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No public

right of land

ing, mooring or towing on the banks.

that right so as to work a private injury, they are liable to an action" (q). If in the course of navigation it is necessary to take the ground, all reasonable measures must be taken to prevent unnecessary injury. The rights of all vessels are not co-extensive. It may be reasonable and right that a small vessel should go up to the farthest point she can reach in order to give the public the benefit of the public way. But the same right does not exist in the case of a large vessel, and she is not entitled under extraordinary circumstances to get to a place where large vessels are not accustomed to go, and where there is no accommodation for loading or unloading them (r).

A riparian owner has a right to moor a vessel of ordinary size alongside a wharf for the purpose of loading and unloading at reasonable times and for a reasonable time; and the Court will restrain by injunction the owner of adjoining premises from interfering with the access of such vessel, though the vessel may overlap his premises; though such a vessel could not be allowed to interfere with the proper right of access to the neighbour's premises, if used as a dock by vessels (8).

The banks of navigable rivers are, as has been before explained, not publici juris, but are private property; and there is, therefore, no common law right in the public to land themselves or their goods, or to moor their vessels thereon, or to pass over the banks for the purpose of towing vessels or barges. Such rights, in all cases, depend on usage or prescription (t). The right of towing does exist by custom on most navigable rivers; and in the case of Wyatt v. Thompson (u), a jury found, "That the custom of mooring barges in the Thames at low water is for one tide at the piles in front of the wharf, and if there are no piles; the custom does not allow barges to moor at the wharf unless through distress."

A towing-path may be a highway to be used only for towing barges or vessels (x). The right of towing, therefore, apart from statute, depends on usage or custom.

"That there is such a custom," says Lord Kenyon, C.J., "on most navigable rivers no persons doubt, but still the right is

(q) See Stubbs v. Hilditch, 51 J. P. 758.

(r) Mayor of Colchester v. Brooke, supra: The Octavia Stella, 6 Asp. M. C. 182; Addison v. Hussey, Stuart Moore on Fisheries, p. 90; The Swift, [1901] P. 168.

(s) Original Hartlepool Colliers v. Gibb, 5 Ch. D. 713 (a wharf on the Thames); see Dalton v. Denton, 1 C. B. (N.s.) 672.

(t) Ball v. Herbert, 3 T. R. 262; 1 R. R. 695; Peirce v. Lord Fauconberg, 1 Bulst. 292.

(u) 1 Esp. 252; see, however, Att.-Gen. v. Wright, [1897] 2 Q. B. 318, ante, p. 454.

(x) See Winch v. Conservators of Thames, L. R. 7 C. P. 471; 43 L. J. C. P. 167; Rex v. Severn and Wye, 2 B. & A. 648; Thames Conservators V. Kent, post, p. 464.

founded solely on the custom."

. . "If navigation has been

carried on for a series of years, and this right of towage con-
stantly exercised, there would be abundant usage on which
it might be supported " (y).
"Perhaps small evidence of

usage before a jury would establish a right by custom, on the
ground of public convenience" (z). Thus, with regard to the river
Thames, it appears that previous to the early statutes for the
improvement of the river there were originally towing-paths
along the river banks, the owners of which took tolls from the
public for the use of them (a).

rivers.

The regulation and protection of the rights of navigation in Conservancy all the principal rivers of the kingdom is now vested in Boards of navigable of Conservators, who are made the guardians, as it were, of the navigation, and the protectors of the bed and soil for the purposes of navigation (b).

beds and banks not

vested in con

servators.

Where, however, a river or navigation has been vested by Act Ownership of of Parliament in a Board of Conservators for the purposes of navigation, if the words of the Act are applicable to the acqui- generally sition by the conservators of the right or easement of passage only, and where the acquisition of the soil of the river and its banks is not necessary for the purposes of the Act, the ownership of the soil must be taken not to pass, the Courts not being inclined to infer that a statute of this kind gives more than such a use of the soil as is necessary for the purposes of navigation (c). In The Lee Conservancy Board v. Button (d), the plaintiffs, Lee Conserconservators of the river Lee, brought an action to restrain vancy Board the defendant, who was the owner of property adjoining a towing-path, from using the towing-path for the passage of horses and carts, and the carriage of goods and merchandise, or in any manner inconsistent with the free and convenient navigation of the river. The River Lee Navigation was originally formed in 1570, under an Act of Parliament in the

(y) Ball v. Herbert, 3 T. R., p. 261; 1 R. R. 695.

(2) See also per Bovill, C.J., in Winch v. Conservators of Thames, L. R. 7 C. P. 471.

(a) Winch v. Conservators of Thames, L. R. 9 C. P. 378; L. R. 7 C. P. 471; 43 L. J. C. P. 167; 31 LA T. 128. See Bath River v. Willis, 2 Rail. Cas. 7;

19 Hen. 4. c. 18.

(b) Cory v. Bristow, 2 A. C. 262. post. (c) Badger v. Yorkshire Rly. Co., 5 Jur. (N.s.) 459; Hollis v. Goldfinch, 1 B. & C. 205; 25 R. R. 357. See also R. v. Aire and Calder Navigation, 9 B. & C. 820; 33 R. R. 344; R. v. Mersey and Irwell Navigation, 9 B. & C. 95; 32 R. R. 591; R. v. Thomas, 3 B. & C. 114; 32 R. R. 601; Chelsea Water Co. v. Bowley, 17 Q. B. 358; Bruce v. Willis, 11 A. & E. 463. See Att.-Gen. v. Great Northern Rly. Co. (1908), 72 J. P. 442, where it was held to be ultra tires of a navigation company to grant to anyone the right to abstract water from the navigation.

As to conservancy, see further Chap. VII.,

(d) 12 Ch. D. 383; 41 L. T. 481, affirmed 6 A. C. 685; 51 L. J. Ch. 17; 45 L. T. 385.

v. Button.

The

13th year of Queen Elizabeth; and it was provided therein. that the trustees and their successors should have the ground therein set out along the whole length of the navigation for such composition as they should make with the owners and occupiers of the soil and ground. Several other Acts were passed previous to the 7th Geo. 3. c. 51. By that Act trustees were empowered to extend, improve and maintain the navigation, and, amongst other things, to set out and make towing-paths. making compensation for any any messuages, &c. which the trustees should adjudge necessary, convenient or proper to become seised or possessed of for the purposes of the Act. The navigation and use of the towing-paths was to be free to the public on payment of tolls; and any person who wilfully damaged or destroyed any banks or other works erected or made for the purposes of the navigation was liable to certain penalties. In 1767, the trustees made a new cut, altering the course of the river, and adapted the towing-path to the alteration. Under powers of the Act, 31 & 32 Vict. c. 154, the trustees made bye-laws, providing that no person should allow any horse or cattle to trespass on the towing-paths. defendant bought his property in 1871, and the towing-paths had never been used by his predecessor for horses, carts or carriages; but defendant used the towing-path of the new cut for carting bricks, the effect of which was to cut up and destroy the towing-path, and materially to interfere with the navigation. The defendant alleged that he and his predecessors had always had the soil of the towing-path vested in them and he did not admit that the plaintiffs had any easement over it; but even if they had such an easement, they were not entitled to the exclusive use thereof, and had no authority to prevent the towing-path from being used for all lawful purposes-such as carting lawful goods and merchandise. Malins, V.-C., held that the plaintiffs were entitled by their Acts of Parliament to the freehold of the towing-path, and granted an injunction to restrain the defendant as prayed. On appeal, the Lords Justices varied this decree, holding that by the various Acts of Parliament the plaintiffs did not acquire the freehold of the land forming the towing-path, which remained in the original owners, nor any easement over it, but only the right and the duty to keep it in a fit state for the public to use as a towingpath; but that, by reason of this right and duty, the plaintiffs were entitled to an injunction to restrain the defendant from so using the towing-path as to interfere with its use by the public for the purposes of navigation.

Brett, L.J., says: "The Act of Parliament gives them (the

plaintiffs) no easement, the Act of Parliament gives them no possession, but it gives them a mere legal right of entry, without possession, and it imposes upon them the duty, as long as they take tolls, to keep the towing-paths in such a state that the navigation of the canal, and the use of the towing-path by the public, may not be impeded. Apply that to the case of the towing-path opposite to the defendant's land, and it leaves him the owner of that land. It is not properly a towing-path opposite his land, but it is a towing-path on his land, and the plaintiff's only right being to use that towing-path and to keep it in a fit state for the public to use it. He has every right over that land which is his own, other than a right to impede the navigation. The only prohibition against him by virtue of the Act is, that the plaintiffs have a right-a duty to see that there is a free towing-path over his land."

In the case of Hollis v. Goldfinch (f), which was an action of Hollis v. Goldfinch. trespass by the conservators of the river Itchen against the defendant, the owner of land adjoining, for cutting trees on the bank of a channel made under their Act (16 & 17 Car. 2.) the Court held that the defendant was not liable to an action: for that, first, by the provisions of the Act, the proprietors of the navigation did not necessarily acquire such an interest in the soil in a bank adjoining to and formed of earth excavated out of the new channel, as to enable them to maintain trespass; and secondly, that as the purchase of the soil was not necessary for any of the purposes of the Act, it was to be inferred that no such purchase had been made; and, thirdly, that acts of ownership by the proprietors of the navigation upon different parts of the bank contiguous to the new channels, were not admissible in evidence to show that the soil of the bank in question belonged to the proprietors of the navigation.

Willis.

In the case of Bruce v. Willis (g), a canal company were Bruce v. enabled by Act of Parliament to purchase lands, paying full satisfaction; and commissioners were appointed to settle the amount of satisfaction payable in each case, and in certain cases to summon juries to assess damages. Judgments of the commissioners and verdicts of the juries were to be transmitted to the clerk of the peace, and to be deemed records of Sessions. By an inquisition, a jury assessed damages at thirty years' purchase

(f) 1 B. & C. 205; 25 R. R. 357; 1 L. J. (o.s.) K. B. 94.

(g) 11 A. & E. 463; 9 L. J. M. C. 43; R. v. Mersey and Irwell Navigation, 9 B. & C. 95; 32 R. R. 591; R. v. Thomas, 9 B. & C. 114; 32 R. R. 601. See Somerset Canal v. Harcourt, 2 De G. & J. 596; Reg. v. Archbishop of York, 14 Q. B. 81; Patrick v. Beaufort, 6 Ex. 498; Robins v. Warwick, 2 Bing. N. C. 483: 42 R. R. 642; Harborough v. Shadlow, 7 M. & W. 37; Dimes v. Grand Junction Canal, 3 H. L. 794; Simpson v. Staffordshire Water Co., 4 De G. J. & S. 679.

No duty at common law

to cleanse rivers.

Private rights

arising out of the public right.

for certain lands necessary for making a cut, &c., part of the navi-
gation, and an annual payment was awarded for certain land
required for a towing-path. The canal company made a lock,
canal, and towing-path on the land aforementioned, but no con-
veyance was ever executed. The Court held that the Act of
Parliament vested the soil used for these works in the canal
company without a conveyance.

Where the conservancy authority only have jurisdiction over
the towing-path, the fee simple being in the riparian proprietors,
they have no power by bye-law to forbid the use of the towing-
path by the riparian owners unless such use would damage or
injure the towing-path or interfere with the navigation, and can
not dedicate the path as a public highway if to do so would be
inconsistent with the proper performance of their statutory
duties (h).

There is no common law liability on the owner of the bed of a navigable river or navigation to cleanse it or keep it free of obstructions to navigation, or to compensate adjoining owners for damage done by overflow of the water, even in cases where tolls are taken for navigating thereon (i). It would seem, moreover, that at common law neither the owners of the bed of a navigable river or navigation, nor a board of conservators, are bound to keep the navigation open or in a proper state of repair (k); but that so long as they choose to keep the navigation open and to take tolls for its use, even where those tolls are not for their own profit, but for the maintenance of the navigation, they are under an obligation to take reasonable care that persons using it are exposed to no undue danger (1); where no tolls are taken, it has been held that there is no liability to repair or remove obstructions (m).

Riparian owners on the banks of a tidal navigable river have
similar rights and natural easements to those which belong to a
riparian owner above the flow of the tide subject to the public
right of navigation (n), e.g., the right of access and the right to
have the water come to him in its natural state.

(h) Thames Conservators v. Kent, [1918] 2 K. B. 272, and note (c) ante,
P. 461.
(i) Hodgson v. Mayor of York, 28 L. T. (N.s.) 836; Cracknell v. Thetford,
L. R. 4 C. P. 629; 38 L. J. C. P. 353; Parrett Navigation v. Robins, 10
M. & W. 593; 12 L. J. Ex. 81; Bridges Case, 10 Rep. 33.

(k) Simpson v. Att.-Gen., and cases, post, p. 497.

(1) Mersey Docks v. Gibbs, L. R. 1 H. L. 93; Parnaby v. Lancaster Canal, 11 A. & E. 223; Winch v. Conservators of Thames, L. R. 9 C. P. 378; L. R. 7 C. P. 456; Manley v. St. Helens, 2 H. & N. 840; 27 L. J. Ex. 159; The Bearn, [1906] P. 48; 75 L. J. P. 9; 94 L. T. 265; 10 Asp. M. C. 208; 22 T. L. R. 165, C. A.; The Moorcock (1889), 14 P. D. 64.

(m) Forbes v. Lee Conservancy, 4 Ex. D. 116; 48 L. J. Ex. 402.

(n) Lyon v. Fishmongers' Co., 1 A. C. 662, at p. 674; 45 L. J. Ch. 68; 35 L. T. 569; North Shore Rly. v. Pion, 14 A. C. 612. See ante, Chap. III., p. 104.

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