Fishery. The right of fishery being a right of property, the presumption is that each owner of land abutting on a non-tidal stream has the right of fishing in front of his land, usque ad medium filum aqua; and where a man possesses land on both sides of the water, he has the sole right of fishing; but this presumption will be rebutted where there is a several fishery in such waters (u). This subject is dealt with in Chap. VI. Definition. Ownership of soil. In large navigable lakes. Lakes and Pools. A pool is defined by Callis as a mere standing water, with no current at all"; and is distinguished from a pond as being a work of nature, and not of art (x). "A pond," says Angell, is a lake of small size. The outlet of a lake may be a river, but the lake does not lose its distinctive character, because there is a current in it for a certain distance tending towards its outlet (y). It does not appear that by the English law there is any difference as to the ownership of the soil between land covered with still and running water. Where, therefore, a lake or pool lies wholly within, and is surrounded by, a manor or estate, the presumption is that the owner of the manor or estate is also the owner of the soil of the lake; and where the boundary of two properties passes along the pool, it is taken to coincide with the medium filum of the pool; although, of course, it may be proved expressly to have some other direction (z). With regard to the large inland lakes in this country, the law is settled, Lord Macnaghten saying in Johnston v. O'Neill that in this country one and the same law applies to inland non-tidal waters, whatever the size of the water-space may be, though for many years there has been doubt felt with regard to the large lakes (a). Thus in the case of Bristowe v. Cormican (b), the House of Lords held that the Crown had no de jure right to the soil and fisheries of large non-tidal navigable lakes, such as Lough Neagh in Ireland; Cairns, L.C., remarking that he was not aware of any rule which would primâ facie connect the soil or fishing with the Crown, or disconnect them from the private ownership either of riparian proprietors or others. So far the case is clear, but it was left in doubt whether the presumption of (u) Lamb v. Newbiggen, 1 Car. & K. 549; Hale de Jure Maris, 1; Hindson v. Ashby [1896] 2 Ch. 1. (x) Callis on Sewers, p. 82; Woolrych on Sewers, p. 80. (y) Angell on Watercourses, p. 8. As to diversion of water from a pond by a sewer, see Dukes v. Gostling, 4 L. J. C. P. 211; 1 Bing. (N.c.) 589. (z) Phear, Rights of Water, p. 1. See Woolrych, p. 121. (a) Johnston v. O'Neill [1911] A. C., at P. 578. (b) 3 A. C. 641. As to American law, see Angell's Watercourses, § 41. ownership ad medium filum aquæ, which exists with regard to owners of land on the banks of non-tidal streams of running water, existed also on large navigable lakes. Lord Blackburn in his judgment touched upon this question, though the particular point was not necessary for the decision of the case. He said: "I own myself to be unable to see any reason why the law should not be the same, at least where the lake, is so small, or the adjoining manor is so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad medium filum aquæ should apply to a lake, is a different question. It does not seem convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough, many miles in length, tacked on to his frontage." In America this question has been of more importance than in this country, but the decisions of the different States vary considerably; and with regard to the Great Lakes, the question has been considered more in a territorial and natural than in a legal point of view (c). In this country there are but few cases on the subject. In Bloomfield v. Johnson (d), the Irish Court of Exchequer Chamber, reversing the judgment of the Court of Common Pleas, has held that a grant from King James I., who was the owner of the whole soil and bed of Lough Erne, of lands adjacent to the lake, with certain islands in it, and also a free fishery in the lakes, and all waters, watercourses, fisheries, &c., within the same did not pass the soil of the lake, distinguishing the case from that of Lord v. Commissioners of Sydney (e), on account of the size and navigability of the lake; and Fitzgerald, B., was of opinion that, assuming that the presumption that by a grant of lands adjacent to a fresh water river (the grantees being the owners of the soil of the river) the soil of the river passes ad medium filum aquæ, applied to such lakes as Lough Erne, the grant of a free fishery when a several and exclusive fishery might have been granted was sufficient to rebut the presumption that the soil was intended. to pass ad medium filum aquæ. In Marshall v. Ulleswater Co., the plaintiff, who proved a grant to him of a several and exclusive fishery in the Lake of Ulleswater, was held on that account to be the owner of the soil of the lake; the majority of the Court, however, expressing a doubt whether the soil of lakes, like fresh water rivers, belonged prima facie to the adjoining owners or to (c) See per Dowse, B., in the same case in the Irish Court of Exchequer, Ir. R. 10 C. L. 412, and per Whiteside, C.J., in Bloomfield v. Johnson, Ir. R. 8 C. L. 89; Angell on Tide Waters, p. 76. (d) Ir. R. 8 C. L. 89. (e) 12 Moo. P. C. 473. Navigation. Fishing. Ownership of soil of. the Crown (f). Since the decision of the House of Lords in Johnston v. O'Neill (g) the question is no longer open to doubt. There seems no doubt but that the public may acquire a right of navigation in a non-tidal lake in the same way as on a nontidal river (h). In pools and small non-navigable lakes, the right of fishing of course belongs prima facie to the riparian owners ad medium filum aquæ. The same rule applies to the greater lakes. This was decided in the case of Johnston v. O'Neill (i), relating to Lough Neagh, the House of Lords holding that no right can exist in the public by custom, user or prescription to fish in the waters of an inland non-tidal lake however large. Artificial Watercourses. We have spoken hitherto exclusively of natural bodies of water flowing ex jure naturæ from the earth; but it is necessary to add a few words with regard to watercourses which owe their existence to artificial means. Where an artificial watercourse is made by a man on his own land, of course, no question as to the ownership of the soil of it, or the rights over it, can arise; but the case will be different where such a watercourse is made on the land of another. In such a case the right to the watercourse can only be created by grant or by long-continued enjoyment, from which the existence of a former grant may be reasonably presumed (k), or by Act of Parliament (1). “A grant of a watercourse in law may,' says Jessel, M.R., "mean one of three things, especially when coupled with other words. It may mean the easement, or the right to the running of water; and it may mean the channel, pipe or drain which contains the water; and it may mean the land over which the water flows. Which it does mean must be shown by the context; and if there is no context, I apprehend that it would not mean anything but the easement or right to the flow of water” (m). The right, therefore, to the ownership of the bed of such watercourses depends entirely on the words of the instrument which creates ,, (f) 3 B. & S. 732. See also Reg. v. Burrow, 34 Justice of Peace, p. 53. See as to this, the remarks of Lindley, L.J., in Hindson v. Ashby [1896] 2 Ch. 1, ante, p. 85. See also, as to the Norfolk Broads, Blower v. Ellis, 50 J. P. 326; and Micklethwaite v. Vincent, 67 L. T. 228, post, p. 393. (g) [1911] A. C. 552. (h) See Marshall v. Ulleswater Co., 3 B. & S. 732; Bloomfield v. Johnson, Ir. R. 8 C. L. 68; Bristowe v. Cormican, 3 A. C. 641; Marshall v. Ulleswater Co., L. R. 7 Q. B. 582; and post, pp. 485 et seq. (i) [1911] A. C. 552. (k) See Rameshur Pershad Singh v. Koonj Behari Pattuck, 4 A. C. 121. them, interpreted according to the usual rules of construction (n). Where the artificial watercourse is of a permanent character and its origin is unknown, the proper inference from the user may be that the channel was originally constructed upon the condition that all the riparian proprietors should have the same rights as they would have had if the stream had been a natural one (0). The most important of these artificial watercourses-viz., canals. sewers, and waterworks-are wholly the creatures of statute; and the rights of property in them of course depend on, and are regulated in each case by, the individual statute to which it owes its origin, and by those statutes which apply to such works generally. The full consideration of such artificial watercourses will be given in a later chapter (p). (n) Badger v. Yorkshire Rly Co., 28 L. J. Q. B. 118; 7 Jur. (N.s.) 459. (0) Baily Co. v. Clark, Son & Morland [1902] Ch. 649; 71 L. J. Ch. 396; Whitmores (Edenbridge), Lim. v. Stanford [1909] 1 Ch. 427; 78 L. J. Ch. 144. (p) See as to rights in artificial watercourses, post, p. 264, and, as to canals, post, p. 283. CHAPTER III. OF NATURAL RIGHTS OF WATER, AND THEREIN OF THE Natural Rights and Duties of Riparian Owners. HITHERTO We have treated almost exclusively of the ownership of the soil over which water flows, and of those rights incident to, and arising out of, the ownership of soil. In the present chapter we purpose to consider what are usually termed riparian rights, or rights of proprietors of land on the banks of streams, arising, strictly speaking, not from the ownership of the bed over which the water flows, but from the right of access which such proprietors have to the water. In the case of non-tidal waters, where the owner of land on the banks is primâ facie owner of half the bed, this may appear a fine-drawn distinction; but on the banks of tidal waters, where the ownership of the bed is primâ facie in the Crown, the distinction will be manifest-as -as the origin of such rights cannot be referred to ownership of the bed. "With respect to the ownership of the bed of the river," says Lord Selborne in Lyon v. Fishmongers' Co. (a), "this cannot be the natural foundation of riparian rights properly so called, because the word riparian' is relative to the bank, and not to the bed, of the stream; and the connection, when it exists, of property on the bank with property in the bed of the stream depends not upon nature, but on grant or presumption of law. In some tidal navigable rivers (as the Severn), parts of the bed of the tidal stream belong to riparian owners; and it appears from Mr. Angell's book (often quoted in our Courts), that in Pennsylvania and Alabama, States whose jurisprudence is founded generally on English law, the whole property in the beds of large non-tidal navigable rivers is in the State. The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it." (a) (1876) 1 A. C. 683; 45 L. J. Ch. 68; 35 L. T. 569. |