mon law right of navigation by the public, though rights of navigation have been acquired in many of them (m). The Conservancy of Navigation. Origin of Lord Hale says (n), that the office of conservancy is of two conservancy. kinds: 1st, That relating to nuisances in rivers, founded on statute 1 Hem, 4. c. 12, whereby it is enacted that there shall be commissions granted to survey and keep the waters of great rivers, and to correct and amend the defaults; and 2nd, The conservancy relating to fishing, mentioned in the statute 1 Eliz. c. 17, and founded on the Statute of Westminster 2, c. 47, for the protection of salmon (0). Formerly in the Crown. Commissions of sewers. The duty of the conservancy of navigation appears to have been entrusted to the Crown as representative of the State. Thus we find that from the earliest times the King, in virtue of his office of Lord High Admiral, was conservator of all ports, havens, rivers, creeks, and arms of the sea, and protector of the navigation thereof (p); and, according to Lord Hale, there was a jurisdiction in the Crown to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges and boats (q). The wording of the early statutes as to weirs— such as the 22nd chapter of Magna Charta, that "all weirs from henceforth shall be utterly put down through Thames and Medway, and through all England, except by the sea coasts"-is evidence of the nature of this prerogative (r), which was, however, delegated to various subordinate authorities, of which the commissioners of sewers were the most important. The origin of commissions of sewers, and the principal points relating to them, so far as they deal with matters connected with (m) See Johnston v. O'Neill, [1911] A. C. 552; Bristowe v. Cormican, Ir. R. 10 C. L. 432; 3 A. C. 641; Blomfield v. Johnson, Ir. R. 8 C. L. C. 8; Marshall v. Ulleswater Co., 3 B. & S. 732; L. R. 7 Q. B. 582; 41 L. J. Q. B. 41; 25 L. T. 793; Micklethwaite v. Vincent, 67 L. T. 225, and ante, pp. 100, et seq. (n) Hale, de Jure Maris, Harg. Tracts, p. 23. (0) Ibid. By 17 Rich. 2. c. 9, also, it is enacted that justices of the peace be conservators of the statutes touching salmons, the statutes there named being 13 Edw. 1. c. 47, and 13 Rich. 2. c. 19. (p) Hale, de Jure Maris, Harg. Tracts, p. 23. It was the custom and duty of the kings of England to defend the realm against the sea, as well as against enemies Woolrych, 12; Callis, 80; Hudson v. Tabor, 2 C. P. D. 290, C. A.; 46 L. J. Q. B. 63; 36 L. T. 492; see ante, Chap. I., pp. 63 et seq. (q) Hale, de Jure Maris, Harg. Tracts, p. 23; Lord Denman in Williams v. Wilcox, 8 A. & E. 333; 47 R. R. 595. Lord Hale says: "The King has an interest of jurisdiction in rivers "; de Jure Maris, 8; Woolrych. 3. (r) Cf. chapters xv. and xvi. of Magna Charta, which relate to the repairing of banks and bridges, and 12 Edw. 1. c. 7; 1 Hen. 4. c. 12; 25 Edw. 3. stat. 4, c. 4, &c.; see as to weirs, ante, pp. 476 et seq. the law relating to water, is treated of in another chapter (s). It will not be necessary to refer to the subject here. of the As early as the reign of Richard II. the conservancy of the Conservancy Thames was entrusted to the mayor and corporation of London Thames. by the statute 17 Ric. 2. c. 9 (t), and by 9 Hen. 6. c. 9, the Chancellor of England was empowered to grant his commission to certain persons to scour and amend the river Ley, in the counties of Essex, Hertford and Middlesex (u). Powers of commis sioners of sewers and conservancy boards to The obstruction of water channels made from time to time, for public or private convenience, was a grievous offence punishable by action or indictment, according to the nature of the wrong (x); and, among the reasons assigned by section 1 of 23 Hen. 8. c. 5, for the appointment of the commissioners of sewers, remove obstructions. are the overflowings. . . of land waters and springs upon meadows, pastures and other places," and "the obstructions created by mills, mill-dams, weirs, &c. . . . upon rivers and watercourses (y). The commissioners of sewers had, therefore, powers of removing obstructions in navigable rivers; though it appears according to Woolrych that they have no power to improve the navigation of a river, or to make a river navigable which was not so before, and that their power has never been extended beyond the removal of existing obstructions, or, at the most, the erection of new defences, which might in some degree. be beneficial to the traffic (z). In progress of time, we find that the conservancy of nearly all the rivers, ports and harbours in England, was gradually placed in the hands of corporate bodies so constituted by Act of Parliament, and exercising the functions of permanent commissions of (8) Ante, Chap. I., p. 39, and post, Chap. X., p. 642. (t) Hale, de Jure Maris, Harg. Tracts, p. 23. (u) This Act recites 23 Edw. 3. stat. 4, 1 Hen. 5. c. 2, and 3 Hen. 6. c. 5, the latter statute being enacted for the improvement of the navigation of the sea. By an Act of the same reign, 9 Hen. 6. c. 5. all men shall have free passage in Severn with goods, chattels, &c."-a slightly different species of conservancy. It recites that the river of Severn is common to all the king's liege people, &c.; that divers Welshmen and other persons "arrayed in manner of war, have destroyed boats, &c., and thereby injured navigation; and that, therefore, it is ordained (section 3) by authority of Parliament that the said liege people of the king may have and enjoy their free passage in the said river, &c., without disturbance of any, &c; parties aggrieved to have action, according to the course of the common law (section 4). Further provision on the same subject is made by 19 Hen. 7. c. 18; and 23 Hen. 8. c. 12. (r) Woolrych on Sewers, 1, 2; Callis, 80; cf. Hudson v. Tabor, 2 C. P. D. 290 (C. A.); 46 L. J. Q. B. 463; 36 L. T. 492. (y) See ante, Chap. I., p. 39, and post, Chap. X. (2) Woolrych on Sewers, p. 125. Rivers are placed under the jurisdiction of the commissioners by sections 2 and 3, and according to the definition of a river given by Serjeant Callis (p. 77) in his work on Sewers, all rivers would seem to be meant. Modern decisions, however, appear to have limited the term to such as are necessary to or useful in navigation": Jean v. Holland, 2 Sir. W. Blackstone, 717; and per Buller, J., in Dore v. Gray, 2 T. R. 365; 1 R. R. 494. See post, Chap. X., p. 642. Statutes relating to navigation of inland waters are of three kinds. sewers; though it would appear that the authority of the commissioners of sewers over such bodies may still be retained, if provision to that effect is expressly made in the Act incorporating them (a). The conservators of the various rivers of this country, therefore, perform in a fuller manner a portion of the duties. originally devolving on the commissioners of sewers. A general definition of the scope of their powers may be to some extent drawn from the remarks of Cairns, L.C., with regard to the functions of the Conservators of the Thames in Cory v. Bristowe (b): "The Conservators of the Thames, under the Act of 1857 (c), are made the guardians, as it were, of the navigation of the Thames, and the protectors of the bed and the soil of the Thames for the purposes of navigation. They have certain powers for making bye-laws to protect the navigation-they have powers to make piers and landing-places for the accommodation of the public-they have powers to authorise riparian owners to make landing-places, wharves and jetties, and to put down mooring-chains, and moorings for the better and more convenient enjoyment and access to their lands" (d). The statutes relating to inland water navigation are of three kinds 1st, such as restore or improve the navigation of rivers formerly navigable; 2nd, such as make rivers navigable which originally were not so; and, 3rd, such as provide for the construction of an inland navigation or canal. Under the first two classes of Acts the care and conservancy of a river is vested in commissioners, the mayor and burgesses of a town, or some other body corporate. Powers are given them to dredge, cleanse, and scour the bed of the stream, and generally to keep it navigable; to make and enforce bye-laws regulating the navigation; to remove obstructions, and, where necessary, to enter on to lands, making compensation for interests injured by their acts (e). (a) See Woolrych on Sewers, p. 49, and ante, Chap. I., p. 41. (d) By a public Act passed in the reign of Henry VIII. the corporation of the city of Exeter are empowered to remove obstructions to the navigation of the river Exe, paying compensation to the owners of the soil where the obstructions were situated :-Held, first, that this Act did not confer the conservancy of the river on the corporation; secondly, that it did not entitle the corporation to file a bill in equity to restrain the erection of a pier in the river; and, thirdly, that it did not confer any right or privilege on the corporation within the meaning of section 14 of the General Piers and Harbours Act, 1861, so as to prevent the erection of a pier in the river without their consent being obtained: Exeter Corporation v. Devon (Earl), L. R. 10 Eq. 232; 23 L. T. 382. (e) 16 & 17 Car. 2. c. 12 (Avon (Hampshire) Navigation); 24 Geo. 2. c. 39 (Avon (Warwickshire) Navigation); 24 Geo. 2. c. 19 (Nar Navigation); 21 Jac. 1. c. 32; 24 Geo. 2. c. 28; 15 Geo. 3. c. 4 (Upper Thames Navigation); 23 Geo. 3. c. 48 (Trent Navigation); 2 & 3 Vict. c. 61 (Shannon Navigation); 31 & 32 Vict. c. cliv. (Lee Navigation). The only difference between rivers of which the navigation is restored, and those which are made navigable for By the Thames Conservancy Acts, the soil of the bed (f) of that river up to high water mark, which had long been the subject of dispute between the Crown and the corporation of the city of London, is vested in the latter body, who in their turn convey all their interest and title therein to the conservators appointed by the Act (g). But it has been held that where a river or navigation has been by Act of Parliament vested in a board of conservators for the purposes of navigation, if the words of the Act are applicable to the acquisition 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 (h). Where the words of the Act amount to a statutable conveyance of the soil upon which the navigation is constructed, the land used for the works has been held to vest in the navigation company without any conveyance (i). Where an Act for making the river Tone navigable named thirty persons and their successors as conservators, and provided that lands taken were to vest in them and their successors, and that land might be conveyed to them and their successors, &c. : -Held, that as it was the manifest intention that the conservators should take land by succession, and not by inheritance, although they were not created a corporation by express words, they were the first time, is that in the latter the rights of the conservators, as against the public are greater, owing to the fact that none of the rights subsisting in a navigable river can attach thereto : Hargreaves v. Diddams, L. R. 10 Q. B. 582; 44 L. J. M. C. 78; 32 L. T. 600; Musset v. Burch, 35 L. T. (N.S.) 486; Reg. v. Betts, 16 Q. B. 1022. (f) The bed in the tidal portion of this river means the soil between the ordinary high water mark on one side and the ordinary high water mark on the other: Thames Conservators v. Smeed, [1897] 2 Q. B. 360; overruling Pearce v. Bunting, [1896] 2 Q. B. 360. (g) 20 & 21 Vict. c. cxlvii.; 57 & 58 Vict. c. clxxxvii.; see also Cory v. Bristowe, 2 A. C. 262; 46 L. J. M. C. 273; 36 L. T. 595; and cases ante, pp. 461 et seq. (h) River Lee Conservancy v. Button, 12 Ch. D. 383; Badger v. Yorkshire Rly., 5 Jur. (N.s.) 409; Hollis v. Goldfinch, 1 B. & C. 206; 25 R. R. 357; see also R. v. Aire and Calder, 9 B. & C. 820; 33 R. R. 344; R. v. Mersey and Irwell, 9 B. & C. 95; 33 R. R. 591; R. v. Thomas, 9 B. & C. 114; 32 R. R. 601; Chelsea Water Co. v. Bowley, 17 Q. B. 358; Doe d. The Queen V. Archbishop of York, 14 Q. B. 81; Doe d. Patrick v. Beaufort, 6 Ex. 498; Somerset Canal v. Harcourt, 2 De G. & J. 596; Robinson v. Warwick, 2 Bing. N. C. 488; Harbrough v. Shardlow, 7 M. & W. 37; Dimes v. Grand Junction Canal, 3 H. L. 794; Simpson v. Staffordshire Water Co., 4 De G. & J. 679; Doncaster Union v. Manchester, S. & L. Rly. 71 L. T. 585, H. L. (E.); 6 R. 280. As to right of commissioners to deposit mud and earth on adjoining land, see Moulton v. Middle Level Commissioners, [1907] 97 L. T. 391; 71 J. P. 402; 5 L. G. R. 961. (i) Bruce v. Willis, 11 A. & E. 463; see also R. v. Mersey and Irwell, 9 B. & C. 95; 32 R. R. 591; R. v. Thomas, 9 B. & C. 114; 32 R. R. 601. Soil of rivers not generally vested in conservators by their Act. so by implication, and might sue in their corporate name for injury done to their real property (k). In Att.-Gen. v. Great Northern Rly. Co. (1) the defendants, owning land adjoining a navigation vested in the South Yorkshire. Navigation Company by various Acts of Parliament, erected in 1879 a pumping station and abstracted large quantities of water from a river forming part of the navigation to supply their railway station, locomotives, &c. In 1906 the Attorney-General, at the relation of the company, brought an action against the defendants, alleging that the abstraction and use of the said water by the defendants for the purposes aforesaid was in breach of the public rights existing in connection with the said navigation, and constituted a trespass to the property and rights of the company in the said navigation, and they claimed a declaration that the defendants were not entitled to abstract or take the water so taken by them as aforesaid, and an injunction accordingly. The defendants set up that for twenty years and upwards before action brought, they had, without any interruption on the part of the navigation company or any of their predecessors in title, drawn from the Cheswold and enjoyed as of right the use of water, the same being water not required for the purposes of the said navigation; but they stated that they did not assert any right so to abstract or use the water otherwise than subject to the statutory rights and duties of the company; they admitted that they had taken water for purposes beyond what, as riparian owners, they were entitled to do; and they proved that from 1879 they had continuously taken water without reference to the requirements of the said navigation. Neville, J., held (m) that it would have been ultra vires of the navigation company to grant to anyone the right to abstract water from the said navigation, and that, as the user proved by the defendants was a prescription unlimited by the requirements of the navigation, the defendants. could not limit their claim to a right to use only surplus water, i.e., water not required for the said navigation, and that the plaintiffs were entitled to an injunction to restrain the defendants from taking the water so taken by them as aforesaid, or any water other than in exercise of their rights, if any, as riparian owners. The Court of Appeal (n) held that the plaintiffs had not under their statutes any proprietary right in the water, and therefore the claim failed. The point decided by Neville, J., doubted but not decided. (k) Conservators of the Tone v. Ash, 10 B. & C. 349. (1) [1909] 1 Ch. 775; 78 L. J. Ch. 577; 73 J. P. 41, C. A. (m) 90 L. T. 695; 72 J. P. 442. (n) [1909] 1 Ch. 775; 78 L. J. Ch. 577, C. A. |