Per Cozens-Hardy, M.R. (p. 781): " If and when the question arises whether the defence of prescription in a case like this can be available—a case, I mean, in which there is a person who owns the water, or has the rights of a riparian proprietor lower downI think that it will be a very grave matter for consideration whether the view taken by Neville, J., is right or wrong."

Per Farwell, J.: "I think it is plain that they (the plaintiffs) have no property in this water. On their navigable river there is a right in the plaintiffs to take certain tolls under the statute, but to say that they can sell the water as proprietors seems to me to be quite out of the question. They have not any property in the water, and there can be no question of lost grant or prescription. . . . The learned judge . . . has determined this case upon a question of law which, in my opinion, does not arise, and as to which I will reserve my own view until an occasion when it does arise."

There appears to be no liability at common law on the owner Conservators not liable for of the bed of a navigable river to keep the channel clear of natural damage obstructions, such as the silting up of the channel, or the growth caused to adof weeds (0). It has, moreover, been held that where the naviga- in the absence joining lands tion of a river is vested in a body of conservators for the purposes of negligence. of navigation only, no action will lie against them for damage done by overflow of the river caused by natural obstructions in it, although tolls are taken for the use of the navigation. The only duties cast on them are to protect the navigation, and they are not charged with any liability in respect of matters not essential to the improvement of the navigation (p). Thus, in The Parrett Navigation Co. v. Robins (q), a navigation company was held not liable to the Court of Sewers for not cutting weeds in the river, which were beneficial to the navigation, though injurious to the adjoining landowners-although they took tolls for the navigation. So in Hodgson v. Mayor of York (r), where the plaintiffs were authorised to abandon a river navigation, and did so, making alterations authorised by the Act, the effect of which was that if the channel remained in the state they left it in, due provision was made for the escape of the water-but they took no measures to prevent the channel from silting up-it was held that they were not responsible for damage caused by the silting up of the channel or growth of weeds causing damage to adjoining proprietors.

(0) Hodgson v. Mayor of York, 28 L. T. (N.S.) 836; Bridge's Case, 13 Rep. 33; see also Forbes v. Lee Conservancy, 4 Ex. D. 116.

(p) As to liability of trustees of a navigation for damage caused by a ship to a ferry which was not part of their undertaking, see Clyde Navigation Trustees v. Lord Blantyre, [1893] A. C. 703, H. L. (Sc.).

(q) 10 M. & W. 593.

(r) 28 L. T. (N.S.) 836.

In Cracknell v. Mayor and Corporation of Thetford (8) the defendants were empowered by a private Act of Parliament to render navigable the river Brandon, and to take tolls for the purpose of repaying the necessary expense; and in the exercise of their power under the Act they erected staunches in the river, the result of which, combined with the natural growth of the weeds in the river, and the accumulation of silt against the staunches, was that the river overflowed its banks and damaged the plaintiff's land. It was held that there was no obligation on the defendants to cut the weeds or dredge the silt unless it was necessary to do so for the benefit of the navigation; and that the plaintiff's remedy, if any, was not by action against them for not doing so, but by applying for compensation under the Act.

In support of the plaintiff the cases of Whitehouse v. Fellowes (t), Mersey Dock Trustees v. Gibbs (u), and Bagnall v. London and North Western Railway (x), were cited as well as Fletcher v. Rylands (y) and Groucott v. Williams (z). The Court, however, held, that none of these cases applied; Brett, J., saying: "I think this case is clearly within the authority of Parrett Navigation v. Robins (a), and distinguishable from those in which it has been held that, if a man elects to do an act on his own land, he must take care that he does it so as not to cause damage to his neighbours. Here the defendants are not owners of the land, and they have only done acts which they were authorised to do. I think, therefore, the plaintiff's only remedy, if any, is for compensation under the Act" " In order to enable the plaintiff to maintain this action," said Bovill, C.J., "there must be shown some duty or obligation on the defendants which they have omitted or neglected, or in the performance of which they misconducted themselves or acted negligently; and that by reason of their negligence damage has accrued to the plaintiff. It seems to me that no such conduct on the part of the defendants has been made out

(b).

(s) L. R. 4 C. P. 629. See remarks on this case by Lord Hatherley in Geddis v. Bann Reservoir, 3 A. C. 430, ante, Chap. V., p. 285.

(t) 10 C. B. (N.s.) 765; 30 L. J. C. P. 305.

(u) L. R. 1 H. L. 93.

(x) 7 H. & N. 423; 31 L. J. Ex. 480.

(y) L. R. 1 Ex. 265.

(z) 4 B. & S. 149; 32 L. J. Q. B. 237. (a) 10 M. & W. 593.

(b) Under the River Weaver Navigation Acts, persons who sustain damage by reason of the navigation are entitled to compensation. In Reg. v. Delamere (13 W. R. 757), the defendants had under their control a lock, weir and clows, through which, when raised, the water could be let off. During a flood they kept down the clows, and by so penning back the water caused the premises of plaintiff to be damaged, and the plaintiff was held entitled to compensation; for although it was not shown that his premises would not have been flooded in the same way if the river had never been altered, still

But where river commissioners are by their Acts under an obligation to maintain and repair sea walls, they will be liable. for damage caused by an overflow not only to lands reclaimed by them, but to lands adjoining such lands (c).

not bound at common law

to keep the navigation

repair, but so long as they

keep it open and take tolls, bound to use they are

care.

It would seem, also, that at common law, independent of Conservators statute, neither the owners of a navigation or board of conservators are bound to keep the navigation open or in a proper state of repair. The question has been carefully considered in a late case, Simpson v. Att.-Gen. (d), which has been noticed at p. 99, n. (m), ante, of this book. In this case the majority of the House of Lords (Lords Macnaghten, James, and RobertsonLords Davey and Lindley dissenting), held, reversing the judgment of the Court of Appeal that an Act of Parliament authorising reasonable and empowering a person to improve the passage of boats, and for that purpose to cleanse, scour and deepen a river where and as often as occasion should require, although intended to serve a public purpose, must be construed to be permissive and not obligatory, and that there is no presumption in favour of the legal obligation of an immemorial burden. Consequently a person who under patent or statute has succeeded to the ownership of locks or other mechanical appliances for facilitating navigation, with the right to charge for their use a reasonable toll, is not bound to work or keep them in repair to his own detriment if the tolls are not sufficient to defray the cost of maintenance and repair, and is justified in closing them altogether.

Lord Macnaghten, when considering the grounds on which the Court of Appeal held the appellant bound to repair and maintain the locks whether he took tolls or not, said: "The learned judges of the Court of Appeal . . . say in effect, the rights conferred by Spencer's second patent as we construe it are very like a right of ferry. A right of ferry imposes on the grantee an obligation of maintaining the ferry. It follows, therefore, that the owners of these locks are bound to keep them always ready for the public service.' Now, with the utmost deference to the Court of Appeal, I cannot see the slightest analogy between the right which Spencer's second patent purported to confer on the patentee and the right to an ancient ferry. . . . All ancient ferries have their

the proximate cause of the damage, viz., the penning back, being a thing done on account of the navigation-the trustees were as much liable as if it had been a breach of duty, and it was no excuse that it was done skilfully, and that unless it had been done, other lands would have been damaged. In Vyner v. N. E. Rly. Co. (1904), 20 T. L. R. 192, C. A., it was held that defendants under certain Acts of Parliament for maintaining the navigation of the river Ure, were not liable to maintain certain "flood banks behind the natural banks of the river, as their banks were not constructed to keep the water within the alveus of the river.

(c) Bramlett v. Tees Conservancy, 49 J. P. 214.

(d) 74 L. J. Ch. 1; [1904] A. C. 476; 91 L. T. 610.

L.W.

32

Att.-Gen. v.
Simpson.

Parnaby v.
Lancaster
Canal.

Mersey Docks v. Gibbs.

origin in a royal grant or in prescription, which presumes a royal grant. A right of ferry is a derogation of common right, for by common right any person entitled to cross a river in a boat is entitled to carry passengers too. Within the limits of an ancient ferry no one is permitted to convey passengers across but the owner of the ferry. No one may disturb the ferry. The ferry carries with it an exclusive right or monopoly. In consideration of that monopoly the owner of the ferry is bound to have his ferry always ready. But there is nothing of that kind here. No one is bound to pay for the locks except the person who uses them. Anybody may make other locks or other contrivances for getting past the mill weirs. And after all . . . if the traders will not come to the terms at which the owner of the locks can offer the accommodation he has provided, they are no worse off than they were before. If they take their goods by road or draw them over the mill weirs or pass them through the mill sluices, as scems to have been done occasionally in former times, they are not asked to pay anything for facilities and conveniences which they do not care to use. Why then should the owner of the locks, if it does not pay him to keep them up, be grievously amerced' like the owner of a ferry who puts the public to inconvenience by failing to perform the duty which he has undertaken, and which no one else may perform?

So long, however, as the owners of a navigation or board of conservators choose to keep it open and take tolls for its use, even where such tolls are not for their own profit, but solely 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 (e). Thus, in Parnaby v. Lancaster Canal (f), the Court of Exchequer Chamber held, affirming the Court of Queen's Bench, that a canal company were liable at common law for damage caused by a sunken boat which they had failed to weigh up or mark by light or signal independent of any statutory clause enabling them so to weigh up sunken boats-on the principle that the owners of a canal taking toll for the navigation are bound to take reasonable care in making the navigation secure.

In Mersey Docks v. Gibbs (g), the House of Lords held that this principle applied to a private person or company taking tolls

(e) Parnaby v. Lancaster Canal, 11 A. & E. 223; see ante, Chap. V.. p. 316; Mersey Docks v. Gibbs, L. R. 1 H. L. 93; Winch v. Conservators of Thames, L. R. 9 C. P. 378; L. R. 7 C. P. 458; Queen of the River Steamship Co. v. Conservators of River Thames and Easton Gibb & Sons, 96 L. T. 901; 23 T. L. R. 478; 12 Comm. Cas. 278; 10 Asp. M. C. 542; see also Brownlow v. Metropolitan Board of Works, 13 C. B. (Ñ.s.) 768; 33 L. J. C. P. 33; The Bearn, [1906] P. 48; The Moorcock (1889), 14 P. D. 84; see also ante, p. 304.

(f) 11 A. & E. 223.

(g) L. R. 1 H. L. 93; 35 L. J. Ex. 225; 14 L. T. 677.

for the use of statutory works, even where such tolls were not applicable to the use of the individual or company, but were to be devoted to the maintenance of the works; and that the Mersey Dock Company were responsible for damage caused to a ship which, on entering the docks, struck on a mud bank which the defendants neglected to remove. Their Lordships held further, that if knowledge of the existence of a cause of mischief make persons responsible for an injury, they will be equally responsible where, by their culpable negligence, its existence is not known to them (h).

In the case of Winch v. The Conservators of the Thames (i), an action was brought by the plaintiff for damages for the loss of some horses which were drowned while towing a barge on the river Thames above high water mark, in consequence of a part of the towing-path being out of repair. The defendants, the Conservators of the Thames, were a corporate body in whom were vested by The Thames Navigation Act, 1866 (29 & 30 Vict. c. 89), certain powers for the preservation and improvement of the stream. It appeared from earlier statutes that there were originally towing-paths on the river banks, the owners of which tcok tolls for the right of passing along them, and that the defendants had acquired powers of supervising and controlling the towing-paths and regulating the tolls. They subsequently acquired powers to purchase and take lands compulsorily, and to execute works for the purposes of the navigation, and to take tolls for the use of the towing-paths purchased or hired by them, and to apply their funds to the repair of the works vested in or acquired or constructed by them under their various Acts. The defendants had, in pursuance of the above powers, made a parol arrangement with the owner of the soil of the towing-path, at the place in question, for the use of such towing-path at a yearly rent. Some parts of the towing-path along the river had been specially constructed by and belonged to the defendants, and the use of the whole of the remainder had been acquired by them. They took an aggregate toll for the use of the whole of the navigation and towing-path at Teddington Lock. The Court of Exchequer Chamber held, affirming the decision of the Court of Common Pleas, that the defendants were liable.

The judgment of the Court, read by Bramwell, B., is as follows (k): The defendants' rule in this case was to enter a

(h) For further cases as to liability of dock and harbour authorities, see ante, pp. 354 et seq.

(1) L. R. 9 C. P. 378; L. R. 7 C. P. 456; 43 L. J. C. P. 167; 31 L. T. 128.

(k) L. R. 9 C. P., p. 387; see also the judgment of the Court below, L. R. 7 C. P., p. 462, where the statutes and cases are discussed at length.

Winch v. The

Conservators

of the Thames.