verdict for them on the ground that there was no evidence that they were bound to repair the spot where the accident happened.' If this were the question in the case, it might be difficult to answer it adversely to the defendants-and say that they were bound to repair the spot in question. For undoubtedly when the towing-paths were in the hands of, and the tolls were taken by private owners, there was no such obligation, and none is imposed by the statutes in express terms on the defendants; and it may be, that if the defendants, as a matter of judicious use of their funds, might think it inexpedient to be at what might be the enormous and unprofitable expense of repairing long extents of towing-paths where there was scarcely any traffic, there is no power compelling them, or they would not be compelled to such enormous outlay. We do not go further into this question, as we think it is not the question; but we refer to the judgment in Mersey Docks v. Gibbs (1). But we think it is enough to support this verdict, if the defendants were, so long as they kept the towing-path open and took tolls for its use, under an obligation to those whom they invited to use it, to take reasonable care to see that the towing-path was in such a state as not to expose those using it to undue danger. If the dangerous state of the path at the spot had been latent, so that the defendants, though using reasonable care, remained ignorant of it, or if, having found it out, they had warned the plaintiffs of it, they would not have neglected this duty; but, as it is, if such were the duty of the defendants, the finding of the jury (which we must here take to be correct) is, that they have neglected it. We agree with the Court below in thinking that since the case of Mersey Docks v. Gibbs (1), we must hold the funds of this corporation (although established for public purposes) liable to make good the damages sustained by a private person from any breach of duty on their part (m), and that there is nothing in these statutes to exempt this corporation from the duties which the common law would cast upon a private person or trading corporation who maintained a similar towing-path along a public navigation, and levied tolls for its use. And we think that Parnaby v. Lancaster Canal Co. and Mersey Docks v. Gibbs establish that such a duty is by common law cast upon those who invite persons to use a towingpath like this, and receive pay for the use of it. It was argued that these cases were not applicable, because the part of the towing-path where the accident happened was on the natural soil,

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

(m) As to this, see also Itchin v. Southampton, 8 E. & B. 301; Ward v. Lee, 7 E. & B. 426; Clothier v. Webster, 12 C. B. (N.s.) 790; Ruck v. Williams, 3 H. & N. 308; Whitehouse v. Fellows, 10 C. B. (N.s.) 765; Brownlow v. Metropolitan Board, 16 C. B. (N.s.) 546; 13 C. B. (N.s.) 768.

only worn into a track made by the horses' feet leading from a bridge over one ditch to a bridge over another; and it was argued that the common law only imposed this duty on those who maintained artificial works, such as canals, or docks, or bridges. We wish to guard against being supposed to decide that in every case where a licence is given for money to go over land in its natural state, this obligation results. Much may depend on the circumstances of each case. But we think that in this case, where persons pay one toll for the use of one entire towing-path, parts of which are artificial and parts not, there can be no distinction made as to the duty of those who maintain the path to take reasonable care of the artificial and the natural parts, or at least to warn those who use them of defects in them. The defendants can in future, if they think fit, announce to those who pay the tolls that they must take the paths as they find them. If this is done, there could be no liability for a defective state. of repair, even though wilful. Whether if they gave such notice, and left the banks unrepaired, they could be compelled to repair them, is a question that could then be directly raised and decided."

Conservancy.

In a subsequent case (n), it has been held by Pollock, B., that Forbes v. Lee where the defendants, an unpaid body of trustees for the river Lee, although empowered to remove all obstructions in the river, were expressly forbidden to take any tolls for such part of their navigation as lay between Bow Creek and Old Ford Lockthis part being an ancient navigable river-no duty was imposed upon them to remove obstructions in that part of the navigation; and that, consequently, the plaintiff, owner of a barge which was injured by striking on some submerged piles there, could not recover damages, although the jury found that the piles were dangerous, and that the defendants ought to have been aware of the danger, and had neglected their duty.

Many conservancy authorities have power to dredge the bed of the water to improve the navigation, but they must not do this for other purposes, such as to make a new channel to a wharf (nn), or for the purpose of selling the ballast obtained (o). Though, if done for the purpose allowed by their Act, they may, if necessary, actually remove the soil of a riparian owner (p), though they may be restrained from so doing in suitable cases (q). The question as to the duty of the commissioners of a

(n) Forbes v. Lee Conservancy, 4 Ex. D. 116. (nn) Partheriche v. Mason, 2 Chitty, 658.

(0) Thames Conservators v. Smeed, [1897] 2 Q. B. 334; Palmer v. screators of the Thames, [1902] 1 Ch. 163.

(p) Blantyre (Lord) v. Clyde Navigation Trustees, 6 A. C. 273.

Con

(q) East London Rly. v. Conservators of the Thames, 20 T. L. R. 378, injunction to restrain dredging so as to endanger the Thames Tunnel.

Canals.

natural harbour to buoy the channels or remove the shoals, was considered by Lord Salvesen in Aktieselskabet Dampskibet Forto v. Orkney Harbour Commissioners (r). He said: "I think the only general duty which is imposed upon them is that of making their harbour reasonably safe for such vessels as they invite to it. If the entrance to a natural harbour is difficult, I do not think there is any legal duty upon them to improve it, provided it is cne which can be navigated by a person who knows the locality, and exercises reasonable care. . . But the owners of a harbour which is difficult of approach do not, in my opinion, incur responsibility because they do not take steps which may involve expense entirely out of proportion to the means at their disposal for improving the natural accesses, nor are they under any obligation to indicate the navigable channel by means of buoys, even in cases where the absence of such marks makes it difficult for a vessel to find its way in. The penalty that the harbour trustees incur is that their port will not be frequented if it cannot be entered without danger. If, however, they do take steps to buoy the channel, I think it is their duty to use reasonable care that the buoys which they have placed for the purpose of aiding navigation shall not be allowed to get out of position so as to be misleading and a source of danger." He held that the buoys were misleading and the defendants responsible.

Though the conservators may have the duty of removing obstructions to the navigation, they will not be liable for damages caused by an obstruction of which they had no knowledge and could have had no knowledge (s).

The third class of statutes, those relating to canals, are nearly identical as far as the preservation of navigation, and compensation to persons injured by their works, are concerned, but the undertakers are bound, in most cases, to construct the canal in accordance with plans approved by and deposited with the Admiralty, the Board of Trade, or some other competent authority; and the public being only entitled to navigate its waters on payment of tolls, the regulations on the latter head are more stringent and detailed (†).

The duties of the owners of canals, which are in general artificial erections, or excavations on the land of others, will be necessarily larger than those of river conservators as to

(r) [1915] S. C. 743.

(s) Gridley v. River Thames Conservators, 3 T. L. R. 108: Queen of the River Steamship Co. v. River Thames Conservators and Easton Gibb & Co., 96 L. T. 901. See also ante, pp. 356 et seq.

(t) See 43 Geo. 3. c. 102 (Caledonian Canal); 33 Geo. 3. c. 80 (Grand Junction Canal); 32 Geo. 3. c. 102 (Canal from Pont Newydd to the Usk).

liability for the escape of water. This subject, however, has been fully treated of in another chapter (u).

enactments

It is hardly necessary to say that it would be impossible General to state at length the provisions of the numerous River Conser- as to harbours vancy Acts now in force, and on which the rights and duties of and inland each particular board depend, but we will conclude this chapter by noticing a few general enactments relating to harbours and inland navigation.

By 34 & 35 Hen. 8. c. 9, it is an offence to cast ballast, rubbish, filth, &c., from any vessel into any haven, road, channel, or river flowing or running to any port-town or to any city or borough or town in His Majesty's Dominions. Such must be placed upon land above full sea mark under a penalty of £5.

By 19 Geo. 2, c. 22, ballast, rubbish, gravel, earth, stone, wreck or filth, must not be cast, thrown, or unladen from any vessel into any haven, port, road, channel or navigable river in England under a penalty not less than 50s. or more than £5. Ballast, &c., must be placed on land where the tide or water never flows or runs.

navigation.

By The Public Harbours Act, 1806 (46 Geo. 3. c. 153), nobody Erection of may"make, construct, or erect any pier, quay, wharf, jetty, piers, etc. breast or embankment, in or adjoining to any public harbour in the United Kingdom or any river immediately communicating therewith, so far as the tide flows up the same, without giving at least one month's previous notice to the Board of Trade (v).

casting rubbish, &c., into navigable rivers, &.

By The Harbour Act, 1814 (54 Geo. 3. c. 159, s. 11), if the Prohibition of owner or master or other person having the charge or command of any private ship of war, transport or other private or merchant ship or vessel, lighter, barge, boat, or other craft whatsoever, or any person working any quarry, mine, or pit near to the sea or to any such harbour, haven or navigable river (as far as the tide. flows), or any other person or persons whatsoever, shall cast, throw, empty, or unload, either from such ship or from the shore, any ballast, stone, slate, gravel, earth, rubbish, wreck, or filth into any such ports, harbours, havens, or navigable rivers of this kingdom as aforesaid so as to tend to the injury or obstruction of the navigation thereof, or in any place or situation on shore where the same shall be liable to be washed into the sea, or any such ports, roads, roadsteads, harbours, havens or navigable rivers (x), either by ordinary or high tides, or by storms or land floods, he shall be liable to a penalty of £10 (x).

(u) Ante, Chap. V., pp. 503 et seq.

(r) This Act does not affect the privileges of the Corporation of London. The notice had formerly to be sent to the Admiralty, but now to the Board of Trade: see 25 & 26 Vict. c. 69, s. 15.

(z) In the case of United Alkali Co. v. Simpson, [1894] 2 Q. B. 116; 63 L. J. M. C. 141; 71 L. T. 258, the appellants, in the course of their

Injuries to banks, walls, &c., prohibited.

Sections 12, 13 and 15 prescribe the way in which ships may unlade ballast; section 14 provides that "in order to prevent damage being done to the shores or banks of the Ports, Harbours, or Havens in this Kingdom," no person shall take any ballast or shingle from the shores or banks or any portion of the shores or banks of any port, harbour, or haven from which the Board of Trade shall have prohibited the taking or removing such shingle or ballast. Section 28 saves all private rights of property, privilege or jurisdiction of all persons to the banks, shores or sides. of the ports, harbours or havens (y).

The Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), s. 30, provides that-Persons unlawfully and maliciously breaking down or cutting down, or otherwise destroying any sea bank, or sea walls, or the bank, dam or wall of or belonging to any river, canal, drain, reservoir, pool or marsh, whereby any land or building shall be, or shall be in danger of being, overflowed or damaged, or shall unlawfully or maliciously throw, break, or cut down, level, undermine or otherwise destroy any quay, wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing-path, drain, watercourse or other work belonging to any port, harbour, dock or reservoir, or on or belonging to any navigable river or canal, shall

business as alkali manufacturers, discharged a large quantity of water containing solid matter in suspension through a drain into a tidal brook, which flowed into the river Mersey. This solid matter was carried down by the tide and deposited in the river, but it was not alleged or shown that it tended to the injury or obstruction of the navigation of the river. It was held that the appellants were rightly convicted under the latter part of the section, though the section can only apply to deposits of rubbish of such a kind and quantity and in such a place that if they were washed into the sea or a navigable river they would tend to injure or obstruct the navigation.

So, too, it is an offence against section 11 of this Act to allow waste products of china clay works to get into a stream which communicates with a navigable river: Wheal Remfrey China Clay, &c., Co. v. Truro Corporation, [1923] 2 K. B. 594, in which case the works were eleven miles up a nonnavigable stream which flowed into the river Fal. By 23 Hen. 8. c. 8, or 27 Hen. 8. c. 23, it is an offence to wash tin without proper hatches or ties near to any waters which flow into the ports of Plymouth, Dartmouth, Teignmouth, Falmouth or Fowey.

Under a somewhat similar section in 14 Geo. 3. c. 96, one of several Acts passed to improve the navigation of the rivers Aire and Calder, the words watercourses thereunto belonging" were held not to include" tributary streams unless they formed part of the navigation: Smith v. Burnham, 34 L. T. 774. As to the discharge of oil into harbours, see ante, p. 200; and cf. Gray v. Heathcote (1918), 119 L. T. 84, where under the local Act refuse" was held to include solid as well as liquid matter, such as waste oil from the bilges.

66

(y) Nicholson v. Williams, L. R. 6 Q. B. 652. It was held by the Court of Queen's Bench that ports here meant fiscal ports, thereby including the whole of the coast of the kingdom, though the Court said that the jurisdiction of the Board of Trade did not extend over the whole of the coast. By the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), s. 11. it was enacted that ports appointed for customs purposes by the Treasury should be deemed to be a port within the meaning of 54 Geo. 3. c. 159. See also Burton v. Hudson, [1909] 2 K. B. 564, and Anderson v. Jacobs, 21 T. L. R. 453, ante, p. 37; as to who may lay an information for penalties, see Lake v. Smith, 106 L. T. 41; 76 J. P. 71.