is primâ facie owner of the soil of the bed of the river, ad Chap. IV. medium filum (m). Where a shifting island springs up in the channel of the stream, it does not alter the original division of the river, but if it becomes joined to and incorporated with the bank, the permanent accretion will give rise to a new medium filum (n). Neither proprietor is entitled to use the bed of the river so as to cause an obstruction or to interfere with the usual flow of the stream; and if he does so, though no actual damage is shown, an action will lie against him at the suit of an adjacent proprietor (6). The owner of the banks of a non-navigable river may without any illegality build a milldam across the stream within his own property, and divert the water into a mill-lade without asking the leave of the proprietors above him, provided he does not obstruct the water from flowing as freely as it was wont; and without asking leave of those proprietors below him, if he takes care to restore the water to its natural course before it enters their land (p). lakes. It appears to be doubtful in whom the property in the soil of Freshwater an inland lake primâ facie vests; it does not de jure belong to the crown (q), and it does not seem quite certain whether it is in the adjoining riparian proprietors, though a recent decision in the House of Lords tends to that conclusion (r). Where the public have a right to navigate a lake, a private person, the owner of the soil of the lake has no right to erect a pier which obstructs the navigation of the lake, and if he does erect such a pier, the public are justified in making use of it for the purpose of embarking and disembarking (s). The bed of all estuaries or arms of the sea, and the bed of all navigable rivers where the tide flows and re-flows, is vested in the crown, but subject to the right of navigation which belongs by law to the subjects of the realm, and of which the right to anchor (m) Beckett v. Morris, L. R. 1 Sc. App. 47; Crossley v. Lightowler, L. R. 3 Eq. 279; 2 Ch. 478; 36 L. J. Ch. 584. (n) Zetland (Earl of) v. Glover Incorporation of Perth, L. R. 2 Sc. App. 70. (0) Per Ld. Westbury, in Beckett v. Morris, supra. (p) Per Ld. Blackburn, Orr Ewing v. Colquhoun, 2 App. Cas. 839. The right of fishing in the case of opposite riparian proprietors, is commensurate with the Property in the seashore and soil of na vigable rivers. Chap. IV. forms a part; and every grant made by the crown of the bed or soil of an estuary or navigable river must be subject to such Limit of right public right of navigation (t). In the absence of all evidence of particular usage, the extent of the right of the crown to the seashore landwards is prima facie limited by the line of the medium high tide between the springs and the neaps (u). of crown. Alluvion. Accretion. Seashore, between highand low-water mark. Bathing. Land formed by alluvion, that is by gradual and imperceptible deposit on the shore of the sea, belongs to the owners of the adjoining lands, and not to the crown jure coronæ (x). Land formed by gradual accretion belongs to the owner of the adjacent soil (y), unless it can be shown to have been caused by artificial causes which were intended to produce accretion, in which case the crown would be entitled (z). On the other hand it has been held that if the sea by gradual and imperceptible progress, encroaches upon the land of a subject, the land thereby covered with water belongs to the crown (a). The property in seashore between high- and low-water mark is frequently vested in the lord of an adjoining manor, or in a private individual by grant from the crown (b), and acts of ownership, such as the exclusive taking of sand, stones, and seaweed may be given in evidence in support of such grant (c). The general public has no right at common law to bathe in the sea, and as incident thereto of crossing the seashore on foot or in carriages, though such right may be gained by prescription or custom by individuals or the inhabitants of a certain town or parish (d), the statutory powers conferred upon local boards of (t) Gann v. Free Fishers of Whitstable, 11 H. L. Cas. 192; 20 C. B. N. S. 1; 35 L. J. C. P. 29; Colchester (Mayor of ) v. Brooke, 7 Q. B. 339; 15 L. J. Q. B. 59. Where waste land abutting on the seashore is overflowed by tho sea only on the occasion of extraordinary spring-tides it prima facie belongs to the adjoining owner: Lowe v. Govett, 3 B. & Ad. 169. (u) Att.-Gen. v. Chambers, 4 De G. M. & G. 206; 23 L. J. Ch. 662. Such land is extraparochial, unless there is evidence to show that it has been included in an adjoining parish: Reg. v. Musson, 8 El. & Bl. 900; 27 L. J. M. C. 100. (x) Rex v. Yarborough (Lord), 5 Bing. 163; 3 B. & C. 91. (y) Seebkrists v. E. India Co., 10 Moore, (z) Att.-Gen. v. Chambers, supra. & W. 327. (b) See Hastings (Corporation of) v. Ivall, 19 L. R. Eq. 558; Beaufort (Duke of) v. Swansea, 3 Ex. 413; Brew v. Harren, 11 Ir. Rep. C. L. 198 (Ex. Ch.); Ex parte Tomline, 28 L. T. 12; Penryn (Mayor of) v. Holm, 2 Ex. D. S28; 46 L. J. Ex. 506. (c) Calmady v. Rowe, 6 C. B. 861; Att.-Gen. v. Jones, 2 H. & C. 347; 33 L. J. Ex. 249. As to the right of taking shingle, see Padwick v. Knight, 7 Ex. 854; 22 L. J. Ex. 198; sand, Blewett v. Tregonning, 3 A. & E. 554; seaweed, Brew v. Harren, supra. (d) Blundell v. Catterall, 5 B. & A. 268; Best, J., dissenting from the judg ment of the majority of the Court, Abbott, C. J., Holroyd and Bayley, JJ. See Rex v. Crunden, 2 Camp. 89. health or local commissioners for regulating the mode of bathing Chap. IV. on the seashore and licensing bathing machines, do not warrant the licences of such machines in placing them on any part of the foreshore which is private property (f). The freehold of the church (including the chancel) and churchyard is in the rector, whether spiritual or lay, but the right to the corporal possession is in the spiritual incumbent, so that a lay rector has no right to the possession of the church against the incumbent (g). The freehold of a lesser chancel or chapel, though forming part of the parish church, may be vested by prescription in the lord of the manor or other person, even though the estate or house to which the chapel is appurtenant is not situate in the parish (h). Immemorial repair of such a chapel, coupled with other acts of ownership, is evidence of a freehold of inheritance in it being vested in those who have executed the repairs and exercised acts of ownership; such freehold need not be annexed to any house and can be conveyed to a third person (i). The property in the chattels of the church, such as the communion plate, is vested in the churchwardens, subject to its use by the incumbent for the purposes of divine service. Should the incumbent convert any of the moveable property of the church to his own use, an action will lie against him at the suit of the churchwardens (k). Property in the church and churchyard. Moveable prochurchwardens perty vested in The incumbent has a right to the possession of the keys of the Keys of church. church as they are attached to and form part of the freehold (1), although the absolute property in them may be vested in a lay rector. (f) Mace v. Philcox, 15 C. B. N. S. 600; 33 L. J. C. P. 124. (g) Grifin v. Dighton, 33 L. J. Q. B. 181; 5 B. & S. 93. In Cripps' Law relating to Church and Clergy, 4th ed., at p. 480, it is laid down that, "The freehold of the churchyard is, to a qualified extent, in the minister; and this, it is said, whether he be rector or vicar." (h) Churton v. Frewen, L. R. 2 Eq. 634; 35 L. J. Ch. 692. (i) Chapman v. Jones, L. R. 4 Ex. 273; 38 L. J. Ex. 169, where it was held that the freeholder could maintain an action for trespass against the incumbent for breaking and entering such chapel; see also Norfolk (Duke of) v. Arbuthnot, 5 C. P. D. 390; 49 L. J. C. P. 782. As to the origin of the creation of these chapels, (k) Wilkinson v. Verity, L. R. 6 C. P. 201. (7) Com. Dig. "Esglise" (F. 3), Turner v. Baynes, 2 H. Bl. 559. As to the restricted power of the churchwardens with reference to church ornaments, see Ritchings v. Cordingley, L. R. 3 A. & E. 113. Chap. IV. Church bells. Pews. Distinction between pew in body of church. chancel and in The church yard. Although the property of the bellropes is in the churchwardens (m) yet the control of the church bells is in the incumbent (n). In general the churchwardens alone have the regulation of the pews in the parish church, where every parishioner has a right to a seat, though not to a pew (o). A prescriptive right to a pew in the church as appurtenant to an ancient house, whether such house is situate in the parish or not, may however be established by evidence of immemorial use and enjoyment (p). Where such right is established an action for disturbance of pew at common law (q), or for perturbation of pew in the Ecclesiastical Courts (r), will lie at suit of the person disturbed in the enjoyment of his pew. There is a distinction to be observed between the mode of acquiring a title to a pew in the chancel, and a pew in the body of the church. A pew in the chancel may legally belong to a person in respect of the ownership of a house, or may belong to the lay rector (s); it is different from a pew in the body of the church, which can only be acquired by virtue of a faculty, or by virtue of immemorial possession, i.e., by prescription, which is founded on the notion of there having originally been a faculty (t). No prescriptive title to a pew can be established except where the parish church was built before 1818 (u). Where a pew is granted by a faculty to the owners and occupiers of a particular house, and the house is afterwards subdivided, the occupiers of each portion will be entitled to use the pew (v). Although, as stated above, the freehold of the churchyard may be in a lay rector, yet for all spiritual purposes the uncontrolled (m) See Judgment of Channell, B., in Chapman v. Jones, L. R. 4 Ex. at p. 283. (n) Jackson v. Adams, 2 Scott, 599; Harrison v. Round, 4 A. & E. 799. (0) Daunt v. Crocker, L. R. 2 A. & E. 41; 37 L. J. Ecc. 1. (p) Lonsley v. Hayward, 1 Y. & J. 583; see also Boothby v. Baily, Hobart, 69. (q) Hawkins v. Compeigne, 3 Phil. Rep. 15; Adams v. Andrews, 15 Q. B. 284. When the right to a pew is not annexed to a house, but is simply allotted to an individual by the churchwardens, no action will lie for disturbance of right: Mainwaring v. Giles, 5 B. & A. 356. (r) Parker v. Leach, L. R. 1 P. C. 312; 36 L. J. P. C. 26. (s) Clifford v. Wicks, 1 B. & Ald. 498. (1) Parker v. Leach, L. R. 1 P. C., Judgment of Ld. Westbury, at p. 327. (u) Seats and pews in churches built since 1818 are let and assigned according to the provisions of 58 Geo. 3, c. 45, ss. 75, 76; 3 Geo. 4, c. 72, s. 24; 1 & 2 Wm. 4, c. 38. (v) Harris v. Drewe, 2 B. & Ad. 164. As to claim to rate a freeholder of a county in respect of property in pew, see Brumfitt v. Roberts, L. R. 5 C. P. 224; Hinde v. Charlton, L. R. 2 C. P. 104; 36 L. J. C. P. 79. possession of it is in the incumbent (x). The possession of the Chap. IV. churchyard for these purposes does not exclude a lay rector from a right to the profits arising from the soil; thus the property both in the trees and the grass growing in the churchyard may be vested in him (y). In almost every case, however, the right to the patronage of the churchyard passes by endowment to the incumbent (2), and if so, he can maintain trespass. A distinction has been drawn between a vicar and a perpetual curate in respect to the right to the herbage of a churchyard; the presumption of endowment which exists in the case of a vicar, does not in the case of a perpetual curate (a). The freehold of a churchyard closed under an order in council remains in the incumbent in whom it was vested at the time of the order (b). freehold of church, &c., erected under ing and Church Church Build The freehold site of every church erected under the Church Property in Building Acts, vests in the incumbent for the time being of such church (c). So also the freehold site of the church of any new parish created under the Church Endowment Act, as well as that of the churchyard, burial ground and vaults is vested in the incum- Endowment bent, unless already vested in any vestry under a local Act, in incumbent. which case the assent of such vestry is required before the site vests in the incumbent (d). Acts, in An action may be maintained for taking away a tombstone from Tombstones. a churchyard, by the person by whom it was erected, as the right to a tombstone vests in the person who erects it, or in the heirs of the deceased in whose memory it is set up (e). By 3 & 4 Vict. c. 97, s. 16, it is enacted that if any person shall Wilful trespass on railway, wilfully trespass upon any railway or any of the stations or other 3 & 4 Vict. works or premises connected therewith, and shall refuse to quit c. 97, s. 16. the same upon request by the officers of the company, he may be detained and taken before a justice of the peace, and upon conviction may be fined a sum not exceeding £5, or in default of payment of such fine may be imprisoned for a term not exceeding two months. (x) Greenslade v. Darby, L. R. 3 Q. B. 421; 37 L. J. Q. B. 181. (y) Strachy v. Francis, 2 Atk. 217. (z) Per Blackburn, J., in Greenslade v. Darby, at p. 430. (a) Greenslade v. Darby, Judgment of Blackburn, J., at p. 430. As to the establishment of vicarages, see 4 Hen. 4, c. 12. (b)_Champneys v. Arrowsmith, L. R. 2 C. P. 602. (e) 8 & 9 Vict. c. 70, s. 13. (d) 19 & 20 Vict. c. 104, s. 10, see Cripps' Law of the Church, 4th ed. 445. (e) Spooner v. Brewster, 10 Moore, 494; 3 Bing. 136. As to the right to plant and ornament a grave, see Ashby v. Harris, L. R. 3 C. P. 523. |