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to time; but it will be an ascertainable line by which owners of foreshore and owners of fisheries and islands can ascertain their boundaries by simple observation. Access to the foreshores and fisheries from either side will be easy and natural, and the property in them may be possessed without danger of dispute as to any arbitrary line, such as must be the case if the line is to be drawn midway between the ordinary high water marks. It is submitted that the river in tidal estuaries is the river at low water, and the bed of the river is bounded by the foreshore on either side, just as the bed of the non-tidal river where there is no foreshore is bounded by the bank at the ordinary state of the water (s).
(s) See the case of Miller v. Little, (1878) 4 L. R. Ir. 302, where the river in an estuary was dealt with as a river at the low water state of the tide.
OF CHANGE IN THE COURSE OF A RIVER, AND ITS EFFECT UPON
AN early statement of the law as to the effect of the change in the course of a river occurs in the Year Book, Assizes 22 Edward III., fol. 106, pl. 93. The printed text is corrupt; but, comparing it with four MSS. (a), the entry is as follows:
"If a water runs between two lordships, of which the water and the whole stream (fountayn) belongs to one lord, if this water by little and little diminish the soil of that lord to whom the water was not, and increase the soil of the other, so that the channel of this water is removed towards him out of its course upon the soil of the other lord in part or in the whole; still this water, with the whole stream (fountayn), belongs to the lord to whom it first was, if this increase of the water has been so gradual (si celement) that none can perceive it nor clearly see (ne voir bonnement) the increase, as it has increased by process of time as in many years, and not in one year nor in one day; and if certain bounds be not put and found before whereby one can perceive this increase (b). But if it has increased suddenly by force of a flood, this takes away from one lord part of his soil, whereby the soil of the other lord increases on the other side of the water; in such sudden increase no man ought to lose his soil, if the river be not an arm of the sea, where he will not have the water with his soil: and quære albeit, that the soil is increased by an arm of the sea shall he lose his soil? but I believe that he shall not. And note that every water that flows and reflows is called an arm of the sea so far upward as it flows. And note that Thorpe, J., said that if a water which is a highway by increase of the water, or by force of the same change its course on to another soil, still it is also highway there where this water is as it was before, in its ancient course, so that the lord of that soil cannot disturb this new-made Adjudged in the Eyre of Nottingham."
Lord Hale (c) deals with this entry as follows: "If a fresh river
(a) MS. Reg. B. Mus. 19 A. xiii. f. 33, MS. Addit. 22,554, MS. Egerton, 748, p. 23, MS. Harl. 811, f. 46 b.
(b) "Et ei certeines boundes ne soient mis et troves, dount houre puit aperceiveir cco increas." Two MSS. read devaunt que homme puit aperceivier, &c. N. B.-This passage is incorrectly translated, Foster v. Wright, (1878) 4 C. P. D., at p. 442.
(c) De Jure Maris, cap. i. p. 371.
between the lands of two lords or owners (d) do insensibly gain on one or the other side, it is held, 22 Ass., pl. 93, that the propriety continues as before in the river. But if it be done sensibly and suddenly, then the ownership of the soil remains according to the former bounds. As if the river running between the lands of A. and B. leave his course and sensibly makes his channel entirely in the lands of A., the whole river belongs to A.; aqua cedit solo: and so it is, though if the alteration be by insensible degrees, but there be other known boundaries as stakes or extent of land; 22 Ass., pl. 93. And though the book makes a question whether it hold the same law in the case of the sea or owners of it, yet certainly the law will be all one, as we shall have occasion to show in the ensuing discourse. But yet special custom may alter the case in great rivers. For instance, the river of Severn, which is a wild river; yet, by the common custom used below Gloucester Bridge, it is the common boundary of the manors of either side, what course soever the river takes; viz., the filum aque is the common mark or boundary, though it borrow great quantities of land, sometimes of one side, sometimes of the other, and give them to the opposite shore."
The authorities were discussed as to the case of a tidal river in the case of Mayor of Carlisle v. Graham in 1869 (e). In this case the corporation, as grantees of the Crown, were entitled to a several fishery in a part of the river Eden, which formed a bend or loop of the river. About 1693 the water of the river began to recede from the loop and to pass up and down a passage which had up to that time been merely a ditch with very little water in it, and at parts entirely dry, which was called "the Goat." The soil of the Goat and the lands on both sides of it and the fishery, and the fishery throughout the whole course of the river from the lower end of the Goat to the sea, belonged to the Lowther family and the Earl of Lonsdale, under whom the defendant claimed. By slow degrees and imperceptibly the river altogether shifted its course from the loop to the goat, and the loop dried up. The question was whether the corporation could follow their fishery in the new channel formed by the river where the lands on both sides belonged to a subject. It was held that they could not. Chief Baron Kelly in his judgment says:
'In the case of Murphy v. Ryan (ƒ), O'Hagan, J., in delivering
(d) It is to be remarked that Lord Hale omits to notice that the case in the Year Book relates to a river running between two lordships where the river and bed belongs wholly to one of the two lordships, but he treats it as if the lordships had a boundary in the river to the mid-stream, and his reference to the "special custom " in the Severn is really no special custom in the case of manors bounded by the mid-stream, but the common law.
(e) L. R. 4 Exch. 361.
(f) (1868) Ir. Rep. 2 C. L. 143.
the judgment of the Court, says: But whilst the right of fishing in fresh-water rivers in which the soil belongs to the riparian owners is thus exclusive, the right of fishing in the sea, its arms and estuaries, and in its tidal waters wherever it ebbs and flows, is held by the common law to be publici juris, and so to belong to all the subjects of the Crown; the soil of the sea, and its arms and estuaries and tidal waters, being vested in the Sovereign as a trustee for the public. The exclusive right of fishing in the one case, and the public right of fishing in the other, depend upon the existence of a proprietorship in the soil of the private river by the private owner and by the Sovereign in a public river respectively. And this is the true principle of the law touching a several fishery in a tidal river. If, therefore, the right of the Crown to grant a several fishery in a tidal river to a subject is derived from the ownership of the soil, which is in the Crown by the common law, a several fishery cannot be acquired even in a tidal river if the soil belong not to the Crown, but to a subject. And all the authorities, ancient and modern, are uniform to the effect that if, by the irruption of the waters of a tidal river, a new channel is formed in the land of a subject, although the rights of the Crown and of the public may come into existence and be exercised in what has thus become a portion of a tidal river or of an arm of the sea, the right to the soil remains in the owner; so that if at any time thereafter the waters shall recede, and the river again change its course, leaving the new channel dry, the soil becomes again the exclusive property of the owner, free from all rights whatsoever in the Crown or in the public.' (See Hale, De Jure Maris, pars prima Hargrave's Tracts, pp. 5, 6, 11, 13, 16, 37.)
"If, then, the title of the corporation to the fishery is derived from a grant by the Crown, and the title of the Crown to grant from the ownership of the soil, how can the corporation claim a right to the fishery in the Goat, where the soil does not and never did belong to the Crown?"
As, therefore, there could only be a public right of fishing, or a several fishery created by the exclusion of that public right, in waters flowing over soil vested in the Crown, and as the soil of the Goat was not so vested, the change in the course of the river could not give the several fishery to the corporation nor give the public any right to fish over the soil of the owner of it, notwithstanding that the tidal water had forced its passage over it (g).
(g) In the case of O'Neill v. M'Erlaine, (1864) 16 Ir. Ch. R. 280, a question arose as to the right of fishery in a new artificial cut made in the river Banne in Ireland. The fishery of the river was held under grants by James I., Charles I. and Charles II., and it was held that the owner of the fishery had no right in the new cut unless it was shown to have been a branch of the river Banne at the time of the granting of the fishery.
This question was further discussed as to a fishery in a non-tidal river, and under different circumstances, as to the change in the course of the river, in the case of Foster v. Wright (h), in 1878. The plaintiff was lord of the manor of Hornby, through which the river Lune ran. He was entitled to the fishery in all the waters of the manor, i.e. to the whole of the stream. Some manor land on one side of the river, near, but not adjoining to it, was enfranchised, and became the property of the defendant. The river, which at that time ran wholly between lands belonging to the plaintiff, afterwards wore away its bank, and by gradual progress, not visible, but periodically ascertained and recorded during twelve years, approached and eventually encroached upon the defendant's land, until a strip of it became part of the river bed. The extent of the encroachment could be defined. The defendant went on to this strip and fished there. Mr. Justice Lindley delivered judgment as follows:
"The question we have to determine is (i), whether the plaintiff's exclusive right of fishing extends over so much of the water as flows over land which can be identified as formerly part of the defendant's property.
"I am of opinion that it does. The change of the bed of the river has been gradual; and although the river bed is not now where it was, the shifting of the bed has not been perceptible from hour to hour, from day to day, from week to week, nor in fact at all, except by comparing its position of late years with its position many years before. Under these circumstances, I am of opinion that, for all purposes material to the present case, the river has never lost its identity, nor its bed its legal owner.
"Gradual accretions of land from water belong to the owner of the land gradually added to: Rex v. Yarborough (k); and conversely, land gradually incroached upon by water ceases to belong to the former owner: In re Hull and Selby Ry. Co. (1). The law on this subject is based upon the impossibility of identifying from day to day small additions to or subtractions from land caused by the action of running water. The history of the law shows this to be the case. Our own law may be traced back through Blackstone (m), Hale (n), Britton (0), Fleta (p), and Bracton (q), to the Institutes of Justinian (r), from which Bracton evidently took his exposition of the subject. Indeed, the general doctrine, and its application to
(h) (1878) 4 C. P. D. 438.
(i) Ibid., 446.
(k) (1824) 3 B. & C. 91; 5 Bingh. 163.
(7) (1839) 5 M. & W. 327.
(m) II. c. 16, pp. 261, 212.
(n) De Jure Maris, c. 1, 6.
(p) Book iii. c. 2, p. 6.
(q) Book ii. c. 2.
() Inst. ii. 1, 20.