water to the injury of a riparian owner, even where the damage is only nominal, upon the ground of the inconvenience of leaving the parties to repeated and successive actions for damages (c); but it is right, in an order for an injunction, to insert the words to the injury of the plaintiff," to prevent the authority of the Court being invoked for trivial reasons (d). The Courts will not grant an injunction unless some perceptible pollution exists; and in the case of Att.-Gen. v. Cockermouth (e), Jessel, M.R., refused to grant an injunction at the suit of a local board to restrain the defendants from discharging sewage into a stream eight miles above the intake of the plaintiffs' waterworks, the evidence showing that chemical analysis failed to detect any pollution in the water at the intake of the waterworks, though it was polluted at the point of discharge. In the same case, however, the Master of the Rolls granted an injunction at the suit of the Attorney-General, on the ground that The Local Government Acts, 1858 and 1861, rendered it illegal for the defendants to discharge the sewage by an outfall out of their district, so as to affect or deteriorate the water at the point of discharge. In Weeks v. Howard (f), Wood, V.-C., refused to grant an injunction to restrain the defendant from draining the water out of a gravel pit, which water, the plaintiff alleged, being muddy (g), hindered the growth of his watercresses, on the ground that the defendant had as much right to use the stream for such discharge. as the plaintiff had to grow his watercresses there. Where actual substantial damage is shown, the Courts will interfere by injunction to prevent its continuance (h). In granting injunctions to restrain pollution by sewage matter, the practice is to grant an immediate injunction restraining any new communications with the river; but, as to existing drains, to suspend the operation of the order for a time to enable the defendants to comply with the order, by altering their works (i). (c) Pennington v. Brinsop Hall, 5 Ch. D. 769; Clowes v. Staffordshire, L. R. 8 Ch. 125. (d) Lingwood v. Stowmarket, L. R. 1 Eq. 77. For form of order, see ibid. 336. (e) L. R. 18 Eq. 172. (f) 10 W. R. 567. (g) Making water muddy is not pollution. See Tayler v. Bennet, 7 C. & P. 329; 39 & 40 Vict. c. 75, s. 20. See ante, pp. 184 et seq. (h) Att.-Gen. v. Leeds, L. R. 5 Ch. 589; Crossley v. Lightowler, L. R. 2 Ch. 418; Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 349; 35 L. J. Ch. 382; 14 L. T. 154; Att.-Gen. v. Birmingham, 4 K. & J. 528; Bidder v. Croydon, 6 L. T. (N.S.) 778; Att.-Gen. v. Luton, 2 Jur. (N.s.) 180; Manchester v. Worksop, 23 Beav. 198; Wood v. Sutcliffe, 2 Sim. (N.s.) 163; Tipping v. Eckersley, 2 K. & J. 264; Oldaker v. Hunt, 6 D. M. & G. 376. (i) Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 349; Att.-Gen. v. Colney Hatch, L. R. 4 Ch. 146; Att.-Gen. v. Leeds, L. R. 5 Ch. 583; Att.-Gen. v. In the case of injury to riparian rights, the Courts will not. except in special cases, award damages in lieu of an injunction (k). The injunction may be in a mandatory form (1). rivers. Any invasion of the right of the Crown to the bed of the sea Purpresture and public or navigable river is a purpresture, and may be restrained by nuisance to injunction at the suit of the Attorney-General, whether it be a navigable nuisance or not. If the act complained of be merely a trespass on the property of the Crown, and not a nuisance to the navigation, the Court will generally direct an inquiry, whether it is more beneficial to the Crown to abate the purpresture, or to suffer it to remain. But if it be also a public nuisance this cannot be done, for the Crown cannot sanction a public nuisance (m). Erections on the bed of navigable rivers are not necessarily nuisances, but if they obstruct the navigation they may be abated by information and injunction, or by indictment. The true question in each case is, whether or not a damage accrues to the navigation in the particular locality (n). In questions of title to the foreshore between the Crown and Procedure. a subject the question can be brought before the Court by English information; and it is then a matter for the discretion of the Court whether it will try the question itself or direct an issue before a jury. Such informations were formerly exhibited in the Court of Exchequer on its equity side, which had power to send any questions that might arise upon the title to a trial at law (0). The jurisdiction, however, passed from the Exchequer Court to the Exchequer Division, and thence to the King's Bench Division and is not touched by the Judicature Acts (Order LXXII.) (p), nor by the Crown Suits Acts, 1855-1865 (18 & 19 Vict. c. 90, 24 & 25 Vict. c. 62, 28 & 29 Vict. c. 104) (q); and the Crown has the same right as formerly to have any question Halifax, 17 W. R. 1088; Att.-Gen. v. Birmingham, 19 W. R. 561; Pennington v. Brinsop Hall, 5 Ch. D. 769; Price's Patent Candle Co. v. London County Council, [1908] 2 Ch. 526; 78 L. J. Ch. 1; 99 L. T. 571; ante, p. 173; see also ante, pp. 169 et seq. (k) Pennington v. Brinsop Hall, 5 Ch. D. 769; Kerr on Injunctions, pp. 39, 40. (1) Spokes v. Banbury, L. R. 1 Eq. 42; 35 L. J. Ch. 105; 13 L. T. 428; affirmed 13 L. T. 453. (m) Att.-Gen. v. Terry, L. R. 9 Ch. 423; Att.-Gen. v. Lonsdale, L. R. 7 Eq. 388; Att.-Gen. v. Johnson, 2 Wils. Ch. 87; 18 R. R. 156; Parmeter v. Att.-Gen., 10 Price, 412; 24 R. R. 723, 745; Att.-Gen. v. Parmeter, 10 Price, 378; 24 R. R. 723, 745; Att.-Gen. v. Burridge, 10 Price, 350; 24 R. R. 705; Bristol Harbour Case, cited 18 Ves. 214; Att.-Gen. v. Richards, 2 Anstr, 603; 3 R. R. 632; see also Gann v. Free Fishers of Whitstable, 11 H. L. 292. (n) Att.-Gen. v. Terry, L. R. 9 Ch. 423; Att.-Gen. v. Lonsdale, L. R. 7 Eq. 388; Reg. v. Betts, 16 Q. B. 1023; R. v. Ward, 4 Ad. & E. 386; 43 R. R. 364. (0) Att.-Gen. of Prince of Wales v. St. Aubyn, Wightw. 167; 12 R. R. 718, n.; Att.-Gen. v. Richards, 2 Anst. 603; 3 R. R. 632. (p) Att.-Gen. v. Emerson, 10 Q. B. D. 191; Att.-Gen. v. Reeve, 1 T. L. R. (q) Att.-Gen. v. Newcastle-on-Tyne, [1897] 5 Q. B. 284. Right of access. Fishery. Water affecting its right decided by this Division only. (See Att.-Gen. v. Constable (r), where a case by a lord of the manor against trespassers was removed from the Chancery to the Exchequer Division). Any interference with the right of access which a riparian owner has to a navigable river for the purposes of exercising the public right of navigation, is an injury to a right of property, and actionable without proof of special damage, and may be restrained by injunction (s). It is a question of fact in each case, whether an obstruction in a river amounts to an interference with the right of access to a river frontage (t). An action will lie for the breaking and entering a several or a free fishery (u). The owner of a several fishery may maintain trespass for taking his fish (x). The obstruction of the passage of fish, as by weirs or by diversion of water, is actionable by the owner of a fishery prejudiced thereby, and will be restrained by injunction (y). The pollution of the sea (z) or a river, which has the effect of killing or driving away fish, may be restrained by injunction (a). In a case where a man, by making an embankment and enclosing the bed of a river, shut out and prevented the tide from reaching a mussel bed and breeding ground, the Court granted an injunction to restrain this encroachment on the principle of irreparable damage to the fishery, without entering on or deciding the question as to the right of ownership in the soil (b). For remedies by and against water companies, see cases collected ante, pp. 332 et seq., and Canal Companies, ante, pp. 301 et seq. (r) 4 Ex. D. 172. (s) Lyon v. Fishmongers' Co., 1 A. C. 662; Rose v. Groves, 5 M. & G. 613; Dobson v. Blackmore, 9 Q. B. 991; Hubert v. Groves, 1 Esp. N. P. C. 148; Fineux v. Hoveden, Cro. Eliz. 664; Coppinger v. Shehan, [1906] 1 Ir. R. 519; ante, pp. 104 et seq. (t) Bell v. Corporation of Quebec, 41 L. T. (N.s.) 451 (P.C.). (x) Cf. Smith v. Andrews, [1891] 2 Ch. 678; Blount v. Layard, ibid, 681. (y) Pirie v. Kintore (Earl), [1906] A. C. 478, H. L. (Sc.); 75 L. J. P. C. 96; Weld v. Hornby, 7 East, 195; 8 R. R. 608; Marquis of Donegal v. Hamilton, 3 Ridg. P. C. 267; Leconfield v. Lonsdale, L. R. 5 C. P. 726; 39 L. J. C. P. 305: 23 L. T. 155, per Bovill, C.J. Some special and definite damage must be shown, for the Court will not interfere where the damage is uncertain and indeed problematical, Fraser v. Fear, 107 L. T. 423, C. A. (z) Hobart v. Southend-on-Sea Corporation, 75 L. J. K. B. 305; 94 L. T. 337; 54 W. R. 454; 70 J. P. 192; 4 L. G. R. 757; 22 T. L. R. 307, 530. Foster v. Warblington Urban Council, [1906] 1 K. B. 648, and see the Salmon and Freshwater Fisheries Act, 1923, ante, pp. 419 et seq. (a) Att.-Gen. v. Birmingham, 4 K. & J. 528; Att.-Gen. v. Luton, 2 Jur. (N.S.) 181; Bidder v. Croydon, 6 L. T. (N.s.) 778; Oldaker v. Hunt, 6 D. M. & G. 376; Aldred's Case, 9 Rep. 59 a. (b) Bridges v. Highton, 11 L. T. (N.s.) 653. INDEX. ABANDONMENT. See Extinguishment. ABATEMENT, of nuisances, 667, 668 in the sea and tidal rivers, 47, 466, 467, 475-480 in non-tidal waters, 99, 489 See Nuisances; Remedies. ACCESS, right of, on the sea shore, 47 shore of a navigable lake, 49, 118 shore of a tidal navigable river, 114-119, 459, 460, 464, right to land and cross the shore is incident to, 49, 118 no right of the public over private lands on the sea shore or is a private right to the enjoyment of land, 119, 464, 688 the invasion of which may form ground of an action for the obstruction of, is actionable without proof of special damage, and is an injury to property quite distinct from injury to the whether such obstruction amounts to interference with the right See Sea; Tidal Navigable River. Riparian owner. ACCRETION, property in land formed by, 36-39, 80-87, 93 if gradual, belongs to owner of land added to, 36, 80, 93 from the sea, whether natural or artificial, annexed to adjoining belongs to adjoining landowner, 36, n. (z) ACQUIESCENCE, equitable doctrine of, with regard to the acquisition ACQUIRED RIGHTS OF WATER. See Easements. ACT, of God. See Vis Major. of Parliament. See Statute. ACTION, remedy by, for infringements of rights of water, 668, 688. See interference with public rights is the subject of, and may be abated, ADMIRALTY, COURT OF, and Admiralty, criminal jurisdiction of, over English ships on 2, 438, 439 the high seas, jurisdiction of the admiral transferred to the Central Criminal jurisdiction of, over foreign ships under 41 & 42 Vict. c. 73...8, 9, 438 has no cognizance of offences committed on the sea shore forming the justices of which have cognizance thereof, 22 the various duties and powers of, as to ports transferred to the County Court, jurisdiction of, 671 ALIENS RESTRICTION ACTS, 1914 and 1919, THE, the landing of the right of, included in the right of navigation, 5, 437, 453, dues for, may be claimed in a port which is a natural roadstead, immemorial user of foreshore of tidal rivers by fixing decisions as to, 580-586 See Tolls. and beaconage dues, rateability of, 625. See Rates. ANIMALS, DEAD OR DISEASED, not to be put into the sea or other waters, 200 ARTIFICIAL WATERCOURSE, easement of, 102, 103, 106, 264, 277 the most important, viz., canals and sewers, &c., are the creatures rights in, are acquired solely by grant or prescription, and are not are incorporeal rights, 106, 220 effect of grant of, 220-230 ownership of soil of, 102 right of fishery in, is primâ facie incident to the ownership of the rights in, depend on the character of the watercourse and the circum- diversion and obstruction of, 264-278 pollution of, 165-169, 275, 279 diversion of a natural stream by, 124, 269 liability of landowner for escape of water where an artificial has been substituted for a natural watercourse, 144-155 easement to discharge water by, 221, 269 to receive water by, 270, 271 right of servient owner to compel dominant owner to continue See Canal; Watercourse; Diversion; Pollution. |