navigation was extinguished in one of the modes before mentioned, and the road cannot be removed as a nuisance to the navigation.(g) Every creek or river, into which the tide flows, is not on that account necessarily a public navigable channel, although sufficiently large for that purpose, but the flowing of the tide into such a creek or river is strong prima facie evidence that it is a public navigation.(h)

It is a common nuisance to divert part of a public navigable river, whereby the current of it is weakened and made unable to carry vessels of the same burthen as it could before.(i) And the laying timber in a public river is as much a nuisance, where the soil belongs to the party, as if it were not his, if thereby the passage of vessels is obstructed.(k) The placing a floating dock in a public river has been also held to be a nuisance, though beneficial in repairing ships.(7) So where a wooden jetty was erected on piles driven into the bed of the river Thames and extended considerably beyond high-water mark, but not quite to low-water mark, it was held that this was a nuisance to the navigation.(m) So a dummy or flush-decked barge fastened by means of chains to a wharf and to a mooring stone sunk into the bed of a navigable river, so as to rise and fall with the tide, for the convenience of embarking and disembarking passengers from vessels, and without which it would have been impossible for boats to land or embark passengers at the wharf at low water, is a nuisance.(n) And the bringing a great ship into Billingsgate dock, which, though a common dock, was common only for small ships coming with provisions to the markets in London, appears to have been considered as a nuisance, in the same manner as if a man were so to use a common pack and horseway with his cart, as to plough it up, and thereby render it less convenient to riders. (o) Where an Act authorizes a company to erect a bridge over a public navigable river, and they erect it in such a manner as to impede the navigation, and not in compliance with the provisions of the *Act, they are guilty of a nuisance.(p) And the erection of weirs across rivers [*533 was reprobated in the earliest periods of our law. "They were considered as public nuisances. The words of Magna Charta are, that all weirs from henceforth shall be utterly pulled down by Thames and Medway, and through all England, &c. And this was followed up by subsequent Acts treating them as public nuisances, forbidding the erection of new ones, and the enhancing, straitening, or enlarging, of those which had aforetime existed."(q) Upon the principle, therefore, which has been before stated(r) that the public have an interest in the suppression of public nuisances, though of long standing, it was held that a right to convert a brushwood into a stone weir (whereby fish would be prevented from passing except in flood times), was not evidenced by showing that forty years ago two-thirds of it had been so converted without interruption.(s) So in a more recent case it was holden, that twenty years' possession of the water at a given level was not conclusive as to the right. Abbott, C. J., said "If it be admitted that this is a public navigable river, and that all his Majesty's subjects had a right to navigate it, an obstruction to such navigation for a period of twenty years would not have the effect of preventing his Majesty's subjects from using it as such." (t) But where there was a grant of wreck from Heury 2, to the Abbey of Cerne by all their lands upon the sea confirmed by inspeximus by Henry 8, and also a grant from Henry 8, of the island of Brownsea

(g) Rex v. Montague, 4 B. & C. 599 (10 E. C. L. R.).

(h) Ibid., per Bayley, J., citing the Mayor of Lynn v. Taylor, Cowp. 86, and Miles v. Rose, 5 Taun. 706 (1 E. C. L. R.).

(i) 1 Hawk. P. C. c. 75, s. 11.

(k) Bac. Abr. tit. Nuisance (A.), where it is also said, "And hence it seems to follow that private stairs, from those houses that stand by the Thames, into it, are common nuisances. But it seems that where there are cuts made in the banks that are not annoyances to the river, the timber lying there is no nuisance."

(1) Anon., Surrey Ass. at Kingston, 1785, cited in the notes to 1 Hawk. P. C. c. 75,

s. 11.

(m) Dimes v. Petley, 15 Q. B. 276 (67 E. C. L. R.).

(n) Eastern Counties R. Co. v. Dorling, 5 C. B. (N. S.) 821 (94 E. C. L. R.).

(o) Reg. v. Leech, 6 Mod. 145; Bac. Abr. tit. Nuisance (A.).

(p) Hole v. Sittingbourne and Sheerness R. Co. 6 H. & N. 488.

(9) By Lord Ellenborough, C. J., in Weld v. Hornby, 7 East 195.

(r) Ante, p. 456.

(1) Vooght v. Winch, 2 B. & A. 662.

(s) Weld v. Hornby, supra.

and the shores thereof, belonging to the late monastery of Cerne, together with wreck, &c.; and there was also evidence that between forty and fifty years ago the proprietor of the island of Brownsea raised an embankment across a small bay, and had ever since asserted an exclusive right to the soil without opposition; it was held, that although the usage of forty years' duration could not of itself establish such exclusive right, or destroy the rights of the public, yet it was evidence from which prior usage to the same effect might be presumed, and which, coupled with the general words contained in the grants, served to establish such right. If, however, it had appeared, that the public had a right to fish over the place in question, prior to the forty years, and that the raising the bank was an act of usurpation, the exclusive right would not have been established.(u)

At common law every holder of lands adjoining to a river or brook has a right to the banks of the river or brook, upon his own lands so as to confine the flood-water within the banks, provided he does not thereby occasion injury to the lands or property of other persons; and if such right has been exercised before the passing of an Act authorizing the making of a public navigable canal, the exercise of such right after the making of the canal will not be a nuisance, although it may be injurious to the canal, as the construction of the canal may be considered as having taken place subject to the enjoyment of such rights as the landholders possessed when the Act passed, except so far as the Act may have restrained such rights.

*534] *Upon an indictment for a nuisance to a public canal navigation established by Act of Parliament, it was found by a special verdict that the canal was carried across a river and the adjoining valley by means of an aqueduct and an embankment, in which were several arches and culverts: that a brook fell into the river above its point of intersection with the canal, and that in times of flood the water, which was then penned back into the brook, overflowed its banks, and was carried by the natural level of the country, to the above-mentioned arches, and through them to the river, doing, however, much mischief to the lands over which it passed; that except for the nuisance aftermentioned, the aqueduct would be sufficiently wide for the passage of the river at all times but those of high flood, notwithstanding the im proved drainage of the country, which had increased the body of the water; that the defendants, occupiers of lands adjoining the river and brook, had for the protection of their lands, subsequently to the making of the canal, aqueduct and embankment, created or heightened certain artificial banks called fenders, on their respective properties, so as to prevent the flood-water from escaping as aforesaid, and that the water had consequently, in time of flood, come down in so large a body against the aqueduct and canal banks as to endanger them and obstruct the navigation: that the fenders were not unnecessarily high, and that, if they were reduced, many hundred acres of land would again be exposed to inundation. It was held, by the King's Bench, that the defendants were not justified under these circumstances, in altering for their own benefit the course, in which the flood-water had been accustomed to run; that there was no difference in this respect between flood-water and an ordinary stream ; that an action on the case would have lain at the suit of an individual for such diversion, and consequently that an indictment well lay where the act affected the public.(v) But the Court of Exchequer Chamber, although they agreed in the principle that the ancient course and outlet of the flood-water had been obstructed by the wrongful raising from time to time of the fenders by the defendants, upon which the judgment of the King's Bench proceeded, held that the special verdict ought to have found1st, whether the raising fenders was an ancient and rightful usage, or whether it had been commenced since the construction of the canal. For there was no doubt that at common law the landholders would have the right to raise the banks of the river and brook from time to time, as it became necessary, upon their own lands, so as to confine the flood-water within the banks, and to prevent it from overflowing their own lands; with this single restriction, that they did not thereby occasion any injury to the lands

(u) Chad v. Tilsed, 5 Moore, 185.

(v) Rex v. Trafford, 1 B. & Ad. 874 (20 E. C. L. R.). The jury also found that the acts creating the nuisance were done by the defendants severally, and it was held that as the nuisance was the result of all those acts jointly, the defendants were rightly joined in one indictment, which stated the acts to have been several.

[*535

or property of other persons. And if this right had actually been exercised and enjoyed by them before the passing of the Act, then the construction of the aqueduct and embankment might be considered as having taken place subject to the enjoyment of such rights as the landholders possessed at the time of passing the *Act, unless so far as the Act might have restrained the exercise of such rights. 2dly, whether the course described by the special verdict to have been taken by the flood-water, was or was not, the ancient and rightful course. And, 3dly, whether or not the raising of the fenders to their present height had became necessary in consequence of the construction of the aqueduct.(w)

It is no defence to an indictment for a nuisance in a navigable river and port to prove that, although the work be in some degree a hindrance to navigation, it is advantageous, in a greater degree, to other uses of the river. Where, therefore, a causeway had been made in the river Medina, which was an inconvenience to the navigation, as small vessels were much obstructed in making their way up with the tide, but it was a great benefit to the public: first, in launching and landing boats more readily secondly, steam boats and other vessels could approach where they could not before: thirdly, vessels obtained shelter from the quay; and the jury found it to be a nuisance, but added the inconvenience was counterbalanced by the public benefit arising from the alteration; it was held that this finding amounted to a verdict of guilty.(x)

On an indictment for a nuisance, in the navigable river Itchen, it appeared that a wharf was built between high and low-water mark, and projected over a portion of the river on which boats formerly passed; before its erection there was no means of unloading trading vessels in the river, except by lightening them in the middle of the stream and then getting them at high water on to the mud between high and low-water mark; but since its erection such vessels had been unloaded at it, and thus the centre of the river was kept clear and the general navigation improved; but Wightman, J., left it to the jury to say whether the wharf itself occasioned any impediment whatever to the navigation of the river by any description of vessels or boats, and told them that they were not to take into consideration the circumstance that a benefit had resulted to the general navigation of the river by the said channel being kept clear.(y) But there may be cases where the injury to the public is too small to support an indictment. Upon the trial of an indictment for a nuisance to a harbor by erecting and continuing piles and planking in the harbor, and thereby obstructing it and rendering it insecure, it was found by a special verdict, that "by the defendant's works, the harbor is in some extreme cases rendered less secure ;" and it was held that the defendant could not be made criminally responsible for consequences so slight, uncertain, and rare, as were stated by this verdict to result from his works (z)

*An Act recited that the river Witham was formerly navigable from Lincoln [*536 to the sea, but that by sand and silt brought in by the tide the outfall had been greatly obstructed, and powers were given to commissioners to restore the navigation, and they were authorized to make a new cut through lands adjoining the river, and the

(w) Trafford v. Regem, 8 Bingh. R. 204 (21 E. C. L. R.).

(z) Rex v. Ward, 4 Ad. & E. 384 (31 E. C. L. R.); 6 N. & M. 38, overruling Rex v. Russell, 6 B. & C. 566 (13 E. C. L. R.); 9 D. & R. 566. See Rex v. Morris, 1 B. & Ad. 441 (20 E. C. L. R.).

(y) Reg. v. Randall, C. & M. 496 (41 E. C. L. R.).

(z) Rex v. Tindall, 6 A. & E. 143 (33 E. C. L. R.); 1 N. & P. 719. In Reg. v. Russell, 3 E. & B. 942 (77 E. C. L. R.), on the trial of an indictment for obstructing a navigable piece of water, the jury were asked whether they thought the erection would prove a "material nuisance," in which case they were to find a verdict of guilty; but were told that if they thought the "nuisance" was so slight, rare, and uncertain, that the defendant ought not to be made criminally liable for it, they should acquit him, and the jury said that they considered the erection, "although a nuisance, was not sufficiently so to render the defendant criminally liable," and thereon an acquittal was entered; it was held by Coleridge and Crompton, JJ., and semble by Lord Campbell, C. J., that the charge was to be understood as meaning, not that a party may legally commit a small nuisance, but that an obstruction might be so insignificant as not to constitute a nuisance; and that the jury must be understood as finding that the obstruction was so insignificant; and that, therefore, there was not a misdirection warranting a new trial.

navigation so made was to be open to all persons paying certain tolls: the commis'sioners were also authorized by this and another Act to build bridges under certain regulations. The cut was made, and a more direct channel thereby created, through which the waters of the river passed to the sea. The powers of the commissioners were afterwards vested by another Act in a company, who built a bridge over the cut, not according to the regulations of the Act, upon piles fixed in the bed of the cut, and its piers occupied part of the breadth of the river; the jury were told that this was a public highway, and were desired to say whether or not the construction of the bridge was a nuisance to the navigation of the river, and they answered that they did not consider it to be an obstruction to the navigation; and it was held that there was no doubt that this was a public river; that the cut, which merely straightened the course, was in the same situation as the original channel, and the public had the same rights over it as they had over the original channel; and that if the bridge had been so built as to obstruct the navigation, it would have been an indictable offence; but that the verdict amounted to a finding of not guilty. It was for the jury to say whether an erection of this kind was a damage to the navigation or not, and the true question for them was, whether a damage accrued to the navigation in the particular locality.(a)

Both the person who erects, and the person who keeps erected, on the shore of a navigable river between high and low-water mark, a work for the more convenient use of his wharf adjoining, which work, either from its original defective construction, or from want of repair, presents a dangerous obstruction to the navigation, is guilty of a nuisance.(aa)

By the 1 Eliz. c. 17, the taking of fish, except with the particular trammels or nets therein specified, was prohibited, upon pain of the forfeiture of a certain penalty, of the fish taken, and also of the unlawful engines: and upon this Act it was contended, that a party laying certain illegal engines called bucks in his own fishery was guilty of a nuisance; but the Court held that it could not be considered as a nuisance public or private.(b)

Where a vessel has been sunk in a navigable river by accident and misfortune, no indictment can be maintained against the owner *for not removing it. Lord *537] Kenyon, C. J., said that the grievance has been occasioned, not by any default or wilful misconduct of the defendant, but by accident and misfortune; and that it would be adding to the calamity to subject the party to an indictment for what had proceeded from causes against which he could not guard, or which he could not prevent and though it was urged that if the defendant was not punishable for having caused the nuisance, yet it was his duty to have removed it, and that he was liable to be indicted for not having done so, the learned judge said, that perhaps the expense of removing the vessel might have amounted to more than the whole value of the property; and that he was therefore of opinion, that the offence charged was not the subject of indictment.(c) And this decision has been fully confirmed in two cases, in which it has been held that it is the duty of a person using a navigable river with a vessel of which he is possessed and has the control, to use reasonable skill and care

66

(a) Reg. v. Betts, 16 Q. B. 1022 (71 E. C. L. R.). Lord Campbell asked, during the argument, may not there be a common law right to erect bridges not obstructing the navigation?" How have bridges ever been legally made over navigable rivers?" His Lordship also expressed his dissent from the opinions of the majority of the judges in Rex v. Russell, 6 B. & C. 566 (13 E. C. L. R.). And in the Mayor of Norwich . Norfolk R. Co., 4 E. & B. 440 (82 E. C. L. R.), speaking of a nuisance to a navigable river, Lord Campbell said, "the doctrine of compensation has not hitherto been applied in such a case to justify a public nuisance; and I have not before heard it suggested that, without the authority of Parliament, the passage of ships up and down a navigable river could be obstructed for a given period by works which might afterwards enable ships to navigate the river with increased facility. The consent of the Lords of the Admiralty, and of the riparian proprietors, could not supersede the necessity for the authority of the Legislature." See Abraham v. G. N. R. Co., 16 Q. B. 5×6 (71 E. C. L. R) as to the construction of the Railway Clauses Consolidation Act, 8 & 9 Vict. c. 20, in cases of bridges built over rivers.

(aa) White v. Phillips, 15 C. B. (N. S.) 245 (109 E. C. L. R.).

(b) Bulbrooke v. Goodere, 3 Burr. 1768.

(c) Rex v. Watts, 2 Esp. R. 675.

to prevent mischief to others, and his liability is the same whether his vessel be in motion or stationary, floating or aground, under water or above it. For in all these circumstances the vessel may continue to be in his possession and under his control. This duty arises out of the possession and control of the vessel being in him: and this liability may be transferred, with the transfer of the possession and control, to another person And on the abandonment of such possession and control the liability ceases. And further, that from an unavoidable accident producing the wreck of a vessel, no duty arises to the owner to take any precautions or to remove the impediment to navigation which it creates.(d)

A weir appurtenant to a fishery, obstructing the whole or a part of a navigable river, is legal, if granted by the crown before the commencement of the reign of Edward 1, and such a grant may be inferred from evidence of its having existed before that time. If the weir, when so first granted, obstruct the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only navigable passage remaining. Where the crown had no right to obstruct the whole passage of a navigable river, it had no right to obstruct a part by erecting a weir, except subject to the rights of the public; and, therefore, in such a case, the weir would become illegal upon the rest of the river being so choked that there could be no passage elsewhere. In an action of trespass for throwing down a weir, the plaintiff established the existence of the weir by a royal grant made at some time prior to the time of Edward 1; but it stood across part of the Severn, a public navigable river—a part, indeed, not required for the purposes of navigation at the date of the grant, but, at the time of the commission of the trespass, necessary for those purposes, by reason of the residue of the channel having become choked up. The plaintiff contended that, at the date of the grant, the crown had the power of making it, *even to the disturbance or total prevention, of the right of navi[*538 gation by the subject: or that, at all events, it had the power of making such a grant, if, in the then existing state of circumstances, it did not interfere with the rights of the subject: and that such a grant, valid in its inception, would not become invalid by reason of any change of circumstances, which might afterwards affect the residue of the channel. Lord Denman, C. J., in delivering the judgment of the Court, said, "If the subject (which this view of the case concedes) had by common law a right of passage in the channel of the river, paramount to the power of the Crown, we cannot conceive such a right to have been originally other than a right locally unlimited to pass in all and every part of the channel. The nature of the highway which a navigable river affords, liable to be affected by natural and uncontrollable causes, presenting conveniences in different parts and on different sides according to the changes of wind or direction of the vessel, and attended by the important circumstance that on no one is any duty imposed by the common law to do that which would be analogous to the ordinary repair of a common highway to remove obstructions, namely, clear away sand-banks and preserve any accustomed channel-all these considerations make it an almost irresistible conclusion that the paramount right, if it existed at all, must have been a right in every part of the space between the banks. It cannot be disputed that the channel of a public navigable river is a King's highway, and is properly so described; and, if the analogy between it and a highway by land were complete, there could be no doubt that the right would be such as we now lay down; for the right of passage in a highway by land extends over every part of it. Now, although it may be conceded that the analogy is not complete, yet the very circumstances in which it fails, are strong to show that in this respect at least it holds. The absence of any right to go extra viam in case of the channel being choked, and the want of a definite obligation on any one to repair, only render it more important, in order to make the highway an effectual one, that the right of passage should extend to all parts of the channel. If

(d) White v. Crisp, 10 Exch. R. 312; Brown v. Mallett, 5 C. B. 599 (57 E. C. L. R.). See the remarks on this case on Harmond v. Pearson, 2 Esp. 675, which is cited in Hancock v. York, Newcastle and Berwick R. Co., 10 C. B. 348 (70 E. C. L. R.), to show that it is a nuisance to leave an anchor in a navigable river without a buoy; and where it was held that the owner of an anchor was not guilty of a nuisance created by it in a place to which it had been removed without his knowledge.