be guilty of felony, and, being convicted thereof, shall be liable at the discretion of the Court to be kept in penal servitude for life; or to be imprisoned; and, if a male under the age of sixteen years, with or without whipping.

And by section 31 it is enacted that-Whosoever shall unlawfully and maliciously cut off, draw up, or remove any piles, chalk, or other materials fixed in the ground and used for securing any sea bank, or sea wall, or the bank, dam, or wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, hartour, dock, quay, wharf, jetty, or lock, or shall unlawfully and maliciously open or draw up any floodgate or sluice, or do any other injury or mischief to any navigable river or canal with intent, and so as thereby, to obstruct or prevent the carrying on, completing, or maintaining the navigation thereof, shall be guilty of felony, and, being convicted thereof, shall be liable at the discretion of the Court to be kept in penal servitude for a term not exceeding seven years; or to be imprisoned; and, if a male under the age of sixteen years, with or without whipping.

By The Harbours, Docks and Piers Clauses Act, 1847 (10 & 11 Viet. c. 27) ss. 56 & 57, the harbour master has power to remove wrecks and unserviceable vessels (z), and by section 73 it is an offence to throw ballast or other things into the harbour, except for the purpose of reclaiming or protecting land.

Clauses Act.

The Railways Clauses Act, 1863 (26 & 27 Vict. c. 92) con- Railways tains in Part I. the following provisions for the protection of navigation:

By section 13, where the company is authorised by the special Act to construct, alter, or extend any work on, in, over, through, or across tidal lands, or a tidal water, the company shall on or near the work, during the whole time of constructing, altering or extending thereof, exhibit and keep burning at their own expense every night, from sunset to sunrise, such lights, if any, as the Minister of Transport (a) from time to time requires or approves; and (notwithstanding the enactments for the time being. in force respecting lighthouses) shall also, on or near the work when completed, always maintain, exhibit, and keep burning at their own expense every night, from sunset to sunrise, such lights (if any) for the guidance of ships as the Minister of Transport from time to time requires or approves.

If the company fails to comply in any respect with the provisions of the present section, they shall, for each night in which they so fail, be liable to a penalty not exceeding twenty pounds.

(z) See ante, pp. 552 et seq.

(a) Ministry of Transport Act, 1919 (9 & 10 Geo. 5. c. 50), s. 2: see St. R. & O., 1919, No. 1440, as to transfer of powers of Board of Trade to Minister of Transport.

Sect. 14.

The con

struction of bridges.

Sect. 15.

Barges, vessels, or boats must not be detained at bridges.

Sect. 16.

Access to tidal lands and tidal waters.

By section 14, where the company is authorised or required by the special Act to construct a bridge over a navigable tidal water, and the special Act does not make express provision respecting the span or spans thereof, then the company shall construct the same with a span or spans of such headway and waterway, and with such opening span or spans (if any), and according to such plans as the Minister of Transport directs or approves (b).

By section 15, where the company constructs a bridge with an opening span, it shall not be lawful for the company to detain any vessel, barge, or boat at the bridge for a longer time than may be necessary for admitting a carriage or engine traversing the railway and approaching the bridge to cross the bridge, and for opening the bridge to admit the vessel, boat, or barge to pass; and the company shall be subject to, and shall abide by, such regulations with regard to the user of the bridge, as may from time to time be made by the Minister of Transport.

If the company detains a vessel, barge, or boat longer than the time aforesaid, or fails in any respect to abide by any such regulation as aforesaid, they shall for every such offence be liable to a penalty not exceeding twenty pounds, without prejudice to any remedy against them for any loss or damage sustained by any person (c).

By section 16, where the railway cuts off access between the land and a tidal water or tidal lands, then, and in every such case, the company shall, during the construction of the railway, and from time to time thereafter, make and shall permanently maintain and allow to be used by all persons and at all times, free of toll or other charge, all such footways and carriage ways over, under or across the railway, or on a level therewith, as the Minister of Transport from time to time directs or approves: provided always as follows:

(1) The company shall not be obliged to make a footway or carriage way over lands for the use of an owner or occupier who has agreed to receive, and has been paid compensation for the severance thereof from the tidal waters or tidal lands.

(2) The company shall not be obliged to make, or to allow to be made, a footway or carriage way in such manner as would interfere with the working or using of the railway.

(3) The expense of the making and maintenance of a footway or carriage way required to be made after the construction of the

(b) See also Ministry of Transport Act, 1919 (9 & 10 Geo. 5. c. 50), s. 1; as to temporary bridges, see Priestly v. Manchester and Leeds Rly Co., 4 Y. & Coll. 62; 2 Rail. Cas. 134.

(c) See as to liabilities of companies with regard to construction of bridges, Att.-Gen. v. Furness Rly., 38 L. T. (N.s.) 555; see post, Chap. VIII., pp. 352 et seq.

railway, shall be defrayed by the persons or body interested in the tidal water or tidal lands, for whose benefit or convenience the same is required.

Where the footway or carriage way is made across the railway on the level, then the manner of making and watching the level crossing shall be subject to the approval of the Minister of Transport; and where the level crossing is made after the construction of the railway, then all expenses attending the watching thereof shall be defrayed by the persons or body interested in the tidal water or tidal lands, for whose benefit or convenience the same is required.

gable tidal rivers, &c.

By section 17, where the company is authorised by the special Sect. 17. Act to construct a railway skirting a public navigable tidal river Railways or channel, the company shall not make any deviation of the skirting navirailway from the continuous centre line thereof, marked on the plan deposited by them at the Ministry of Transport, even within the limits of deviation shown on that plan, in such manner as to diminish the navigable space, without the previous consent of the Minister of Transport or otherwise than in such manner as is expressly authorised by the Minister of Transport.

If any deviation is made in contravention of the present section, the Minister of Transport may abate and remove the work in the construction whereof the deviation is made or any part thereof, and restore the site thereof to its former condition at the expense of the company; and the amount of such expense shall be a debt due from the company to the Crown, and be recoverable accordingly with costs, or the same may be recovered with costs, as a penalty is recoverable from the company.

works on,

in, across, &c.,

tidal lands or tidal waters.

By section 18, if a work constructed by the company on, in, Sect. 18. over, through, or across tidal lands or a tidal water, is abandoned Abandonor suffered to fall into decay, the Minister of Transport may abatement of and remove the work, or any part of it, and restore the site thereof to its former condition, at the expense of the company; and the amount of such expense shall be a debt due from the company to the Crown, and be recoverable accordingly with costs, or the same may be recovered with costs, as a penalty is recoverable from the company.

Sect. 19.

Surveys of

works over tidal waters

By section 19, if at any time the Minister of Transport deems it expedient for the purposes of the special Act, or of this part of this Act, to order a survey and examination of a work constructed by the company on, in, over, through, or across tidal lands or or tidal lands tidal waters, or of the intended site of any such work, the comordered by pany shall defray the expense of the survey and examination, the Minister and the amount thereof shall be a debt due from the company of Transport. to the Crown, and be recoverable accordingly with costs, or the

may be

Sect. 3.
Definitions.

Police regulations.

same may be recovered with costs, as a penalty, is recoverable from the company.

"Tidal river" is defined by section 3 to mean any part of a river within the flow and ebb of the tide at ordinary spring tides: tidal water" to mean any part of the sea or any part of a river within the flow and ebb of the tide at ordinary spring tides; and "tidal lands to mean such parts of the bed, shore or banks of a tidal water as are covered and uncovered by the flow and ebb of the tide at ordinary spring tides.

By the Vagrancy Act, 1824 (5 Geo. 4. c. 83) s. 4, a suspected person or reputed thief frequenting any river, canal, or navigable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort or any avenue leading thereto, or any street or any highway, or any place adjacent to a street or highway, with intent to commit felony, shall be deemed a rogue and vagabond, and may be convicted (d). By the Criminal Law Act, 1826 (7 Geo. 4. c. 64), s. 13, offences on a vessel passing along a canal can be tried in any county along or through which the vessel passes during its voyage, and where the bank or any part of a canal is the common boundary of two or more counties, an offence therein may be tried in any of the counties (e).

By the Canal (Offences) Act, 1840 (3 & 4 Vict. c. 50) (f), provision is made for keeping the peace on canals and navigable rivers. The preamble of the Act takes note of the outrages committed on canals and navigable rivers through England and Wales; and section 1 provides for the appointment of constables on the application of the canal company, who are to be paid out of the moneys of the proprietors (section 3). By section 13, it is provided that nothing in local Acts containing penalties shall be thereby repealed.

(d) As amended by 34 & 35 Vict. c. 112, s. 15. This has been held not to apply to all streets and highways, but only to streets and highways leading or adjacent to places of the character mentioned in the Act: Ex parte Tinam, 39 L. J. M. C. 129. As to the construction of this section, see 34 & 35 Vict. c. 112, s. 15, and 54 & 55 Vict. c. 69, s. 7.

(e) Cf. 7 Will. 4. & 1 Vict. c. 36, s. 37 (Post Offices Offences Act), and the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69), s. 21.

(f) Section 1 of 1 Vict. c. 80, provides that whenever the appointment of special constables under 1 & 2 Will. 4. c. 41, or 5 & 6 Will. 4. c. 43, has been occasioned by the behaviour of persons employed on public works, including railways and canals, the expenses are to be paid by the company carrying on such works.

CHAPTER VIII.

OF FERRIES AND BRIDGES.

Ferries.

A ferry is the right to keep a boat for the purpose of carrying Definition. persons or their goods by water, and to take toll for such

carriage (a).

A ferry may thus be regarded as a link between two highways How created. on either side of the water, or as part of a continuous highway crossing the water (b).

It originates either by a grant or licence from the Crown, or by Act of Parliament, but may be claimed by prescription at common law, or by presumption of lost grant (c).

** A man may, under such titles," says the editor of Stephen's Commentaries (d), "lawfully claim to be the proprietor of a ferry (e), though he be not the owner, either of the water over which it is exercised (f), or of the soil on either side of the river (g); but he must possess over the soil such rights at least

(a) 1 Stephen's Blackstone (6th ed.), pp. 682, 683; Wharton's Law Lexicon (4th ed.), p. 391; Lord Sumner in Hammerton v. Dysart (Earl), [1916] 1 A. C.. at p. 102.

(b) Lord Parker in Hammerton v. Dysart (Earl), [1916] A. C., at p. 719. (c) Stephen's Blackstone, vol. i., p. 682; 2 Inst. 220; Trotter v. Harris, 2 Y. & J. 285; 31 R. R. 593; Wharton's Law Lexicon, p. 391; Woolrych, Law of Waters, p. 36; Hammerton v. Dysart (Earl), supra, at p. 80. Lord Parker (p. 78) says: A ferry is not only a franchise but primarily a toll franchise. Viscount Haldane, ib. p. 72, calls attention to the absence of actual examples of grants of ferry rights from the Crown and instances the only one he knows-that of 11 Edw. 2 to the Priors of Birkenhead, referred to in Pim v. Curell, 6 M. & W. 236, and says such documents may be found hereafter. The grant of 11 Edw. 2 was not a grant creating a ferry. The ferry was in existence at the time. A considerable search amongst the early records has so far failed to yield the editor any instance of such a grant from the Crown, though there are many references to ferries. See Cowes Urban Council v. Southampton, &c., Royal Mail Packet Co., post, p. 527; R. v. Marsden, 3 Burr. 1812; Willes, 512 n.; Com. Dig. Piscary, 3; Hale de Jure Maris, pt. 1, c. 2; Huzzey v. Field, 2 C. M. & R. 432 et seq.; 41 R. R. 755. See also as to the franchise of a ferry under charter from the Crown, Simpson v. Att.-Gen. (1904), 74 L. J. Ch. 1; A. C. 476; Att.-Gen. v. Simpson, [1901] 2 Ch. 671, C. A., at p. 692, ante, p. 497.

(d) Vol. i., p. 682.

(e) Newton v. Cubitt, 12 C. B. (N.s.) 32; 31 L. J. C. P. 246; 6 L. T. 86; and as to ancient ferries, see Letton v. Gooden, L. R. 2 Eq. 123; 35 L. J. Ch. 427; 14 L. T. 296.

(f) Com. Dig. in tit. Pisc. 13.

(g) Peter v. Kendal, 6 B. & C. 703; 30 R. R. 504; Att.-Gen. v. Simpson, [1901] 2 Ch. 671, C. A.