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proprietors are to follow the daily state of the flow of the water to find the mid-line, then there will never be an ascertainable boundary for their rights; e.g. suppose that the proprietor of the south bank has fixed bucks to the mid-stream opposite his lands, measuring it at the usual flow, at a spot where the bank is concave in shape, with the deep water running against it; then if in summer time the water remains only on the south side of the river, where the bucks are situate, if the proprietor on the north bank is to follow the state of the water and search for the mid-line in the middle of that, he would be taking the profit of some of the bucks and manifestly trespassing on the soil belonging to the proprietor on the south bank. There is no suggestion that owners of fisheries on opposite banks are entitled to fish in common, except by mutual agreement (e). Each has a distinct right on his own side of the filum, and stands to gain or lose his fishery according to the rise and fall of the flow of the river. If the gradual alteration of the course of the bed of the river changes the position of the marks of the usual flow on the banks which give the limits of the bed, then the mid-line will change and follow the curves of the banks irrespective of the depth of the water on either side of it, and the freehold will shift, as the line of the usual flow on the bank shifts, by gradual process. The riparian owner will gain the land accreting to his freehold on the one side, the opposite riparian owner losing his land washed away, but retaining his fishery, on the other side.

In tidal rivers in which fisheries exist and are bounded by the filum aquæ, as the Severn (f), the Tyne, the Trent, &c., we have again no definition of what is the aqua, but we have authority as to what is the filum aquæ. Lord Hale shows (g) that "the filum aquæ Sabrine, or the middle of the stream or channel at low water, is the constant boundary of the manors on every side, let it change its course as often as it will and as much as it will." From this it would appear that the aqua in tidal rivers is the water of the river (not of the sea) at the time of low water when the tidal influence is absent and the river is discharging its waters to the sea. This aqua runs in the bed (fundus) of the river, and the filum aquæ is its mid-line. The edge of the foreshore at ordinary low water takes the place of the edge of the bank of non-tidal water at the usual flow and forms the shoreward limit of the bed (fundus), just as the bank (ripa) at the usual flow forms the edge of the bed of a nontidal river.

The question of what is the "bed" of a tidal river (the lower Thames) was discussed in the case of Pearce v. Bunting (h). The

(e) See case of Preston, ante, pp. 47, 59. (ƒ) Hale, De Jure Maris.

(g) First Treatise, p. 354.

(h) [1896] 2 Q. B. 360.

question in that case was whether the foreshore owned by a private person came within the definition of the "bed of the Thames used in the Thames Conservancy Acts, 1857 and 1894: It was decided by Cave, J., and Wills, J., that the "shore" was a distinct thing from the bed, and that the bed was the river between the low water marks on either side. Wills, J., observing that the case of Hindson v. Ashby referred to the non-tidal part of the river where there was no foreshore, decided on the authority of Att.-Gen. v. Chambers (i), that the shore was littus maris, as distinguished from "soil of the sea," which is the same thing as "bed." The same

question as to the same place was raised in the case of The Conservators of the River Thames v. Smeed (j). The Court of Appeal disapproved of the decision in Pearce v. Bunting, Smith, L.J., deciding (p. 338), on the authority of the case of The State of Alabama v. State of Georgia (k), referred to in Hindson v. Ashby, that the phrase "bed of a river" meant the bed between the ordinary high water marks; Chitty, L.J. (at p. 353), being of the same opinion, but not referring to any authority. Lord Esher concurred in these judgments. Lord Justice Smith said: "Then what is the prima facie meaning of the words the bed of the Thames'? In my judgment they denote that portion of the river which in the ordinary and regular course of nature is covered by the waters of the river. It need not be constantly covered if in the ordinary course of things it is habitually covered. I will cite a passage from the judgment in an American case, namely, that of The State of Alabama v. State of Georgia (l), which I cited in my judgment in Hindson v. Ashby (m), for it exactly conveys what I understand by the meaning of the phrase 'bed of a river' [non-tidal]. It is this: The bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to convey it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.' This, when applied to a tidal river, means without reference to extraordinary tides at any time of the year. This, in my judgment, is the primâ facie meaning of the words 'bed of the Thames,' and the question is, in the Act of 1894, is there a context which causes the words not to bear their primâ facie and ordinary meaning?" Lord Justice Chitty said: "I come now to consider the first of the three points

(i) (1859) 4 De M. & G. p. 213.
(j) [1897] 2 Q. B. 334.

(k) (1859) 64 U. S. 515.

() (1859) 64 U. S. 515.
(m) [1896] 2 Ch. 1, at p. 25.

mentioned in an early part of this judgment, namely: What is the proper meaning of the term 'bed' when applied to such a river as the Thames, which from its source as far as Teddington Lock is a non-tidal river, and from Teddington Lock downwards is a tidal river? In my opinion the bed of the Thames means, and includes, the soil or ground which is covered by water in the ordinary course of nature—the ground over which the water flows or on which it lies. I exclude all extraordinary causes whereby the volume of the water is increased or diminished, such as unusual floods or droughts, and unusual winds, which have a considerable effect on the tidaland particularly the upper tidal-portions of the river. So far as the tide flows and reflows I include, as part of the bed, the soil or ground lying below high water mark at ordinary tides."

Thus the principle of defining the bed in a non-tidal and a tidal river was held to be the same, viz., that the bed is to be measured by the ordinary state of the water. With much diffidence, and with the greatest deference, it is submitted that this decision, except in so far as it is a decision as to the meaning of the words "bed of the Thames" as found in the Conservancy Acts, is not altogether sound. The dicta of the learned Judges, however, lay down the law as applying generally to all rivers of the same nature as the Thames, viz., being partly tidal and partly non-tidal. With regard to the non-tidal part of a river, the measurement of the bed by the ordinary state of the water is reasonable and practical, because the river consists of two elements, viz., the bed and the banks, and the boundary of the bed must be found somewhere between the filum and the top of the bank on either side; but when we come to the tidal part of the river different considerations arise. In the nontidal river there are two elements only, viz., the bed (fundus) and the bank (ripa); there is no intermediate hereditament between them like the "shore" or "foreshore." In the tidal river we have (a) the bed (fundus); (b) the shore (littus); and (c) the bank (ripa). If this decision is right we have this singular result, viz., that in non-tidal waters the middle of the bed is the medium filum aquæ, whilst in tidal waters it is not so. If the bed of the river in tidal waters is the soil between the low-water marks, then the medium filum aquæ will be equivalent to the filum of the bed, as it is in non-tidal waters; but if the "bed" of a tidal river is held to be the soil between the high-water marks, the filum of that bed will be a line differing altogether from the filum of the water, and will be inconsistent with the marking of the boundaries of foreshores and fisheries in that bed. Lord Hale (n) clearly shows that

(n) First Treatise; Moore on Foreshore, p. 354.

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the filum aquæ as a boundary is to be taken at low water, and not at high water. He says: "But most certainly at this day, and for all tyme whereof the memory of man is not, the filum aquæ Sabrinæ, or the middle course of the streme or channel at low water, is the constant boundary of the manors on every side, let it change its course as often as it will and as much as it will" (o). It is clear that the filum aquæ taken at low water is the mid-line of a tidal river. The Duke of Lancaster, as lord of the fee of Halton, had a right to have the filum of the Mersey kept open so as to leave passage for him and his men in a boat with eight oars of a length of eight feet outside the boat at the lowest of the water (p). The manors on the Mersey and the Dee are all bounded at the mid-stream (q), and the case is the same in other estuarial rivers. It would appear that the learned Judges have been misled in The Conservators of the River Thames v. Smeed by a consideration of what was the ordinary state of the water" in tidal estuaries, and have adopted the ordinary state of the water of the sea instead of the ordinary state of the water of the river as the limit of the bed of the river. The Legislature, in passing the Sea Fisheries Act, 1868, sect. 69, appears to have taken a different view. Power was thereby given to the Board of Trade to make orders for the establishment of oyster and mussel fisheries on the shore and bed of the sea, or of an estuary or tidal river above or below or partly above and partly below low water mark. The Attorney-General, in Crown informations, distinguishes between the right of the Crown to the foreshore and its right to the "bed" of the sea. The boundary of the "bed," on the banks on either side, is to be sought for between the top of the bank at high water and the filum of the river at low water. At high water, according to this decision, the "bed" will consist of all land covered with water at high water of ordinary tides, i.e. by the water of the sea, not the waters of the river. Now, if we seek for the "filum aquæ," or thread," or "mid-stream" of the tidal river, in what manner shall the line of it be drawn? If it is the filum of the "bed" of the tidal river, as it is in the non-tidal, and that bed extends to the ordinary high water mark on either side, it is obvious that this "mid-line" in an estuary, where the low water channel winds and twists first on one side and then on the other, will be a line following the contours of the banks at ordinary high water mark, and not the contour of the foreshore at ordinary low water mark, and will not in any sense


(9) First Treatise, p. 353; De Jure Maris, pp. 403, 405.

(p) Quo Warranto Rolls, Cheshire, 31 Edw. III., Duchy of Lancaster Chancery Roll, No. 45, 20 Sept. 16 Edw. IV.

(2) Moore on Foreshore, pp. 153, 154, 167, 168.

be the filum aquæ at all except at high water. A glance at an Admiralty chart of any tidal estuary will show this. Such a midline will at low water cut off pieces of the foreshore on one side of the low water channel from the main land, and also on the other side, and will be an entirely unpractical line, and an impossible one to mark the boundary of fisheries or foreshores between opposite manors. The foreshore is "that land which lies from time to time between the ordinary high and low water marks" (r). It is therefore impossible to suppose that in tidal rivers there is no distinction between the bed (fundus) and the shore (littus); and are we not driven to the conclusion that in tidal estuaries the bed (fundus) of the river is that channel which carries out the natural function of the upper river, viz., the discharging of the land water flowing down in the course of nature to the sea when not affected by the tidal influence in raising the tidal waters of the sea, and holding back temporarily the land waters coming down the river. In short, does not a tidal river consist of different areas at different periods? When it is low water it consists of (1) the bed of the river; (2) the foreshore or shore (littus) of the river bounded by the bank (ripa) above ordinary high water mark. When it is high water it is an arm of the sea in which the bed and the foreshore are submerged. The foreshore is such only because it is affected by the flowing of the tide, otherwise it would be the "ripa" or bank of the non-tidal river. Its existence as foreshore is not due to the action of the river bringing down land water; it is due to the action of the sea flowing over it, and as it owes its existence to the sea and not to the river, can it be said that it is part of the "bed" (fundus) of the river? It is submitted that it cannot, and that it is not part of the bed of the river.

Then if the bed (fundus) of the tidal river be taken to be that which lies between the ordinary low water marks on either side in which the river flows when delivering its land water to the sea, there will be no difficulty in finding the filum aquæ, or thread of the river, in such a way that it will form an easily ascertainable boundary between the foreshores and he fisheries thereover-a boundary consistent with the ownership of the foreshore on either side of it, and consistent with all the principles of the law of accretion, and consistent with what we know of such boundaries in tidal estuaries as the Severn. See Hale, De Jure Maris (pp. 384, 403, and 405, concerning islands). This mid-line no doubt will vary with the change of the current of the river between its foreshores and between the marks of ordinary low water on either side from time

(r) Scratton v. Brown, (1825) 4 B. & C. 485.

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