regard to natural streams flowing through adjoining lands, the enjoyment of which is only usufructuary and not absolute, the

thereto.

right to use the water has been held in modern cases not to arise But from the from the ownership of the soil on the stream, but from the right right of access of access to it which landowners on its banks have by the law of nature (f). With respect to the ownership of the bed of the river," says Lord Selborne in Lyon v. Fishmongers' Co., "this cannot be the foundation of riparian rights properly so called, because the word riparian' is relative to the banks and not to the bed of the stream; and the connection, when it exists, of property on the banks with property in the bed of the stream depends not upon nature, but on grant or presumption of law. The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. It is, of course, necessary for the existence of a riparian right that the land should be in contact with the flow of the stream; but lateral contact is as good jure naturæ as vertical (g); and not only the word riparian,' but the best authorities, such as Miner v. Gilmour (h), and the passage which one of your Lordships has read from Lord Wensleydale's judgment in Chasemore v. Richards (i), state the doctrine in terms which point to lateral rather than vertical. It is true that the bank of a tidal river, of which the foreshore is left bare at low water, is not always in contact with the flow of a stream, but it is in such contact for a great part of every day in the ordinary and regular course of nature, which is an amply sufficient foundation for a natural riparian right." Lord Cairns, L.C., says, in the same case (k): "I cannot admit that the right of a riparian owner to the use of the stream depends on the ownership of the soil of the stream. The late Lord Wensleydale observed in this House, in the case of Chasemore v. Richards (1), The subject of right to streams of water flowing on the surface has been of late years fully discussed, and by a series of carefully considered judgments placed upon a clear and satisfactory footing. It has been now settled that the

(f) Lyon v. Fishmongers' Co., 1 A. C. 662; 45 L. J. Ch. 68; 36 L. T. 569. An allegation that the plaintiff was possessed of mines, lands and premises, and of right ought to have had and enjoyed and still of right ought to have and enjoy the water of a stream alongside the lands and premises, is not supported by proof that the plaintiff was the lessee of mines under lands adjoining the stream with a grant from the surface owner of the use of the water for colliery purposes: Insole v. James, 1 H. & N. 243; 4 W. R. 680. (g) See North Shore Rly. v. Pion, 14 A. C. 612.

(h) 12 Moo. P. C. 131.

(i) 7 H. L. 349; 29 L. J. Ex. 81.

(k) Page 673.

(1) 7 H. L. 382.

right to the enjoyment of a natural stream of water on the surface, ex jure naturæ, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction, upon the same principle as he is entitled to the support of his neighbour's soil for his own in its natural state. His right in no way depends on prescription or the presumed grant of his neighbour.'' In the case of Embrey v. Owen (m), the same learned judge, then Baron Parke, says: "The right to have the stream to flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water (n) itself except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during his possession only: see 5 B. & A. 24. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it " (o).

It would appear, therefore, that the ownership of the bed of a watercourse, not being the natural foundation of the right to the use of the water, the grantee of lands through which there was a watercourse would have the full use of the water therein, although the bed of the watercourse were reserved to the grantor. If the intention of the grantor is not to convey any interest in the water he can exclude it by the insertion in the instrument of conveyance proper words for the purpose of doing so.

The natural and acquired rights to the use of water are fully treated of in subsequent chapters (p). It is proposed in the present chapter to consider the rights of property in the bed of watercourses, apart from the use of the water. The subject will be best treated of under the following heads:

1. Tidal Navigable Rivers;

2. Non-Tidal Rivers and Streams;

3. Lakes and Pools;

4. Artificial Watercourses.

(m) 6 Ex. 369.

(n) Except by statute; see Medway Co. v. Earl of Romney, 9 C. B. (N.s.) 575; 30 L. J. C. P. 236; 4 L. T. 89; see post, Chap. III.

(0) See also judgment of Leach, V.-C., in Wright v. Howard, 1 S. & St. 190; 24 R. R. 169; and Mason v. Hill, 5 B. & A. 1; 39 R. R. 354.

(p) See Chaps. III. and IV., post.

Tidal Navigable Rivers.

A public navigable river is a river which is actually navigable, Definition. and in which the tide ebbs and flows; all other rivers on which navigation is carried on are private rivers over which the public may have acquired a right or easement of navigation (q).

The word "tide" is not confined to salt water, but includes fresh water ponded back (r) by ordinary tides (8), and includes those waters not merely where there is a horizontal ebb and flow, but also where there is a vertical rise and fall caused by the ordinary sea tide (t).

A navigable river is a public highway navigable by all His Majesty's subjects in a reasonable way and for a reasonable purpose (u). The public right of free passage extends to the whole of the navigable channel (x), and includes all such rights as with relation to the circumstances of each river are necessary for the convenient passage of ships such as the right of stopping for a reasonable time to unload and of grounding and anchoring (y).

The bed of all navigable rivers where the tide flows and Ownership of reflows, and of all estuaries and arms of the sea (z) is by law soil of bed. vested primâ facie in the Crown. But this ownership of the Crown is for the benefit of the subject, and cannot be used in any way so as to derogate from or interfere with the right of navigation which belongs by law to the subjects of the realm (a), or the right of fishery, which is primâ facie common to all (b).

Much discussion has arisen both in this country and in Rights of the America, whether or not this ownership of the Crown and the

(q) The word navigable in a legal sense, as applied to a river in which the soil prima facie belongs to the Crown and the fishing to the public, imports that the river is one in which the tide ebbs and flows: Murphy v. Ryan, Ir. R. 2 C. L. 143; Ilchester v. Rashleigh, 5 T. L. R. 739; 61 L. T. 477; see also Bloomfield v. Johnson, Ir. R. 8 C. L. 63; and per Whiteside, C.J., in Bristowe v. Cormican, Ir. R. 10 Ch. 434.

(r) R. v. Smith, 2 Doug. 441; Hume v. McKenzie, 2 Cl. & F. 628. (s) Reece v. Miller (1882) 8 Q. B. D. 626, 51 L. J. M. C. 64.

(t) Yorkshire (West Riding) Rivers Board v. Tadcaster District Council (1907) 97 L. T. 436; 71 J. P. 429; 5 L. G. R. 1208; Calcraft v. Guest, Stuart Moore's History and Law of Fisheries, p. 102.

(u) Original Hartlepool Collieries v. Gibb, 5 C. D. 713. Att.-Gen. v. Lonsdale, L. R. 7 Eq 377.

(x) Att.-Gen. v. Terry, L. R. 9 Ch. 423; Orr-Ewing v. Colquhoun, 2 A. C. 839; Williams v. Wilcox, 8 A. & E. 314.

(y) Mayor of Colchester v. Brooke, 7 Q. B. 339; Gann v. Free Fishers of Whitstable, 11 H. L. 192; Att.-Gen. v. Wright, [1897] 2 Q. B. 318; further as to the right of navigation, see post, Ch. VII.

(z) See ante, p. 23.

(a) Mayor of Colchester v. Brooke, 7 Q. B. 339; Williams v. Wilcox 8 A. & E. 337; 47 R. R. 595; Carter v. Murcott, 4 Burr. 2163; Gann v. Free Fishers of Whitstable, 11 H. L. 192; Malcolmson v. O'Dea, 10 H. L. 593; Lord Advocate v. Hamilton, 1 Macqueen, H. L. 47; Seebkristo v. East India Co., 10 Moo. P. C. 140; see Hale de Jure Maris, p. 1; Liverpool and N. Wales Steamship Co. v. Mersey Trading Co. [1908] 2 Ch. 658; 78 L. J. Ch. 17, C. A., post, p. 466.

(b) Malcolmson v. O'Dea, 10 H. L. 593; 9 L. T. 93.

Crown confined to tidal

waters.

public rights above stated are confined to tidal rivers, or whether they may also exist in non-tidal rivers which are in fact navigable, and have been used for the purposes of commerce from time immemorial. In America the Courts of some of the States have adopted one rule and some the other, the decision of the question appearing to depend much on the magnitude of the river in question (c). In this country a series of modern decisions has at last settled the law, and confined the primâ facie title of the Crown to the soil, and of the public right to fish and navigate to tidal waters.

In inland non-tidal waters, whatever the size of the water-space may be, no right can exist in the public to fish, though they may have acquired the right to navigate, and the Crown is not of common right entitled to the soil under such waters (d).

In Bristowe v. Cormican (e), the House of Lords held that the Crown has no de jure right to the soil or fisheries of inland non-tidal lakes, Lord Blackburn thus stating the law: "The property in the soil of the sea, and of estuaries and of rivers, in which tide ebbs and flows, is prima facie of common right vested in the Crown; but the property of dry land is not of common right in the Crown. It is clearly and uniformly laid down in our books, that where the soil is covered with the water forming a river in which the tide does not flow, the soil does of common right belong to the owners of the adjoining land, and there is no case or book of authority to show that the Crown is of common right entitled to land covered by water, where the water is not running water forming a river, but still water forming a lake" (f). This finding has been followed by the House of Lords in Johnston v. O'Neill, where it was held that the public had no right to fish in Lough Neagh: Lord Macnaghten stating that one and the same law applied to inland non-tidal waters whatever the size of the water-space might be (g). Again, in Orr Ewing v. Colquhoun, where it is laid down by the House of Lords that the public, who have acquired by user the right to navigate on an inland non-tidal water, have no right of property in the bed-Lord Blackburn observes, that the right of the Crown as regards the

(c) See Houck, p. 26; Angell on Watercourses, c. 13, and per Dowse, B., in Bristowe v. Cormican, Ir. R. 10 C. L. 68; and per Lord Hatherley in Lyon v. Fishmongers' Co., 1 App. C. 662.

(d) Johnston v. O'Neill [1911] A. C. at p. 578 for the older cases see Murphy v. Ryan, Ir. R. 2 C. L. 143; Hargreaves v. Diddams, L. R. 10 Q. B. 527; Musset v. Burch, 35 L. T. (N.S.) 486; Hudson v. McRea, 4 B. & S. 585; Pearce v. Scotcher, 9 Q. B. D. 162; Reece v. Miller (1882) 9 Q. B. D. 626; see also Smith v. Andrews [1899] 2 Ch. 678; Blount v. Layard, ibid., p. 681; Hindson v. Ashby [1896] 2 Ch. 1, at p. 9.

(e) 3 A. C. 641; see also Johnston v. O'Neill [1911] A. C. 552.

(f) 3 A. C. 666.

(g) [1911] A. C. 552, at p. 578; 81 L. J. P. C. 17.

soil of the alveus, and of the public to navigate, are not the same in such a river as they are in the sea or in a tidal estuary (h). It may now therefore be said to be clear law, that up to the point where the tide ebbs and flows in a navigable river, the soil is prima facie in the Crown; and, above that point, whether in rivers navigable or not, the soil is presumed to belong to the riparian owners to the middle line of the stream (i).

a river is

Though the flux and reflux of the tide is primâ facie evidence What is that a river is navigable, it does not necessarily follow, that evidence that because the tide flows and reflows in any particular place, it is navigable. therefore a public navigation, although of sufficient size. The strength of the evidence arising from the flux and the reflux of the tide, must depend on the situation and nature of the channel. If it is a broad and deep channel, calculated to serve for the purpose of commerce, it will be natural to conclude that it has been a public navigation; but if it is a petty stream navigable only at certain states of the tide, and then only for a short time, and by very small boats, it is difficult to suppose that it has ever been a public navigable channel (k). Not every ditch or cutting which is reached by the tide forms part of the public navigable river, even though it be large enough to admit of the passage of a boat. The question is one of degree (1). It is more reasonable to hold that "navigable" is a relative and comprehensive term containing within it all such rights upon the waterway as with relation to the circumstances of each river are necessary for the full and convenient passage of vessels and boats along the channel (m). The actual user of a tidal river, for the purposes of navigation, is of course the strongest evidence of its navigability (n). From this it follows that, whenever a river ceases to be navigable either by natural causes, such as the silting up of the channel, or by virtue of Act of Parliament, or by order of Commissioners of Sewers, or by the writ ad quod damnum, and an inquisition found thereon by a jury, the public right of navigation will cease, at any rate until the obstruction

(h) 2 A. C. 839; see also per Lord Selborne in Lyon v. Fishmongers' Co., 1 A. C. 682; and Bloomfield v. Johnson, Ir. R. 8 C. L. 68.

(1) See Bickett v. Morris, L. R. 1 Sc. App. 47; 14 L. T. 835.

(k) R. v. Montague, 4 B. & C. 598; 28 R. R. 420; Ilchester v. Rashleigh, 5 T. L. R. 739; 61 L. T. 477; see also Mayor of Lynn v. Turner, 1 Cowp. 36; Rose v. Miles, 5 Taunt. 705; 15 R. R. 623. For definition of a navigable river according to the French law existing in Canada. see Bell v. Corporation of Quebec, 41 L. T. (N.s.) 451, P. C.; 49 L. J. P. C. 1; according to American law, see Angell on Watercourses, c. 13; and as to the distinction between "navigable

and boatable."

(1) Sim E. Bak v. Ang Yong Huat [1923] A. C. 429. An artificially formed

tidal creek.

(m) Mayor of Colchester v. Brooke, 7 Q. B. 339.

(n) Miles v. Rose, 5 Taunt. 705; 15 R. R. 623; see per Bayley, J., in Vooght v. Winch, 2 B. & Ald. 662; 21 R. R. 446.