^{miiudii booft ,gcr 369 CHAPTER II. _ Of the Duties and Powers of Commissioners of Sewers, HAVING spoken of the origin of these commissions of sewers, of the statutes from which they derive their authority, of the qualifi- cations of the commissioners, the duration of the commissions, and of other similar matters, we proceed to lay before the reader more particularly the duties and powers of these officers. These trusts, which are reposed in commissioners, may he classed generally under two heads, namely, the maintenance of proper defences, and the reformation of annoyances. They are chiefly comprehended under the commission which we are about to insert as the basis upon which the officers of sewers are authorized to act ; and various incidental powers have been created, in order to ensure the due and effectual execution of the commission. The course proposed for the purpose of exhibiting this import- ant subject in its proper light, will be, first, to set out with the commission itself, and then to sum up its different divisions ; after which, the extent of the commissioners' authority in promoting the defences above mentioned, and in abolishing annoyances, will be discussed at length. Having done this, we shall endeavour, in a subsequent chapter, to point out the mode of enforcing obedience to the commission ; and in the progress of that attempt, some account of the jurisdiction of the sewers will necessarily be in- cluded. The statute 6 H. 6. c. 5, the first which prescribed the duties of commissioners of sewers in a regular form, although not repealed, is yet so far superseded by the subsequent acts of Hen.VIII.,which incorporate all the chief provisions of the former statute, as to render it unnecessary that we should do more than mention this last enactment, upon which the authority of commissioners is prin- cipally founded. The third section of 23 H. 8. c. 5, having assigned certain com- missioners to be justices, for the purpose of executing the commis- sion, goes on to ordain, that they shall survey the said walls, streams, ditches, banks, gutters, sewers, gotes, calcies, bridges, trenches, mills, mill-dams, flood-gates, ponds, locks, hebbing- wears, and other impe- diments, lets, and annoyances aforesaid, and the same cause to be B u 370 Duties and Powers of Commissioners. [CHAP, ir made, corrected, repaired, amended, put down, or reformed, as the case shall require, after your wisdoms and discretions. AND there- in as well to ordain and do, after the form, tenor, and effect, and singular the statutes and ordinances made before the 1st day of March, 'in the three-and-twentieth year of our reign, touching the Inquiry by premises, or any of them ; as also, to inquire, by the oaths of the honest and lawful men of the said shire or shires, place or places, where such default or annoyances be, as well within the liberties as without, (by whom the truth may the rather be known,) through whose default the said hurts and damages have happened, and who hath or holdeth any lands or tenements, or common of pasture, or profit of fishing, or hath or may have any hurt, loss, or disadvan- tage, by any manner of means in the said places, as well near to the said dangers, lets, and impediments, as inhabiting or dwelling thereabouts, by the said walls, ditches, banks, gutters, gotes, sewers, trenches, and other the said impediments and annoyances ; whose de- fault the annoy- ances came Assessing the persons to be con- tributory to the charge. e AND all those persons, and every of them, to tax, assess, charge, distrain, and punish, as well within the metes, limits, and bounds of old times accustomed, or otherwise, or elsewhere within our realm of England, after the quantity of their lands, tenements, and rents, by the number of acres and perches, after the rate of every person's portion, tenure, or profit, or after the quantity of their common of pasture, or profit of fishing, or other commodities there, by such ways and means, and in such manner and form as to you, or six of you, whereof the said A., B., and C. to be three, shall seem most convenient to be ordained and done for redress and reformation to be had in the premises ; Repair. AND ALSO, to reform, repair, and amend the said walls, ditches, banks, gutters, sewers, gotes, calcies, bridges, streams, and other the premises, in all places needful ; and the same, as often, and where need shall be, to make new, and to cleanse and purge the trenches, sewers, and ditches, in all places necessary ; AND FURTHER, to reform, amend, pi-ostrate, and overthrow all such mills, streams, ponds, locks, fish-garths, hebbing-wears, and other impediments and annoyances aforesaid, as shall be found by inquisition, or by your surveying and discretions, to be excessive or hurtful ; AND ALSO, to depute and assign diligent, faithful, and true keepers, bailiffs, surveyors, collectors, expenditors, and other mi- nisters and officers, for the safety, conservation, reparation, reforma- tion, and making of the premises, and every of them, and to hear the account of the collectors, and other ministers of and for the receipt and laying out of the money that shall be levied and paid in, and about the making, reforming, repairing, and amending of the said walls, ditches, banks, gutters, gotes, sewers, calcies, -97'. Putting down an- noyances. Appoint- ing of bailiffs, collectors, surveyors, and other inferior officers. CHAP. II.] Duties and lowers of Ci bridges, streams, tivm-lics, mills, ponds, locks, fish-garths, flood- gates, and other impediments and annoyances aforesaid ; AND to distrain for the arrearages of every such collection, tax, Distraining and assess, as often as shall be expedient ; or otherwise to'punish for tlie ar ~ the debtors and detainers of the same, by lines, amerciaments, {hTnfone^ pains, or other like means, after your good discretions ; assessed. ' Taking of labourers, workmen, and car- riages, tim- ber, and other ne- cessaries. AND ALSO, to arrest and take as many carts, horses, oxen, beasts, and other instruments necessary, and as many workmen and labourers as for the said works and reparations shall suffice, paying for the same competent wages, salary, and stipend, in that behalf; and also take such and as many trees, woods, underwoods, and timber, and other necessaries, as for the same works and reparations shall be sufficient, at a reasonable price, by you, and six of you, of the which we will that A., B., and C. shall be three, to be assessed or limited as well within the limits and bounds afore- said, as in any other place within the said county or counties near unto the said places ; AND to make and ordain statutes, ordinances, and provisions, To make from time to time, as the case shall require, for the safeguard,' sta * ute: conservation, redress, correction, and reformation of the premises, * and of any of them, and the parts lying to the same, necessary and behooveful, after the law and customs of Rutnney Marsh in the county of Kent, or otherwise by any ways or means after your own wisdoms and discretions ; To hear and deter- mine. Awarding of writs and pre- cepts to sheriffs, bailiffs, and others. AND to hear and determine all and singular the premises, as well at our suit as at the suit of any other whatsoever complaining before you, or six of you, whereof A., B., and C. shall be three, after the laws and customs aforesaid, or otherwise, by any other ways or means, after your discretions ; and also to make and direct all writs, precepts, warrants, or other commandments, by order of these presents, to all sheriffs, bailiffs, and all other ministers, officers, and other persons, as well within liberties as without, before you, or six of you, whereof the said A., B., and C. to be three, at certain days, times, and places to be prefixed, to be returned and received ; and further, to continue the process of the same ; and finally, to do all and every thing and things as shall be requisite for the due execution of the premises, by all ways and means, after your discretions ; AND therefore, we command you, that at certain days and Survey, places, when and where ye, or six of you, whereof the said A., B., and C. to be three, shall think expedient, you do survey the said walls, fences, ditches, banks, gutters, gotes, sewers, calcies, ponds, bridges, rivers, streams, watercourses, mills, locks, trenches, fish- gartlis, flood-gates, and other the lets, impediments, and annoy- B B 2 Duties and Powers of Commissioners, [CHAP. n. To hear and deter- mine. To compel others to obey their orders. Review of the com- mission. ances aforesaid ; and accomplish, fulfil, hear, and determine all and singular the premises, in due form, and to the effect aforesaid, after your good discretions ; AND all such as ye shall find negligent, gainsaying, or rebelling in the said works', reparations, or reformations of the premises, or negligent in the due execution of this our commission, that ye do compel them by distress, fines, and amerciaments, or by other pu- nishments, ways or means, which to you, or six of you, whereof the said A. B. and C. shall be three, shall seem most expedient for the speedy remedy, redress, and reformation of the premises, and due execution of the same ; and all things as by you shall be made and ordained in this behalf, as well within liberties as without, ye do cause the same truly to be observed, doing therein as to our justice appertained!, after the laws and statutes of this our realm, and according to your wisdoms and discretions. Notwithstanding the great length, and (if one might so speak) the verbiage of this section, it is capable of being simplified without difficulty ; and it is impossible not to perceive the extensive autho- rities with which commissioners of sewers are invested by virtue of its enactments. We shall find, however, that notwithstanding these considerable powers, the officers of sewers are i - estrained by the general laws of the land, as far as they have respect to the liberty of the subject, and to the jurisdiction of superior courts; so that although the pages of history occasionally disclose attempts on the part of commissioners to exceed their delegated jurisdiction, speedy interposition and redress have succeeded upon application to another and a higher tribunal. It becomes our duty to notice other powers which succeeding sections have given to commissioners of sewers. They are em- powered, according to the purport and effect of their commissions, to make, constitute, and ordain laws, ordinances, and decrees, and further, to reform, repeal, and amend, and make new the same laws from time to time, as need may require ; and they are en- joined to act according to the true meaning of their commission, (a) Moreover, these laws so ordained by the commissioners, or by six of them, by authority of the commission, shall bind the king's lands, &c., and those of every other person, and their heirs, for such their interest, as they shall fortune to have in any lands, &c., or other casual profit, advantage, or commodity whatsoever, whereunto the said law may extend, according to the true purport of these laws, (b) We will take a brief review of these duties and powers, before (a) 23 H. 8. c. 5. s. 7. And in the act of Queen Mary, touching the sea sands in Glamorganshire, a similar power is given to commissioners therein named. 1 Mar. Sep. 3. c. 11. s. 2. (6) Id. s. 9. And see Sand 4 Ed. 6. c. 8. s. 2. post. ^ CHAP. II. J Duties and Powers of Commissioners.' we proceed in detail, premising that the commissioners, throughout the whole of the legislative enactments upon this subject, are com- manded to confine themselves within the spirit and tenor of their respective commissions, and the ordinances in force concerning sewers. It seems, that the first duty which presents itself to them is the survey of the various defences and annoyances enumerated in the statute of Hen. VIII. Commissioners are not only directed in express terms to make this survey, and to hear and determine con- cerning the same according to their discretion, but they are, more- over, informed in the opening of the third section of 23 H. VIII. that they are assigned to be commissioners for that especial pur- pose. Having made the survey, their next step is to inquire through whose default the annoyances they have observed in their survey have arisen ; whether these mischiefs be for want of repair- ing defences, or by reason of improper erections, and also to ascer- tain the ownership of the various lands in the district where the offences have occurred, together with the names of such as have suf- fered inconvenience. That being accomplished, an assessment is to take place upon the lands of all those individuals, as well those who have suffered damage, as the others, their neighbours, accord- ing to the respective quantities of lands, or other property, pos- sessed by them. This assessment is made in consideration of the repair, which the commissioners are directed to perform, and of the expense incurred by suppressing the annoyances complained of. This statute, therefore, combines the two features alluded to by Lord Coke, as we have already mentioned : it not only com- mands the restoration of useful public works, but prescribes also the destruction of such as may be found injurious. But the power of the commissioners does not end here : they are further enabled to take labourers, workmen, and carriages, &c., for the ensuring of these general benefits, and timber also, with other necessaries, if required, upon paying to the proprietor a reasonable consideration. The next power which we notice is a legislative authority ; for the commissioners are enabled to make such laws, ordinances, and de- crees, as may appear to them to be expedient concerning sewers ; and what is more, they have a judicial authority as well, and are fully empowered to sit in judgment upon their own orders, subject, nevertheless, to the correction of a higher court. Thus they are directed to hear and determine concerning the premises ; and they are authorized in furtherance of this, to issue their writs and pre- cepts to sheriffs, bailiffs, and others. And, moreover, all persons who show any negligence in the due execution of the commission, by disobeying the orders of the commissioners, or otherwise, are threatened with distress, fine, and, in some cases, with imprison- ment. And so again, the commissioners are entrusted with a power of distress against all who do not contribute according To the assess- ments imposed. Lastly, they may appoint officers to aid in the 373 -mo? 9dJ 374 Duties and Poivers of Commissioners. [CHAP. n. execution of the commission. Amongst these, bailiffs, surveyors, collectors, and expenditors, are expressly mentioned, and auditors of the accounts are afterwards included in the number of officers who may be appointed. Having thus given a summary of the provisions which relate to the authority of commissioners of sewers, it is easy to perceive that the subject seems divisible into two parts ; first, the general duties of the commissioners; and, secondly, the modes by which they may enforce performance of their orders, in furtherance of the execution of those duties. The first of these heads shall be discussed in the present chapter. Romney But we will pause for a moment before we proceed to the main Marsh. points of this subject, for the purpose of explaining one or two col- lateral matters which occur in the first instance. In a part of the third section above set forth, it is said, that the laws and cus- toms of the commissioners are to be made after the laws and customs of Romney Marsh, and it might be thence considered, that these officers were bound to follow the ordinances of the Marsh. The laws of Romney Marsh, a tract of land in the county of Kent, con- taining upwards of twenty thousand acres, were certainly of great authority and use ; they were attributed to Sir Henry de Bathe, a judge in the reign of Henry III., and Lord Coke observes, that not only those parts of Kent, but all England, receive light and direc- tion from those laws, (a) It is said, that king Henry III. granted a charter to Romney Marsh, empowering twenty-four men, chosen for that purpose, to make distresses upon all having lands and tene- ments in the Marsh, in equal proportions, in order to repair thi: walls and water-gates, and so defend them against the sea. (b) Nevertheless, in spite of this seeming direction above mentioned, commissioners of sewers in other places are not under an obligation to follow the laws of the Marsh ; for Lord Coke, in his report of Keighley's case, takes occasion to observe, that the court had con- sideration of this particular clause before us ; and it was resolved clearly, says the learned judge, that the several commissioners of sewers throughout England, are not bound to follow the laws and customs of Romney Marsh ; but that where some particular place within their commission had them, they might follow them, for consuetudo loci est observandti. (c) Here the word " may" means (a) 4 Inst. 276. (6) SeeToml. Law Diet. Til. Romney Marsh ; and see also 4 Inst. 277. A special committee of twenty-four jurats were selected out of the com- monalty of that jurisdiction for this " conservation of the Marsh, and the sea- banks of Romenale." By this special delegation the jurats had all the powers of the Leet. Laws of Sewers, p. 1 and 2. See also the same tract, p. 2, as to the various commissions issued, and post in this chapter. (c) 10 Rep. 140. CHAP, ii.] Dalies and Powers of Commissioners. 375 must, and it appears from the words of Lord Coke, that the laws of the Marsh must be respected at such places.* Yet, at the same time, according to the opinion of Mr. Sergeant Callis, commissioners are not restrained from making laws and ordinances like those of Romney Marsh, in places where there may not have been any such before, the matter being left entirely, like most other things relat- ing to these aflairs, to their discretion, (a) And this brings us just to say a word in explanation of the term " according to y< mi- discretion," so often found in the statute of Hen. VIII. These expressions are by no means to be understood to confer an unli- mited authority ; but, to use the language of Lord Coke, they are to be intended and interpreted according to law and justice; for every judge, or commissioner, ought to have wisdom, so as not to be inefficient, and a conscience to prevent his being unmerciful. Dis- cretion, too, is to know by law what is right, and therefore the com- missioners of sewers ought to pursue their commission, and the oath they take to prosecute it in the same manner as it is there pre- scribed, (b) The first general duty to which we have above alluded, as belonging Survey, to commissioners of sewers is, a survey of the places mentioned in the statute, and above enumerated. By reason of this word " survey," it was said by Herne, in his Reading, that a man who is blind can- not be a commissioner of sewers, because he cannot view, or sur- vey, (c) The survey of these officers is directed principally to the defences required, and to the annoyances which ought to be abo- lished. And it is justly said, that, except by survey, commis- sioners would be unable to satisfy themselves concerning the impe- diments to navigation, or the repairs required. For this purpose, thev are empowered to call in the aid of handicraftsmen, as car- penters, masons, &c., as to the nature of the work requisite to be done, and the estimate of expense occasioned by the alterations I * It appears, also, that in these local districts, the consent of the com- monalty was necessary previously to the making of ordinances. Thus in the old proceedings under the Romney Marsh commissions, the laws are repre- sented as taking effect at the request of the commonalty of the Marsh. (1) So the statutes of Pevensey, in Sussex, were in 3 Hen. IV. made by the con- sent of the lords of the towns, the bailiff and twelve jurats (otherwise called skawers), and the commons of the said Marsh.(2) So, again, certain ordi- nances were made in 2 & 3 Ph. &M. in Marshland of Norfolk, touching Powdyke, by the chief inhabitants of the whole county of Marshland and town of Wiganhele, (3) and the like again in the 8th of Eliz. and the 5th of James I. 1607. (4) (1) Laws of Sewers, p. 12. (2) Id. p. 13. (3) Ibid. (4) Ibid. (a) Callis, p. 202. (fe) 10 Rep. 140. (r) Callis, 108, cites Herne, |>. 3. 376 Duties and Powers of Commissioners. [CHAP. 11. proposed, (a) And it is said, that those things which the justices of sessions do by their view, or by survey and discretion, are so binding as that traverses cannot be admitted, because these things are merely the acts of the court, and of the justices themselves. (6) The things to be surveyed come naturally in the next place under our consideration ; and these deserve a very particular attention, as many important questions have been raised at different times with regard to the jurisdictions of these commissioners over certain places. 1. Walls. The first of these things to be surveyed, which the statute notices, is a wall. But we must just take leave to remind the reader, as we pass on, that the power of these commissioners ex- tends, not merely to the marshy lands of Lincolnshire, as the act runs, but generally throughout England ; and it is further worthy of remark, that the whole realm of England comes within their survey. So that the English seas, being within the realm, are within the reach and extent of this statute, although not within the management of the commission, (c) And so it is of creeks and bays, and arms of the sea ; (d) and likewise of islands, whether they have existed from time immemorial, or be but lately sprung up in the sea, provided they be within the realm as before men- tioned, (e) So also of grounds newly gained from the seas, (f) but not grounds left or derelict, until these latter be made profitable (g). So, again, the sea-shore and the coast, being within the realm, are included within the same jurisdiction, and so also are ports and havens, (h) As much has been said upon these subjects of islands, eoi9i)8 . lands derelict, &c., in a prior part of this work, it does not become necessary to pass over the same ground a second time, nor to say more than that commissioners of sewers have authority in all these particulars, provided they do not exercise any jurisdiction beyond the realm. Therefore, we now hasten to speak of sea-walls, and defences of 9<{' (a) See Callis, p. 107, Laws of Sewers, pp, 8 & 9. (b) Callis, p. 216, 7 Com. Dig. 350. (c) See Callis on Sewers, pp. 39. 42; 7 Com. Dig. 340, 341 ; and Ch. II. of Rights in the Sea, ante. (d) Callis, PP- 56. 61. (t~ Surrey, which, since the expiration of an act passed in the reign of King Charles II., (a) had been much neglected, and had become nuisances to the inha- bitants, because of some doubt whether such new sewers were within the jurisdiction of the law of sewers : it was therefore enacted, that all new sewers at any time since the 12th year of the reign of King Charles II., made in any of those parishes, should be thenceforth subject to the commission of sewers, and to the laws of sewers, as if originally made so subject, and liable to the survey of commissioners ; and that commissioners for the time being should have power, within the limits of their respective com- missions, to alter, amend, cleanse, and survey, any such new sewers, &c., and to order and direct the making of any other new vaults and sewers, and to cut into any drain or sewer already made, and to alter or take away any nuisances in the same, and alter or take away any cross gutter or channel, in all or any of the streets and lanes in the said parishes. Gotes, or goats a word derived from the Saxon are defined to 7. Gotes. be " engines erected and built with perculleses and doors of tim- " ber, stone, or brick ;" (b) and they are within the management of commissioners, being very useful for drainage. Their use is said by Mr. Sergeant Callis to be twofold ; the first, to cause fresh water which has descended upon the low grounds to be let out through them into some creek of the sea ; and the second, to return back salt waters direct, which during some great floods of the sea may have flowed in upon the land, (c) \Vith regard to the making of new gotes, it will be seen here- after what power the commissioners have in these respects, when we come to detail the different works which they may direct. Gotes are also mentioned in the statute of James, (d) Eighthly, we come to calcies, said to be derived from the Latin 8. Calcies. calx, and to signify a common hard way, maintained and repaired with stones and rubbish ; or, as Mr. Sergeant Callis has it, " a " passage made by art, of earth, gravel, stones, and such like, on " or over some high or common way leading through surrounding " grounds, for the safe passage of the king's liege people." () They are more commonly called causeways. There was a tax formerly paid by neighbouring inhabitants, towards the making (a) 13 and 14 Car. 2. c. 2. (6) Callis, p. 91. (c) Id. ibid. Many of these gotes in highways serve also for bridges. Callis, ubi supra. (rf) 3 Jac. I.e. 14. (e) Id. 90. Duties and Powers of Commissioners. [CHAP. n. and repairing tlie common roads above alluded to, and it was called calcaguim. The authority of those who had the management of sewers over these causeways is said to be very ancient ; they are mentioned in the Register, and by Fitzherbert, (a) and are expressly noticed in the old st. of 6 H. 6. ,(6) the first act which prescribed a regular commission of sewers, as we have seen. It is worthy of .^ . observation, that the same principle that of acting for the public benefit applies to all these transactions. And, therefore, the commissioners of sewers have no concern with causeways on high roads, but with such only as have been constructed upon low grounds, because the maintenance of the latter conduces to the public convenience in that respect. Nevertheless, such causeways as lead over the bridges which are within the statute, and to which we shall presently advert, are subject to the jurisdiction of the court of sewers, (c) Causeways are expressly included within the statute of James, (d) 9. Bridges. Bridges within the scope of the laws of sewers are said to be such as lie on or near surrounded, grounds, and those also which are built on highways ; and for this reason, because they have been built over rivers, which are within the laws, (e) And thus it is that causeways leading over such bridges are themselves subject to the commissioners. Further, bridges which lie out of high- ways, if they be constructed upon a common sewer having its cur- rent to the sea, or to some river, are equally within the statutes ; and so also are private bridges, so far as that, if they become an- noyances to the public, they may be removed by order of the above-mentioned authority. (/) However, bridges in highways where there is no stream, except a land stream in time of floods, are dry bridges, and not within the commission, (g) It may be added, that notwithstanding the words of the Great Charter, that no vill nor freeman be distrained to make bridges, unless he have been bound to the same from time immemorial, whereby it might seem, that no bridges erected since the reign of Henry II. were repairable; and so not within the jurisdiction of the commissioners ; yet the better opinion seems to be, that as well those which have been mentioned by the statutes of Henry VIII., namely, bridges on highways, as others, are within the laws of sewers, although erected since time of memory, (h) And the prin- (a) F. N. B. 296. (41 6 H. 6. c. 5. And see Callis, 90. (c) See Callis, p. 90. (d) 3 Jac. I.e. 14. (e) Callis, 86. 7 Com. Dig. 341. (/) Callis, 87, &c. (g) Id. 89. (h) See Callis, p. 86. ' < ii VP. ii.] Duties and Powers of Commissioners. 385 ciple of law now applicable to new bridges is this, that if they appear to be public benefits, the county wherein they are, is bound to keep them in repair. Bridges are expressly mentioned in the statute of James, (a) The word " trenches" is also to be found in the statute of 10 - Treft- Henry VIII., although it does not occur in that of James I. And che8 * here the same distinction between public convenience and private mjnyinent must be taken ; so that if a trench communicate with a common sewer, or a great river, so as to be of consequence towards the general interest, it lies, although ou private grounds, within die jurisdiction of the officers of sewers. And now, leaving this part of the subject for the present, we Annoy- will briefly recapitulate the annoyances, lets, and impediments, of ances. which the act of Henry VIII. treats ; it being remembered, that the duties of the commissioners above rehearsed are twofold ; first, as they relate to the repairing of defences ; and next, as to the extinguishment of nuisances. Let us see what these hindrances are, against which the statute is directed. Although streams, rivers, and other waters, when confined l - Outra- within their due and accustomed channels, are highly beneficial to g commerce and to the community, yet if the stream swell into a torrent, if the river overleap its banks, and the spring bubble forth its fountains with a violent and unrestrained force, those which were before useful streams, become, to use the language of the sta- tute, lets, impediments, and annoyances. Thus, the act of Henry VIII. speaks of outrageous springs. Nevertheless, Mr. Sergeant Callis rather complains of the word " outrageous,'' observing, that many springs are entitled to defence, under these laws ; and he notes the difference between public and private convenience, tor which we have so frequently adverted. For he says, that commis- sioners of sewers cannot aid a township in want of water for the use of their cattle, &c., by supplying them with water from ano- ther township, because the commission extends no further than to preserve navigation and drainage. Still, if there be a river navi- gable in a township, the waters of which be dried up or decay, and in the neighbouring township there be another river, with abun- dance of water, here the commissioners of sewers may interfere, because the navigation of the county is thereby benefited, (b) Much has been said in the prior part of this work, concerning 2. Mills mills and mill-dams, and the statutes upon the subject prescribing llU the destruction of such have been there fullv set out and discussed. " (a) 3 Jac. I.e. 14. (A) Callis, p. 84. And see id. p. 85. c c 3. Wears, fish-garths, kedels, gores. 4. Gotes, flood- gates, locks. 5. Hebb' ing-wears and becks. Duties and Powers of Commissioners. [CHAP. n. It is, therefore, sufficient to say, in this place, that whether a mill be erected 011 a uavjgahle river, or on one not navigable, it is within the provisions of the statute of Henry VIII., if the removal of it be for the public convenience. And the same may be said of the mill-dams. Wears, fish-garths, &c. which latter come under the nomen generate of wears are thus made subject to the jurisdiction of the commissioners, who may treat them as annoyances or not, as they shall see fit for the public good. Gotes, of which we have spoken already, as being extremely useful upon some occasions, are reckoned here amongst the annoy- ances; for their situation may sometimes be as prejudicial to the free discharge of floods, or other waters, as serviceable at others. Flood-gates and locks are of the same nature, and may be consi- dered as partaking of the same incidents. Hebbing-wears and hecks come under the same provisions, and are liable to similar interference. The former are laid for the purpose of catching fish at the ebbing tide. 6. Ponds. Ponds are also classed amongst the impediments to be dealt with at discretion ; and thus, if commissioners find, that according to their plan of drainage, such waters interfere, they may direct them to be filled in, drawn off, or otherwise abated. According to the definition of Mr. Sergeant Callis, a pond is " a standing ditch, " cast by labour of man's hand in his private grounds, for his pri- " vate use, to serve his house and household with necessary " waters." (a) And the learned expositor observes, that but for its being mentioned in the statute by name, he should not have classed a pond amongst the impediments, nor by any construction have brought it within the act. (b) And certainly, if a pond were in private grounds, there would rarely be any occasion for med- dling with it ; but as we frequently find these stagnant waters upon commons, greens, by the sides of lanes, &c., they may occa- sionally hinder a drainage which is of public importance, and thus they seem to fall fairly within the cognizance of those whose busi- ness it is to remedy and remove annoyances. Pools. The difference between a pool and a pond is, that the one is by nature, the other the work of art. (c) The pool is a mere standing water, without any current at all. (d) Pools are not mentioned in the statute, and it is said that they are not within it, for two - (a) Callis, p. 82. (6) Id. ib. And see id. 83. (c) Callis, 82. (rf) Ibid. CHAP. II.] Duties and Powers of Commissioners. 387 causes ; first, because they are, " both in property and use, pri- " vate and peculiar ;" and, secondly, because these laws of sewers seem to apply to lands which are " casually, and not continually " drowned. "(a) But the main principle seems to be, whether these pools be hindrances to navigation, or annoyances to the public ; for in either of these cases they may certainly be removed ; and the learned sergeant adds an opinion to that effect, (b) We be- gan this account of the things which were placed under the survey of commissioners, by laying down the principle of public conve- nience above referred to ; and it has been found unvarying and consistent, throughout the progress of the inquiry on this branch of the subject. The survey being made, it next becomes expedient for the com- Inquiry missioners of sewers to acquaint themselves with the names of the ' nto tb ^ . proprietors of land in the neighbourhood, and within the limits of ona^ds' 1 * their commission, in order that they may be in' a condition to and into assess each party in a proper and impartial manner. That being defaults, done, and it appearing, at the same time, that several defences are in need of repair, and that several nuisances are in operation to the general detriment, it is incumbent on the commissioners to satisfy themselves, whether any particular individual has made de- faidt, and neglected his obligations ; whether any one has com- mitted an encroachment, or lent his aid to the establishment of any annoyance prohibited by their laws ; or whether there be not a general want of repair in some places, the expense of defraying which should be imposed upon the whole level, or other district within their commission. It seems, therefore, an important matter to consider, first, who are liable in respect of some benefit which they receive from the enforcement of the laws of sewers as private individuals, for there must be some general or particular benefit ; and secondly, who are liable within the level to repair those de- fences, to the maintenance of which no one stands pledged inde- pendently of the rest, (c) The defences to be thus repaired, * and annoyances which commissioners may destroy, will be subsequently mentioned, as we have only as yet noticed such as come under their survey, and have not discussed their power of directing re- pairs, or of extinguishing nuisances, upon which subject some new questions have occasionally arisen. With respect to the repairs, we shall consider, (a) Callis, 82. (b) Ibid. A conduit is not within the laws of sewers, (Callis, p. 83.; Something more will be said concerning the survey, when we come to speak of the surveyor as one of the officers of sewers. (c) See 1 B. & C. 44, per Abbott, C. J., that one or the others are liable. * And herein we shall speak fully concerning the making of new defences, upon which so much discussion has taken place. c c 2 Repair. Who liable as indivi- duals. Owners. Person re- pairing must be benefited. Duties and Powers of Commissioners Repairs. [CHAP. 11. I. Who are bound to repair as individuals. II. Who are so bound in a corporate capacity. III. Who bound when the charge is thrown upon the public at large. Owners of defences of the nature above alluded to, are bound to the repair of them, upon the principle that every one should main- tain that which is his own. And this they will naturally be anxious to do, inasmuch as their land, in such cases, lies nearest to the waters; but they cannot ask contribution at .the hands of others, for their expenses upon those occasions, (a) And this is similar to the case of a ditch adjoining a highway, for there the individual whose lands lie close to the road is under an obligation to keep the ditch in a proper condition, and this without the force of a prescription. (6) The owner of the land in question is inte- rested hi the defence, because he has an immediate benefit by the repairs, and would be subject to serious injury through the neglect of it. As in the case of the flood-gates of a mill, where the court considered, that the repair fell necessarily, in'the first instance, upon the owner of the mill, (c) And this seems to be a good oppor- tunity to advert to and illustrate a principle which has already been mentioned, namely, that there must be some benefit accruing from the improvement done. Thus, where in trespass, the defendant justified under commis- sioners of sewers, it was shown, that all grounds within the level were chargeable ; but as it also appeared that the plaintiff, in this case, had neither benefit nor prejudice, the distress in question was held ill taken, and the verdict was for the plaintiff, (d) So also a decree to charge an adjacent town, which failed to state that the town had received any damage, (and from whence it would follow, that the repair could not benefit the inhabitants,) was quashed for that reason. () So in the case of the Isle of Ely, it was held by the court, that none could be taxed towards the reparation, except those who had prejudice, damage, or disadvantage, by the nuisances or defaults, and who might have been benefited by die reformation or removing of them. (/) (a) Callis, p. 223. That the level may sometimes be liable in case of the owner's default, see post. (b) 8 H. 7. 5. (c) 1 Sid. 145, Inhabitants of Oldbery v. Stafford. (d) 2 Keb. 675, Anselm v. Barnard. (e) Id. 42, Rex v. Wright. (/) 10 Rep. 142. CHAP. II.] Ditties and Powers of Commissioners Repairt. 38J> And the same doctrine has been sustained in a recent case. The plaintiff brought trespass for taking his goods. The Defendant justified under the commissioners of sewers of the Holborn divi- sion. The plaintiff had a verdict, subject to a case. It appeared, that he lived at Hampstead within the Holborn division, that his basement story stood three hundred and seven feet above the level of the crown of the arch of the great northern sewer at Battle Bridge, so that the stopping of that sewer could not possibly throw back the water to the injury of his premises. The drains from his house ran into other drains in the parish of Hampstead, commu- nicating with and falling into the River Fleet, and all falling toge- ther into the great northern sewer at Battle Bridge, and being thence ultimately conveyed into the Thames at Blackfriars Bridge. The ancient watercourse of the Fleet had been covered by the commis- sioners of sewers as far upwards as Battle Bridge, but the plaintiff had never received any additional benefit from the covering of this watercourse. Further, the premises of the plaintiff had never been rated in that or in any other division, and his waste water was carried off quite independently of the works of sewers. The counsel for the defendant endeavoured to argue, that it must be taken that the plaintiff received an advantage from the communi- cation with, and also from the cleansing and keeping open of the sewer, which the commissioners had done at their own expense. But the court recognized the principle of benefit or no benefit, and gave judgment for the plaintiff, (a) So in a subsequent case, where it appeared that the plaintiff derived no benefit from the sewer, in respect of the sewer rate, for which she was assessed, it was objected, that as the plaintiff's house was situated within the district to which the jurisdiction of the commissioners of sewers extended, a presentment and decree made were conclusive against her. But the court held differently, observing, that in Masters v. Scroggs, the party lived within the levying of the assessment, and yet was allowed to recover, because no benefit had accrued to him from the sewer rate then in question. Evidence, therefore, in this case, being deemed admissible to the effect, that the plaintiff had received no benefit from the sewer, a rule for a new trial was made absolute. (6) Mr. Sergeant Callis had previously advocated the same doctrine ; for he says, in more than one place, where he mentions the authority of commissioners to tax the level, that a benefit must be the result of the assessment, (c) , . . r And again, " All such which reap profit, or sustain damage, (a) 3 M. & S. 447, Masters v. Scroggs. (6) 2 Brod. & Bing. 691, Stafford v. Hamston. S. C. 5 Moore, 608. (cj Callis, pp. 145. 147. 390 Duties and Powers of Commissioners Repairs. [CHAP. n. " shall be assessed." (a) The learned sergeant also points out some lands which he considers to be exempt from the burden of repair, upon the principle of a want of benefit. Such as grounds lying between the sea banks and the seas, and grounds upon an ascent, and not upon the level. (6) Again, we have seen in the chapter on rivers, (c) that all who have ease and passage by them ought to cleanse and scour them ; and that such as have lands adjoining to rivers, are not liable to cleanse, unless they have some benefit, as a toll, fishing, &c. (d) Frontage. Next, it may be observed, that if the grounds of any one adjoin the sea, a common law liability, which the statutes have confirmed, arises to compel that person to defend his land at his own charge. And this is called the custom of frontagers, which, like the badge of ownership above mentioned, can only be put off, by showing in particular that some other persons are bound by prescription, or otherwise, (e) Use. Very analogous to these is the use of a sea-wall or bank, or of rivers. This use, or " usus rei," compels the party having the enjoyment to the repair, or cleansing, independently of any other consideration ; but he may show that another is liable. A com- mission was issued, in very old times, to inquire concerning the stoppage of a river. It was found, that the river had been stopped in consequence of non-user since the last plague, and that it had not been cleansed within time of memory ; but it was also \found, that the abbot of D. was lord of the manor on one side of the river, and the Earl of H. on the other ; that they had a fishery there, and that four vills had an easement to pass along that river. This presentment being returned into the King's Bench, the abbot and earl were distrained to show cause why they should not repair this stream ; and they said, that those who had the use of the river, namely, the vills in question, ought to do the cleansing required. And by Green, C. J. : As you do not deny, that you have a fishery there, if it should be found that these vills have not their passage along the stream, you two will be charged with the entire cleans- ing.(/) And so it is where one has been accustomed to use a river by (a) Callis, p. 222. (6) Ibid. (c) Ante, Rights of Water, Ch. HI. (d) See Callis, 223, in the note ; and 8 B. & C. 796, Syson v. Johnson. (e) See Callis, pp. 115. 121. (/) 37 Ass. pi. 10. And if it were found the other way, both parties would be jointly liable. Callis, p. 121, citing 38 Ass. pi. 15. CHAP. II.] Duties and Powers of Commissioners Repairs. 391 sailing up and down, by having a ferry, or a staith to go up and down, or a crane, or other engine, to draw up the waters, (a) However, these three liabilities may be answered, by showing some other charge arising by tenure, prescription, &c. And, therefore, if a man be found to hold the land in question Tenure, by tenure, he must do all that is incident to that tenure, and, con- sequently, (as is most usually the case,) he may be bound to do the repairs to such defences as may be upon his land. And thus in a case where James Fitz-James brought trespass against the master of St. Mark in Bristol, alleging that the master ought to have repaired a ditch by reason of his tenure : it appearing that the master, and his predecessor, had held the land there from time immemorial, he was held liable to the obligation. (6) And it is said, that if a man be bound by tenure to the repair of a wall, sewer, &c. he shall be charged alone, (c) So again, prescription or custom will clothe a person with this Prescrip- liability. But the principle must be received with a proviso, that tion and the land is bound, and not merely the individual. Thus, where tom * trespass was brought against a man, for that he and all those whose estate he had in certain land, were bound to sustain and repair certain banks of the sea ; and that through the default of the de- fendant, by not repairing, the sea had surrounded the plaintiff's land, it was prayed that the plaintiff should take nothing by his writ, because the defendant had nothing in the land alleged to be bound to this repair ; and subsequently the court agreed to that, and the writ was dismissed, (d) In another case, it was laid down, that one might be bound to repair a bank or wall, by reason of residence ; (e) but this, says Mr. Sergeant CalHs, must apply to the house in which the party dwelt, (/) and then the land would be bound to the obligation. And so again, descending charges will not bind the heir, unless the latter have assets as a consideration for the charges ; nor will descending assets, on the other hand, bind the heir, if the land itself be not bound. (^) ^ The obligation by tenure differs so far from that by prescription, (a) Callis, p. 120. (b) 12 H. 4. 7; and see Callis, p. 117. (c) 7 Com. Dig. 345, citing 10 Rep. 139, 140. (d) 7 H. 4.31. (e) Keilw. 52. (/') Callis, p. 1 16. (g) Id. 117. See also Cro. El. 446, Austye v. Fawkener. VJ2 Duties and Powers of Commissioners Repairs. [CHAP. 11. as that one may be under a liability in respect of the former, with- out evidence of an immemorial charge, although repair from time out of mind is evidence of an obligation by tenure, whereas a pre- scriptive burden must be evidenced by an immemorial usage to repair. A body of persons, as a corporation, a township, &c. may also be charged by virtue of a custom; and that, of course, implies a liability from time immemorial. Covenant. A man may clearly agree by deed to bind himself to do certain repairs of this sort ; but it is observable, with reference to that which has already been said, that the covenant so entered into will not affect heirs, although they be expressly bound, * unless assets, conveying a consideration, descend to the heirs. Mr. Sergeant Callis makes the following distinctions with respect to tenure, pre- scription, and covenant. If land be charged by tenure, it is im- material in whose hands it may fall ; for whether the possessor be heir or stranger, he must repair. But the descent of land which has been repaired (it may have been voluntarily) by prescription, does not necessarily bind the heir, for there must be a considera- tion. A third, and as it were a middle point, however, remains ; and it is, where assets descend to an heir whose ancestor has bound him by covenant ; here the descent of assets concludes the heir, and makes him subject to the charge, (a) 9i! And there is, moreover, a difference between a covenant entered into by a stranger for this pm-pose, and the occupier of the lands, as far as the jurisdiction of the commissioners is concerned, since they may enforce the batter's covenant, though not that of the former : as where a lessee had covenanted to pay all assessments made towards the repairs of his premises, which were liable to invasions of the sea. A straight wall, built there as a defence, was thrown down by a tempest, and a new one, in the form of a horse- shoe, was constructed ; for the making of which the level was taxed, and amongst others this lessee, the lessor not being charged at all. He was also charged with interest. The lessee then died, and his executor entered, whom the commissioners charged with the sum in question. No less than five points were made in this case ; first, whether the collateral covenant were within the juris- diction of these commissioners, the case having been earned into the King's Bench by the executor. And the court held, that the covenant on the part of the lessee was within the jurisdiction of the commissioners ; for he not only had a benefit by it, but he also had agreed to pay all taxes concerning the premises. But Brampston, C. J., allowed, that had the covenant proceeded from a stranger * By the word " heirs." Callis, 119. (a) Callis, pp. 118, 117. CHAT, ii.] Duties and Powers of Commissioners Repair*. 393 instead of the occupier, it could not have been enforced by the officer of sewers, (a) Next, it was said, that here was a new wall, and that the lessee had never agreed to repair any of the old defences. But Bramp- ston, C. J., said, that every man's covenant should be construed most strongly against himself; and that if the covenant might not extend to the new wall, it were vain and idle ; and, besides, the tax was for the reparation of the premises, of which the new wall subsequently formed a part, (b) Whether the covenant extended to the executor, was the next question, who, moreover, now alleged a want of assets ; but the court said, that he should have made that objection before the commissioners ; and that by not denying the possession of assets then, his advantage had been lost, and he must be intended to have them, (c) In this case also, the lessee had been entmsted to collect the money from the level ; and having held it some time, the commis- sioners charged him with interest ; and the court considered that they had done right, for it was reasonable that he should be thus charged ; and the commissioners having cognizance of the prin- cipal, had also cognizance of the accessary, (rf) Again, there may be an obligation of this kind arising from the B . y the terms of a grant. As in the case of a grant from the crown, where the previous responsibility to repair is said to shift from the crown to the grantees or patentees. An action on the case was brought for a neglect to repair sea-walls. King Charles I. it appeared, had conveyed the borough of Lyme to the mayor and corporation of that place ; and in the letters patent a condition was inserted, that the corporation should repair all the sea-walls there. It was moved to arrest the judgment on a verdict which had been taken for the plaintiff, on two grounds ; first, that no other than the crown could take advantage of a breach of the above condition. Secondly, that although an individual might sue a public officer for neglect of duty where no grant existed, yet that where a person could never have obtained a given benefit, except as resulting incidentally from a contract between the crown and its grantee, the loss of that benefit was not a wrong for which he could claim any redress by action. But the court repelled these objections. The charter was given expressly lor the protection of the land, and the walls, wliich were to be kept up for that purpose, had been suffered to go inju- .'_! (a) Mar. 198, Commins v. Massara. (6) Ibid. (c) Ibid. (d) Ibid. 394 Duties and Powers of Commissioners Repairs. [CHAP. n. riously to decay, so that the houses on the land became damaged. And the mayor and the corporation, moreover, took this property liable to the repairs which were incident to it. The king was liable to the repair of these walls before his grant, and thus the repairing of them shifted from the crown to the corporation, upon their accept- ance of the charter. The corporation too were responsible whether they had particular funds or not for that purpose, and the learned judge who tried the case was considered to be justified in having rejected evidence to show a want of funds. Here the defendants had obviously neglected a duty which they owed to the public, and amongst others to the plaintiff"; and their omission being wilful, and not the result of any unforeseen or extraordinary accident, was properly followed by an action at the suit of an injured party. The rule, therefore, for arresting the judgment was discharged. A verdict had been entered for the defendants, on the counts charg- ing them with the repair return tenure, (a) Lastly, persons may be made liable by the laws and ordinances of sewers, provided the commissioners do not interfere with the general law of the land, nor extinguish individual liabilities ; but we shall have an opportunity" of enlarging upon this when we come to speak of assessments generally upon the level. And thus the obligations of particular individuals have been laid before the reader, as far as their liabilities in respect of their lands are concerned. Repair. Some observations regarding corporate and aggregate bodies Corpora- remain for our consideration. And, first, corporations may be tious. bound to do these repairs by custom, (b) So also a body of persons may be hplden to an agreement for the same purpose. Thus, articles of agreement had been made between the king and Sir C. V., &c., for the draining of Hatfield Level, in Lincolnshire, Yorkshire, &c. The king was to have one part of the lands drained, the drainers another, and the tenant and commoners the third ; and in consideration thereof, the drainers agreed that their third part should make and maintain enclosures. The plaintiff, who was no party to the articles, was subsequently assessed by the commissioners of sewers for lands in Yorkshire, upon which he filed a bill in the Exchequer, praying relief, and that all those who had lands chargeable might be called upon to contribute. And although it was objected, that the plaintiff was no party to the original agreement, yet the court decreed as prayed, for the plain- tiff had been aggrieved through the default of the drainers, who had entered into the obligation to keep up the banks, and so came within the equity of the statute 23 H. 8. (c) (a) 5 Bing. 91, Henley v. The Mayor and Burgesses of Lyme. (*) Callis, p. 116. (c) Hardr. 169, Earl of Devonshire v. Gibbons and others. CHAP. II.] Duties and Powers of Commissioners Repairs. 395 So again, although not usual, it seems to be the better opinion, Townships, that a township may be made the subject of a separate assessment by special custom, but not otherwise, though Mr. Sergeant Callis entertains a difierent opinion, (a) The earliest case upon this sub- ject seems to be that above quoted from the book of Assises, where the four townships were deemed to be chargeable towards the repairs and cleansing of a river, by reason of their having had the enjoyment of it. (b) Again, in the 12th year of King James I., the town of M. was assessed 5, and that of T. as much, and upon distress, and a justification in replevin, there was a verdict for the defendant; and it is said, that no great scruple was then made of the assessment being laid generally upon the whole town, (c) " Which case," says the learned writer on Sewers, " I specially noted, because it " was tried and passed for current before the said Sir Edward Coke, " who had the year before reported the law in his Tenth Report to " the contrary." (d) This report of Lord Coke was of the case of the Isle of Ely, where one question was, whether the commis- sioners of sewers were warranted hi assessing certain townships. And it was resolved, that the tax generally of a several sum in gross upon a town could not be supported, and that it ought to have been upon every owner or possessor of lands, tenements, rent, &c. (e) So, some years afterwards, it was laid down before the council at Whitehall, amongst other things, that commissioners of sewers could not lay a tax or rate upon any hundreds, towns, or the in- habitants thereof in general, but that they must charge every man according to the quantity of his land or common. (/) The same position was laid down afterwards by Roll, C. J., who observed, that the tax ought to be particular, and that it should not be laid upon the townships, unless there were a custom for it. (g) Such a custom, however, said the lord chief justice, may be reasonable ; and in fact such a custom was alleged in the case then before him. It was said, that the commissioners were not bound to lay the tax upon lands equally throughout the vill, because the custom might be to the contrary, and might yet have a reasonable (a) Callis, pp. 122. 129, where the arguments of the learned writer are given. (b) 37 Ass. pi. 10. * . (c) Callis, p. 123, Sir Philip Conishy's case, cor. Coke, C. J. (d) Id. ibid. () 10 Rep. 141, The case of the Ile of Ely. S. P. Cro. Jac. 336. 2 Bulst. 198. (/) Mo. 825, Nov. 8,1616. (g) Sty. 179. iwWob.-j 396 Repairs. When made by the level. 2&kfettCV X Li 9Afi^ Duties and Powers of Commissioners Repairs. [CHAP. n. construction ; that is to say, the custom of marsh land, for the speedy repair of breaches, to prevent public danger. The court adjourned the case, and the same observations were renewed on a subsequent day. On the other side, it was argued that the tax ought to have been laid distributively ; but Roll, C. J., said, that the prescription was waved, because it appeared that there had not been an inevitable breach, and then the matter must be decided at common law, independently of the custom ; in which case the tax must be equal. By Roll, C. J. The tax ought to be laid upon the number of acres, and here it is laid upon the persons of the inhabitants. Therefore, let there be a new tax. (a) In this case, therefore, a special custom was laid, and, as a custom, was ap- proved of by the court, but it failed in the proof. " By that," [the number of acres], says the editor of Callis on Sewers, ed. 1685, " I conceive he means, that in the taxation of every man, " the acres ought to be set down in respect of which he is " taxed." (b) Nevertheless, the value of every acre need not be inquired into, (c) From whence it may be gathered, that such a tax cannot be levied on a township, unless by special custom ; and, possibly, in the case cited from 37 Ass. there might have been such a custom, although Mr. Sergeant Callis says, that " it doth " not appear that the townships there rated were so taxed by any " custom, but merely by the law of the land."(rf) It might seem to follow, as a corollary from the above position respecting the liabilities of particular persons and bodies, that the level, or the public at large, would be always liable, as a matter of course, when the individual or particular body were exempt in their single capacity ; and again, that when the particular liability occurred, the level could not be called upon to contribute, or to repair. This conclusion, however, cannot be drawn ; the first pro- position is true, but the latter is by no means necessarily so ; and we must therefore proceed to explain how it is that the public may (a) Sty. 178. 185, Custodes, &c. v. The Inhabitants of Outwell, Tyd, Newton, &c. (6) Callis, p. 128, n. (a). And see 9 Mod. 95, by Parker, Lord Chan- cellor. (c) 3 Keb. 827, Commissioners of Sewers v. Newburg. (d) Callis, p. 128. Commissioners were authorized, by a local drainage act, to assess upon a certain district such sums as should be necessary for the effectual accomplishment of the objects of the act, and also to elect assessors to apportion these sums amongst the several parishes, townships, and places within the district. The commissioners appointed three assessors, who met in order to agree upon an apportionment. Two of the three agreed, but the third would not concur ; and it was thereupon contended, that such an apportionment made by two was void. But the court held, that the making of this apportionment was a matter of public interest, and that although two only of the assessors had agreed, their decision in the case was binding. (9 B. & C. 648, Re"x v. Whittaker and others.) f * -q * CHAP, ll.] Duties and Powers of Commissioners Repairs. occasionally be called upon, although an obligation be imine- tnorially, or otherwise, upon other parties. True it is that the level becomes chargeable, where no one appears liable to the burthen, by tenure, prescription, custom, or covenant ;(a) but many circumstances may happen which will alter the condition of the public, even though one be liable bv such tenure, c. As, if through the neglect of the particular indivi- duals, the lands which these last were bound to sustain, become surrounded by the sea, so that the public welfare be endangered ; or if such lands be overflown ahd lost, through the violence of the waves. (6) So it is if the tenure itself be extinguished, as by escheat, (c) So again, supposing the country to be in obvious and imminent hazard, although no actual mischief have occurred, the commissioners are not to wait for the tardy or inefficient exertions of the party bound by tenure, &c., but are under an obligation to act immediately, in order that the neighbourhood may not be sur- rounded by the water, (d) And here the owner, or person bound, may or may not be in fault, according to the circumstances of each case ; for if the threatened mischief be great, and that in all likeli- hood he may not be able to repair the damage sufficiently, the level is to supply the emergency, and the owner will not be an- swerable for more than his share ; * for which, indeed, he would be, in case he were in default, although it might not be worth while, in general, for commissioners to proceed against such a person. Keighley's case (e) is a well-known authority to show, that in case of a sudden and unusual increase of water, the level will be liable, provided there be no default in the party ; " for things " which happen extraordinarily, by the sea or great waters, which " neither policy of man could prevent, nor industry or force could " resist, are counted inevitable and indefensible." (/) Therefore, if there be a great tempest, or other violent convulsion, and the party liable have not been guilty of any default, the level will be liable ; and even in case of default, as we have said, the commis- sioners are not to delay supinely, until the damage be inflicted, but they must enforce or perform the repairs, and charge the party or the public with the expenses, on the principle above stated, namely, (a) Callis, 145, 7 Com. Dig. 346. (6) Id. 145, 1 Com. Dig. 346. (c) Ibid. (d) Ibid. * As, if one held by tenure, at the yearly payment often shillings ; should this sum be insufficient to do the repair, the remainder must be charged upon the level. (Callis, p. 148). (e) 5 Rep. 139. And see post, in this chapter. (/) Callis, p. 146. 398 Duties and Powers of Commissioners Repairs. [CHAP. n. that where the individual has been to blame he must pay, and where not, the public must contribute ; or they may tax the level, in case of the party's default ; and every one of the level may have an action against the' defaulter, (a) This observation may serve to reconcile any seeming contradiction in the case which we are now about to cite. In the case of Keighley above referred to, the court of Common Pleas resolved, that if one be bound by prescrip- tion to keep a wall in good repair, and then, through some unac- customed deluge of water, the defence be broken, the tax should be upon the level. They said, that the statute of Henry VIII. would bear this construction, namely, that a person under a prescriptive obligation, or otherwise, ought certainly to repair; but that hi case of his inability, or of inevitable necessity, it ought to be repaired by others, to prevent mischief, (b) If the party bound be in default, he only ought to be charged ; but if the danger become imminent, the level may be charged, and the defaulter becomes liable to the public. And a case from the year books was mentioned, (c) where an action was brought against the defendant, because he had not repaired a certain wall, in contravention of an immemorial obliga- tion to do so ; whereupon the water entered, and drowned the plaintiff's land. The defendant traversed this prescription, and the jury found for the plaintiff, and that there was a defect in the wall ; upon which the plaintiff recovered his damages ; and there went a writ from the sheriff to distrain the defendant to repair the wall, (d) And, moreover, in the above-mentioned case the relations of lessor and lessee were touched upon ; and we may remember, that in a decision lately cited at some length, where the executor was held liable, the court held, that commissioners of sewers could en- force a covenant by a lessee to repair generally. Therefore, al- though in cases where the lessee enters into an express covenant to repair, he is not liable, without any default of his own, upon ex- traordinary emergencies, as where a house is burnt by lightning, a fire, or overthrown by the winds, or the rage of the sea, &c. (e) yet where such a covenant exists, the lessee remains under the obligation, notwithstanding these sudden and remarkable events. And thus a difference is observable between prescription and a deed ; in the former case, as we have seen, a party, uncontaminated by default, may be relieved, to some extent, from" his responsibility, whereas in the latter, supposing the existence of an express cove- Co) 10 Rep. 139, (b). (ft) S. P., by Walmesley, J., 5 Rep. 100. (c) 18 E. 3. c. 23. (d) 10 Rep. 139, Keighley's case. And see Sty. 179. (e) Dy. 33. (a) In this case the lessee was only relieved from the penalty; he was held bound to do repairs as soon as possible, because of his express covenant. 10 Rep. 139. (b.) Mo. 62. Id. 68, Griffiths's case. Id. 73, Per Dyer, C. J., and Welch, J. Co. Litt. 53, and see 2 Inst. 305. CHAP. II.] Duties and Powers of Commissioners. Repairs. 399 nant to repair, he cannot so shelter himself. The two authorities which we next cite are recent, by comparison, and they establish the distinction between default and due caution in a very convincing degree. A rule had been obtained, calling on the commissioners of sewers for Somerset to show cause why a certiorari should not issue to remove their orders for the erecting a new sea-wall in Huntspill. They had directed this new defence to be made, and had ordered a rate throughout the level. It appeared, that a sea- wall had stood from time immemorial on the spot in question, that the level had never been rated to the repairs of this old sea-wall, but that the owners and occupiers of certain lands within the level had always done repairs, and had rebuilt, as occasion required, and that a storm had, in the course of the preceding winter, destroyed the old sea-wall. It further appeared, that about seven years since this overthrow took place, the sea suddenly and unavoidably broke through a neck of land on the western side of the river Parret, that its inroads had been gradually increasing, and that, upon the oc- casion alluded to, a most violent storm arose, accompanied by an extraordinary tide, by which the sea was driven through the new channel directly against the sea-wall, with much greater violence than if the new channel had not been formed. It is material to add also, that the wall in question was in more complete repair at the time of this flood, than formerly. The consequence of this assault by the sea, was the demolition of the wall. It was then stated, that the damage done, as well as the formation of the new channel, were inevitable ; that the persons who had been accus- tomed to keep the wall in repair, could not have prevented the accident, and, consequently, that no default or neglect could be charged upon them. New works had been constructed to meet this difficulty, and the price for rebuilding the defence was esti- mated at thirty times as much as would have been necessary to have restored the old wall. Upon a due statement and review of these facts, and of the authorities above referred to, the counsel in support of the rule declared fairly, that he could not resist the decisions ; and Lord Kenyon, concurring in this course, observed, that it had been frequently said, that no certiorari ought to be granted to remove a prior rate, lest the poor should starve in the mean time ; and that there was almost as strong a reason against removing such an order as the present, lest in the mean time the whole county be inundated. () Here there was no default, but the damage arose from inevitable accident. The facts in the next case substantiate the difference above-mentioned. A niauda- (a) S T. R. 312, The King against the Commissioners of Sewert for the Western division of the County of Somerset. In Henley v. the Mayor of Lyme, Best, C. J. cited a case to the same effect, tried before him at Gloucester, where the jury found, that certain mounds had been kept in good repair, and that a particular loss which had happened, was the result of a high tide, which had never before been ex- perienced in those parts. (5 Bing. 1 13.) 400 Duties and Powers of Commissioners Repairs. [CHAP. n. mus had been applied for and obtained, commanding certain com- missioners of sewers to reimburse one A. H., a sum expended by him in the repair of a sea-wall next adjoining his lands. It ap- peared, that A. H. was an owner and occupier of land in the level, that all lands in the level derived benefit from the sea-wall, but that the commissioners of sewers had always assessed the owners of lands to the repair of so much of the sea-wall as abutted on their respective lands. An extraordinary high spring-tide, accompanied by a violent tempest, did such damage to A. H.'s wall, as to raise apprehensions that the greater part of the level would be flooded. The wall was sworn to have been at the time of the accident, in a usual and fair state of repair, as good as for eight years preceding, and such as would have resisted the ordinary flux and reflux of the waters. The marsh bailiff ordered A. H. to repair the wall soon after the storm, which he did at a great expense, and then memo- rialized the commissioners for a reimbursement, which memorial, after consideration, they dismissed. Affidavits on the part of the commissioners were put in, showing, that various orders had been made from time to time that A. H. should repair the wall, but that he had neglected to do so, and that had he fulfilled those directions, no damage would in all like- lihood have accrued from the spring-tide and high wind ; and that the partial damage which arose, was occasioned by the imperfect state of repair in which the wall had been generally allowed to remain ; and, moreover, that the sea-wall of A. H. J s land, within the level, had always, during the memory of living witnesses, been maintained at the sole costs and charges of the several owners and occupiers for the time being of the said lands. The counsel for the commissioners relied upon the distinction as established by the authorities, and said, that the opinion of Wal- mesley, J. in 5 Co. (a) namely, that the commissioners ought not to charge a party, liable by prescription to repair a river-bank, with the whole of the expense, but that the whole level ought to be taxed, was explained, by taking this difference. The counsel in support of the mandamus endeavoured to open the general ques- tion, whether a party bound to repair under the circumstances, might not call upon his neighbours for contribution ; for it was sworn, that A. H., although possessed of only one-eleventh part of the lands, was obliged to support one-sixth part of the sea-wall of the whole level.* The court, however, said, that it was too late to discuss that matter. They said, that if the question of default were doubtful in the case before them, they would grant the man- Co) 5 Rep. 100, ante p. 398. * But it also appeared, that the marketable value of estates within the land, was greatly influenced by the state of the sea wall, which the owners were bound to repair. (1 B. & C. 479.) CHAP. II.] Duties and Powers of Commissioners Repairs. 401 damns, but here the repairs required by the sewers' jury had not been done ; and it had been, moreover, sworn, that in the event of such repairs having been completed, the mischief would, in all human probability, have been averted. It was impossible to say but that A. H. was in fault, and the rule was discharged with costs, the motion having been made against a public body, (a) Another occasion upon which the original proprietors are dis- New walls, charged from their prescript i ve liabilities, is where the old wall &c. has been destroyed, and a new one erected in its room. In such a case, the commissioners must lay the charge upon the whole level, as well in respect of the building, as of the maintaining of the new defence, for no one can be bound by prescription, custom, or tenure, to such repairs. (6) A case in Keble, unexplained, seems to militate against this doctrine. There was a motion for a certiorari to remove an order of sewers, because the plaintiff had been charged alone to the repair of a new sea-wall, and the court held this ill, because the same persons were chargeable to the new wall who should have repaired the old ; but an affidavit was required from the plaintiff, that there was no danger in the state of the wall, or that it was in repair, (c) The point in this case does not seem very clear ; it might have been that the level originally had re- paired the old wall, or that those who had so repaired were under an obligation to do so by covenant ; and in either of these not improbable events, the decision is not irreconcileable with the general principle, nor with prior authorities. Let us endeavour to ascertain the principle which arises from the cases and observations above mentioned, respecting these new defences. It is clear, then, that to make a party chargeable for a new wall, independently of the public, he or his ancestors must have entered into an obligation so to do, and in case of the heiti he must have been expressly named, and have received a suffi- ciency of assets by descent ; and thus it is, that modus et conventio vincunt legem, and so it was held in the case of the executor above cited, (d] But, on the other hand, where the individual is bound bv tenure, or prescription only, he becomes released from his sole and several charge by the erection of a new defence, (that is to say, a defence of a different description, or of a larger dimen- sion ;) for the immemorial liability, like other matters which de- pend upon a usage beyond time of memory> becomes extinguished by the alteration. jV (a) IB. & C. 477, The King against the Commissioners of Sewers for Essex. (6) Callis, p. 148. (c) 2 Keb. 129, The King and Day v. the Commissioners of Sewers. (d) Ante, in this chapter. I) I) 402 Duties and Poivers of Commissioners Repairs. [CHAP. n. Repairs by These points regarding individual and other liabilities, not of an the l? ve l or universal character, being settled, we come to speak of the respon- sibility of the level, or public generally, it being quite certain, that if no one be answerable in particular, the level decidedly He under that obligation. And here the question of particular exemptions, which have been often claimed, but seldom with success, presents itself to us. It has been contended, that the king's lands are not liable to this tax for repairs, notwithstanding the express words of the statute. It had, however, been received for law, during many years, that they were so liable, and Callis expressly affirms that to be the law. () And so it was objected to a distress made by com- missioners of sewers, that eight hundred acres of the king's lands had not been assessed, and the court held it a good excep- tion, observing, that the king's lands were taxable by the sta- tute, (b) The question was, however, submitted to the court of King's Bench a short time since. Trespass had been brought for taking the plaintiff's goods, and a verdict was found in his favour, subject to a case. The goods appeared to have been taken as a distress for non-payment of a rate made by certain commissioners of sewers. The assessment was in respect of a messuage, or tenement, in the king's dock-yard in Deptlbrd. The plaintiff was clerk of the sur- vey in the dock-yard, and paid no rent for the house ; but he resided there, and was removable at pleasure. The dock-yard ap- peared to have been principally drained by sewers, made and main- tained at the expense of the crown ; but the plaintiff's house, in t< common with the rest of the dock-yard, derived a benefit from the public sewers, which were under the direction and management of the commissioners. The authority of the commissioners within , that district was founded upon certain local acts, by virtue of which they made the charge objected to. It was urged generally for the plaintiff, that the possessors of the houses were not liable to rates ; that the king was not to be barred by a right or privilege by general words in an act of parliament ; that the statute of Edw. VI. restrained the former statute of Hen. VIII. to lands in possession of the king's tenants, yielding a profit ; that the mode of levying rates upon defaulters was by distress, and that lands in the possession of the crown were not amenable to tliat process ; that the sewer rate being imposed on the tenant by the local act, with a provision for reimbursement by the landlord, could not apply to the king, inasmuch as he was not expressly named. On the other hand, it was said, that this property yielded a profit, because the occupier of the house gave his services in lieu of rent ; (a) p. 131; 7 Com. Dig. 346. (b) Sty. 12, Whitley v. Fawsett. CHAP. II.] Duties and Powers of Commissioners Repairs. 403 that by the statute of Hen. VIII. the crown lands were expressly bound, and that the statute ofEdw. VI. did not restrain the former act, since it provided only for particular cases of lands of the king, whose tenants paid rent, leaving all other cases as they stood before. The court gave judgment for the defendant. The statute of Hen. VIII. was made to remedy a great public inconvenience, and to introduce a great public benefit. By the ninth section, the lands of the king were expressly bound. Then, in order to remove any doubt as to the levy and distress upon crown lands, the statute of Edw. VI. makes those lands liable to be distrained upon ; that was certainly a general legislative direction, that a distress for those rates might be taken upon the lands of the king. The subsequent clause did not restrain the general words there mentioned as pre- scribing the distress, so as to confine that power to such lands only as were in the possession of the king's tenants. Judgment of non- suit was accordingly given, (a) So again, ecclesiastical persons cannot claim an exemption from Ecclesias- the tax in respect of their glebe lands, or their meadow and pasture tical P er " land, for these are not so sacred as tithes, having been conferred sons ' upon the clergy by the benevolent gifts of laymen, and so the bur- then which was imposed upon the lay donor remains. (6) So lords of manors are taxable for their quit-rents, and rents of Lords of assize, (c) Though if the rents be so small as that they are scarcely manors, worth the collecting, the commissioners, it is said, may spare them upon the principle, de minimis non curat lex. (d) But they are not chargeable for the freehold of their copyholds ; for the seisin is but in imagination and construction of law, sicce the copyholder is the receiver of the visible and substantial profits, (e) Therefore a copyholder cannot claim an exemption from this Copy- charge, (f) and we shall see by and by, that by virtue of a parti- holder, cular enactment, a copyholder may lose his land for non-pay- ment, (g} Again, a commoner is liable to be charged, that is to say, he who has a common of piscary, turbary, or pasture in great fens, marshes, and wastes ; but a common, after the corn is severed, cannot, it seems, be charged, as being of small value. (A). But one who has the vesture, or herbage of lands, as their prima tonsura, is liable. (') (a) 3 B. & A. 21, Netherton v. Ward. (6) Callis, p. 131 ; 7 Com. Dig. 346. (c) 7 Com. Dig. 346; Callis, p. 139. (d) Callis, 140. () Callis, 133 ; 7 Com. Dig. 347. (/) Callis, 132136 ; 7 Com. Dig. 346. (g) Post. Cb. III. (A) Callis, p. 137 ; 7 Com. Dig. 346, 347. () Callis, 137. D D2 404 Ferry. Custom to be exempt. Rever- sioners. Duties and Powers of Commissioners Repairs. [CHAP. n. Again, one who has a ferry may be charged, (a) and so, again, may a person who enjoys a free passage for his boats upon a river, although this last class of contributors must be understood to mean such as have free and customary passage, as a liberty and inherit- ance, and not poor boatmen, who come thither accidentally by the general custom of the realm, (b) Moreover, it seems, that it is incompetent in general to plead a custom, or prescription, to be exempted, although, according to Mr. Sergeant Callis, such a relief may be claimed by special custom. And the learned writer cites a case in confirmation of this, where a custom in Lincolnshire ,was alleged to be freed from the repairs of the sea-banks, by reason of some other repairs, which the pro- prietor and his ancestors had done, and which he was wont to do for the benefit of the public. This custom was stated to exist in the town and manor of Mabblethorp. (c) But, ordinarily, the Ser- geant observes, there cannot be such a claim of exemption, (d) In respect, however, that the beneficial occupier is usually assessed in the first instance, however he may be entitled to demand reimbursement from his landlord in the absence of a covenant, on his part, to pay the tax it follows, that the lessor, or reversioner, is not commonly liable in his own capacity to the immediate assess- ment, that is to say, not to the usual charges. But where extra- ordinary repairs are required for the benefit of the inheritance, the case is different, as if a new wall, &c., be erected, or if the ancient defences be materially decayed. These last reparations are not of an ordinary and annual nature, but continue permanent for the be- nefit of the lessor, or of him in reversion, whereas the other sort of repairs would, probably, expire during the term of the lease ; there- fore the landlord is chargeable for the extraordinary improvements, and the tenant for those which are common and frequent, (e) And although Sir Robert Heath observed upon one occasion, that commissioners of sewers may charge the lessor or lessee at their discretion, though it were for a new defence ; (f) yet this opi- nion, with regard to the charge of new defences, stands well, if it be judged by the difference above pointed out. And, at the present day, as the lessee most usually covenants to pay all sewers' rates, it becomes more convenient for the commissioners to resort to the lessee, who is in possession of the land, in the first instance, and who, if he have an objection to sustain the charge, may, under the a) Callis, 137. 6) Td. Ibid.; 7 Com. Dig. 346. .fai. (c) Callis, p. 223, Sir George Fitzwilliams's Case. (rf) Ibid.; 7 Com. Dig. 346. Dig (e) Callis, 140144; 7 Com. Dig. 346. (/) Mar. 198. ' : CHAP, ii.] Ditties and Powers of Commissioners Repairs. 405 statute, require reimbursement from his landlord. But a remainder, or a reversion expectant alter an estate tail, is not chargeable ; but the burthen falls solely upon the lessee in tail in possession, and not upon " dry and fruitless remainders,'' for it is more to be feared that tenant in tail will cut off the remainder and reversion by a recovery, than that the sea shall drown his estate by an over- flow, (a) According to the above principle, a mortgagor shall not be taxed Mortgager, by reason of his equity of redemption, nor he who has a title by fcc * land by entry, &c., or who has a contingent use, nor a bargainee of land before enrolment, (b) Nor, again, the owner of an advowson, whether he be the patron or the founder, for this property, though a tenement in law, does not yield any immediate profit, (c) Nor, moreover, are such as have proxies, synods,&c., liable, although of an annual value, (d) nor persons who have the use of fairs, markets, &c., provided they receive but a casual profit, (e) Although the proprietor of a market, who draws an annual rental from the use of it, might, it seems, be taxed by the commissioners at their dis- cretion. So, again, offices, as a town clerkship, the clerkship of a market, Offices, &c. &c., though confined to a place within the level, are not liable to this assessment. (/) Annuitants, further, are not chargeable, unless occasionally un- Annui- der the statute of 43 El. (^) for the tax relates to land, and tants - the annuity is payable to the person, (h) And the law is the same, though a corporation seised of lands be the grantors of the annuity, for they are chargeable in respect of their possessions, (i) The persons who are, or are not chargeable, have thus teen men- What tioned at some length, and we proceed just to notice shortly, the lands, &c. nature of property assessable, which, however, to a certain extent, has been already done. And it may be remarked, that lands in general constitute the property chargeable ; but the statute men- tions lands or tenements, or common of pasture, or profit of fishing, and the word tenement being, as is well known, of larger import (a) Callis, p. 140 ; 7 Com. Dig. 347. Two tenants in common may be assessed according to their proportions, (Callis, 210) and the tax shall not be doubled. (Id. 212.) (6) Callis, 139 ; 7 Com. Dig. 347. (c) Ibid. (rf) Id. 138; 7 Com. Dig. 347. (e) Ibid. (/) Callis, p. 138 ; 7 Com. Dig. 347. (g) See Post, Ch. 111. (h) Id. p. 1 36 ; 7 Com. Dig. 347. (*) Ibid. 406 Duties and Powers of Commissioners Repairs. [CHAP. IT. than lands, containing all that the word " lands" has, together with all things else which lie in tenure, (a) many other kinds of pro- petty, for instance, ferries, liberties of free passage, &c., are taxable, as we have above stated. Thus also meadows, marshes, mills, wood, &c., are included. ( b) And so, again, are parks and war- rens (c) within the level ; but Mr. Sergeant Callis inclines, that chases, as such, are not chargeable, because deer, which .are feres nature, are not bound to certain precincts ; but he adds, that as lands, such chases may be assessed, (d) Tithes. Some discussion has taken place as to the liability of the owner of tithes ; (e) and it may be observed, that where such tithes are in the hands of a layman, they may be rated upon these commissions, but they cannot be assessed in the hands of a spiritual person without a custom expressly for that purpose. And although this de- scription of property is certainly liable to many imposts, yet it will be found on examination, that particular acts of parliament create the charge upon those occasions, as, for example, the 43 Eliz. c. 2., makes the tithe-owner liable to the poor-rate, (f) And so, likewise, although spiritual corporations, and other individuals, have been charged at various times to the repair of bridges, &c., yet custom, prescription, or tenure, seem to have governed their responsibilities ; (g) and thus the general principle is substantiated, namely, that, unless there be a direct affirmative custom in favour of the taxation, the clergy shall not be rated to the sewers' rate in respect of their tithes. . But some lands are not liable ; for instance, mountainous, or high lands, which cannot be surrounded, are in general exempt; (h) and we have before seen, that these do not come within the survey of the commissioners, (i) Nevertheless, these high lands shall contribute to repairs for the benefit of the country in general, although they be not liable to damage from the waters ; and the principle is that which we have so often found consistent, namely, that those who derive benefit, must contribute to its source. Therefore, it is said, that upland countries may be assessed towards the repair of ports or havens ; for the owners of those lands, being made partakers of marine commodities, (a) Callis, 139. (b) 7 Com. Dig. 346; Callis, 139. (c) Ibid. (d) Callis, 138. (e) See Callis, 129132. (/) See the note to Callis, p. 132. (#) Callis, 131. (A) 7 Com. Dig. 347 ; Callis, 136. 223. (j) Ante, in this Chapter. CHAI. ii.] Duties and Powers of Commissioners Repairs. 407 dt rive necessarily a profit from the maintenance of those public conveniencies, and, therefore, the extraordinary repairs of these ports are not confined to the level, but may be levied upon the country at large. () Thisis the strict interpretation of the law, for a general tax of this nature eo nomine is not of common occurrence ; nevertheless, as sums are frequently voted by parliament for the maintenance of public works, and, moreover, as private individuals have, at different seasons, obtained charters, with many privileges for their enterprising execution of public improvements for the ad- vancement of commerce, the country is indirectly taxed for these repairs, and thus the position of the learned sergeant is illustrated and established. But even goods and chattels are not always exempt from these Goods, assessments. The statute 43 El. c. 4, which was an act to re- dress the misemployment of lands, goods, &c., given to certain charitable uses, contains in its preamble these words, "ports, " havens, causeways, sea-banks :" being some of the subjects to which the lands and goods in question were devoted by way of charitable use ; and thence it is, that if goods and chattels, or an- nuities, be given to these uses, they may come under the cogni- zance of commissioners of sewers, who may make an assessment upon them by virtue of the laws of sewers. And thence it is said, that if lands or chattels be given for the reparation of a sea-wall, the commissioners acquire a jurisdiction over such, and may meddle with them, (b) And tithes, when in the hands of a lay- man, become mere chattels, according to the saying, Tune res spi- rituales fiunt temporales, et transeunt decim in catalla. (c) To proceed : the consideration of the duration of this tax is perpetual deserving of attention, it being a matter of some importance, charge whether the assessment continue to be the same in perpetuity or u P n not. It has been held, says Mr. Sergeant Callis, that the com- lands > &c - missioners of sewers cannot bind any man's inheritance to a per- petual charge by any power or authority given under this statute, (of Hen. VIII. ) ; (d) and Lord C.B. Comyns says, accordingly, that such a perpetual tax cannot be imposed, unless it be warranted by a special custom, and then a perpetual decree may be made, (e) And the learned writer on sewers agrees, that there may be the custom of a town or county to repair each his own particular por- tion perpetually ; (/) nevertheless, inasmuch as by the customs of (a) Callis, 148; 7 Com.Dig. 346. Mar. 200, by Bratnpston, C. J., and said to have been so adjudged. Callis, 131. (d) Id. 201. (e) 7 Com. Dig. 346, 347. (/) Callis, 201. V/ (6) (0 Duties and Powers of Commissioners Repairs. [CHAP. 11. Romney Marsh, such a charge ought to be perpetually imposed, and as the commissioners of sewers were empowered under the statute, to make laws and ordinances in imitation of those of Romney Marsh, the sergeant seems of opinion, that such a per- petual charge may be made. () And he adds, that upon de- crees for sale of land, it is usual in those decrees to bind those lands to perpetual repairs. (6) We have thus mentioned the persons who are liable to be as- sessed by commissioners of sewers,whether they be solely answerable in their own persons respectively, or jointly with others, preserving still a responsibility separate from that of the public ; or again, whether they be answerable in respect of their condition as part of the level, that is, of people inhabiting lands exposed to the damage of sudden floods ; or lastly, as part of the community at large. We have seen that lands, and sometimes chattels, are within the jurisdiction of the commissioners, and the different properties en- joyed in respect of lands have also been noticed with reference to this tax. It follows, therefore, that when no claim upon private persons exists, when no exemption can be pleaded, the whole dis- trict receiving benefit from the assessment, must be fairly, equally, and impartially burthened with the necessary expenses of repairs or improvements. However, as we have sometimes used the word " level," sometimes " district," and sometimes " the people at large," it is desirable to explain here, that each of these terms has been used synonimously for " the public," since although there may be, and frequently are, several subdivisions upon the same level, yet where the tax is laid generally upon any one of these subdi- visions, it is an universal assessment as far as that separate portion of the level is concerned, and may thus be said to be imposed on the public. And we shall see presently, that commissioners have no power to alter the customary divisions of a level, so as to levy upon the whole of these divisions at one time, and to tax the different portions of it at another, for this might create a consider- able injustice : this point was decided in a very recent case. A certiorari was moved for against the commissioners of sewers for the Tower Hamlets, for the purpose of removing a presentment made by a jury within their limits, and also a certain order for a rate over the whole of the hamlet founded on the above present- ment. It appeared, that the commissioners had always acted under one commission for the whole district ; that they always con- sidered the district as containing six different levels or lines of large leading sewers ; and that they had always acted upon the un- derstanding that such was the case, each district being made liable to the repair of those sewers only from which it derived benefit. .aotinwH .v bt. :> .8. C .i <$ JSJ* 292 - (6) Ibid. CHAP, ii.] Duties and Powers of Commissioners Repairs. It further appeared, that separate presentments and rates had been made for these levels respectively, until 1821 ; and that, until then, they had been treated as distinct from each other; but that ;it that period a desire was manifested, that one rate should be applied to the whole district, and steps were soon afterwards taken to effect that purpose. The inhabitants of Hackney, one of the six levels above-mentioned, resisted this equalization of the rate and inter- mixture of the levels throughout the district, inasmuch as they derived no benefit from the sewers on the five other levels ; and because, also, they had been accustomed to maintain then* own sewers at a much less expense in proportion. And the court, after much deliberation, made the rule for a certiorari absolut, hoi d- ing that the rate had been improperly made. For the principle clearly was, that none except those who claimed benefit from sewers should be called on to contribute towards them ; and the inhabitants of Hackney, in this case, had sworn that they gained no advantage whatever from the sewers on the other five levels. Then, the court said, if it should be holden that the present rate was good, not only would the practice in the district in question, which had prevailed so long, be overturned, but all other rates made for distinct and separate levels, would thus be adjudged in- valid, and rendered liable to be quashed. The court then instanced some cases (a) in which commissioners of a large district had sub- divided the lands within their own limits, and the rule was made absolute, (b) Lord Tenterden finally made some observa- tions on the meaning of the word " level," denying that it meant, as had been insinuated at the bar, an artificial division of land, but on the contrary, alleging its meaning to be the particular character and situation of the country, (c) The authority of Rooke's case shall close this part of the sub- ject, and it has been reserved until now by reason of the compre- hensive law which it applies to general taxation in respect of sewers. One Rooke brought replevin against Withers, and the defendant justified under commissioners of sewers, because one C. was assessed to every acre for the repairing of a bank, for the non- payment of which charge the distress was taken. The plaintiff replied de injuria absque tali causa. The jury found the commis- sion, and the stat. of Hen. VI, and Hen. VIII., and that the commis- sioners had impanelled a jury to inquire of defaults, who presented that seven acres of meadow in which the distress was taken, were next adjoining the river, and that the bank of the river adjoined the seven acres. The jury further found, that the occupiers of these seven acres had used always to repair those seven acres, some- * r (a) Rooke's Case, 5 Rep. 99. (b.) 2 B. & B. 691, Stafford v. Hamston. 3 B. & A. 21, Netherton v. Ward. (b) 9 B. & C. 517, The King against thi> Commissioners of Sewers for the Tower Hamlets. (c) Id. 524. Duties and Powers of Commissioners Repairs, [CHAI>. n. times voluntarily, sometimes by presentment. They further [found, that there were eight hundred other acres in occupation within the same level, and subject to the inroads of the water in default of the bank, and the question was, whether these last lands should not have been taxed towards the repairs of the bank. It was held, first, that the finding of the repair by the occupiers was not ma- terial, because these occupiers might have been tenants at will, or other particular tenants, who could not bind the inheritance. And secondly, that the commissioners ought to have taxed all who were in danger of being damaged, and not him only whose lands adjoined the river, since the statute of Hen. VIII. had ex- pressly declared, that no person of any estate or condition should be spared. And judgment was, accordingly, given for the plain- tiff, (a) Here no one individual in particular was found to be under the obligation, and consequently the whole level was chargeable. Having ascertained the persons who are to be assessed, we pro- ceed to inquire as to what improvements or repairs the commis- sioners are empowered to effect, and also respecting the extent of their jurisdiction in those particulars. And here it may be anticipated, that their authority may be exercised to compel all ordinary repairs of the different defences committed to their charge by the statute, that is to say, of walls, ditches, banks, gutters, sewers, goats, causeways, bridges, &c. And thus in a great case respecting Brace-bridge, in Lincolnshire, the commissioners were holden justified in compelling the repair of it. It was found by inquisition, that the bridge above-men- tioned, standing on the river Wytham, thirty miles from the sea, was fallen into great decay, so that carts, &c., could not pass over it as had been the custom. The defaulters were declared to be Henry Sapcots, Esq., who by reason of his manor of Bracebridge, was bound to repair a part ; one B. G., who, by reason of his house standing at the bridge foot, on the north side of the river, was bound to repair another part ; the corporation of Lincoln, who were under an obligation to maintain a third or other part ; and the county of Moreland, which had been accustomed to repair another part. The repairs were decreed against those persons and corporations accordingly. But a bill in the Exchequer chamber was filed against the commissioners by Mr. Sapcots, to be relied, and it was alleged, that this bridge stood far from the sea, and so that the sewers' laws could not extend to it ; but we are informed, that at the hearing of the cause, Ann. 16. Jac. 1, he was overruled in that and all other parts of the suit. (6) (a) 5 Rep. 99, (b.) Rooke's Case. S. C. recognized 2 Ro. Rep. 289. S. P. recognized 4 Mod. 350. (b) Callis, 90, Sapcotts v. Sit Thomas Granthatn and others. CHAP. II.] Duties and Powers of Commistioners. It is not necessary to enlarge further upon this matter. During New the enumeration, in a prior page, of those defences which lie- &c - within the survey of the commissioners, it appeared, in a great mea- sure, how far the powers of those officers extended, in respect of I particular objects ; and it is clear, that the same law which gives / them power to view, in order to repair and amend, concedes also the right of so repairing and amending. But the question of new defences and improvements has not been so fully discussed ; and it remains to say something upon that point here. And first, it is obvious that a great difference exists between building a new wall upon an ancient site, and erecting a new defence where there may not have been any one before. The former of these acts seems to be within the statute, which has the words, " make new ;" but the latter proceeding may admit of some doubt ; and many arguments have been used for and against its validity, (a) Indeed, we have already seen, that the rebuilding of an old wall in a new form is allowable, and that in many cases such a work will not even vary the liability of the original parties to repair, and that any little alteration for the public convenience is certainly within the reach of the commissioners. And so Callis says, that if it be fit to take an arch away from, or add a new one to a bridg0, where none was before, it is most fit to be done by these commissioners, (b) So it was laid down by the court, in the Isle of Ely case, that ancient walls, when broken down by the water, might be replaced by others, to defend the people and their lands within the same level, because the manner of defence by walling could not be called a new invention, but was the old way approved of by experience, (c) But it was said at the same time, that nothing absolutely new could be introduced by the commissioners, such as an artificial mill, to cast out the water, &c. ; for if such new inventions were profitable, no owner of land would refuse to contribute, it being to his own advantage ; and then the taxation would be by the volun- tary consent of the individual, and not by constraint under the commission of sewers, (d) So again, at the court at Whitehall, in 1616, where the mas- ter of the rolls and the attorney general were present, one of the objections was, that the commissioners of sewers had no authority to cause new banks, drains, or sluices, to be made where there had not been any before ; and although the opinion of the council was contrary, yet it appears from hence, that such a notion had ob- tained with respect to new walls. () So again, it was urged, on another case, that commissioners could not order the erection of a (a) See, on the subject of new defences, Callis, 92 104. (b) Callis, p. 89. (c) 10 Kep. 142, 7 Com. Dig. 341. (d) 10 Rep. 142. (e) Mo. 825. 412 Duties and Powers of Commissioners. [CHAP. u. new wall ; but a representation being made on the other side, that the erection proposed would not be wholly new, Roll, C. J., assented, observing, that the case of the Isle of Ely was for making a new wall totally, and thus the principle was recognized. () And so far from the building of a defence entirely new, it was said, in the case from Coke above referred to, that if, by repairing the ancient wall, the damage and peril could have been averted, there was no necessity for making the old wall again de novo. ( b) And Mr. Sergeant Callis, although of a different opinion upon this question, admits, nevertheless, that the words of the statute, literally taken, must mean such old fences as were before ; and the taking this to be the construction, the power of making new walls where none had existed before would clearly be excluded, (c] But the learned sergeant is, upon the whole, of opinion, that commis- sioners may, upon great and urgent occasions, decree the making of new banks, new walls, goats, streams, sluices, and other neces- sary defences, (d) In support of this position he cites the judg- ments of Popham, C. J., and Anderson, C. J., in a case concern- ing new goats, in Lincolnshire.,/ There had been a great contro- versy in Lincolnshire concerning the building of new goats at Skir- beck and Langrate, for the draining of the water out of the South Holland fens into Boston haven. Sir Edw. Dimock advocated the works, and the county of Kesteven opposed it. And the exception taken was, that commissioners of sewers could not, by the power of their commission, make a law for the erection of these new goats where none existed before. But the two chief justices just alluded to said, that these new goats might be made, if for the good and safety of the county ; but they recommended caution to the com- missioners in acting thus, and warned them against promoting any such works for the benefit of private individuals, (e]/ The learned sergeant then mentions an order of council given at Whitehall, (which was in those days deemed of much higher authority than it would now be,) confirming the power of erecting new works. The dispute in question arose in the counties of Huntingdon, Cam- bridge, and Northampton, concerning the making of new cuts and drains in the Isle of Ely, the doing of which had been assumed by the commissioners of sewers as within their jurisdiction. The master of the rolls* and the attorney generalf were present at the council, when the king's order was made in favour of the commis- sioners' power, upon this occasion. It had been denied that the (a) Sty. 192, Case of the vills of Newton and Tyd. (6) 10 Rep. 142. (c) Callis, p. 93, (rf) Id. p. 103. (e) Id. p. 97, Sir Edward Dimock's case. * See Julius Caesar. f See Francis Bacon. CHAP. II.] Duties and Powers of Commissioners. commissioners could make new banks, drains, or sluices, where none had heen before ; but their lordships thought that it neither consisted with law nor common sense, that in a cause of such great consequence the law could be so void of foresight as to restrain commissioners from making new works to restrain the prey of the waters, as well as to repair the old, in cases of neces- sity ; and judgment was accordingly given for the commissioners, on this as well as three other points which had been submitted to the council board. And it was further understood, upon the con- sideration of the question, that Lord C. J. Popham had delivered his opinion in writing upon all these points, and that his decision had been in favour of the commissioners, (a) Thence Callis draws his conclusion, that new works may certainly be made where necessity requires them, provided they be for the benefit of the community. (6) There may, therefore, be said to be conflicting authorities or decisions upon this point. And perhaps it is not unworthy of attention, while considering the report of Lord Coke against the jurisdiction of commissioners, that the great chief justice osten- sibly lost his seat in the King's Bench, through his adherence to the opinion he had formed and acted upon in this matter. For, when the lord chancellor addressed Sir Henry Montague, upon his election to the prime seat in the King's Bench, then recently vacated by Lord Coke, he made use, amongst other remarks, of the following expressions: "He" (Sir Edward Montague, Sir Henry's grandfather) " devised not any new construction of " laws against commissioners and judges of sewers, nor to draw " them into the danger of praemunire ; and whilst they were " in this court disputing of tricks, and moot points concerning " taxes, and making new gutters or walls, to suffer a great " part of the realm to be surrounded and overflown; for the " winds nor the sea could be stayed with such new construc- " tions and moot points." (c) However, besides the authority of Lord Coke, there was a strong inclination towards the same opinion, by Lord C. J. Rolle, above cited ; and we are told, that even Sir John Popham himself did not adventure to compel any contribution towards the making of a new river, which he had be- gan at his own expense, but brought a bill into parliament for the purpose ; and this, although the ostensible object in making the river seemed to have been the public good, (d) The bill, however, failed ; and it must be admitted that there is a considerable distinc- tion between a new wall, or sewer, and a new river. All these obser- vations are also to be found in the Digest of Lord Ch. B. Comyns, who does not impugn the cases in Callis, but on the contrary, (a) Callis, 98. Mo. 824, S. C. (b) Callis, 102, 103. (c) Mo. 828. (d) 10 Rep. 142, (b). 414 Duties and Powers df Commissioners. [CHAP. II. seems to entertain the same distinction between building a new wall on an ancient site, and erecting one entirely new, which we have above adverted to. (a) Upon the whole, it may be said, that very considerable doubts, as we have intimated in a former part of this chapter, were enter- tained for many years upon this subject, and fo an extent so serious, that the act of William and Mary, already referred to, was passed in or"der to quiet all apprehensions upon the subject ; thereby including new sewers then made in London, Westminster, and other places there mentioned, within the jurisdiction of sewers, and enabling commissioners at the same time to make new sewers when and where they might see convenient. And from hence it is not difficult to draw the conclusion, that at present, when so many local acts exist, and when the assistance of the legislature may be so easily and so effectually obtained, an act of parliament for mak- ing new erections, and imposing new charges, is the most usual, as it is the most prudent authority to apply for and adopt, (b) But whatever might have been the differences of opinion in former times respecting new defences, the making of new works, not being immediately connected with the general welfare, was never deemed to be within their reach. Thus, in the case of the Isle of Ely, one of the points there discussed was, whether certain commissioners had done right in decreeing that a new river should be made out of the old river of Ouse, and through the main land within the same isle, for seven miles ; and the court held, that no such power was vested in those officers. For if commissioners were ex officio enabled to perform such undertakings, great incon- venience for private lucre's sake might ensue, as well in respect of public damage, as the stopping of havens, and other common rivers, as of particular nuisances and prejudices to private men, by the drowning of their lands and inheritances. It was, therefore, holden, that such new rivers could not be made without the king's licence, grounded upon the writ of ad quod damnum. (c) Nor can the commissioners of sewers improve the navigation of a river, or make a river navigable, which was not so before. And although this position may at first sight seem to clash with the , doctrine so often mentioned before, namely, that commissioners (a) 7 Com. Dig. 341, 342. In p. 342 are these words, " Nor new drains, banks, or sluices." (R. Mo. 825.) But whatever might have been the opi- nion of the lord chief baron, there seems to be some mistake in citing this from Moor, because the making of these new drains was one of the diffi- culties urged against the commissioners of sewers at the council table ; and their lordships expressly overruled that objection. See Mo. 824, &c. (6) See Callis, 104, who mentions two local statutes by which commis- sioners were authorized to go through private grounds, upon making com- pensation. (c) 10 Rep. 141, The case of the Isle of Ely. Mich. 7. Jac. 1. ,g bai CHAP. II.] Duties and Powers of Commissioners. may act very remedially for the advancement of commerce, and in I furtherance of navigation ; yet it will be recollected, that their / power ha? never been asserted to extend beyond the removal of obstructions, or, at the most, the erection of new defences, which might in some measure be beneficial to traffic/An order was made by certain commissioners, charging the inhabitants of West- ham for the erection of a tumbling bay, in order to prevent any inconvenience which might arise from a lock which had been set up, and assessing them for a lock, to prevent the damage which the tumbling bay would occasion to the navigation. In the order, the first lock was mentioned to have been erected for a private benefit. It was moved to quash this order ; and the court were clear that it was invalid, for the commissioners possessed no power to charge inhabitants for finding an expedient how a thing erected for a private benefit might be continued, and yet be no nuisance ; they ought to have abated the nuisance. And with regard to improvements, the court added, that commissioners might preserve a river in its original state, by removing obstructions, and by other natural ways ; but that they could not even help the navigation by erecting locks, or by any such artificial methods, (a) And from hence too, it appears plainly, that nothing of a private nature can be meddled with, unless it be for the public general good ; and d fortiori, no private interests can be served, except by the inter- vention of an act of the legislature. Lastlv, it was always deemed so hazardous to assume authority in these matters of sewers, that where in the county of Glamorgan it had been found that the sea sands had done considerable injury to the lands adjoining, it was thought expedient to give a special jurisdiction to the commissioners of Glamorganshire by statute. And thus by 1 Mar. Sess, 3. c. 11. s. 1 &, after reciting the be- neficial objects intended by the statute 23 Hen.VIII., and moreover, that it was then the prevailing opinion, that the act of Hen.VIII. did not extend to repair any mischief done by reason of sand arising out of the sea, and driven to land by storms and winds so as to cover and render unprofitable much good ground lying on the sea coast ; for remedy whereof, it was enacted, that the commissioners for the county of Glamorgan, or six of them, whereof three to be of the quorum, might act and make laws for the regaining and delivering these lauds from the sea sands, as they were empowered to do by the statute of Hen. VIII. for the withstanding and avoid- ing the outrageous course or rage of tlie sea, or other waters. The next consideration which we propose, is the duty of com- D CS missioners of sewers in the destruction and abatement of annoy- tior noj (a) 10 Mod. 159, The Queen v. the Inhabitants of Westham in Essex; and see Callis, 270. 416 Duties and Powers of Commissioners Annoyances. [CHAP. n. ances. The impediments to navigation, and to the due mainte- nance of sewage, have heen mentioned above, such as mills, wears, flood-gates, &c. ; and it has been shown, under the question of survey already discussed, that annoyances of these descriptions are specially entrusted to the authority of commissioners. With respect to mills, wears, stanks, &c., the reader will remember that the subject has been discussed in a prior part of this work at some length, (a) and it will therefore be unnecessary to add much more in this place upon the subject. The construction of the statutes concerning the abolition of these annoyances has been, that wears, mills, and other such impediments, which exist without lawful warrant or authority, are within the reach of commissioners, who may abate them at their discretion. And the meaning of these words, " lawful warrant and authority," is held to mean custom or prescription. * So that a mill or wear which has attained to an immemorial existence, cannot be interfered with, (b) And further, if these immemorial wears, &c. should have been enhanced so as to exceed their ancient size and compass, the com- missioners are empowered to abate and pull down the excess only, (c) And it is again observable, that the destruction of these matters is left principally to the discretion of the officers of sewers, for such mills, &c. only as are hurtful ought to be abolished ; for as Callis declares, " in some great havens and ports, great abundance of . " piles and timber posts are set in the waters to stay the rage, " force, and violence of the waters, for the safeguard of the port " and haven." (d) Clearly, therefore, if a stranger presume to meddle with these matters within the limits of a commission of sewers, or if he pitch down piles, or places stakes in any rivers or streams, he may be punished by fine or amerciament, and be compelled to remove the nuisance at his own expense, (e) , Some few cases concerning the removal of the impediments above alluded to shall be added here in their order. In an old case, it was presented in the King's Bench, that one W. had ob- (o) In Ch. IX. of Obstructions. See Callis upon this subject, 255 270. 10 Rep. 138. 13 Ilep.~36. The case of Sewers, 7 Com. Dig. 342. * The statute mentions the time of Edward I. Mills, &c. erected before that time are exempt from the jurisdiction of commissioners, unless they be afterwards enlarged so as to become nuisances. 10 Rep. 138. 7 Com. Dig. 342. (b) See Callis, pp. 256, &c. (<} 10 Rep. 138 (b). (rf) Call is, 266. (e) Id. 267. ui \p. ii.] Duties and Powers of Commissioners Annoyance*. structed the course of the water of S., by suffering trees to grow upon the bank to the hindrance of navigation ; and the court did not incline that he should be fined, because the growing of the trees was not his act ; yet they agreed, that if the nuisances were not removed, some remedy should be applied. () Upon another occasion, where a presentment had been found before commissioners, that certain persons had turned the course of the river Lea, having obstructed it with piles and stakes to the hindrance of the craft which were accustomed to pass along there, it was decreed, that those who were presented by name, and had done part of the nuisance, should reform the same ; and as to the other part of the nuisance, the sheriff was directed to refonn it, the names of the other parties not having been discovered ; the sheriff to take the proprietors of the adjoining grounds to his assistance for that purpose, (b) Mr. Sergeant Callis reports the following case, which occurred in 19 Jac. 1. Queen Mary was seised of the manor of Monmouth, and of a free fishing in the Wye, and of a wear and fish-yard there. The wear appeared clearly to have existed from time im- memorial, and it came after various leases and assignments to the plaintiff. In the year above mentioned, however, the commis- sioners of sewers caused a jury to be empannelled concerning this wear and fish-yard ; and they found, that the plaintiff was possessed of the wear in question, that it was very high and hurtful, and a considerable impediment to navigation ; and that but for the wear, boats of two or three tons could pass over the river ; that the weal" was otherwise mischievous, and a great annoyance to the whole country. The commissioners decreed the abolition of the alleged nuisance in consequence of this verdict, and the destruction was effected accordingly. But the plaintiff brought the case into the duchy court at Westminster, and the court, consisting of several judges, * were-of opinion, that being an ancient wear it ought not to have been so overthrown by the decree of the commissioners ; and that although it had been presented by the jury that the wear was high and enhanced, yet because it had not been stated how great the increase had been, nor in what particular place it had occurred, that therefore the verdict was of no validity, (c) The next case was where one Hide moved to quash an indict- ment taken before commissioners of sewers, for a nuisance to the high road, by penning back water in the river at his mill, so that the banks were overflowed, and thus the way was damaged. And OT&DT ,'r, JCaaOMP. (a) 42 Ass. pi. 14, B; and see Callis, pp. 268, 269. (b) 19 Ass. pi. 6, and see Callis, p. 269. * Sir Humphry May, Chancellor ; Baron Denham, Chamber lain, J. Sac. (c) Callis, 262, Hall v. Mason and others. E E 418 Duties and Powers of Commissioners Annoyances, [CHAP. n. it was objected, that the indictment had not laid the stream to have been a navigable river; but Roll, C. J., overruled that diffi- culty, mentioning another, however, which he deemed unanswer- able, namely, that commissioners of sewers had no authority to meddle with nuisances in the way, but only with passages by water. And the indictment was quashed. () Then, in the next reign, an order was made by commissioners of sewers upon a miller, that he should repair his flood-gates, and make them of less size than before ; and amongst other objections taken to these orders, it was said, that the commissioners could not do this, because the mill ought to be presumed to have been an ancient mill. But the court said, they would not intend this to be a mill erected before the time of Ed. I. ; and then, in the absence of any evidence of its being an immemorial mill, the commis- sioners might certainly require the alterations which had been re- sisted. But the order was held void, notwithstanding, upon another ground. (b) Further, it is observable, that commissioners are bound to abate these nuisances, and not merely to qualify them.(' Next, with respect to annoyances, impediments, or nuisances Privt upon the grounds of private persons, it may be remarked, that al- nuisa though commissioners of sewers cannot confer any benefit upon (a) 6 B. & C. 181, The King against the Bristol Dock Company. (6) Id. 193. E B 2 418 \Powers of Commissioners Annoyances. [CHAP. H. the sake of individual convenience, yet they may abate mischiefs which are occasioning damage to the \5o that if there be an ancient bridge over a great or ver which a certain person and his ancestors have _,onied to pass towards the church, or the pasture lands, ^x ine common, the commissioners may destroy even this bridge if it be injurious to the public ; and, on the other hand, they may maintain it against the violence of the waters, if necessary, (a) Nevertheless, the learned Callis is of opinion, that great caution should be adopted in abolishing bridges which have acquired an immemorial antiquity, since " time hath given great approbation of them ;" ( b) and in a subsequent part of his work, he clearly inti- mates that no mills, bridges, &c. should be overthrown, unless they really be lets or impediments to navigation, (c) Again, the learned sergeant observes with respect to private walls, that in the county of Lincoln and other places in the realm, many private persons have, for inning and for the safety of their marshes and marsh grounds, cast great banks for their private uses ; and that although such banks were not within the protection of the laws of sewers so as to be maintained by virtue thereof, yet that they might be extirpated if it should appear that their con- tinuance were a hindrance to the common good of the county, (d) (a) Callis p. 89 . (6) Ibid, (c) Id. 266. (rf)Id.76. , '^Tstai r Jon CHAPTER III. Of the Proceedings of Commissioners of Sewers, in furtherance of the Powers intrusted to them. IN the last chapter we took occasion to set out the particular au- thorities and powers which the statutes of sewers conceded to the commissioners for the purpose of carrying into effect the matters so intrusted to their charge ; we now proceed to mention the various courses or proceedings which they may institute, in order to insure the sufficient and effectual accomplishment of their duties. Thus the mode of summoning juries for the purpose of inquiring into neglects and defaults on the part of persons bound to keep defences in repair the decrees and orders made hy commission- ers from time to time, directing the making of such necessary re- pairs, together with the general ability of those officers to ordain such laws at their disci'etion, as they may deem useful the assess- ments imposed, as well as the manner of enforcing them, will be treated of in the progress of the present chapter. But since par- ties who have been assessed to the charges of sewers, do not infre- quently omit or refuse to pay their contributions, commissioners are amply empowered to inflict various punishments and penalties upon such persons for their misconduct, and these measures of punishment, whether by fine, distress, imprisonment, or the sale of the defaulter's lands, will be respectively presented to the atten- tion of the reader. It will be, however, desirable, that we should not omit to state the nature of the court which commissioners of sewers are autho- rized to hold, in order to render effectual the intentions of the statutes ; and, in pursuance of this, the particular jurisdiction of these commissioners, and the power which they are enabled to exercise over officers appointed by them, with other incidental matters, will be noticed in the first instance. Notwith standing some ancient opinions to the contrary, (a) it is now agreed, that the proceedings of commissioners of sewers are not merely ministerial, but judicial, and, consequently, that they have sewe (a) SceCallis, 163, &c. court recor 422 Proceedings of Commissioners. [CHAP. in. Six com- missioners a court. IsvomoH .lIBOiftO \'< Appoint- ment of , their offi- cers. have a court ; and, further, as they are empowered to hold pleas concerning the matters intrusted to them, their court is one of record, and au eminent court of record, as Mr. Sergeant Callis expresses it. (a) And so Lord Coke, when writing of courts, enumerates among them, " The Court of the Commissioners of "Sewers." (b) Callis gives the following reasons for holding the opinions just mentioned. First, that these commissioners are frequently called justices; (c) secondly, that legal proceedings and processes take place by their authority ; thirdly, because the commission of sewers is a member of the ancient and renowned court of Oyer and Terminer ; fourthly, because commissioners have a clerk proper to themselves for the registration of their laws ; fifthly, be- cause they may make orders, and decrees, some of which cannot be reversed but by act of parliament, and these orders and decrees are, in effect, judgments; and, lastly, because writs of error* have been brought to reverse judgments in the court of sewers, (d) And the learned writer adds, that the circumstance of the court not being holden in any particular place makes no difference, (e) In order to form a court competent to sit by virtue of a com- mission of sewers, there must, at least, be six commissioners pre- sent ; (f) and it becomes now our duty to inquire what proceed- ings these justices are warranted in adopting, in order to fulfil pro- perly the duties committed to their charge. And, first, the appointment of fit persons to act as their officers is a matter of considerable moment, f The officers mentioned in the commission under the statute of Hen. VIII, are keepers, bailiffs, surveyors,! collectors, expenditors, and other officers; and in a subsequent section, (g] a remuneration of 2s. per day is prescribed for one clerk, to be assigned by them. And a further recompense (a) p. 164, 7 Com. Dig. 343. (6) 4 lost. 275. See to tbe same effect, Mar. 201, by Brampston, C. J. 8 Taunt. 631, by Burrough, J. (e) 12 Ed. 4. c. 7. 23 H. 8. c. 5. F. N. B. 113. (b.) Mar. 201. * But since the st. 23 H. 8, no writ of error can be brought, because the proceedings are in English instead of Latin, as before. Nevertheless, the party aggrieved may discharge himself by plea, as in all cases where there is neither a writ of error, nor znauditd querela ; and, moreover, a certiorari lies to remove all the proceedings into the K. B. By Brampston, C. J. Mar. 201. And there is not so great a strictness as in indictments. 1 Sid. 78. (d) Callis, p. 165, 166. (e) Id. 167. (/) 4 Inst. 275. Sty. 178, Brungy v. Lee. f These officers are appointed at discretion, Callis, 113. J As to surveyors, see Callis, 106 ; and as to their presentment, see post. (g) s. 13. CHAP, in.] Proceedings of Commissioner!. is awarded to the clerk for writing of books and process,* and lso to the collectors, &c., according to the discretion of the commis- sioners. The refusal to take an office of sewers, upon a due elec- tion by the commissioners, is punishable by fine, (a) These last-mentioned wages are said to be paid in consideration Offk of service done in the execution of the commission. And it seems, puni that an officer of sewers so appointed is fineable for neglect. As * >or " if a collector, or expenditor, or other officer, have been careless of av ' his duty, or commit falsities in his office, he may be fined, having been sworn duly to execute the same, whereas a neglect in an or- dinary person is not to be punished by fine ; (6) although, of course, every one becomes answerable for the consequences of his j Ar- ticular misconduct. But if one be rated towards repairs, and he neglect to pay at the appointed time, he is not fineable, but is to be amerced, (c) Again, if a collector or expenditor be required by the court to account for money received, and there be a refusal to do so, the party offending may be punished by fine, (rf) for the commissioners are intrusted with authority to hear and to examine the ac- counts, (e) and are also expressly required to check negligence and malversation in officers. So, if an officer take more than he ought upon a distress, the commissioners will compel him to return the overplus. (/) With regard to the removal of these officers, it seems, that it is Rere competent for commissioners to deprive them of their respective f situations, according to discretion. Yet the court of King's Bench will, perhaps, direct a trial, in order that the title to the office from whence the complainant may have been removed, may be investigated. Thus, where a party having been appointed clerk to a commission of sewers by surprise, as it was alleged, he was turned out by succeeding commissioners of sewers, and another person was placed in his room by order. Upon this the court of King's Bench were moved, and they granted a certiorari to re- move the order, iu order that they might see the title, adding, that * By 13 El. c. 9. s. 6, the clerk, or clerks, shall estreat all fines and arner- ciaments into the Exchequer, annually, under a penalty of 5. With regard to the writ of certiorari at the suit of the clerks, or other officers, concerning their removal, it is of common right, as we shall see hereafter. (a) Callis, 175. (6) Id. 174,175. (c) Id. 174. Amerciaments are more merciful penalties than fines, and they are imposed by the jury; whereas fines are assessed by the court. e of their commission, (c) Thus, if an assessment be laid upon any one, and the goods of B., a party not chargeable, be distrained, B. may have his action, or may prefer his complaint before the commis- sioners for the recovery of damages ; and this, says Sergeant Callis, (a) 9 B. & C. 35, Saunders and others v. Taylor. (b) 2 Keb. 180.220, Rex v. Prat. (c) 7 Com. Dig. 343. CallU, 217. 426 Proceedings of Commissioners. [CHAP. in. To make laws and decrees. because " it sprung by the colour of the general power of the " court, "(a) So, if a distress be levied upon one person in a township, he may have process in this court to make the other inhabitants con- tributory, (b) And if more than the due distress be taken from a man, we have seen that the officer may be compelled by the court to restore the surplus, (c) So, if the commissioners make an ordinance, by which certain trees belonging to B. are taken by their officers for the repair of defences, or if a tunnel be made by their order over the grounds of B., in these cases B. has a remedy in the court for the recovery; in the one instance, for a sufficient compensation ; and, in the other, for damages, (d) So, again, labourers, or carpenters, masons, &c. may recover their wages before the justices of sewers; and for the same reason, namely, that as the original cause sprang from the commission, it is there determinable as incident to the authority of the court, (e) These powers have been recently recognized by Mr. Justice Park, who has observed, that in order to save the expense of pro- ceedings at law, parties are enabled to sue in the court of the com- missioners, and before the commissioners, who may give imme- diate remedy, (f) But no such authority as the above is vested in the court con- cerning collateral matters. As if there be a river within the laws of sewers, and a tortuous act be done there by any one, fishing, for instance, here no action of trespass lies in the court of sewers, (g) Nor, again, has a party any remedy in this court, whose lands have been overflown by the neglect of an individual liable by prescrip- tion, or otherwise, to repair his bank. (K) These points of jurisdiction having been explained, it is necessary to observe, that in the prosecution of this undertaking, commission- ers are especially empowered by the statute of Hen. VIII. to make laws, ordinances, and decrees concerning the matters entrusted to them, and also to repeal laws according to their discretion ; and new- laws are to be ordained only for the making of new defences, or the telnsb tOi Callis, 218. 7 Com. Dig. 343. (6) Ibid. (c) Ante, p. 423. (/) Callis, 219. 7 Cora. Dig. 343. (e) Callis, 219. 7 Com. Dig. 344. (/) 8 Taunt. 629. (g) Callis, 218. (h) Ibid. 7 Com. Dig. 344. '.> dt of CHAP, in.] Proceedings of Commitsioners Jury. abolition of annoyances, and for the continuation of the ancient walls, &c. ; (a) whereupon Mr. Sergeant Callis observes, that great cau- tion is necessary before an order be made for the destruction of an old defence maintained by prescription or tenure, because the lia- bility to repair will shift considerably upon the erection of a new wall, the level generally, and not the particular individual, being in that case responsible. (6) Of the validity, and the continuance or duration of these laws, enough has formerly been said, (c) and also that commissioners are not bound to follow the laws of Romney Marsh ; and, moreover, that whatever decrees may be made, they must be according to law and justice ; and, therefore, we hasten on to other parts of our inquiry. The first act after survey, towards the accomplishment of neces- i . sary repairs, or the demolition of nuisances, seems to be the me summoning of a jury, in order that a due presentment of the matter in question may be made. The statute of Henry VIII. declares, that the sheriff shall cause to come before the commissioners, or six of them, a sufficient jury from his bailiwick, as well within the liberties as without, (d) And the matters to be inquired of by the jury are also declared by the statute to be the ownership of lands to be charged, the wants of reparation, and the mischiefs alleged to be common nuisances, together with the authors of the annoyances, and the names of defaulters in making needful repairs. They are also to be careful to inquire whether there be any imminent danger, and again concerning the owners of lands under obligation to repair, whether the charge has arisen by prescription, tenure, or other- wise. () And. lastly, their duty is to assess any amerciaments which it may be necessary to impose. (/) The presentments must be made upon oath, and upon the oaths TV also of twelve men ; for where a return was made generally, without mentioning the number of persons, the court held it invalid, for the presentment might have been made by two or three only, instead of twelve, (g) (a) Callis, 282, and their orders are to be in English, and not in Latin. 1 Sid. 78. (b) Id. 283. 288. (c) Ante, ch. 1 , and see Callis upon this subject, pp. 28] 288. (d) 23 H. 8. c. 5, s. 4. Commissioners may sit, and inquire by a jury on Sunday. Herne, Lect. p. 7, 8, for judicial acts propter necetsitatem are good on that day, and the sea is an enemy not to be repelled but by this court. (Callis, 167, note b.) And a commission of sewers need not be adjourned, Sty. 179, Custodes, &c. v. The Inhabitants of Outwell and others. (e) See Callis, 108 111. GO w , Callis, 109. (g) Mar. 198. See Madd. Firm. Burg. 84, discharge of fines for a defect in the presentment by a jury in Somersetshire. Proceedings of Commissioners Jury. [CHAP, in: Notwithstanding some opinions, which may seem to imply that juries should come from the districts where the breaches, or mis- chiefs exist, it is clearly held, at the present day, that the jury of sewers is to be summoned by the sheriff from the body of the county. Thus, where a presentment had been made by a standing jury returned by the sheriff from certain parishes or districts at the commencement of every new commission of sewers, and com- posed of land-owners who were interested in escaping the general charges of the land, it was held to be void. It appeared, more- over, in this case, that the foreman alone was summoned by the sheriff on each particular occasion, and that the foreman then con- vened the rest of the jury ; and again, that, after the jury so sum- moned had met, instead of presenting their inquiries before the commissioners, by hearing evidence on oath, they went out all about the country, and upon information thus carelessly picked up, they were afterwards to make their presentments. And the circum- stance of the presentment of this jury having been traversed, and the trial had before another jury properly summoned from the body of the county, was considered to make no difference. For the act requires, that the presentment should be made by a disinterested body returned by the sheriff, and not by a body altogether alien from the jurisdiction. That being so, the defect might be taken advantage of as well after verdict as before, and no consent of par- ties can give jurisdiction, where none is given by law. The whole proceeding was thus adjudged to be irregular, and the presentments and other proceedings complained of were accordingly quashed, (a) Upon a subsequent occasion, a presentment of jurors of the same county was objected to as invalid, for the want of a due summons by the sheriff, and it was intended, notwithstanding the former de- cision, to insist, first, that a decree founded by actual survey by the commissioners, and the presentment of the standing jury, was the judgment of a court of record, and that the defect of the summons could not then be inquired into. Secondly, that the jurymen had all been originally selected by the sheriff, summoned by him, and sworn upon the same jury, and that it appeared by the return, that in consequence of the sheriff's precept delivered to the foreman, they were by him summoned to appear before the commissioners of the court of sewers, by which the decree was made. But the court adverted to a preliminary point concerning the duration of the commission, and which has already been mentioned in the first chapter, and the difficulty upon the point having proved too serious to be overcome, it did not become necessary to enter into the va- lidity of the summons. The return to the mandamus, therefore, which had been issued against new commissioners, in order to com- pel them to execute a decree of their predecessors, was, therefore, held good. It had been the intention of the new commissioners to fiM.*.ooJ>- (a) 7 East. 71, The King against the Commissioners of Sewers for the County of Somerset ; 3 Smith, 105, S. C. CHAP. Hi.] Proceedings of Commissioners have resisted the old decree, on the ground of the invalidity of the summons of the presenting jury, (a) Upon a late trial also, this doctrine, that the jury should be duly summoned by the sheriff from the body of the county, was fully sustained. The defendant justified in trespass under the commissioners for the Tower Hamlets. In order to satisfy the requisition of the statute of Henry VIII. concerning the presentment, namely, that it should be made pre- viously to an assessment, the defendant tendered the precept of commissioners to the sheriff of Middlesex, for the purpose of sum- moning a jury, and it appeared thereby, that the sheriff had been directed to summon a jury " resident within the Tower Hamlets." It was upon this objected, that the summons ought to have been from the body of the county, and, consequently, that the rate was bad. It was answered, that the statute contained the words " place or places," as well as " shire or shires," and that the commissioners were authorized to procure a summons of the jury from the imme- diate district for which they were to act ; the statute, moreover, add- ing the expression, " where such defaults or annoyances be." But by Lord Tenterden, " The words ' place, or places/ in the acts are " analogous, according to the common construction of acts of par- " liament, to the words ' shire, or shires,' which immediately pre- " cede them." The learned chief justice added, that he felt strongly, as then advised, that the jury should come de corpore comitatus, that the commissioners had no power to limit the district whence the sheriff should return the jury ; that he might return whom he pleased, but ought not to be confined in his discretion. The plain- tiff accordingly had a verdict, the precept being illegal, and the rate, together with the consequent proceedings, bad. ( 6) The ob- jection taken in a case, reported by Style, fails after these deci- sions. It was there urged, that certain presentments, upon which an order for an assessment was grounded, were void, because they were made by three juries of several hundreds, whereas the level to be repaired did not appear to have been within any of the hundreds from whence the juries came, so that they bad no authority to in- quire ; and the court held, that the commissioners had exceeded their powers in making the tax ; " therefore," said the chief justice (Rolle) " let there be a new law made by consent, and quash the " presentments." (c) This case in Style was cited in the first case above quoted from East, in support of the limited summons ; but Lord Ellenborough, without overturning it, said, that in the case (a) 9 East. 109, The King against the Commissioners of Sewers for the County of Somerset. (6) Moo. &Malk. 119, Birkett v. Crozier, S.C. 3 C. &P. 63. (c) Sty. 184. 191 ; Custodes Libertat. &c. v. The Inhabitants of Out- well. 430 Proceedings of Commissioners Jury. [CHAP. HI. Surveyor's present- ment. Present- ments what tra- versable. referred to from Styles, " there was no question but that the jury " were to be returned by the sheriff." (a) A point of considerable importance concerning these juries is next presented to us, namely, that the liability to serve as jurymen at the sessions of sewers, cannot be discharged without an express provision for that purpose. Thus, where lands, which had been previously subject to the general jurisdiction of commissioners of sewers, were placed by a local act in the hands of particular com- missioners, for the purposes of drainage, sewage, &c., it was con- tended on behalf of the inhabitants of that particular district, that the local statute had discharged them from their previous obligation to serve at the sessions of sewers. But the court of Exchequer not only held, that the liability of these inhabitants continued, there being no express provision to exempt them, but refused also to dis- charge the estreats of fines imposed at the sessions, and levied on the inhabitants for then- refusal to attend when summoned, (b) Jurors are fineable by the commissioners in cases of misconduct : as if there be a refusal by one or more to make a presentment when required by the commissioners, or if a juryman depart after having been sworn, or before he be sworn, if his appearance be recorded, (c) It may just be added here, that a surveyor appointed under the laws of sewers may upon some occasions make a presentment. This is called by Mr. Sergeant Callis a supplemental presentment ; for the surveyor cannot make an original presentment ; but if any one neglect to repair, in conformity to the order of commissioners, after the first presentment by jury, the surveyor may, after survey, present the non-repair. (aid to be fineable on presentment, that re De done forcibly, or be presented by Thus, the abbot of Mellefont was the royal river Boyne, this being a pur- been very anciently determined, that a 's stream was equally a purpresture with "* highway, for a navigable river is a high- tners set a tine upon one for not obeying u-tained no doubt but that such an act of in this manner, (c) But here a distinction very worthy of consideration may be re- marked ; for the rule adopted is this : that a party cannot be lined, but merely amerced by a jury for neglects or omissions, although, if he disobey an expressdecree, or commit some forcible ^nd out- jjageous act, or^Tne~^e^especially presented as the author of a nuisanceTHe" certainly incurs the punishment of fine. Thus, it is said, that if one be rated towards repairs, and he neglect payment at the appointed time, he shall be fined, for this is but a bare omis- sion. (d) So, if the offence be not found, but omitted, an amerciament is only due ; ( () Ibid. CHAP, in.] Proceedings of Commissioners Punishments. 433 Lastly, it is laid down, that the fines must be assessed, abated, or increased, in full court, arid not elsewhere, (a) Something has already been said concerning amerciaments : they Amercia- are assessed by the jury of sewers for neglect, as of payment of menu, rates, &c. and are considered a more merciful punishment than the penalty of fine. (6) Thus, if one permit a wall, bank, or other defence belonging to sewers, to fall into decay, contrary to his obli- gation under which he may be bound to maintain the same in respect of frontage, tenure, custom, prescription, or covenant, he may be amerced for his omission, (c) So, again, if a person be presented for casting dirt, &c. into rivers, or for pulling down walls, unless the offence be presented as having been done forcibly, or expressly as a purpresture, by that word, he shall only be amerced, (d) And thus it is also, if sand beds be suffered to choke up a stream which an individual is bound to cleanse for the passage of boats, or for the draining of the waters, here, again, the party in question is liable to an amerciament, and not to a fine, (e) But violent irruptions of the sea, or sudden inundations will not, of course, subject a party to any forfeiture of this sort, where the defences have been kept and maintained in reasonable strength, because no policy, nor power, can resist such visita- tions, (f) And in support of this position, Callis cites the case from the year book (g) above referred to, (h) where a party was held not to be amerciable, because he had suffered trees to grow into the water, whereby the stream was impeded, for the natural growth of the trees created the nuisance, and not the individual. The sheriff, however, was ordered to abate the nuisance. * Lastly, it is said, that these amerciaments may be made, not only by a jury, but also by the presentments of surveyors of sewers, (i) which, as we have seen, are not traversable. So that if a man be directed to put down a nuisance, and he disobey the order, he may be fined by the court, or amerced upon the pre- sentment of the surveyor, that the work has not been done. (a) Callis, 176. (6) Id. 177. (c) Id. 178. (d) Ibid. (e) Ibid. (/) Ibid. (g) 42Ass.pl. 14. (A) Ante, Ch. II. * Probably the person presented was the owner of the adjoining land. But it did not appear that he lay under any particular obligation to repair ; for had that been so, it is difficult to conceive how he could have been re- lieved or excused from his responsibility, inasmuch as it would have been his duty to have removed the trees. () Callis, p. 179. 434 Proceed inys of Commissioners Punishments. [CHAP. ill. navigable rivers, or by diverting ancient, channels from their due courses, the offenders are said to be fineable on presentment, that is to say, if the purpresture be done forcibly, or be presented by the name of purpresture. (a) Thus, the abbot of Mellefont wa.s fined for erecting a wear in the royal river Boyne, this being a pur- presture. ( 6) And it had been very anciently determined, that a nuisance done in the king's stream was equally a purpresture with those committed in the highway, for a navigable river is a high- way. So, when commissioners set a fine upon one for not obeying their orders, the court entertained no doubt but that such an act of obstinacy was punishable in this manner. ( oifJ tenis^f (a) Callis, 113. (b) Id. 176. (c) Ibid. (d) 1 Sid. 145, Inhabitants de Oidbery v. Stafford. 437 438 Proceedings of Commissioners Punishments. [CHAP. in. Lord C. J. Coke greatly reprehended the conduct of the commis- sioners upon that occasion ; for the imprisonment, until W. H. should release a judgment, was an illegal act, and the rule for an attachment was made absolute. Upon the return of this rule, the commissioners being unable to make any satisfactory defence, were severely reprimanded, the whole court agreeing, that they had done a grievous wrong, in the first instance, by amercing a whole town as they had done, and directing that the whole assessment should be levied upon one man. (a) But, nevertheless, supposing that some orders of commissioners were pending in the court for the purpose of being confirmed or quashed, and they be compelled, in the mean time, to make a new order, here, if the refusal to obey this last mandate be a fit matter for imprisonment, the justices of sewers have full authority to com- mit, for the commission itself is not removed into the court of King's Bench, (b) Distress. : However, although commissioners are not authorized to levy a fine by distress, they are expressly empowered by the legislature to obtain payment of these assessments by that course of proceed- ing. Indeed, the word, " distress," stands at the head of the pre- scribed punishments in the statute of Hen. VIII. And by 3 & 4 Ed. . c. 8. s. 2, a distress may be made upon any of the king's lands in like manner as upon the property of other persons. And by the same section, it is provided, that all bills of acquittance, signed by the collector or receiver of sewer-rates, shall be as well a sufficient discharge to the tenants, fanners, and occupiers of the same grounds, as also a sufficient warrant to all the receivers, au- ditors, or other officers of the king, for the allowance to such te- nant, &c. in respect of the same. Lastly, the st. 7 Ann. c. 16, which was passed for the purpose of including copyhold lands within the powers of commissioners, so that they might decree such lands from their owners in cases of default, (c) gives a general power of distress, which, of course, em- braces copyhold property. By s. 3, it is enacted and declared, that the commissioners, or any six of them, may, by warrant under their hands and seals, give authority to any person, to levy assessments upon the lands, mea- dows, marishes, * or grounds liable or chargeable, by distress and sale, the overplus of the money arising from such sale, to be re- turned to the owner of the goods distrained, after deducting rea- sonable charges. a) 2 Eulst. 197,Hetly v. Sir John Boyer and others. S. C. Cro. Jac. 336. See Sty. 445, The Protector v. Bruster. See post on this subject. Marshes. \"' (*) (c) c H vi*. ui.J Proceedings of Commissioners Punishments. 43' Calli.s divides the distresses made by virtue of a commission of sewers into three sorts: 1st, such as are judicial; Jndly, mini-- terial ; and 3rdly, of common right ; which latter are levied by a lord whose tenant holds land by the tenure of repairing a bank, wall, or other work of sewers, (a) The judicial distress is for the purpose of removing a nuisance, or upon the presentment of a decayed wall or bank, in which case a warrant goes to the sheriff to distrain A. B. to the repair, or is awarded in like manner for the destruction of the nui- sance. (l>) Nevertheless, there is a loose note in Keble, where it is said, that the court denied a distringas prayed for in order to compel the repair of certain sea walls in Essex, there being no such judicial writ, but only in the statute Westm. 2, * and only in the chancery ;(c) but it will be observed, that no present- ment appears to have been made in this case. The usual course now is, to avoid these difficulties by directing the repair wanted, and assessing the offender upon a presentment by jury, and then the distress becomes merely ministerial, being executed by the offi- cer in the ordinary way. And this mode of distress for assessments or for arrearages has always been acquiesced in. (d) For the purpose of abating a nui- sance, a presentment is made by the jury, and the court may then direct a writ of distress to the sheriff, in order to put down the thing complained of. It was, doubtless, customary, before the statute of Anne, for the Warrant, officer to procure a warrant from the commissioners to distrain, and that act expressly declares, that the warrant for that purpose shall be under the hands and seals of the commissioners ; never- theless Mr. Sergeant Callis was of opinion, that the collector might take goods without any such express warrant, because he says, that the statute and commission, which are the general laws, give of themselves the power of distress, (e) And, therefore, taking the statute to be declaratory, a distress without a wan-ant might not, however unadvisably made, be altogether adjudged void. However this be, some notice of the tax demanded must be given to the party, before a distress can be made, and a demand of the sum due must take place. For want of showing such a notice, a plea in trover justifying the taking of cattle under commissioners of sewers, was holden bad. (f) -01 . -691 . (a) Callis, 180, 181. (b) Id. 180. * c. 36. (c) 2 Keb. 255. Anon, (rf) See 5 Rep. 100. (e) Callis 180. 7 Com. Dig. 347. (/) Sty. 13, Whitley, v. Fawsett. 440 Proceedings of Commissioners Punishments. [CHAP. ill. And, further, the warrant should mention the name of the party refusing to pay, so that where for want of such proof it was urged, that the warrant was upon the face of it illegal, the judge adtlo a,, - beld the objection valid. * () Where. In adverting for a moment to the place where a distress may be made by commissioners of sewers, we may bear in mind the deci- sions on this subject above mentioned, and observe, that in case of a distress by the lord upon a person bound to repair by reason of tenure, it must be made upon the land so held by tenure, and not elsewhere, (b) So, secondly, if there be a judicial process of dis- tress for the purpose of compelling repair, or abolishing nui- sances, this must take place within the limits of the commis- / sion. (c) And, thirdly, a distress for a rate or tax imposed by jj commissioners, may be taken any where within the realm, (d) l\ In support of the first point, we have a case, where an abbot and his predecessors were charged with the repair of a gutter by reason of their tenure. The presentment, however, failed to show where the lands lay which were charged, and for that cause it was deemed to be void, (e) Here Callis observes, that if the charge be upon land, by virtue of a prescription or custom, the obligation upon the tenant cannot be enforced in any other manner than by presentment. (/) Whose With respect to the property in the goods taken, the following goods, distinction has been adopted, namely, that if the charge be on the lands, as in case of arrearages, taxes, &c. the goods of a stranger may be the subject of the distress, as well as those of the party charged ; but if the person only be charged, as in the case of an amerciament, the goods of the party amerced, and none other, can be touched. (^) However, according to an opinion expressed by Brampston, C. J., in Thorne and Tyler's case, (h) namely, that the goods of an under-tenant may be distrained for an amer- ciament imposed upon the customary tenant, it should seem, that in the case of an amerciament by virtue of a law of sewers, the * This was a case of replevin, in which the defendants had avowed under a warrant from the commissioners of sewers. It was urged, that the de- fendants ought to produce the inquisition which must have been taken by the commissioners before their warrant could be made out, but the learned judge would not allow of this objection. (a) 2 Barnard K. B. 321, Farr v. Crisp and others. (6) Callis, 182. 184. (c) Id. 183. 185. 7 Com. Dig. 348. () See Callis, 188. 192. ' (c) Callis p. 192. (d) Id. 193, note (a) Ed. 1685. (<) Id. 192, citing Dy. 199. (/) 7 Com. Dig. 348. (g) Callis 193, note (a) to Ed. 1685. (ft) Sty. 12. 4-12 Proceedings of Commissioners Punishments. [CHAP. m. Nevertheless, a case subsequently occurred, in which the matter appears to have heen decided differently. It was an action of trover, and the evidence upon a plea of not guilty, was, that the goods were taken and sold by virtue of a commission of sewers. Roll, J. said, that the commissioners might sell the distress, and that he, in common with Bacon, J. had douhted of that in Whit- ley and Fawsett's case, and the issue was accordingly found for the defendant. Now, as the doubt in the case from Style was only concerning the beasts of a stranger, it results, that the court on the last case had given their sanction to a sale of such property, and it is therefore impossible to consider the law upon this point of distress as consistent, unless indeed we call in the distinction above adverted to regarding the assignee or lessee to our aid, of which however there is no proof in the report of Combs v. Cheny. (a) Warrant. Lastly, it is observable, that the statute of Anne speaks of a warrant for the distress and sale, and however possible it might be, that a distress without warrant might not be considered void, it ap- pears certain, that a sale without such a sanction would be entirely invalid. The bailiff, therefore, not being competent, ex officio, to effect such a sale, must have recourse to the commissioners, who, if they see fit, will issue a special warrant for that purpose, (b) Replevin. A few words on the subject of replevying these distresses will close that part of our subject ; and since the doubts expressed by Lord Kenyon, concerning the authority of Callis, touching the replevin for sewer-rates, it may not be too much to suggest, that if the question be raised, the decision may possibly be, that a replevin lies in all cases of distress made under the authority of commis- sioners of sewers, (c) Mr. Sergeant Callis thought, that neither a sheriff, nor his de- puty, could award warrants of replevin ex officio upon these occa- sions, because the distress was under the protection of a superior court, of a higher degree than a sheriff's ministerial warrant, (d] But he agrees, that a replevin lies out of the king's courts at West- minster to deliver a distress so taken, because those courts are of a higher nature than courts of sewers ; (e) and, in either case, if the dis- tress be taken, and sold, the learned writer allows of a replevin, for, by the sale, the goods no longer remain under the protection of the (a) Al. 92, Combs v Cheny. By custom, however, such a sale may take plnce. (6) Callis, 192. If there be a summons, the warrant will be good, although it do not recite the presentment. 3 C. & P. 71, Warren v. Dix. (c) But see Willes, 672, note (b) by Mr. Durnford. (rf) Callis, 199. (e) Ibid. ; CHAP, in.] Proceedings of Commissioners Punishments. law of sewers, (a) And so, again, supposing tbat such a tax were imposed upon A. and the goods of B. were taken in the house of A. for this tax, " B." says Callis, " may sue out a replevin from S' the sheriff, inasmuch as his goods are expressly hound hy the " laws of sewers." (6) And so, again, for the like reason, a distress made hy a lord upon his tenant for non-repair, to which he may be bound ration?, tenure, is replevisable. (c) So, if one grant a rent out of his land, with a clause of distress, together with a grant or covenant that the grantee may distrain and detain the distress till he shall be satisfied his rent, yet a replevin lies also in that case, (d) But if there be a judgment in the king's court, or upon a decree made in the court of sewers, and a writ, or warrant of distrinyas ad re pa ran d urn be awarded, and the goods of the defaulter be taken, here the goods, says the learned sergeant, cannot be delivered by replevin, either out of this court, or any other court of the king, because it is an execution out of a judgment, (e) It was more particularly concerning this latter proposition, that Lord Kenyon expressed his doubts in a case, where the authority of Callis was strongly pressed upon the court in opposition to a replevin. A rule had been obtained, calling upon the plaintiff to show cause why the plaint, removed by accedas ad curium from the hundred court of Thornbury, in Gloucestershire, should not be quashed. It appeared that a wan-ant had been issued by the com- missioners at a court of sessions of sewers, held for the lower level of Gloucestershire, to demand a certain sum from A., or her tenant, (the plaintiff,) for expenses incurred in the repairs of a sea-wall, neglect having been made to do the same in pursuance of a pre- sentment. The warrant further directed, that, in case of refusal, or omission to pay, these expenses were to be levied by distress and sale. Both A. and the plaintiff' refused to pay, and the defen- dant in consequence distrained a mare belonging to the plaintiff. The mare was then replevied by the steward of the hundred court of Thornbury, and the plaint was afterwards removed into the court of King's Bench. The court of King's Bench were strongly in- clined to discharge this rule ; but the opinion of Callis being urged, the court took time to advise ; and, on a subsequent day, the counsel against the rule having observed that no judgment ap- peared to have been given according to the affidavits, but merely a presentment without any trial, the court said, that this at all events was a reason why they ought not to interfere in a summary way by quashing the "proceedings. The defendant might put his ob- ealed by the statute of sewers in this respect. ( . 465 LAW OF WATERS. I. Declaration in Debt, For an Instalment of a Subscription to- wards making a Canal under a private Act of Parliament. 3 Chit. Pleadings, p. 206. FOR that whereas, before the making of the call of money hereinafter next mentioned, and also before the making of a certain act of parliament made and passed in the forty-ninth year, &c. intituled, &c. [here set out the title of the act], to wit, on, etc. at, &c. the said C. D. in and by a certain instrument in writing, then and there signed by him, subscribed and undertook to advance and lend a certain sum, to wit, &c. to make, and with other sums of money to be subscribed by divers other persons the sum of, &c., of law- ful, &c. to be applied in addition to the sum of, &c. granted by parliament in the improvement, &c. on the credit of the funds, to be vested in the commissioners by an act of parliament to be obtained for, &c. [here state the purposes of the act,] the said money to be advanced at instalments of twenty-five per cent, at not less than six months distanceMrom each other, and the first call not to be sooner than six months from the then present time ; and whereas the said C. D. having so subscribed as aforesaid, after- wards, and after the passing of the said statute so made and passed in the year, &c. to wit, on, &c. at, &c. certain persons, to wit, &c. then and there respectively being commissioners for putting in execution the powers and authorities of the said first-mentioned act, given and granted, did, by virtue of the powers and directions of the said act, duly make a certain call for the payment of all instalments, viz. one instalment of twenty per cent, upon the sum of, &c. so subscribed by the said C. D. as aforesaid, and the other sums of money subscribed for the purposes in the said act mentioned, and did then and there duly require the said C. D. to pay the sum of, &c. (the same being the first instalment of and upon the said sum of, &c. so by him sub- scribed as aforesaid,) on or before the day of, &c. to the said A. B. who at the time of the making of such call was, and from thence hitherto hath been, and still is, the treasurer to the said commissioners, whereof the said C. D. then and there had notice ; and he, by reason of the premises, became and was liable to pay to the said A. B. as such treasurer as afore- said, the said sum of, &c. being twenty per cent, on the said sum by him subscribed as aforesaid, whereby, &c. actio accrevit. And whereas also, the said C. D. before the passing of the said first- Second mentioned act, and more than six months before the making of the call of count, money hereinafter next mentioned, at, &c. had subscribed to advance a certain other sum, to wit, &c. for the purposes aforesaid, and in 1 manner H H 466 Precedents and Forms. aforesaid, and thereupon, after the passing of the said first-mentioned act, to wit, on, &c. at &c. the said, &c. then and there respectively being com- missioners for putting into execution the powers and authorities by that act given and granted, did, by virtue of the said act, duly make a certain call for the payment of an instalment, that is to say, an instalment of twenty per cent, on the sum of, &c. so subscribed by the said C. D. as aforesaid, and did then and there duly require the said C. D. to pay the sum of, &c. on or before, &c. to the treasurer of the said commissioners ; and the said A. B. who at the time of the making of such last-mentioned call was, and from thence hitherto had been such treasurer, further saith, that no other instalments had been advanced, or call been made, in respect of the money so subscribed as last aforesaid, within six months next preceding the said day of, &c. of all which said premises the said C. D. afterwards, to wit, on, &c. at, &c. had notice, according to the directions of the said act, by reason whereof, &c. Third And whereas also, the said C. D. afterwards to wit, on, &c. at, &c. was count. indebted to the said A. B. who then, and at the several times in this count mentioned, was, ,and still is, such treasurer as aforesaid, in the further sum of, &c. for money due and payable from the said C. D. to the said A. B. as such treasurer as aforesaid, for a certain call or sum, to wit, &c. duly called for and required by five or more of the commissioners for putting in execu- tion the powers and authorities by the said first-mentioned act given and granted to be paid by the said C. D. to the said A. B. so being treasurer to the said commissioners at a certain time before then elapsed, upon and in respect of a certain sum, to wit, &c. which the said C. D. had before the passing of that act subscribed and agreed to advance, for the. purposes in such act mentioned ; whereby, and by reason, &c. actio accrevit. [Add a count on an account stated.] II. Declaration for Disturbing a Private Right of Fishery. First count -For that tne said C.D. on, &c. and on divers other days, and times, for fishing in between that day and the day of exhibiting this bill, with force and arms, plaintiff's & c . broke and entered the close of the said A. B. covered with water, wit*h water situate and being in the parish of , in the county of , and then and there fished in the said close for fish, and the fish, to wit, salmon, trout, pike, carp, tench, perch, roach, and eels, of the said A. B. of great value, to wit, of the value of , there then found and being, caught, and took, and carried away, the same, and converted and disposed thereof to his own use. And also for Second that the said C. D. on, &c. and on divers other days and times, between count for (jj at ,jay an( j t jj e day o f exhibiting this bill, with force and arms, &c. plaintiff's broke and entered the several fishery of the said A. B. [in a certain several river called ] situate and being in the parish of , in the county fishery. o f , and then and there fished in the said fishery for fish, and the fish, to wit, &c. of the said A.B. there then found and being of great value, to wit, of the value of < , caught, took, and carried away, and converted Third count and disposed thereof to his own use. And also for that the said C.D. on, for fishing in ^ c> an( j on di vers other days and times, between that day and the day of free fishery, exhibiting this bill, with force and arms, &.c. in the free fishery of the said A.B. in the parish aforesaid, in the county aforesaid, fished, and the fish, to wit, &c. there then found and being, of great value, to wit, of the value Fourth count ^ < ' cau S?kt, took, and carried away, and converted and disposed thereof for catching to his own use. And also for that the said C. D. on, &c. aforesaid, and on plaintiff's divers other days and times, between that day and the day of exhibiting fish gene- t y s ^j^ \rifo f orce an d arm s, &c. to wit, at, &c. aforesaid, caught, took, Precedents and Form$. and carried away other the fish, to wit, &c. of the said A.B, there then found and being, of great value, to wit, of the value of , and converted and disposed thereof to his own use, to wit, at, &c. aforesaid. III. Plea to the above. Liberum tenementum of defendant. Chit, on Pleadings, p. 609. And for a further plea in this behalf, as to the fishing in the said fishery in the said first count mentioned, and the said fish there found and being, catch- ing, seizing, taking, and carrying away, and converting and disposing thereof to his own use, the said C. D. by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said A. B. ought not to have or maintain his aforesaid action thereof against him, because he says that the place in which the said supposed several fishery now is, and at the said several times, when, &c. was a certain close or piece or parcel of land covered with water, and which said close or piece or parcel of land now is, and at the said several times, when, &c. was the close, soil, and freehold of the said C. D. ; wherefore the said C.D.at the said several times, when, &c. entered into the sai,d close, piece, or parcel of land, and fished there for fish, and the said fish in the said first count mentioned, there found and being, caught, seized, took, and carried away, and converted and disposed thereof to his own use, as it was lawful for him so to do for the cause aforesaid ; which are the said several supposed trespasses in the introductory part of this plea mentioned, and whereof the said A. B. hath above complained against him the said C. D. And this, &c. [conclude with a verification']. And for a further plea in this behalf, as to the said supposed trespasses in the introductory part of the said second plea mentioned, and therein justified, the said C. D. by like leave, &c. (actio rum, as in the last plea.) Because he says that the said fishery in the said first count mentioned, and in which, &c. now is, and at the said several times, when, &c. was the several fishery of the said C. D. ; wherefore he the said C. D. at the said several times, when, &c. being seasonable times of the year for that purpose, fished in the said fishery in the said first count mentioned, and the said fish in the said first count mentioned there found and being, caught, seized, took, and carried away, and converted and disposed thereof to his own use ; as it was lawful, &c.- [As in the last plea to the end.~\ [fcnirth plea, same introduction as the last.] Because he says that he the said C. D. before and at the said several times, when, &c. in the said first count mentioned, was and fctill is seised in his demesne as of fee, of and in divers, to wit, two thousand acres of land, with the appurtenances, situate, lying, and being in the parish aforesaid, and that he the said C. D. and all those whose estate be now hath, and at the said several times, when, &c. had, of and in the said land with the appurtenances, from time whereof the memory of man is not to the contrary, have had, and have been used and accustomed td have, and of right ought to have had, and the said C. D. still of right ought to have a free Jishery in the said fishery in the said first count mentioned, in which, &c. anil during all the time aforesaid fished, and have been used -and accustomed to fish, and of right ought to have fished, and still of right ought to fish in the same fishery for fish every year at all seasonable times of the year for fishing, at his and their free will and plea- sure, and to take and carry away the fish from time to time caught by them therein as belonging and appertaining to the said land with the appur- tenances. Wherefore he. the said C. D. at the said several times when, fcc. 468 Precedents and Forms. in the said first count mentioned, the same being seasonable times of the year for that purpose, fished in the said fishery in this plea mentioned, and in which, &c. And the said fish in the said first count mentioned, there found and being, took and carried away, and converted and disposed thereof to the use of him the said C. D. as he lawfully, &c. [Same conclusion as in the second plea, ante 467. The plea of common fishery is precisely similar to the last plea of free fishery, inserting the words " common of fishery," instead of the words "free fishery." [Same introduction as in the plea, ante, 467.] Because he says that the said supposed fishery, in which, &c. at the said several times, when, &c. was and still is and from time immemorial hath been part and parcel of the said river, called the ; &c. and that the said part thereof, in which, &c. now is and at the said several times, when, &c. was and from time whereof the memory of man is not to the contrary, hath been a public and common navigable river, in which the tides and waters of the sea during all the time aforesaid have flowed and re-flowed, and that in the said part of the same river called the, &c. in which, &c. every subject of this realm at the said several times, when, &c. of right had, and of right ought to have had, and still hath and of right ought to have the liberty and privilege of fishing. Wherefore the said C. D. being a subject of this realm, at the said several times, when, &c. entered into the said fishery, in which, &c. so being part of said navigable river as aforesaid, where the tides and waters of the sea flow, to fish in the said river there, at the said several times, when, &c. being seasonable times of the year for such fishing, and at those several times did fish there, as it was lawful, &c. [Conclude as in the plea, ante, 467] IV. Indictment for taking or destroying Fish in water adjoining to a dwelling-house. 1 Archbold's Peel's Acts, 2nd ed. p. 105. BERKSHIRE, to wit : The jurors for our lord the King upon their oath present, that A. B., late of the parish of , in the county aforesaid labourer, on the second day of July, in the eighth year of the reign of our sovereign lord George the Fourth, by the grace of God of the united king- dom of Great Britain and Ireland King, Defender of the Faith, with force and arms, at the parish aforesaid in the county aforesaid, in a certain close adjoining [or belonging] to the dwelling-house of C. D., there situate, in a certain pond [or stream] of water there being, whereof the said C. D. was then and there the owner [or " wherein the said C. D. then had a right of fishery"], ten fish called trout, of the price and value of ten pence, then and there being found, then and there in the said pond unlawfully and wil- fully did take [or destroy] : against the form of the statute in that case made and provided, and against the peace of our lord the King, his crown and dignity. v> Conviction for taking or destroying Fish elsewhere than as above. Archbold's Peel's Acts, 2nd ed. p. 106. BERKSHIRE, to wit : Be it remembered, that on day of , in the year of our of Lord , at in the county aforesaid, A. B. is convicted before me J. P. one of his Majesty's justices of the peace for the said county, for that he the said A. B., on the day , in Precedents and Forms. the year aforesaid, at the parish of , in the county aforesaid, in a cer- tain pond [or stream] of water there situate, the private property of ( . I ). [or wherein C. D. then had a private right of property] ten fish, called trout, of the value of ten pence, then and there being found, then and there in the said pond unlawfully and wilfully did take [" take or destroy, or attempt to take or destroy"] ; against the form of the statute in that case made and provided : I the said J. P. do therefore adjudge the said A. B., for his said offence, to forfeit and pay the sum of [five] pounds, over and above the value of the said fish so taken as aforesaid, and the further sum of [ten pence], being the value of the said fish, and also to pay the sum of shillings for cost ; and in default of, immediate payment of the said sums, to be im- prisoned in the [and there kept to hard labour] for the space of {see s. 67, post) calendar months, unless the same sums shall be sooner paid ; and I direct that the said sum of five pounds shall be paid to J. S. (see s. 66, post) of aforesaid, in which the said offence was com- mitted, to be by him applied according to the direction of the statute in that case made provided, and that the said sum of ten pence shall be paid [to the said C. D., or if he have been examined in proof of the offence, then thu* ; " also to the said J. S., the said C. D. having been examined in proof of the offence aforesaid"] ; and I order that the said sum of shillings for costs shall be paid to (the complainant). Given under my hand and seal, the day and vear first above mentioned. J.P. * If time be given for the payment of the penalty, $c. the form of the con- viction may be the same as the above, to the*] " for costs ; and I order that the said sums shall be paid by the said A. B. on or before the day of next : and I direct that the said sum of five pounds shall be paid to J. S., of, fyc." as in the above form, to the end. VI. Indictment for breaking down the Dam of a Fish-pond. 1 Archbold's Peel's Acts, 2nd ed. p. 229. BERKSHIRE, to wit : The jurors for our lord the King upon their oath present, that A. B., late of the parish of , in the county aforesaid, bourer, on the second day of July, in the eighth year of the reign of our sovereign lord George the Fourth, by the grace of God of the united king- dom of Great Britain and Ireland King, Defender of the Faith, with force situate, unlawfully and maliciously did break down and destroy, [" with intent thereby then and there to take and destroy the fish in the said pond then and there being" : or " and did thereby then and there cause the I and destruction of divers of the fish in the said pond then and there b< ing"] : against the form of the statute in that case made and provided, ai against the peace of our lord the King, his crown and dignity. VII. Indictment for putting Lime, %c. into a Fish-pond. 1 Archbold's Peel's Acts, 2nd ed. p. 230. BERKSHIRE, to wit . The jurors of our lord the King upon their oath pre- sent, that A. B., late of the pa* of , in the county afor 470 Precedents and Forms. labourer, on the second day of July, in the eighth year of the reign of our sovereign lord George the Fourth, by the grace of God of the united king- dom of Great Britain and Ireland king, Defender of the Faith, with force and arms, at the parish aforesaid in the county aforesaid, unlawfully and maliciously did put a large quantity, to wit, five bffshels of lime [" Lime or other noxious jimterial"] into a certain fish-pond [" any Jish-pond, or any water which shall be private property, or in which there shall be a private right of fish- ery'''] of one C. D., there situate, with intent thereby then and there to de- stroy the fish in the said pond then and there being : against the form of the statute in that case made and provided, and against the peace of our lord the King, his crown and dignity. VIII. Form of Conviction for taking Fish illegally in the Thames. Under 30 G. 2. c. 21. s. 12. To wit : Be it remembered, that on this day of in the year of his Majesty's reign, A. B. is convicted before me, one of his Ma- jesty's justices of the peace for the city or county of (as the case shall happen to be) for (here set forth the offence) and I do adjudge him to pay and forfeit for the same the sum of . Given under my hand and seal the day and year aforesaid. IX. Declaration for not doing the Accustomed Suit to a Mill. 8 Wentw, p. 523. Declaration CARDIGANSHIRE, to wit. Thomas Edwards and James Edwards by the pos- complain of David Jenkins and Catherine Jenkins, being, &c. ; for that ancient wa" 1 wner eas the said Thomas and James, on the 30th of May, 1787, and long ter corn mill before, were, and continually from that time hitherto have been, and still in the manor are laTvfully possessed of and in a certain ancient water corn-mill, witli the which "do l a PP urtenances . situate, standing, and being within the manor and lordship fendants f Hampeter Pont Stephen, in the said county of Cardigan ; and the said were bound, Thomas and James being so possessed of the said mill, with the appurte- conse- nances, by reason thereof, during all the time aforesaid, have had, and of roessuage * "g nt ought to have, for all the time aforesaid, toll of all corn, grain, and they possess- malt ground in the same mill : And whereas the said David and Catherine, ed within the on the same day and year aforesaid, and long before, were, and continually aetfhist de fr m thenceforth hitherto have been, and still are, possessed of and in a fendants, for certain messuage or dwelling-house, with the appurtenances, situate, stand- grinding ing, and being within the manor or lordship aforesaid, in which said mes- th l r S!, ist suage or dwelling-house the said defendants did for all the time aforesaid, usetfand^ inhabit and dwell, and still inhabit and dwell, and by reason thereof, for all spent within the time aforesaid, ought to have ground, and still of right ought to grind the manor at a t the aforesaid mill all their corn, grain, and malt, which after the grinding pe-r'JfoJ""'' 1 ' thereof had been or should be used and spent in their said messuage or plaintiffs lost dwelling-house, and to pay the said Thomas and James for the grinding the profit they thereof a reasonable toll ; nevertheless the said defendants, well knowing ought to have ^he premises, but designing and maliciously intending unjustly to injure grinding the- an( ^ damnify the said plaintiffs in this behalf, and to hinder and deprive grist. Seve them of the profit and advantages which ought to have accrued to them from raj courts, an( j fey reason of the grinding of the said corn, grain, and malt of the said natur" g of * defendants by them after the grinding thereof within the time aforesaid, defendant's used and spent in their said messuage or dwelling-house, to wit, on the 30th obligation to day of May, 1787, and on divers other days and times between that day the mill. and the day Q f ex jjibiti n g the bill of the said plaintiffs, at Lampeter Pont Precedents and Forms. 471 Stephen aforesaid, in the said county, did withdraw tl.^ir grist from the said mill of the said lliomas and James, and did grind and cause to be ground a large quantity of corn, grain, ,,nd malt, th :i t i- t, say, on* thomand quarter* of corn, one thousand quarters of grain, and one hundred quarters of malt by them, after grinding thereof, in their said messuage or dwelling-lion... within that time aforesaid used and spent, in and at another mill than the said mill of the said plaintiffs, to wit. at L. P. S. aforesaid, in the said county, by reason whereof the said plaintiffs have totally lost the profit Secon<1 and advantage which they ought to have got and obtained' from the grind- count, ing thereof at their said mill, to wit, at L. P. S. aforesaid in the said county : And whereas also, &c. [2d count same as first, only stating the Third coul "- custom to be to grind malt only, and therefore omitting the words in italic :] And whereas also the said Thomas and James, on the 30th of May, 1787, and long before were, and continually from thenceforth hitherto have been, and still are lawfully possessed of and in a certain other ancient water corn- mill, with the appurtenances, situate, lying, and being within the said manor or lordship of Lampeter Pont Stephen aforesaid, in the said county ; and the said plaintiffs, being so possessed of the said last- mentioned mill, with the appurtenances, by reason thereof, during all the time last aforesaid, have had, and of right ought to have, for all the time last aforesaid, toll of all corn, grain, and malt ground in the said last-mentioned mill : And whereas also the resiants and inhabitants residing and inhabiting in houses within the said manor or lordship of L. P. S. (save and except such inhabi- tants and resiants residing and inhabiting in houses within the said manor as are bound to any other mill with some part of their corn, and save and except poor cottagers, that buy some meal ready ground) have during all the time last aforesaid ground, and still of right ought to grind all their corn, grain, and malt, which by them, or any of them, after the grinding thereof, had been and should be used or spent in their said respective houses, at the said last-mentioned mill of the said plaintiffs : And whereas also the said defendants, on the 30th day of May, 1787, and long before were, and continually from thenceforth hitherto have been, and still are in- habitants and resiants within the said manor or lordship, and are not, nor during the time last aforesaid were bound to any other mill than the said last-mentioned mill of the said plaintiffs with any part of their corn, and are not, nor during the time last aforesaid were not poor cottagers that bought some meal ready ground, and during all the time last aforesaid hare resided and dwelt, and still do reside and dwell in a certain other dwelling- house, with the appurtenances, situate, standing, and being within the manor aforesaid, and by reason thereof, for all the time last aforesaid ought to have ground, and still ought to grind at the said last-mentioned mill of the said plaintiffs all their corn, grain, and malt, which after the grinding thereof by them, or either of them, had been or should be used or spent in their said" last-mentioned dwelling-house, and to pay to the said Thomas and James for the grinding thereof a reasonable toll ; nevertheless [grievance* same as in first count, and so on to the end] : And whereas also, 6tc. [4th F count same as third, with the same difference as between the second and first] : And whereas also the said Thomas and James afterwards, to wit, on p-,fth eoant. the said 30th day of May, 1787, and long before were, and continually from thenceforth hitherto have been, and still are lawfully possessed of and in a certain ancient water corn-mill, with the appurtenances, situate, lying, and being within the manor or lordship of L. P. S. aforesaid, in the said county, and the said plaintiffs being so possessed of the said last-mentioned null, with the appurtenances, by reason thereof, during all the time last aforeawd, have had, and of right ought to have, for all the time last aforesaid, toll e ail corn, grain, and malt ground in the said last-mentioned mill whereas also the resiants and inhabitants residing and inhabiting in bouses within the said manor or lordship of L. P. S. aforesaid, in the said county. during all the time last aforesaid, ought to have ground, and si ought to grind all their corn, grain, and malt which by thorn, or any of 472 Precedents and Forma. them, after the grinding thereof, had been or should be used or spent in their said respective houses, at the said last-mentioned mill of the said plaintiffs : And whereas also the said defendants, on, &c. and long before were, and continually from thenceforth hitherto have been, and still are inhabitants and resiants within the said manor or lordship, and during all the time last aforesaid have resided and dwelt, and still do reside and dwell in a certain other dwelling-house, with the appurtenances, situate, standing, and being within the manor or lordship aforesaid, and by reason thereof, and for all the time last aforesaid ought to have ground, and still of right ought to grind in the said last-mentioned mill of the said plaintiffs, all their corn, grain, and malt, which after the grinding thereof by them or either of them, had been or should be used or spent in their said last-mentioned dwelling-house, and to pay to the said plaintiffs for the grinding thereof a certain reasonable toll ; Sixth count, nevertheless [the gravamen same as in the first count, and so on to the end] : Seventh And whereas, &c. [6th count same as fifth, with the same difference as be count,against tween the secoad and first] : And whereas also the said plaintiffs, on, &c. for "buying" an< ^ ^ on t* e f re were, and continually from thence hitherto have been, and corn which Still are lawfully possessed of and in a certain other ancient water corn-mill, they had and with the appurtenances, situate, Iving, and being within the manor or lord- spent within ship L ^ p S- aforesaid, in the said county ; and the said plaintiffs being the manor, , ,. , , /,, . , ready ground, SQ possessed ot the said last-mentioned mill, with the appurtenances, by and which reason thereof, during the time last aforesaid, have had, and of right ought had been to have for all the time last aforesaid, toll of all corn, grain, and malt, ground another mill- * n tne sa i^ last-mentioned mill ; and whereas the said defendants, on, &c. per quod, &c- and long before were, and continually from thenceforth hitherto have been, and still are possessed of a certain other messuage or dwelling-house, with the appurtenances, situate, standing, and being within the manor or lordship aforesaid, in which said last-mentioned dwelling-house they the said de- fendants did for all the time last aforesaid, and still do inhabit and dwell, and by reason thereof, for all the time last aforesaid, ought to have ground, and still of right ought to grind at the said last-mentioned mill all their corn, grain, and malt, which after the grinding thereof had been and should be used and spent in their said messuage or dwelling-house, and to pay for the grinding to the said plaintiffs a reasonable toll ; nevertheless the said defen- dants, well knowing the premises last aforesaid, but designing and mali- ciously intending, unjustly to injure and damnify the said plaintiffs in this behalf, and to hinder and deprive them of the profits and advantage of their said last-mentioned mill, and wrongfully and fraudulently designing and maliciously intending to evade the grinding of the said last-mentioned malt at the said last-mentioned mill of the said plaintiffs, and to evade the paying of the said last-mentioned reasonable toll arising and accruing to the said plaintiffs from the grinding of the said last-mentioned malt at the said last- mentioned mill of the said plaintiffs, on, &c. and on divers other days, &c. at, &c. in, &c. did withdraw other their grist from the said last-mentioned mill of the said plaintiffs, and did not all or during any part of the time last aforesaid grind or cause to be ground at the said mill any malt whatever, but during the time last aforesaid did wrongfully, injuriously, evasively, and deceitfully, in order to evade the grinding of the said last-mentioned malt at the said last-mentioned mill, and the payment of the last-mentioned toll as last aforesaid, buy, and caused to be bought divers large quantities of malt ground, which had been ground elsewhere than at the said last-mentioned mill of the said plaintiffs, and did then and there use and spend the said malt, ground and bought as last aforesaid, within the said last-mentioned messuage of the said plaintiffs, and which the said defendants, at the time of using and spending thereof, knew to have been gTound elsewhere than at the said last-mentioned mill of the said plaintiffs, by reason whereof the said plaintiffs have totally lost the profit and advantage which they ought to have got and obtained from the grinding thereof at their said last-mentioned Eighth couut. ^j^ and t^g toll an( j mu i ture arising therefrom, to wit, at, &c. : And whereas, &c. [this count same as the seventh, leaving out the words in Precedents and Forms. 473 italic] : And whereas also the said plaintiffs, on, &c. and long before were Nln( and continually from thenceforth hitherto have been, and still are lawfully possessed of and in a certuin other ancient water corn-mill, with the appur- tenances, situate, lying, and being within the manor or lordship of L. P. S. aforesaid, in the said county ; and the said plaintiffs being so possessed of the said last-mentioned mill, with the appurtenances, by reason thereof, during the time last aforesaid, have had, and of right ought to hare, for all the time last aforesaid, toll of all corn, grain, and malt ground in the said last-mentioned mill : And whereas the resiants and inhabitants residing and inhabiting in houses within the said manor or lordship of L. P. S. (save and except such inhabitants and resiants residing and inhabiting in such houses within the said manor as are bound to any other mill with some part of their corn, and save and except poor cottagers that buy some meal ready ground) have during all the time last aforesaid, ground, and still of right ought to grind all their corn, grain, and malt, which by them or any of them had been or should be. used or spent, after the grinding thereof, in their said respective houses at the said last-mentioned mill of the said plaintiffs, to wit, at, &c. : And whereas also the said defendants, on, &c. and long before were, and continually from thenceforth hitherto have been, and still are lesiants and inhabitants within the said manor or lordship, and are not, nor during the time last aforesaid, were bound to any other mill than the said last-mentioned mill of the said plaintiffs with any part of their corn, and are not, nor during the time last aforesaid were not poor cottagers that bought some meal ready ground, and during all the time last aforesaid have resided and dwelt, and still do reside and dwell in a certain other dwelling-house, with the appur- tenances, standing, and being within the manor and lordship aforesaid, and by reason thereof, and during all the time last aforesaid ought to hare ground, and still of right ought to grind at the said last-mentioned mill of the said plaintiffs, all their corn, grain, and malt which, after the grinding thereof, had been or should be by them or either of them used or spent in their said messuage or dwelling-house, and to pay to the said plaintiffs for the grinding thereof a reasonable toll ; nevertheless, &c. [gravamen same Tenlh ,., as in the seventh court, and so on to the end] : And whereas, &c. [this court same as the last, with the difference of malt only., instead of " corn, grain, and malt."] Damages, &c. Pledges, & the committing the grievance hereinafter next mentioned, was and diversion of> from thence hitherto hath been, and still is, lawfully possessed of certain the water, other iron and tin works, with the appurtenances, situate and being at, &c. without aforesaid, near to a certain other stream or watercourse there, and which said means. last-mentioned str am or watercourse, before and at the time of the com- mitting of the grievances hereinafter next mentioned, had run and flowed, and been used and accustomed to run and flow, and of right ought to have run and flowed, and still of right ought to run and flow in great plenty and abundance, unto the said last-mentioned works of the said A.B. for the supplying of the same with necessary water for the working thereof, to wit, at, &c. aforesaid. Yet the said C. D. well knowing the said last-mentioned premises, but contriving and intending to injure and prejudice the said A. B. in this behalf, and to deprive him of the use, benefit, and advantage of the water of the said last -mentioned stream or watercourse, and to deprive him of the benefit and profits of his said last-mentioned works, and of his trade and business as manufacturer of tin plates as aforesaid, and to put him to great charge, trouble, expense, and inconvenience, whilst he the said A.B. was so possessed of the said last-mentioned works, with the appurtenances as aforesaid, and carried on his said business therein, to wit, on, &c. and on divers other days and times, between that day and the day of ex- hibiting this bill, wrongfully and unjustly diverted and turned divers large quantities of the water of the said last-mentioned stream and watercourse out of the same, and away from the said last-mentioned iron and tin work s of the said A. B. and hindered and prevented the water of the said last- Precedents and Forms. 47$ mentioned stream or watercourse from running or flowing along it* _ course to the said last-mentioned works of the said A.B. and from supply- ing the same with water for the necessary working thereof, as the same ought to have done and otherwise would have done, and by reason thereof the water of the said last-mentioned stream or watercourse, sufficient for the supplying of the said last-mentioned works, during that time, could not nor did run or flow to the same as the same ought to have done, and other- wise would have done, and the said A. B. for want of such sufficient water, could not during that time use his said last-mentioned works, or follow, use, or exercise, his trade and business therein, in so large, extensive, and beneficial a manner as he ought to have done and otherwise would hare done, but was thereby, during all that time, deprived of the use and enjoy- ment of the said last-mentioned works, and of all benefit, profit, gain, and advantage, which he otherwise might and would have made, by carrying on his said trade and business therein, to wit, at, &c. aforesaid^ And wherea* Third count also the said A. B. before and at the time of the committing of the grievances for oo k*p- hereinafter next mentioned, was and from thence hitherto hath been, and '"g'*"ebok still is, lawfully possessed of certain other works, with the appur- a repaid" tenances, situate and being at, &c. aforesaid, near to a certain other stream or watercourse there, and which said last- mentioned stream or watercourse, before and until the time of committing the grievances hereinafter men- tioned, had run and flowed, and had been used and accustomed to run and flow, and of right ought to have run and flowed, and still of right ought to run and flow, in great plenty and abundance unto the said last-mentioned works of the said A. B. for the supplying of the same with necessary water for the working thereof, to wit, at, &c. aforesaid. And whereas the said C. D. before and at the time of the committing of the same grievance here- inafter mentioned, was and from thence hitherto hath been, and still is, possessed of divers, to wit, closes of land, on the banks and sides of the said last-mentioned stream or watercourse, and the said C.D. In reason thereof, during all the time aforesaid, of right ought to have repaired and amended, and still of right ought to repair and amend such part of the banks of the said stream or watercourse, which are situate within and parts of the same closes, as occasion hath required, or should require, to prevent the water of the said last-mentioned stream or watercourse from escaping or running from the same, through the said banks, through the defects and insufficiences thereof. Yet the said C. D. well knowing the said last-men- tioned premises, but contriving, and intending wrongfully and unjustly to injure, prejudice, and aggrieve the said A. B. in this behalf, and to deprive him of the use, benefit, and advantage of the water of the said last- mentioned stream or watercourse, and of the benefits and profits arising from his exercising and carrying on his said trade and business in the said last-mentioned works as aforesaid, whilst he, the said A. B. was so possessed of the said last- men tioned works, with the appurtenances as aforesaid, and carried on his said trade and business therein, to wit, on, &c. and from thence for a long space of time, to wit, hitherto wrongfully and unjustly suffered and permitted the said banks to be and continue, and the same during all that time were ruinous and in bad condition for want of needful and necessary repairing and amending of the same, whereby divers large quantities of" the water of the said last-mentioned stream or watercourse, which otherwise would have run and flowed to the said last-mentioned works of the said A. B. and have worked the same on the said, &c. and on divers other days and times, between that day and the day of exhibiting the bill aforesaid, escaped and run from and out of the said last-mention.-,! stream or watercourse, through the said defects and insufficietces of the said banks, and became and were wholly lost to the said A. B. and never did run o- flow to the said last-mentioned works, for the working thereof, as the same ought to have done, and otherwise would have done, and i the said A. B. for want of the same water could not, during all or any part of 476 Precedents and Forms. the time last aforesaid, use or work his said last-mentioned works, or fol- low, use, or exercise his said trade or business therein, in so large, extensive, and beneficial a manner as he ought to have done, and otherwise would have done, and was thereby, during all that time, deprived of the use and enjoyment of his said last-mentioned works, and of the benefits, profits, and advantages which he otherwise might and would have derived and acquired from carrying on his said trade and bnsiness therein, to wit, at, &c. Fourth aforesaid. And whereas also the said A.B. before and at the time of the count, for committing of the grievances hereinafter mentioned, was and from thence widening, hitherto hath been, and still is, lawfully possesssed of certain other froin the works, with the appurtenances, situate and being at, &c. aforesaid, near to a stream. certain other stream or watercourse, which before and until the time of the committing of the grievances by the said C. D. as hereinafter mentioned, had run and flowed, and had been used and accustomed to run and flow, and of right ought to have run and flowed, and still of right ought to run and flow, in great plenty and abundance, unto the said last-mentioned works of the said A.B. for the supplying of the same with necessary water for ihe working thereof, to wit, at, &c. aforesaid. Yet the said C. D. well knowing the said last-mentioned premises, but contriving and intending unlawfully and wrongfully to injure and prejudice the said A. B. in this behalf, and to deprive him of the use, benefit, and advantage, of the water of the said stream or watercourse, and' to deprive him of the benefit and profit of his said last-mentioned works, and his trade and business as such manufacturer as aforesaid, and to put him to great charge, trouble, expense, and incon- venience, whilst he the said A.B. was so possessed of the said last-men- tioned works, with the appurtenances as aforesaid, and carried on his said business therein, to wit, on, &c. aforesaid, and on divers other days and times between that day and the day of exhibiting this bill, wrongfully and injuriously widened, deepened, and enlarged, divers, to wit, fenders, sluices, cuts, and watercourses, leading from and out of the said stream or watercourse in this count first above-mentioned, and thereby, on those several days and times, drew off" and diverted from the same stream or watercourse a much greater quantity of water than had before then used to flow or ought then to have, flowed from the said stream or watercourse and away from the said last-mentioned works of the said A. B. and hindered and prevented the water of the said last-mentioned stream or watercourse from running or flowing along its usual course to the said last-mentioned works of the said A.B. and from supplying the same with water for the necessary working thereof, as the same ought to have done, and otherwise would have done, and wrongfully and injuriously kept and continued the said fenders, sluices, cuts, and watercourses, so widened, deepened, and enlarged, and the water so drawn off" in larger quantities as aforesaid, from thence hitherto and by reason thereof, the water of the said stream or watercourse, sufficient for the supplying of the said last-mentioned works, during all or any part of that time, could not, nor did run or flow to the same, as the same ought to have done, and otherwise would have done, and the said A.B. thereby for want of such sufficient water, could not, during all or any part of that time, use his said last-mentioned works, or follow, use, or exercise his trade and business therein, in so large, extensive, and beneficial a manner as he ought to have done, and otherwise might and would have done, but was thereby, during all that time, deprived of the use and employment of the said last-mentioned works, and of all the profits, benefits and advantages, which he otherwise might and would have made by carrying on his said trade and business therein, to wit, at, &c. aforesaid. - bad r ..-' *w, fan* Precedent* and Forms. 47 ~ XI. Declaration for cutting a Water-Pipe which conveyed Water to Plaintiff's House, whereby Plaintiff ,., deprived of Wat.-r and put to great Trouble and Expense in procuring Water for his necessary Use. 8 Wentw. 567. For that whereas the said plaintiff heretofore, to wit, on ice was and from thence lutherto hath been, and still is lawfully possessed of and' in i certain messuage or dwelling-house and yard thereto adjoining, with the ap- purtenances, situate and being at, Sue. in which said messuage or dwelling- house the said plaintiff and his family, during all the time aforesaid inha- bited and dwelt : And whereas long before and at the time of the committing of the grievance hereafter next-mentioned, there was a certain wooden pine and being underground near to the said messuage of him the said plaintiff] by and through the means of .which said pipe, and of a certain leaden pipe', fastened in and affixed to the same, nnd extending and coming from the afore- said wooden pipe unto and into the aforesaid yard of the said plaintiff, and the said plaintiff and all others of the occupiers and possessors of the said messuage, &c. were during all the time aforesaid, used and accustomed to be and were supplied, and still ought to be supplied with water to be used, spent, and employed by the occupiers and possessors of the said messuage,' &c. with the appurtenances respectively ; yet the said defendant, well know- ing the premises aforesaid, but contriving and maliciously intending wrong- fully and unjustly to hurt, injure, and prejudice the said plaintiff, and to de- prive him of water for the necessary use of the said plaintiff and his familr residing in the said messuage, &c. whilst the said plaintiff was so possessed of the said messuage, &c. to wit, on, &c. at, &c. wrongfully and unjust lv, injuriously and maliciously, cut into and through the aforesaid wooden pipe) and separated and divided the same, and caused and procured the said wooden pipe to be cut into and through and separated and divided, and wrongfully and injuriously kept and continued the- said pipe so cut into and through, and separated and divided, for a long space of time, to wit, for the space of twelve months then next following ; whereby he the said plaintiff was for a long space of time, to wit, for and during all the time aforesaid, wholly deprived of water to be used, spent, and employed by him the said plaintiff and his family in the said messuage, &c. of him the said plaintiff, and was thereby, during all the time, put to great trouble and inconvenience, and was forced and obliged to, and did lay out and expend divers sums of money, to wit, in the whole amounting to a large sum of money, to wit, the sum of twenty pounds, in and about the furnishing and supplying of water for the necessary use and purposes of him the said plaintiff and his family in his said messuage or, &c. ; and be the said plaintiff was, hath been, ami is, on occasion of the committing of the grievance aforesaid, otherwise greatly injured and damnified, to wit, at, &c. aforesaid. XII. Indictment for stealing Oysters, or Oyster Brood. 1 Archbold's Peel's Act, 2nd ed. p. 110. KENT, to wit : The jurors of our lord the King upon their oath present. that A. B. late of the parish of , in the county aforesaid, labourer, on the second day of July, in the eighth year of the reign of our sovereign lord George the Fourth, by the grace of God of the united kingdom of Great Britain and Ireland King, Defender of the Faith, with force and arms, at the parish aforesaid in the county aforesaid, from a certain oyster bed ['oyster bed. laying, or fishery"] called , the property of C. D.. and sufficiently [marked out and] known as the property of the said C. D.. 487 Precedents and Forms. one hundred oysters, of the value of two shillings, then and there being found, then and there feloniously did steal, take, and carry away : against the form of the statute in that case made and provided, and against the peace of our lord the King, his crown and dignity. LAW OF SEWERS. THESE PRECEDENTS ARE TAKEN FROM THE APPENDIX TO CALLIS ON SEWERS. I. An Order to repair a Wall or Bank. Whereas the wall or sea-hank called, &c. leading from and to, &c. is hy means of the great violence of the sea of late become very ruinous, defective, and out of repair, and not fit to resist the rage of the waters, but oftentimes letting in the same on the marsh and low grounds and lands thereto adjoin- ing, in the parish of, &c. aforesaid, to the very great detriment and loss of all and every the owners thereof, in the grass there grown and cattle therein depastured, which are frequently destroyed : We his majesty's commis- sioners of sewers within the county of, &c. aforesaid, whose names and seals are hereto put and affixed, being willing and desirous to redress so great a grievance, by virtue of the authority to us given, do order, direct, and ap- point that G. H., of, &c. and J. K., of, &c. or some or one of them to whom the same appertains, do, on or before, &c. next coming, cause -the wall or bank above-mentioned to be well and sufficiently repaired, amended, and re-edified, with good and substantial materials, in all parts thereof where it shall appear that the same is any ways defective, that the lands and low grounds in the said parish of, &c. may be thereby secured from all inunda- tions for the future ; and this the said G. H., J. K., &c. are to do at their perils. Given under our hands and seals, &c. II. Order to remove Stakes and Piles set up in a River. It being presented by the jury returned to inquire of defaults in repara- tions of sewers, &c. in the county of, &c. at a court of sewers held, &c. that T. M. had in the month of, &c. then past, set up and erected several stakes and piles in the river of, &c. in the said county, to the great nuisance and annoyance thereof, which said T. M. is not to be found. We do therefore hereby order and empower L. B. who is likely to receive the most damage and injury by reason thereof, to remove and abate the said nuisance on or before, &c. next, as to him the said L. B. shall be thought fit. Given, &c. ni. Assignment of a Surveyor of Sewers. We, A. B., C. D., E. F., &c. esquires, his majesty's commissioners of sewers for the county of, &c. Do by virtue of the statutes of sewers, and of the power to us thereby given, by this our order under our hands and' seals, assign and appoint L. A., of, &c. surveyor of the walls, banks, and sewers within the level of, &c. in the said county, to oversee, survey, inspect into, Precedents and Formt. and take care of the reparations of tlie same from time to time, according to the orders and directions of us, or any of us, or any other commissioners of sewers for the said county ; and also to present the defects and decays thereof, during our will and pleasure, or for and during the spece of, &c. Given, &C. IV. An Order to pay a Tax on a particular Person. \Vhereas on-making a rate and assessment upon the owners of lands in the parish and limits of, &c. for the repairing, amending, and maintaining the sea banks, walls, and sewers therein, for the year, &c. it appeared to us by the information of, &c. on oath, that one A. B. holdeth a certain messuage and twenty acres of land in the said parish and limits, &c. by the tenure and payment of, &c. towards the repairs and maintenance of the said banks and sewers ; and the said A. B. having neglected to pay the said sum to our collector appointed to receive tne same, We do therefore hereby order the said A. B. within, &c. days next after the date hereof, to pay unto, &c. our collector aforesaid, the aforesaid sum of, &c. to be applied in repairing, amending, and maintaining the walls, banks, and sewers above-mentioned ; or on the said A. B.'s default therein, we shall decree the said messuage and lands to be sold to satisfy the same ; of which the said A. B. is to take no- tice. Given, &c. V. A Warrant to take a Distress for a Tax, and sell Goods. To T. D., Sewer-Bailiff, or Collector of the Level of, &c. Whereas complaint hath been made unto us, that C. D. and E. F. of, &c. aforesaid, who are severally rated and assessed in the several sums of, &c. for and towards the necessary reparations and amendments of the banks, walls, and sewers within the said level, have refused to pay the same when demanded, contrary to the laws in that case made : These are therefore to authorise and command you to levy the said respective sums of, &c. on the goods and chattels of the said C. D. and E. F. respectively, by distress and sale thereof; And that you do employ the said money, when levied, towards the repairs above-mentioned ; for which this shall be your warrant. Given. &c. VI. A Decree and Sale of Lands by Commissioners, for Payment of Lots and Charges. This indenture made, fcc. between A. B., C. D., E. F., te. esquires, (six) commissioners of sewers for the county of, &c. of the one part, and G. H., &c of the other part. Whereas the said commissioners parties to these pre sents, having the execution of the laws of sewers, on, &c. last past, mad, < , and ordered an equal rate, charge, and assessment, upon all owners and occupiers of lands in the parish and limits of, &c. . aforesaid, according to the quantities and qualities of the said lands fo towards the reparation and amendment of the banks, walls, and *""* the said limitsf pursuant to the laws and statutes in that case made jnd pro vided. And whereas in and by the said rate and assessment, L. M. of &c. aforesaid, was legally charged and assessed in the sum of, fte. : tionate lot and charge, towards the said reparations and amendments, fo, 480 Precedents and Forms. messuage, tenement, and lands, called, &c. held by lease and grant from, &c. for the term of, &c. who on demand thereof, by, &c. the commissioner's col- lector lawfully authorized, hath absolutely and contemptuously denied and refused to pay the same. And whereas the said commissioners, or some of them, are credibly informed that the said L. M. hath no goods or chattels whereout the said sum of, &c. may be any ways levied for the purposes afore- said. Now, to the end the said sum of, &c. may be paid and applied to the uses above-mentioned, in repairing the said sewers. This indenture wit- nesseth, that the said commissioners parties to these presents, by force and virtue of the statutes of sewers, and the power to them thereby given, and for and in consideration of the covenants and conditions hereinafter on the part and behalf of the said G.H., his executors and administrators, to be performed and done, and also of five shillings of lawful British money to them the said commissioners in hand paid by the said G. H., the receipt whereof is hereby acknowledged ; Have ordered, bargained, sold, and assigned, and by these presents do, as much as in them the said commissioners, parties to these presents lieth, order, decree, bargain, sell, and assign, from the said L. M., his executors, administrators, and assigns, unto the said G. H., his executors and administrators, All and singular the said messuage or tene- ment, lands and premises above mentioned, and all ways, waters, easements, profits, privileges, advantages, and appurtenances, to the said messuage or ' tenement, and lands belonging or appertaining ; To have and to hold the said messuage or tenement, lands and premises, to the said G. H., his executors and administrators, for and during all the rest and residue of the said term of, &c. which he the said L. M. had, or ought to have of or in the same ; Upon condition nevertheless, that he the said G.H., his executors and ad- ministrators, do and shall yearly and every year, during the said term of, &c. pay or cause to be paid, unto the collector or collectors appointed, all such rates, lots, charges, and assessment, as shall be rated, assessed, or imposed by the commissioners of sewers for the county of, &c. aforesaid, for the time being, on the messuage or tenement and lands above-mentioned, upon de- manding the same, and on no other condition or trust whatsoever. And the said G. H. for himself, his executors, and administrators, doth covenant and grant, to and with the said commissioners parties to these presents, and to and with every of them, their executors, &c. That he the said G. H. his executors and administrators, shall and will from time to time, and at all times during the said term of, &c. aforesaid, well and truly pay or cause to be paid unto the collector or collectors appointed to receive the same, all and all manner of rates, cesses, lots, charges, assessments, and payments, which shall be rated, assessed, charged, or imposed by the commissioners of sewers for the said county of, &c. for the time being, on the messuage, tenement, lands, and premises abovementioned, or any part thereof, towards the repa- ration of the said sewers, on demand thereof, including the assessment of, &c. aforesaid, without any default, denial, or neglect, by him the said G. H., his executors, &c. according to the true intent and meaning of this present decree and assignment. In witness whereof the said commissioners and parties have hereunto put their hands and seals, the day and year, &c. VII. The Certificate thereof into Chancery. Memorandum this day, &c> The within written decree and assignment of tfee lands and premises therein mentioned was certified into the high court of Chancery, by the commissioners within named, under their seals, accord- ing to the form and directions of the acts of parliament. T. D., Cler. Com. 481 VIII. Appointment of a Bailiff of Sewer t. We A. B.C. D., E. F..&C. esquires, (six) commissioners of sewers within the county of, &c. aforesaid, Do hereby depute, assign, and appoint T I) ,,f &c. to be our baihft of sewers for the level or limits of, &c. to execute all warrants, precepts, and summonses to him directed by us, or any of us or any other his majesty's commissioners of sewers for the said county relating to the reparation, amendment, and reformation of the walls, banks, aa'd sewers there ; pursuant to the laws and statutes in that case made. Given, &c. IX. Appointment of a Collector of Sewers. WeA.B.,C. D., E. F., &c. esquires, commissioners of sewers, &c. do hereby assign and appoint A. T. of, &c. our collector and receiver, during our will and pleasure, to collect and receive all money, by us or any other of his majesty's commissioners of sewers for the said county, from time to time ordered and directed to be levied, by rate and assessment, or otherwise, on all owners and occupiers of lands, within the level of, &c. and to pay over the same to B. M., &c. our expenditor appointed ; he the said A.T. render- ing to us, or some of us, a just, true, and perfect account of all such money by him collected and received within the said level, when thereunto required, by us, or any of us, or yearly, &c. Given, &c. X. Assignment of an Expenditor. We A. B., C. D., E. F., esquires, commissioners, &c. do, by virtue of the authority to us given by the laws of sewers, nominate, assign, and appoint, B. M. of, &c. gent., expenditor, to pay, disburse, and expend, all money raised and levied by our rate and assessment, within the level of, &c. on all owners and occupiers of lands, &c. chargeable towards the reparations and amendments of sewers, and by him had and received of and from our collector appointed ; so as he the said B.M. do and shall from time to time, when thereunto required, yield, render, and deliver unto us, a true and perfect account and accounts of all money by him thus paid, for and towards the reparations above mentioned. Given, &c. XI. A Warrant or Order for a Collector to Account. To T. D., Bailiff of Sewers, for the Level of, &c. Whereas we have appointed A.T. of, &c. our collector of sewers, within the level of, &c. to collect and receive all money rated and to be levied on the owners of lands, &c. towards the repairs of the banks, walls, and sewers therein, he the said A. T. from time to time, accounting with as for the same, when thereunto required. These are therefore to command you forthwith to give notice to the said A.T. personally to be and appear before us, t, Ac. on, &c. next, to give and render unto us a true and perfect account in writing of all money by him received, of all and every person and persons, for and towards the reparations aforesaid, and of all other things relating to bis office of collector ; which he the said A. T. is hereby ordered to do at his peril. Given, &c. I I 482 Law of Sewers. XII. An Order to provide Carts and Carriages for Repairs of Sewers. We A. B., C. D., E. F., &c. esquires, his majesty's commissioners of sewers within the county of, &c. do hereby order and require T. B., D.W M L. M., &c. who keep horse teams in the parish of, &c. That they and every of them send or cause to be sent out of the said parish, unto, &c. in the aforesaid county, six carts or carriages, on, &c. next ensuing, furnished with a suffi- cient number of able horses or oxen and workmen, to work on the reparations of the walls, banks, and sewers, within the parish and level aforesaid, accord- ing to the acts of parliament in that case made ; being allowed, &c. per dav for the same. Given, &c. XIII. A Warrant or Order for Labourers to work on the Repairs. ToW.L., N. P., T. A., &c. These are to command you and every of you, That on notice of this our order, you forthwith go and repair to, &c. in the county of, &c. and then and there, as many days, and so long time as shall be adjudged necessary by our surveyor of sewers, do diligently work and labour in the reparations and amendments of the walls, banks, and sewers in the said county ; and that you or either of you do not thence depart, without leave of our said surveyor, first obtained for the same ; all which you are to observe at your peril. Given, &c. XIV. An Order to take Timber Trees for Reparation of Sewers. To T. A., Gent., Surveyor of Sewers in, &c. Whereas we A. B., C. D., E. F., &c. esquires, commissioners of sewers for the county of, &c. on view do find that the walls, banks, and sewers within the level of, &c. in the county aforesaid, are very ruinous and defec- tive, and require much timber work to put the same in repair. And we being credibly informed that T. D., living within the limits of the said level, hath six large timber-trees standing and growing on his land, called, &c. fit and proper to be cut and employed in the said reparations : These are therefore to authorize and empower you, with workmen, &c. to enter into and upon the land of the said T. D., and cut, take, and carry away from the same, the said six timber-trees, at seasonable times, without doing any damage to the said land, for and towards the reparations of the walls, banks, and sewers afore- said, and not otherwise ; giving to the said T. D. notice thereof, and tender- ing and paying to him the sum of, &c. which we adjudge a reasonable price for the same. And this shall be your sufficient warrant in the premises. Given, &c. XV. Oath of the Jury summoned to a Court of Sewers. You shall inquire and make true presentments and judgments of all such things as shall be given you in charge, and which are inquirable and punish- able within this level relating to the repairs of the walls, banks, and sewers. You shall do nothing out of malice or hatred, nor conceal any thing through fear, favour, or affection ; but in all things shall impartially do your duty herein, according to the best of your knowledge. So help you God. Law of Sewers. 493 XVI. Plea by Commissioners of Sewers. 3 Car. & Payne, 63. And for a further plea in tbis behalf, as to breaking and entering the said dwelling-house, and as to the seizing and taking the goods and chattels, (to wit), one set of cruets and frame, one hearth-rug, one fender, and one set of fire-irons there found, and carrying away the same, and converting and dis- posing thereof to his own use, as in the first count of the above declaration is mentioned, he the said defendant, by leave of the court here for that pur- pose had and obtained, according to the form of the statute in such case made and provided, says, that the said plaintiff ought not to have or maintain his aforesaid action against him, because he says, that the said supposed tres- passes were committed by him, the said defendant, by the authority of a certain commission of sewers for the Tower Hamlets, (excluding St. Catha- rine's and Blackwall Marsh) for a lot or tax assessed upon the said plaintiff by the said commission, according to the purport, tenor, and effect of a cer- tain act of parliament made in the twenty-third year of the reign of our late sovereign lord king Henry the Eighth : and this he the said defendant is ready to verify ; and therefore he prays judgment, if the said plaintiff ought to have or maintain his aforesaid action thereof against him. H2 AHA . . ; *Kf\ IVA -'.aef i ni AN INDEX TO THE PRINCIPAL MATTERS. A. ABATEMENT, to remove obstructions to navigation, 174. and to fisheries, 182, 195. to watercourses, 224. ACTIONS, limitation of, against canal companies, 44. against dock companies, 49. ACTION on the CASE for obstructing a river, 173. ADMINISTRATOR of a subscriber to canal shares, cannot be sued for calls, 41. ADMIRALTY, Court of, shall have cognizance of flotsam, jetsam, and ligan, 14. AD QUOD DAMNUM, writ of, when necessary, 168, 228, 234. ADULTERATION of corn, 139. ALLUVION, what, 22, 26. land so acquired belongs to the owner of the soil, 26. in rivers, 37. AMERCIAMENTS by a jury of sewers, 435. ANGLERS, excepted out of some acts for the preservation of fish 64. but 'included in 7 & 8 G. 4. c. 29, 196, 198. ANNUITANTS, when liable to the sewers' rate, 405. ARSON of mills, 204, 296. ARTICULI CLERI, statute of, 276. ASSESSMENT of sewers' rates, how made, and in respect of what, 431. AVULSION, what, 22. land created by, goes to the king, 28. in rivers, 37. 486 Index to the B. BALKERS, 130. BALLAST, throwing it out to obstruct navigation, 149, 161. BANKS, when obstructions to navigation, 158. when protected by law, 172. what within the laws of sewers, 380. BARGES, mooring, when an obstruction to navigation, 160. BARRISTERS qualified to be commissioners of sewers, 355. BATHING, no common law right of, in the sea, 2, 6. but the right may be claimed by custom or prescription, 2. BEACH, when it may not be taken to mend roads, 21. BILL of PEACE, concerning fisheries, 194. BILLINGSGATE MARKET, regulations concerning, 72, &c. a free market time out of mind, 73. BOND, conditioned to remove a nuisance, bad on demurrer, 173 not if performance be pleaded, ib. from officers of sewers, 424. BOUNTIES for the bringing of fish to market, 80. BRIDGES, what within the laws of sewers, 384. BY-LAWS, concerning fisheries, not favoured, 187. C. CALCEYS, what within the laws of sewers, 383. CALLS. Canal calls, 40. who cannot be sued for, 4 1 , who a subscriber, 42. See Evidence. CANALS. Of canal calls, 40. See Calls. mines do not belong to canal proprietors, 43. limitation of actions against canal proprietors, 44. what shall be said to be done in pursuance of the act, 45. acquiescence by shareholders concerning tolls, 46. title to lands must be satisfactorily established, 47. ownership of the soil under, ib. fishery in, 48. road trustee being a shareholder in canals, not be fined foi carrying materials for repair of roads, ib. probate respecting canal shares, where granted, ib. CANAL TOLLS, how rateable, 255, 257. CERTIORARI, [Sewers,] 366. when granted to remove orders of sewers, 452. on the removal of the clerk, 454. disobedience to the writ, how punished, 457. procedendo, 458. costs, ib. Principal Matters. ^7 COAST, what, 21. COMMON OF FISHERY, 101. commoners cannot exclude the lord from fishing, ib. what nets may be used, 132. what fish may be taken, ib. whether commoners may sell the fish, ib. lord cannot injure the commoner's fishery, 190. See Evidence. COMPENSATION for injuries occasioned by dock companies, DO. devisee to receive it, 51. duty rateable, 260. CONSERVANCY, 69. above Staines bridge is in the crown, ib. CONSERVATORS of rivers, 68. CONSIDERATION. See Wreck. CONVICTION, for fishing, holden bad for want of jurisdiction, 198. Summary, for illegal fishing, 295. See Evidence. COPYHOLDERS, when liable to the sewers' rate, 403. CORN-MILLS, the only mills liable to tithes unless by special custom, 283. CORPORATION may claim a watercourse, 122. when liable to -repair sewers, 394. COSTS, on writ of certiorari to remove orders of sewers, 458. COVENANT, action of, will lie for obstructing a watercourse, 225. to repair sewers, 392. CREEK, what, 21, n. CUSTOMS, are payable in respect of wrecked goods, 16. of nations, to be respected regarding fisheries, 57. D. DECOY PONDS are protected by the law, 34. See Evidence. DECREE [sewers] of lands from their owners, 444. what lands may be sold, 447. who bound by such decrees, 448. to whom lands may be decreed. 449. DERELICT LAND, to whom it shall be said to belong, 22. when land shall not be said to be derelict, 23. is transferable, ib. Lincolnshire custom invalid, 26. claimed, however, by grant or prescription, 30. See Evidence. DEVISEE to receive compensation from dock companies, 51. 488 Index to the DEVISE of fishery, 292. DISTRESS for suit of mills, 203, 292. for arrearages of sewers, 371. commissioners cannot levy a fine by, 438. distresses concerning sewers, ib. warrant, 439. when, and on whose goods, 440. sale of, 441. replevin, 442. DITCHES, what within the laws of sewers, 380. DOCKAGE DUTIES, 249. DOCK COMPANIES, 49. limitation of actions against, ib. compensation clauses, 50. See Compensation. rateability of, 259. DOCKS, obstructions to, 154. DOWER, when it may be had of a fishery, 289. of mills, 290. ioctfdfc>- E. ECCLESIASTICAL PERSONS, when liable to the sewers' rate, 403. EELS, provision respecting them, 74. EJECTMENT will not lie for a fishery, 193. nor for a watercourse, 220. EMBANKMENTS, from the sea must be reduced into posses- sion within a reasonable time, 24. ENFRANCHISEMENT of mills, will not extinguish its privi- leges, 232. ESTRAYS, when swans may be, 18. EVIDENCE, upon indictments for obstructions of navigation, 323. for injuries to public and private fisheries, 324. upon summary convictions concerning fisheries, ib. concerning mills, 325. watercourses, 326. in actions concerning rights connected with navigation, ib. concerning wreck, 330. decoy ponds, ib. for the recovery of port duties, 331. ;;{*:> xttq in actions for calls, ib. . ;srr*-jt< concerning public fisheries, 332. ,tl/ j punishable for extortion, 136. not indictable for changing corn, 137. punishable for adulteration, 139. not to be common buyers of com, 141. how they may commit felony, ib. See Indictments, Evidence. MILLS. Origin of suit to a mill, 108. good customs, to have suit, 109, &c. new mills may be erected out of the manor, 1 10. unreasonable customs, 1 14, 341. suit of, how claimed, 116. owners of, not to take the young salmon, 135. what toll may be taken, ib. at new mills, the toll is not restricted, 136. /LA*l corn not to be taken for toll, ib. balances and weights to be kept in mills, 138. repairs of, 141. new, may be a nuisance, 143, 205. such as obstruct navigation, to be abated, 156. obstructions of, 202. remedies, 202, 204. of obstructions by mills, 205. obstructions of new mills, 210. alteration of, immaterial, 212. See Extinguishment Tithes Settlement Dower Din- tress Indictments Pleading Evidence. H UOJ MILL-PONDS, malicious injuries to, 201, 296. what, annoyances within the statutes of sewers, 385. MJNES, not necessarily the property of canal companies, 43. MONSTRAVERANT brought for land, with common of fishery attached, 90. MONTH, means a luriar month in general, 85, n. MORTGAGOR, when liable to the sewers' rate, 405. MUSTER ROLL, when evidence, 332. . : - .-Jjul ,^tf of w: , -lAM ;. ,\ Ot m&Wi f. Ji... NAVIGABLE RIVER, what, 31. n tu ; public rights in, not barred by mere length of time, 1 18 j 51 Alt NAVIGATION, obstructions to, 149. by sinking vessels, 152, 162. no indictment for the latter, 162. by diverting the stream, 163. not by getting highway materials, ib. a neglect to cleanse is an obstruction, 164. -tiillaaoq tttiCevMlfir&E mom: a u m -a ?*&] _ 1 .? iJuantL. v .:_: ;_ - .; - . - - rr-~r::r.: a n. '.~*' '". I::!. -.' ' '. lei i" inu: "U?vtM/UB rf canal mai imuii: **iH^im^^miniH^ff* m Hi: - v -. ;'*" . .... 496 Index to the RIVERS, rights in, 1, 2, 3. definition of, 31. are public or private, ib. what a public river, ib, flowing of the tide, ib. ownership of soil, in public, 34. the king's right in, 36. ownership of the soil in private, ib. alluvion, 37. avulsion, ib. islands, 38. obstruction to public, 155. wears, ib. neglect to cleanse, 164. extinguishment of right in, 228. what within the sewers' laws, 377. ROMNEY MARSH, laws of sewers, when to be followed, 374. S. SALMON, acts for the preservation of, 64. season for taking, 81. justices at sessions, when to fix fence days, 83. young salmon, ib. penalty, ib. scuttle, 134. See Mills. injuries to the fishery of, 175. tithes, when payable for, 268. SCOTCH FISHERIES, 85, 341. SCUTTLE. See Miller. SEA, rights in the, 1, 2. wreck, 11. See Wreck, Swans. ownership of the soil beneath the, 19. the king is the owner, ib. but the soil may be parcel of a manor, 20. sea-shore, what, ib. sea-coast, what, 21. how claimed, 30. See Fisheries. no tolls upon, 237. SEA FISH. See Fisheries. SEAS, what are the English, 4. extent of the king's dominion over the sea, 16. , distinction between the jurisdiction of the admiral, and of the sheriff or coroner, 5. Principal Mutters. SECTA MOLENDINI, old writ of, 109,202. SE1TLEMENT, gained by renting the fishery of a pond, 286. by renting what mills, 287. SEVERAL FISHERY, what, 87. that it may be had without the soil, 88. authorities to the contrary of this, 90. as to the passing of the soil, 95. extent of the fishery, 97. SEVERN, special act for conservation of, 70. SEWERS, commission of, 36. its origin, 346. commissioners of, whether they may extinguish rights in a river, 228. origin of the word sewer, 345. commissioners by statute, 348. the statute of sewers, 23 H. VIII. c. 5, 352. counties palatine, 353. saving of fines, 354. expenses of commissioners, ib. qualification of commissioners, ib. exceptions to the rule, 357. oath, 359. allowance, 361. continuance of commissions and laws of sewers, 362. supersedeas, 365. certiorari, 366. demise of the crown, 367. commissioners by act of parliament, 368. the commission, 369. laws of Romney Marsh, 374. survey, 375. walls, 376. streams and watercourses, 377. rivers, ib. ditches, banks, gutters, and sewers, 380. new sewers, 382. gotes and calcies, 383. bridges, 384. trenches, 385. annoyances, as springs, ib. mills and mill dams, ib. wears, gotes, &c. 386. inquiry into defaults, 387. who to repair, 388. the person must receive a benefit, ib. frontage, 390. use, ib. tenure, 391. prescription and custom, ib. K K 498 Index- to the SEWERS, continued. covenant, 392. grant, 393. corporation, 394. townships, 395. repairs, when made by the level, 396. ecclesiastical persons, 403. i i r -j. lords oi manors, to. copyholders, ib. ferry- owners, 404. reversioners, ib. mortgagors, 405. owners of offices, ib. annuitants, ib. what lands chargeable, ib. tithes, 406. goods, 407. perpetual charges, ib. destruction of annoyances, 415. of private nuisances, 419. commissioners of, have a court of record, 42 1 . what constitutes a court, 422. appointment of officers, ib. removal of officers, 423. jury of sewers, 427. surveyor's presentment, 430. when traversahle, ib. assessment, how made, 431. punishments for neglect, 433. fines, ib. amerciaments, 435. imprisonment, 436. distress, 438. sale, 441. replevin, 442. decrees of lands, 444. to whom they should he decreed, 449. indictments, ib. but no action of trespass can be had by commissioners, ib. of the certiorari, 452. disobedience to that writ, 457. costs, 458. writ of mandamus, 459. actions, 460. injunction, 463. SHELL FISH, prescription to take, doubtful whether legal, 61. SHORE, what, 20. SOUTHERN WHALE FISHERIES, 85. decisions on the right to trade and fish without a licence, ib. Principal Matters. |(| l( an y ances within the statutes of sewers, 385. STEW-POND a several fishery, 96. fish in, go to the heir, ib. STREAMS, within the laws of sewers, 377 STURGEONS, royal fish, 62. SUBSCRIBER, interpretation of the word in canal calls 42 SUIT to a mill, origin of, 108. how claimed, 116. SURVEY by commissioners of sewers, 371,375. SURVEYOR of highways, to fill up holes in rivers, &c. 164. of sewers, presentment of, 430. when traversable, ib. SWAN-HERD, 19. SWANS, a royal perquisite, 17. of the swan-mark, ib. qualification, ib. when they may be seized as estrays, 18. prescription to keep them, ib. stealing them, 19. right to, how claimed, 30. T. TENURE in the laws of sewers, when it induces a liability to re- pair, 391. TERRITORIAL FISHERY, 87, 89. THAMES FISHERIES, 183. THAMES, toll on lands, 243. TIDE, flowing of, not always evidence of a public navigable river, 32. but it is prima facie evidence, ib. TITHES of fish, when payable, 267. of mills, when payable, 273. alteration of ancient mills, 279. when liable to the sewers' rate, 406. TITLE to lands bought by canal companies, must be proved like other titles, 47. TOLL, what maybe taken at mills, 135. corn not to be taken in lieu of it, 136. not to be taken in the sea, 237. unless for a harbour, &c. 258. nor upon rivers, 240. unless by act of parliament, 242. there must be an advantage, ib. exemptions, 243. exorbitant tolls, ib. dower of, 290. TOWING, not of right by the side of navigable rivers, 129. Index to the TOWNSHIPS, when liable to repair sewers, 395. TRAVERSE of inquisition by a subject, 27. TRENCHES, what, within the statute of sewers, 385. TRESPASS, maintainable by canal companies under sonic cir- cumstances, 47. when not, 48. inav be maintained for injuries to fisheries, although no fish be taken, 192. See Pleadings. TROVER, for fish, 308. action of, will not lie for commissioners of sewers, 449. TRUSTEE, of roads, when not liable to forfeiture, 48. TWENTY YEARS possession of water, 206, 213. does not apply to a navigable river, 217. U&V. VENUE, in action concerning rights of water, 300, and id. n. UNITY OF POSSESSION will extinguish a fishery. 2;H. but not the rights of a mill, 233. nor a watercourse, 235. W. WALLS, what within the laws of sewers, 37(i. WATER, right of, what, 1. WATER-BAILIFF, power of, to seize fish, 69. and nets, 126. WATORCOURSE, how claimed, 2, 118. its legal signification, 117. what user of, sufficient to establish a right, 119. form of grants, 120. who may claim it, 122. costs in actions concerning, 123,n. must not he used to the injury of a neighbour, 142. injury to a newly built house, 143. what not a nuisance, 145. must be sued in conformity with the covenants of a lease, 147. obstruction of, what, 206. of twenty years' possession, ib. 213. which does not apply to public rights, 217. belonging to mills, obstruction of, 208. new mills, 210. See Mills. obstruction of, must be attended by damage, 218. cleansing it, not an obstruction, 219. remedies for obstructing them, 220. Matter*. :>a\ WATERCOURSE, continued. not an indictment, ih. ejectment, will not lie for it, as such, i6. trespass or case, when, 223. abatement, 224. extinguishment of, 234. See Indictment Pleading. what within the laws of sewers, 377. WATERSPOUTS, 145. obstructions of, 208. WATERWORKS COMPANIES, their liability to pav rates, 53. WEARS, forbidden, when, 155. erection of, to the injury of fisheries, 176. what, annoyances within the statute of sewers, 386. WEIGHTS, to be kept in mills, 138. WESTMINSTER FISH MARKET, 74. WHALE-FISHERIES, statutes relating to, 85. WHALES, royal fish, 62. WHARFS, when obstructions to navigation, 159. WRECK, what shall be said to be, 11. flotsam, &c. pass by the grant of wreck, 12. may be parcel of a hundred, ib. who may have it, 18. the king, ib. but a subject may have it by prescription, ib. what goods are wreck, ib. how wreck is recoverable, 14. when goods are to be sold, 15. how the owner is to recover his goods taken as wreck, ib. to pay custom, 16. custom to take it must be founded upon consideration, ib. right to, how claimed, 30. extinguishment of, 227. See Evidence. THt: END. 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