or houses" within the 43 Eliz. c. 2, s. 1. (q) And this is one reason why canal shares, being mere interests in a navigation, and not in the soil, do not in general entitle a person to vote for members of parliament; (r) and Commissioners of Sewers, having no interest in the soil, cannot maintain trespass even for injuries to their works. ($) The respective interests in a several fishery, free fishery, and common of fishery, the two last of which are only incorporeal rights, will be more properly considered amongst other incorporeal hereditaments. It is proper, however, here to observe, that when a river or watercourse not navigable divides the property of distinct owners, the inference is, in the absence of proof to the contrary, that the ownership of the soil of such watercourse, and of the fishery thereon, belongs separately to the owners of the land upon each side, to the centre of the watercourse, usque ad medium filum aquæ. But not so in the case of a navigable river. (t) Every owner of land on the banks of a river or smaller watercourse has, primâ facie, an equal right to the use of the water, and one cannot acquire a right to throw the water back on the proprietor above, or to divert it from the proprietor below, without a grant from all the other proprietors, or twenty years' enjoyment, which is evidence of a grant, (u) and such twenty years uninterrupted enjoyment is now secured by the provisions of the 2 & 3 Wm. 4, c. 71. It has been supposed that any one might divert a part of the water of a river or watercourse to his own use, so that he did not injure any present works of another on the same stream. (x) But that doctrine must be received with (a) Rex v. Aire and Calder Navigation, 3 Bar.& Adolp. 159; 9 B. & Cres. 114, 820. (r) Ante, 95. With regard to shares in a navigable river or canal, the legislature has, in many cases, declared them to be real property; in others, where no such express declaration has been made, but where the shareholders, in respect of their shares, are actual proprietors of the soil, or where they have such rights arising in and out of the soil as amount to an incorporeal hereditament, the law considers them real property, so as to give a right of voting, 2 Ves. jun. 652; 1 B. & C. 546; id. 551; 9 B. & C. 128; Rog. Elections, 116. But if such shareholders are, by act of parliament, declared to be a corporate body, they cannot vote, Heywood's Law of Elections, 71; 2 Peck, 113; id. Gloucester, 136. So also held the revising barrister at Reading, 1832. The decision of the re vising barristers in the case of the Kennet (s) 2 J. B. Moore, 666, post. (t) Rex v. Smith, 2 Dougl. 411; and see post, 192, note (z); see post as to the ownership of soil adjoining a high road. (u) Wright v. Howard, 1 Sim. & Stu. 190, cited and confirmed in Mason v. Hill, 3 Bar, & Adolph. 304; post, 192, note (z) ; and see 2 Bar. & C. 910; 4 D. & R. 583; 1 Camp. 463; 6 East, 208; 1 Wils. 174; 1 Bar. & Ald. 258; 5 Taunt. 454; 4 East, 107; 7 Bing. 692. (x) Bealey v. Shaw, 6 East, 207; and per Tindal, C. J. in Liggens v. Juge, 7 Bing. 694, 695; but see 1 B & Adolph. 874; 3 Id. 304; post, 192, note (3). CHAP. IV. I. RIGHTS I. RIGHTS TO REAL PROPERTY. CHAP. IV. qualification, for although no particular individual can sue for an alteration in a watercourse, unless he can show that it has occasioned some actual injury to himself; (y) yet, if afterwards, and within twenty years, although subsequent to such alteration, any person entitled to the use of the watercourse in its natural state should think fit to erect works, or otherwise to begin to use the watercourse as he was originally entitled to do, and find that the antecedent alteration then prevents him from so doing, or from enjoying his privilege as fully entitled, he may then sustain an action for the interruption of his right, then, for the first time, beginning to produce an actual injury. (2) Criminal injuries. As respects the criminal law, special provisions have recently been enacted, varying the punishment for criminal injuries of different descriptions to water and watercourses and fisheries, whether in the nature of larceny or of malicious injuries, and which we will now notice. (a) Fisheries and fish. As respects injuries in the nature of larceny, it is provided that if in any water which shall run through or be in any land adjoining or belonging to the dwellinghouse of any person being the owner of such water, or having a right of fishing therein, any person unlawfully and wilfully take or destroy any fish, he is guilty of an indictable misdemeanor. (y) Williams v. Morland, 2 Bar. & Cres. 910; but note that in Mason v. Hill, 3 Bar. & Adolph. 312, Ld. Tenterden seems to have suggested whether that principle should have been admitted. It will be observed, however, that the principle is correct. A commoner cannot sue for a trespass on a common without averring and proving some consequent damage, however small, 2 East's R. 154. () Mason v. Hill, 3 Bar. & Adolph. 304. The court in that case held that the proprietor of lands contiguous to a stream may, as soon as he is injured by an antecedent diversion of the water from its natural course, made within twenty years, maintain an action against the party so diverting it and that it is no answer to the action that the defendant first appropriated the water to his own use, unless he had twenty years undisturbed enjoy ment of it in the altered course. The Court quoted the judgment of the Master of the Rolls in Wright v. Howard, 1 Sim. & Stu. 190, as expressed in language most perspicuous and comprehensive. The right to the use of water rests on clear and settled principles. Prima facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, but there is no property in the " water. Every proprietor has an equal right to use the water which flows in the stream; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors, who may be affected by his operations, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor, who claims a right either to throw the water back above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or liceuse from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years: which term of twenty years is now adopted, upon a principle of general convenience, as affording conclusive presumption of a grant." The learned judge then adds, that an action will lie "at any time within twenty years, when injury happens to arise in consequence of a new purpose of the party to avail himself of his common right." See also 1 B. & Adolph. 874. (a) 7 & 8 Geo. 4, c. 29, s. 34, 35, 36; Id. c. 30, s. 12, 15, 24. The term "belonging to a dwelling-house" seems very loose and uncertain. (b) The illegally taking or attempting to take or destroy any fish "in any water, not being such as aforesaid, but which shall be private property, or in which there shall be any private right of fishery," is an offence punishable summarily before a justice with 57. penalty. (c) But if any person shall, by angling in the day time, take or attempt to take or destroy any fish in such first mentioned water, he shall, on conviction before a justice, forfeit 57., and if in the last mentioned water, then 27.; and a power is given to seize the rods, lines, hooks, nets, and other implements, for the use of the owner; but which seizure exempts the offender from the payment of any damages or penalty for such angling. (d) CHAP. IV. I. RIGHTS and dams. 28. The maliciously breaking down or destroying the dam of 28. Fish-ponds any fish-pond, or of any water which shall be private property, or in which there shall be any right of private fishery, with intent thereby to take or destroy any of the fish in such pond or water, so as thereby to cause the loss or destruction of any of the fish; or the maliciously putting any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish therein; or maliciously breaking down or otherwise destroying the dam of any mill-pond, is an indictable misdemeanor, punishable with transportation for seven years, or imprisonment for two years, and whipping, if a male offender. (e) 29. Oyster Bed, Laying or Fishery. The stealing any oysters 29. Oyster or oyster brood from any oyster bed, laying, or fishery, being beds. the property of any other person, and sufficiently marked out or known as such, is larceny; and the using any dredge, or any net, instrument, 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, is an indictable misdemeanor, punishable with fine of 201., or three calendar months' imprisonment, or both, as the court shall award. (ƒ) fences and 30. Hedges, Fences and Ditches. When these are external, 30. Hedges, and separate the properties of distinct owners, the rule appears ditches. to be, that if there be two adjacent fields separated by a hedge (b) 7 & 8 Geo. 4, c. 29, s. 34; and see the decision on the word " adjoining," ante, 178, 179. (c) Id. ibid. VOL. I. (d) Id. s. 35. (e) 7 & 8 Geo. 4, c. 30, s. 15. CHAP. IV and ditch, the hedge and bank primâ facie belong to the owner I. RIGHTS TO REAL PROPERTY. of the field immediately adjoining the same; and if there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership. (g) In other words, in the first instance, and in the absence of express evidence of the original formation of the hedge or ditch, or of acts of ownership, the inference is, that the party originally resolving to fence his land, dug his ditch at the extreme boundary of such land, so as to exclude very little, if any, part thereof; and that he threw the excavated earth inwards, towards and upon his own land, and then planted or erected a thorn quick or paling upon the ground thus elevated. (h) It has been held, that if a person have a field fenced with a bank and ditch, it is not a necessary consequence that his rightful ditch properly extended to the width of eight feet from the interior line of the foot of the bank, i. e. four feet for the base of the bank, and four feet for the ditch; (i) but proof of the ancient width of the ditch is evidence that the owner's land did not extend beyond the outer edge of it, and that he has no right to cut away his neighbour's land for the purpose of widening the ditch,(j) nor would it be lawful to dig a deeper ditch, if the consequence would be the giving way and sinking of part of the neighbour's ground. (k) Twenty years' possession and reparation of a boundary or division hedge or ditch, by an owner in fee, affords presumptive evidence of a continuing legal obligation to repair, and he or his tenant (on whom, as occupier for the time being, the obligation to repair devolves,) would afterwards be compellable to repair, and if he should omit to do so, he would be liable for any consequential damage in several respects; as first, to an action of trespass, if his cattle, through any defect in his fence, escape prevent persons getting over, which they otherwise might do, by stepping on the rails; and this practice, in otherwise doubt ful cases, will assist in deciding upon the ownership of the fence, and of the land on which it stands, but not universally so, for at the time the fence was erected, the neighbour might have refused permission to enter his land, and thereby have compelled the party making the fence to work only upon his own land, and thereby necessarily reverse the above order of proceeding; and, in that case, the inference would be that the boundary line of the land, and of trees growing in the fence, was the external side of the posts to which the rails were fixed. As to a wall, see 8 Bar. & Cres. 257. from his own land into that of his neighbour; and also his cattle, whilst so illegally therein, might be taken as a distress; secondly, to a special action on the case for any trouble, damage or loss, that a neighbour might sustain by his cattle escaping out of his own lands into those of the owner of the defective fence, and there receiving injury; and thirdly, he could not complain of any trespass or damage done upon his own land by cattle escaping from that of his neighbour, nor could he legally take them as damage feasant. (1) Again: as betweent owners in fee of fences, there is an ancient specific remedy, which, though now out of use, would be highly useful to revive in practice, viz. a writ "curia claudenda," compelling the owner in fee to repair his defective fence. (m) CHAP. IV. I. RIGHTS TO REAL PROPERTY. adjoins an highway, lane or common. 31. The general presumption of law is, that waste land, which 31. Boundary adjoins to a public turnpike or other road, and lies between line, where land such road and the fence of inclosures near to the same, belongs to the owner of the adjoining inclosed land, whether he be a freeholder, leaseholder, or copyholder, and not to the lord of the manor; (n) but this presumption may be, and frequently is, rebutted by proof of acts of ownership by the lord of the manor or other owner of the adjacent property, such as cutting and taking valuable timber trees to his own use, or cutting large quantities of bushes, or other acts, when the latter cannot be ascribed to the exercise of a mere right of common. (o) So where highways or lanes, or narrow strips of land, divide the private inclosed lands of different owners on each side, the legal inference, in the absence of proof of acts of ownership to the contrary, is, that the ground on each side, to the centre of such highway, lane or land, ad medium filum viæ, belongs to the owners of the land, whether freehold or copyhold, ex utraque parte. (p) But this presumption does not affect the soil of a highway set out over a common under an inclosure act, where, previous to the inclosure, only the lord of the manor was owner of the whole soil; (q) nor does it affect land immediately on the outside of a fence adjoining a large waste or common, in which case such land is presumed to belong to the () 1 Salk. 335; 1 Ld. Raym. 273; 2 Y. & J. 391; 1 B. & Ald. 59. (m) Fitz. N. B. 128; 1 Salk. 128; Vin. Ab. Fences, Curia Claudenda; and see chap. ix. post, Specific Relief. (n) Doe v. Pearsley, 7 Bar. & C. 304; 2 Stark. Rep. 463. Per Littledale, J., id. ibid. |