St. Katharine's Docks (9 Ch. Div. 524); Burt v. Victoria Co. (47 L. T. Of Water378).

courses.

In the case of a non-tidal navigable lake, the Crown has no de jure Soil of nonright to the soil (Bristowe v. Cormican, 3 App. Cas. 641). It is, however, tidal waters doubtful whether the riparian owners are entitled ad medium filum

or non

(Ib. 666). In the case of non-tidal navigable rivers, the presumption (whether is that the soil is the property of the owners on each side to the middle navigable of the river, and if a man owns the land on both sides, the presump- navigable). tion is that the whole bed of the river belongs to him (Blount v. Layard, 1891, 2 Ch. 689, n.) And the same presumptions apply in the case of a non-navigable river (Hale de Juré, Maris, Cap. I.; Carter v. Murcot, 4 Burr. 2162; Harg. L. Tracts, 5; Davies, R. 155; R. v. Wharton, 12 Mod. 510; Bickett v. Morris, L. R. 1 H. L. Sc. 58). But in each case it is a question of fact, and the owner of the land on one side of a river only may be entitled to the whole bed (Jones v. Williams, 2 M. & W. 326); See the evidence of acts of ownership in the last-mentioned case, and in Smith v. Andrews, 1891, 2 Ch. 678; Blount v. Layard, Ib. 681, n.; Lord Adv. v. Blantyre, 4 App. Cas. 770, 791.

The right of ownership of the moiety of the bed of such a river passes, according to a legal presumption, under a conveyance of land on one bank, whether the land is freehold, copyhold, or leasehold (Tilbury v. Silva, 45 Ch. Div. 98); and this even where the conveyance points to a boundary which would not include any part of the bed (Crossley v. Lightowler, 3 Eq. 279); or where the quantity specified in the deed and the colouring on the map, excludes the bed (Micklethwait v. Newlay Co., 33 Ch. Div. 133); or where the river is of more than ordinary breadth (Dwyer v. Rich, I. R. 6 C. L. 144). The presumption applies also where the grantor is owner of both banks of the river (Micklethwait v. Newlay Co., sup.) The presumption may be rebutted by surrounding circumstances (Devonshire v. Pattinson, 20 Q. B. Div. 263); but not by reason of subsequent circumstances not contemplated at the time of the grant (Micklethwait v. Newlay Co., sup.)

An act of parliament, passed for the purpose of making navigable a natural river, does not vest in the undertakers of the navigation the bed of the river, but gives them for that purpose the mere privilege of scouring and cleansing it, which is a mere casement (R. v. Mersey Navigation, 9 B. & C. 114; R. v. Thomas, Ib. 95). The proprietors of a navigation have no property either in the soil over which the water flows or in the adjoining banks under an act of parliament allowing them the use of the land through which the river passes (Hollis v. Goldfinch, 1 B. & C. 221).

The fee simple in the towing-path by the River Lee remains in the adjoining owner, subject to the rights of the conservators in connection with navigation (Lee Conservators v. Button, 6 App. Cas. 685). As to the liability of conservators for the condition of a towing-path, see Winch v. Thames Conservators (L. R. 9 C. P. 378). The public are not entitled at common law to tow on the banks of ancient navigable rivers; the right must be founded on statute or on usage (Ball v. Herbert, 3 T. R. 256; see 1 Lord Raym. 725; Bull. N. P. 90; 6 Mod. 163, contra; see also Pierce v. Falconberge, 1 Burr. 292).

The use of the banks of the river for more than twenty years by fishermen, who have occasionally sloped and levelled them, is evidence of a grant of a right of landing by the owner of the soil, although both the fishery and landing-place once belonged to the same person, and there was no evidence to show that the former owner, or those who claimed under him, knew that the shore had been so used (Gray v. Bond, 2 Brod. & Bing. 667).

A right to the use of flowing water does not necessarily depend upon the ownership of the soil covered by such water (Lord v. Sydney, 12 Moo. P. C. C. 473).

In the absence of all evidence of particular usage, the extent of the Rights as to right of the Crown to the seashore landwards is prima facie limited by the seashore. the line of the medium high tide between the springs and the neaps (4. G.

Of Watercourses,

Alluvium.

v. Chambers, 4 D. M. & G. 206; Lowe v. Govett, 3 B. & Ad. 863; Ilchester v. Raishleigh, 61 L. T. 479). The foreshore is vested in the Crown subject to an obligation to protect the realm from the inroads of the sea by maintaining natural barriers, and neither the Crown nor a subject claiming under the Crown can remove shingle so as to destroy a natural barrier (A. G. v. Tomline, 14 Ch. Div. 58; see A. G. v. Emerson, 1891, A. C. 649).

The seashore between high and low water mark may be parcel of the adjoining manor (Constable's case, 5 Rep. 107; Harg. L. Tracts, 12); and where, by an ancient grant of the manor, its limits are not defined, modern usage is admissible in evidence, to show that such seashore is parcel of the manor (Beaufort v. Swansea, 3 Exch. 413; A. G. v. Jones, 2 H. & C. 347; Calmady v. Rowe, 6 C. B. 861; see A. G. v. Emerson, 1891, A. C. 649). As to the entries on the court rolls, which may be used as evidence in support of the lord's title, see Ex p. Tomline (21 W. R. 475). In a dispute between a lord of the manor and the corporation of an adjoining port as to the right of foreshore, a decision between the parties in an action tried 150 years before, followed by a long enjoyment on the part of the winner, and long acquiescence on the part of the loser, was held to be prima facie binding on the latter (Ib.) Similarly, usage may explain a grant of wreck (Chad v. Tilsed, 2 Brod. & Bing. 403).

As to what words in a grant will pass the soil of the foreshore, see Scratton v. Brown (4 B. & C. 485).

The owner of a tenement adjoining the sea was held to have the same right of access to the sea as a riparian proprietor has to a tidal river (A. G. Straits Settlement v. Wemyss, 13 App. Cas. 192).

A person in possession of foreshore may maintain trespass against a wrongdoer without displacing the Crown's title (Hastings v. Ivall, 19 Eq. 558).

The public have no common law right to bathe in the sea, and as incident thereto of crossing the shore on foot or with bathing machines (Blundell v. Catterall, 5 B. & Ald. 268; see Mace v. Philcox, 15 C. B. N. S. 600; 12 W. R. 670). So there is no common law right of entering seashore to take seaweed (Howe v. Stowell, 1 Alcock & Napier, 348); or of drawing up fishing boats on the shore (Ilchester v. Raishleigh, 61 L. T. 478).

As to the boundary of a parish which lies on the seashore or extends up to a tidal river, see Bridgwater v. Bootle-cum-Linacre (2 Eq. 4).

Gradual accretions of land from the sea belong to the owner of the land gradually added to (R. v. Yarborough, 3 B. & C. 91; 5 Bing. 163; 2 Bligh. N. S. 147; Doe v. East India Co., 10 Moo. P. C. 140; see Scratton v. Brown, 4 B. & C. 485). Similarly in the case of accretions from a nonnavigable river (Ford v. Lacey, 30 L. J. Ex. 351). Conversely land gradually encroached upon by water ceases to belong to the former owner (Re Hull and Selby R. Co., 5 M. & W. 327). This law is based on the impossibility of identifying from day to day small additions to or subtractions from land caused by the constant action of running water (See Foster v. Wright, 4 C. P. D. 446).

The title to alluvium, arising from artificial causes, does not differ as to the rights of landowners, from the title to alluvium arising from natural causes, where the artificial causes arise from a fair use of the land adjoining the seashore, and not from acts done with a view to the acquisition of the seashore. Where the acts of ownership relied on consisted merely of turning cattle upon a marsh which crossed the invisible line of boundary separating the marsh from the seashore, and the cattle were allowed to stray without interruption, Lord Chelmsford, C., said, "The effect of acts of ownership must depend partly upon the acts themselves, and partly upon the nature of the property upon which they are exercised. If cattle are turned upon enclosed pasture ground, and placed there to feed from time to time, it is strong evidence that it is done under an assertion of right; but where the property is of such a nature that it cannot be easily protected against intrusion, and if it could it would not be worth the

trouble of preventing it; there, mere user is not sufficient to establish a right, but it must be founded upon some proof of knowledge and acquiescence by the party interested in resisting it, or by perseverance in the assertion and exercise of the right claimed in the face of opposition' (A. G. v. Chambers, 4 De G. & J. 55, see p. 65; and see Re Hainault Forest Act, 9 C. B. N. S. 648, and Lord Blackburn's remarks Lord Adv. v. Blantyre, 4 App. Cas. 791).

Of Water

courses.

A ferry is the exclusive right to carry passengers across a river or arm Ferries. of the sea, from one vill to another, or to connect a continuous line of road leading from one township or vill to another, and not a servitude imposed upon a district or large area of land, and is wholly unconnected with the ownership or occupation of land (Newton v. Cubitt, 12 C. B. N. S. 32; see R. v. Matthews, 5 El. & Bl. 546). All common ferries have their origin in royal grant or in prescription which presumes such grant (Letton v. Goodden, 2 Eq. 131). A custom of keeping a ferry boat was alleged by a parish (3 Mod. 294). Thirty-five years exercise of the usage was sufficient to show a legal origin (Trotter v. Harris, 2 Y. & J. 285).

In an action for an evasion of an ancient ferry, by carrying passengers across the river near thereto, the defendant cannot plead circumstances to show that from the altered state of the neighbourhood public convenience required that which the defendant has done (Newton v. Cubitt, 5 C. B. N. S. 627).

A right of ferry is a matter in which the public are interested, and of which therefore reputation is evidence, and so also is a verdict or judgment of a court of competent jurisdiction, touching the same right, although between other parties (Pim v. Currell, 6 M. & W. 234).

A ferry forms part of the King's highway, and its owner is bound, under pain of indictment, to maintain the ferry at all times for the use of the public (Letton v. Goodden, 2 Eq. 131).

(6.) OF THE RIGHT TO PEWS.

Of common right, the soil and freehold of the church is the parson's; General right the use of the body of the church, and the repair of it common to the with regard parishioners; and the disposing of the seats therein the right of the ordi- to pews. nary (Hob. 69; Gibs. Cod. tit. 9, c. 4).

According to the common law the rector, whether endowed or spiritual only, is entitled to the chief seat in the chancel, unless some other person be in a condition to prescribe for it from time immemorial. The ecclesiastical court, in the exercise of its ordinary authority, would allot to him such sitting and protect him against the disturbance of such right (Spry v. Flood, 2 Curt. 357). By the general law, and of common right, all the pews in a parish church are the common property of the parish; they are for the use in common of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the officers, subject to the control of the ordinary (12 Rep. 105; 3 Inst. 202; Halliday v. Phillips, 23 Q. B. Div. 53; Blake v. Usborne, 3 Hagg. Eccl. R. 733). The churchwardens have a discretionary power to appropriate the pews in the church amongst the parishioners, and may remove persons intruding on seats already appropriated (Reynolds v. Monkton, 2 M. & Rob. 384).

The general right then being in the parish and the ordinary, any par- Particular ticular rights in derogation of these are stricti juris; it is the policy of the rights. law that few of these exclusive rights should exist, because it is the object of the law that all the inhabitants should be accommodated; and it is for the general convenience of the parish that the occupation of pews should be altered from time to time, according to circumstances. A possessory

to Pews.

Of the Right right is not good against the churchwardens and the ordinary (Halliday v. Phillips, 23 Q. B. Div. 53). The churchwardens may displace, and make new arrangements, but they ought not without cause to displace persons in possession; if they do, the ordinary would reinstate them: the possession therefore will have its weight,-the ordinary would give a person in possession, cæteris paribus, the preference over a mere stranger (1 Phill. R. 324). The churchwardens are not justified in dispossessing any one of a sitting which he has enjoyed for a time, without giving notice of their intention, and offering an opportunity for explanation (Horsfall v. Holland, 6 Jur. N. S. 278). A possessory right is sufficient to maintain a suit against a mere disturber (Spry v. Flood, 2 Curt. 356). The fact of possession implies either the actual or virtual authority of those having power to place. The disturber may show that he has been placed there by this authority, or must justify his disturbance by showing a paramount right, a right paramount to the ordinary himself; namely, a faculty by which the ordinary has parted with the right; or if there be no proof of a faculty, there may be proof of prescription, and such immemorial usage as presumes the grant of a faculty (1 Phill. R. 324). Such a grant may be presumed although there may be evidence that the pew was originally acquired under circumstances which would not confer a legal right (Halliday v. Phillips, 1891, A. C. 228). Where the prescription is interrupted, the jury are not bound to presume a faculty from long undisturbed possession (Morgan v. Curtis, 3 M. & R. 389). On the expiration of a faculty, as where one was granted for ninety-nine years, the right of the parishioners to the use of the pew revives (3 Hagg. Eccl. R. 733). faculty (for annexing a pew to a messuage) obtained by surprise and undue contrivance may be revoked (2 Hagg. Eccl. R. 417).

Particular rights founded on faculty or prescription.

Prescriptive

right to pews, how proved.

A

Lord Penzance expressed an opinion that a prescriptive right to a pew in the nave of a parish church cannot be claimed under sect. 2 of the Martin, 2 P. D. 15; see Halliday v. Phillips, Prescription Act (Crisp v. 23 Q. B. Div. 54).

A prescriptive right must be clearly proved; the facts must not be left equivocal; and they must be such as are not inconsistent with the general right. In the first place, it is necessary to show that the use and occupation of the seat have been from time immemorial appurtenant to a certain messuage, not to lands; the ordinary himself cannot grant a seat appurtenant to lands. Secondly, it must be shown that if any acts have been done by the inhabitants of such messuage they maintained and upheld the right. At all events, if any repairs have been required within memory, it must be proved that they have been made at the expense of the party setting up the prescriptive right (Compare Crisp v. Martin, 2 P. D. 15). The onus and beneficium are supposed to go together; mere occupancy does not prove the right. What might be the effect of very long occupancy, where no repairs have been necessary, does not appear to be decided. It is a common error to suppose that by mere occupancy pews become annexed to particular houses. In country parishes the same families occupy the same pews for a long time, but they still belong to the parish at large; if, however, it is shown that the inhabitants of a particular house have repaired, that fact establishes that the burthen and benefit have gone together, and is inconsistent with the right of the parish still to claim the benefit, and is evidence of the annexation of the pew. Thus the uniform and exclusive possession of the inhabitants of a particular messuage connected with the burthen of maintaining and repairing the seat is evidence sufficient to establish a prescriptive title (1 Phill. R. 325-6). To exclude the jurisdiction of the ordinary, the strongest evidence is the building and repairing time out of mind; but mere repairing for thirty or forty years will not exclude the ordinary (Stocks v. Booth, 1 T. R. 428; Walter v. Gunner, 1 Hagg. 322). The evidence was considered (Halliday v. Phillips, 23 Q. B. Div. 54; 1891, A. C. 228). The possession must be ancient, and going beyond memory, though on this subject the high legal memory, even before the act 2 & 3 Will. 4, c. 71, was not required (1 Hagg. Cons. R. 322).

to Pews.

Evidence of repair to a pew claimed by prescription is not absolutely of the Right necessary, as no repair may have been made within the period of anyone living (Knapp v. Willesden, 2 Rob. Ec. Rep. 358). Twenty years' adverse possession seems to bar the right to a pew (1 Phill. R. 328).

Where the members of a corporation have as such occupied a particular pew in the parish church, the repairs of it may be properly charged on the borough fund (R. v. Warwick, 10 Jur. 262; 15 L. J. Q. B. 306).

Extra-parochial persons cannot establish a claim to seats in the body Extra-paroof a parish church without proof of a prescriptive title (Byerly v. Windus, chial persons. 5 B. & C. 1; as to prohibition against granting a faculty, see Hallack v. Cambridge, 1 Q. B. 593). A pew in an aisle or chancel may belong to a non-parishioner, for the case of an aisle or chancel depends upon, and is governed by, other considerations (2 Addams, R. 427). A pew in the body of the church may be prescribed for as appurtenant to a house out of the parish (Davis v. Witts, Forr. R. 14; Lonsley v. Hayward, 1 Y. & J. 583). A man may prescribe for a chancel or for an aisle, or for a pew in an aisle, or even in the nave of a church, if he prescribes for that he and those whose estate he has, have always had it, and have always repaired it, even though the estate or house in question be out of the parish (Per Kindersley, V.-C., Churton v. Frewen, 2 Eq. 656).

A pew annexed by prescription to a certain messuage cannot, as is often Prescriptive erroneously conceived, be severed from the occupancy of the house, but right to pew passes with the messuage, the tenant of which for the time being has de cannot be jure the prescriptive right to the pew (1 Hagg. Cons. R. 319; 1 T. R. 430; severed from 3 M. & R. 334; 2 Ad. 428); which cannot be sold nor let without a special occupancy of act of parliament (1 Hagg. Eccl. R. 319, 321); or under the provisions of messuage. the Church Building Acts (See 58 Geo. 3, c. 45, ss. 65, 66, 75-79; 59 Geo. 3, c. 134, ss. 26, 32; 8 & 9 Vict. c. 70, s. 11). Where an occupier of a pew ceases to be an inhabitant of the parish, he cannot let the pew with and thus annex it to his house, but it reverts to the disposal of the churchwardens (1 Hagg. Eccl. R. 34). A person who has permission from the churchwardens to sit in a pew temporarily, and in order, by keeping possession for the future tenant, to carry into effect the conditions of sale of a house with which the pew has for above a century been held under an expired faculty, has no possession on which he can bring a suit for perturbation of seat against a mere intruder, such permission by the churchwardens being illegal, as confirming the sale of the pew (Blake v. Usborne, 3 Hagg. Eccl. R. 726). Customs pleaded, that pews are appurtenant to certain houses, and are let by the owners to persons who are not inhabitants of the parish," are bad (1 Hagg. Cons. R. 317). Custom, "that persons who had not pews appurtenant pay rent for seats, which is applied in payment of the parish rate," is a practice which has been constantly reprehended by the ecclesiastical courts, and discouraged as often as set up (1 Hagg. Cons. R. 317). But if a house to which a pew is appurtenant be let to a parishioner, in that character he is clearly entitled to the pew (2 Add. 428).

32 & 33 Vict. c. 94, contains provisions for the surrender of pews which are private property, or subject to any trust to the bishop of the diocese or the ecclesiastical commissioners. And by 35 & 36 Vict. c. 49, provision is made for the free use of seats in certain churches.

On the construction of private acts it was held that the proprietors of Right to vote pews did not acquire such a freehold interest in the soil of the church as in respect of entitled them to a county vote; but only a right to sit in it to hear divine pews. service, which right was of the nature of an easement (Hinde v. Chorlton, L. R. 2 C. P. 104; Brumfitt v. Roberts, L. R. 5 C. P. 224; Greenway v.

Hockin, Ib. 235).

A mortgage of pew rents made by a vicar of a district church is void Mortgage of under 13 Eliz. c. 20 (Ex p. Arrowsmith, 8 Ch. Div. 96), where it was pew rents. said that the pew rents resembled the payment which the lord of a manor

received for stallage in a market.

A pew in a chancel may legally belong to a party in respect of the Chancels. ownership of a house (Parker v. Leach, 4 Moore, P. C. C. 180).