Rivers consi ways. SECT. III. Of Nuisances to Public Rivers. IN books of the best authority a river common to all men is dered as high- called a highway: (a) and if it be considered as a highway, any obstructions, by which its course and the use of it as a highway by the King's subjects are impeded, will fall within the same principles as those which relate to public roads, and which have been considered in the preceding section of this chapter. But it should be observed that a learned judge appears to have considered a river as differing, in some respects, at least, from a highway, where he is reported to have said, "Callis compares a navigable river to a highway: but no two cases can be more distinct. In the latter case, if the way be foundrous and out of repair, the public have a right to go on the adjoining land: but if a river should happen to be choaked up with mud, that would not give the public a right to cut another passage through the adjoining lands." (b) In the same case the Court decided, that the public are not entitled at common law to tow on the banks of ancient navigable rivers. (c) Where the It has been before observed, that a highway may be changed by course of a the act of God; and upon the same principle it has been holden, river is changed, it is that if a water, which has been an ancient highway, by degrees still a highway. change its course, and go over different ground from that whereon it used to run, yet the highway continues in the new channel, in the same manner as in the old. (d) It has been held that the soil of a navigable river prima facie, though not necessarily, belongs to the King; and is not by presumption of law in the owners of the adjoining lands. (e) How public right to navi gate a river may be destroyed. The public right of navigation in a river or creek may be extinguished either by act of Parliament or writ of ad quod damnum and inquisition thereon, or under certain circumstances by commissioners of sewers, or by natural causes, such as the recess of the sea, or the accumulation of mud or sand. Where, therefore, a public road, obstructing a channel once navigable, has existed for so long a time that the state of the channel, at the time when the road was made, cannot be proved, in-favour of the existing state of things it must be presumed that the right of navigation was extinguished in one of the modes before mentioned, and the road cannot be removed as a nuisance to the navigation. (f) Every creek or river, into which the tide flows, is not on that account necessarily a public navigable channel, although sufficiently large for that purpose, but the flowing of the tide into such a creek or river is strong prima facie evidence that it is a public navigation. (g) (a) | Hawk. P. C. c. 76, s. 1, citing 27 (b) By Buller, J., in Ball v. Herbert, 3 (c) Ball v. Herbert, 3 T. R. 253. Roll. Abr. 390. 4 Vin. Ab. Chimin (A). (e) Rex v. Smith, Dougl. 441, but this seems not free from doubt. See Williams v. Wilcox, post, p. 382. Reg. v. Wharton, 12 Mod. 610, as to private rivers. (f) Rex v. Montague, 4 B. & C. 599. (g) Ibid., per Bayley, J., citing the Mayor of Lynn v. Taylor, Cowp. 86, and Miles v. Rose, 5 Taun. 706. It is a common nuisance to divert part of a public navigable Obstructions river, whereby the current of it is weakened and made unable to in public rivers. carry vessels of the same burthen as it could before. (h) And the laying timber in a public river is as much a nuisance, where the soil belongs to the party, as if it were not his, if thereby the passage of vessels is obstructed. (i) The placing a floating dock in a public river has been also held to be a nuisance, though beneficial in repairing ships: (j) and the bringing a great ship into Billingsgate dock, which, though a common dock, was common only for small ships coming with provisions to the markets in London, appears to have been considered as a nuisance, in the same manner as if a man were so to use a common pack and horse-way with his cart, as to plough it up, and thereby render it less convenient to riders. (k) And the erection of weirs across rivers was reprobated in the earliest Weirs. periods of our law. "They were considered as publie nuisances. The words of Magna Charta are, that all weirs from henceforth shall be utterly pulled down by Thames and Medway, and through all England, &c. And this was followed up by subsequent acts treating them as public nuisances, forbidding the erection of new ones, and the enhancing, straitening, or enlarging, of those which had aforetime existed." (1) Upon the principle, therefore, which has been before stated (m) that the public have an interest in the suppression of public nuisances, though of long standing, it was held that a right to convert a brushwood into a stone weir (whereby fish would be prevented from passing, except in flood times,) was not evidenced by shewing that forty years ago two-thirds of it had been so converted without interruption. (n) So in a more recent case it was holden, that twenty years' possession of the water at a given level was not conclusive as to the right. Abbott, C. J., said, "If it be admitted that this is a public navigable river, and that all his Majesty's subjects had a right to navigate it, an obstruction to such navigation for a period of twenty years, would not have the effect of preventing his Majesty's subjects from using it as such." (o) But where there was a grant of wreck from Henry 2, to the Abbey of Cerne by all their lands upon the sea confirmed by inspeximus by Henry 8, and also a grant from Henry 8, of the island of Brownsea and the shores thereof, belonging to the late monastery of Cerne, together with wreck, &c.; and there was also evidence that between forty and fifty years ago the proprietor of the island of Brownsea raised an embankment across a small bay, and had ever since asserted an exclusive right to the soil without opposition; it was holden, that although the usage of forty years' duration could not of itself establish such exclusive right, or destroy the rights of the public, yet it was evidence from which prior usage to the same effect might be presumed, and which, coupled with the general words contained in the grants, served to establish such right. If, however, (h) 1 Hawk. P. C. c. 75, s. 11. (i) Bac. Abr. tit. Nuisance (A), where it is also said, " And hence it seems to follow that private stairs, from those houses that stand by the Thames, into it, are common nuisances. But it seems that where there are cuts made in the banks that are not annoyances to the river, the timber lying there is no nuisance." (j) Anon, Surry Ass. at Kingston, 1785, At common law the holders of lands adjoin ing to a river have a right to raise banks on their own lands to confine the flood-water, provided they do not thereby injure the lands of others. it had appeared, that the public had a right to fish over the place in question, prior to the forty years, and that the raising the bank was an act of usurpation, the exclusive right would not have been established. (p) At common law every holder of lands adjoining to a river or brook has a right to raise the banks of the river or brook, upon his own lands so as to confine the flood-water within the banks, provided he does not thereby occasion injury to the lands or property of other persons; and if such right has been exercised before the passing of an act authorizing the making of a public navigable canal, the exercise of such right after the making of the canal will not be a nuisance, although it may be injurious to the canal, as the construction of the canal may be considered as having taken place subject to the enjoyment of such rights as the landholders possessed when the act passed, except so far as the act may have restrained such rights. Upon an indictment for a nuisance to a public canal navigation established by act of Parliament, it was found by a special verdict that the canal was carried across a river and the adjoining valley by means of an aqueduct and an embankment, in which were several arches and culverts: that a brook fell into the river above its point of intersection with the canal, and that in times of flood the water, which was then penned back into the brook, overflowed its banks, and was carried, by the natural level of the country, to the above-mentioned arches, and through them to the river, doing, however, much mischief to the lands, over which it passed; that, except for the nuisance after-mentioned, the aqueduct would be sufficiently wide for the passage of the river at all times but those of high flood, notwithstanding the improved drainage of the country, which had increased the body of the water; that the defendants, occupiers of lands adjoining the river and brook, had for the protection of their lands, subsequently to the making of the canal, aqueduct, and embankment, created, or heightened, certain artificial banks, called fenders, on their respective properties, so as to prevent the flood-water from escaping as aforesaid, and that the water had consequently, in time of flood, come down in so large a body against the aqueduct and canal banks as to endanger them, and obstruct the navigation: that the fenders were not unnecessarily high, and that, if they were reduced, many hundred acres of land would again be exposed to inundation. It was held, by the King's Bench, that the defendants were not justified under these circumstances, in altering for their own benefit the course, in which the flood-water had been accustomed to run; that there was no difference in this respect between flood-water and an ordinary stream; that an action on the case would have lain at the suit of an individual for such diversion, and consequently that an indictment well lay where the act affected the public. (q) But the Court of Exchequer Chamber, although they agreed in the principle that the ancient course and outlet of the flood-water had been obstructed by the wrongful raising from time to time of the fenders by the defendants, upon which the judgment of the King's Bench (p) Chad v. Tilsed, 5 Moore 185. (q) Rex v. Trafford, 1 B. & Ad. 874. The jury also found that the acts creating the nuisance were done by the defendants severally, and it was held that as the nui sance was the result of all those acts jointly, the defendants were rightly joined in one indictment, which stated the acts to have been several. proceeded, held that the special verdict ought to have found, 1st. whether the raising fenders was an ancient and rightful usage, or whether it had been commenced since the construction of the canal. For there was no doubt that at common law the landholders would have the right to raise the banks of the river and brook from time to time, as it became necessary, upon their own lands, so as to confine the flood-water within the banks, and to prevent it from overflowing their own lands; with this single restriction, that they did not thereby occasion any injury to the lands or property of other persons. And if this right had actually been exercised and enjoyed by them before the passing of the act, then the construction of the aqueduct and embankment might be considered as having taken place subject to the enjoyment of such rights as the landholders possessed at the time of passing the act, unless so far as the act might have restrained the exercise of such rights. 2ndly. Whether the course described by the special verdict to have been taken by the flood-water was, or was not, the ancient and rightful course. And, 3rdly, whether or not the raising of the fenders to their present height had become necessary in consequence of the construction of the aqueduct. (r) tive of advan It is no defence to an indictment for a nuisance in a navigable It is no defence river and port to prove that, although the work be in some degree a that a nuisance hindrance to navigation, it is advantageous, in a greater degree, to may be producother uses of the river. Where, therefore, a causeway had been tage to some made in the river Medina, which was an inconvenience to the navi- uses of the na vigation. gation, as small vessels were much obstructed in making their way up with the tide, but it was a great benefit to the public: first, in launching and landing boats more readily; secondly, steam-boats and other vessels could approach where they could not before; thirdly, vessels obtained shelter from the quay; and the jury found it to be a nuisance, but added the inconvenience was counterbalanced by the public benefit arising from the alteration; it was held that this finding amounted to a verdict of guilty. (s) But there may be cases Injury too where the injury to the public is too small to support an indictment. slight to supUpon the trial of an indictment for a nuisance to a harbour by port an indicterecting and continuing piles and planking in the harbour, and thereby obstructing it and rendering it insecure, it was found by a special verdict, that "by the defendant's works, the harbour is in some extreme cases rendered less secure ;" and it was held that the defendant could not be made criminally responsible for consequences so slight, uncertain, and rare, as were stated by this verdict to result from his works. (t) ment. not to be ob By the 1 Eliz. c. 17, the taking of fish, except with the particu- Cases which lar trammels or nets therein specified, was prohibited, upon pain have been held of the forfeiture of a certain penalty, of the fish taken, and also structions. of the unlawful engines: and upon this act it was contended, that a party laying certain illegal engines called bucks in his own fishery was guilty of a nuisance; but the Court held that it could not be considered as a nuisance public or private. (u) And it has (r) Trafford v. Rex, 8 Bingh. R. 204. Venire de novo awarded. (s) Rex v. Ward, 4 Ad. & E. 384; 6 N. & M. 38, overruling Rex v. Russell, 6 B. & C. 566; 9 D. & R. 566. See Rex v Morris, 1 B. & Ad. 441. (t) Rex v. Tindall, 6 A. & E. 143; 1 N. & P. 719. (u) Bulbrooke v. Sir R. Goodcre and others, 3 Burr. 1768. A weir obstructing the whole or part of a navigable river is legal, if granted by the Crown before the reign of Edward 1. been ruled that where a vessel has been sunk in a navigable river by accident and misfortune, no indictment can be maintained against the owner for not removing it. (x) Lord Kenyon, C. J., said, that the grievance had been occasioned, not by any default or wilful misconduct of the defendant, but by accident and misfortune; and that it would be adding to the calamity to subject the party to an indictment for what had proceeded from causes against which he could not guard, or which he could not prevent: and though it was urged that if the defendant was not punishable for having caused the nuisance, yet it was his duty to have removed it, and that he was liable to be indicted for not having done so, the learned judge said, that perhaps the expense of removing the vessel might have amounted to more than the whole value of the property; and that he was therefore of opinion, that the offence charged was not the subject of indictment. (y) A weir appurtenant to a fishery, obstructing the whole or a part of a navigable river, is legal, if granted by the crown before the commencement of the reign of Edward 1, and such a grant may be inferred from evidence of its having existed before that time. If the weir, when so first granted, obstruct the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only navigable passage remaining. Where the crown had no right to obstruct the whole passage of a navigable river, it had no right to obstruct a part by erecting a weir, except subject to the rights of the public; and, therefore, in such a case, the weir would become illegal upon the rest of the river being so choked that there could be no passage elsewhere. In an action of trespass for throwing down a weir, the plaintiff established the existence of the weir by a royal grant made at some time prior to the time of Edward 1; but it stood across part of the Severn, a public navigable river-a part, indeed, not required for the purposes of navigation at the date of the grant, but, at the time of the commission of the trespass, necessary for those purposes, by reason of the residue of the channel having become choked up. The plaintiff contended that, at the date of the grant, the crown had the power of making it, even to the disturbance or total prevention, of the right of navigation by the subject; or that, at all events, it had the power of making such a grant, if, in the then existing state of circumstances, it did not interfere with the rights of the subject: and that such a grant, valid in its inception, would not become invalid by reason of any change of circumstances, which might afterwards affect the residue of the channel. Lord Denman, C. J., in delivering the judgment of the Court, said, "If the subject (which this view of the case concedes) had by common law a right of passage in the channel of the river, paramount to the power of the crown, we cannot conceive such right to have been originally other than a right locally unlimited to pass in all and every part of the channel. The nature of the highway which a navigable river affords, liable to be affected by natural and uncontrollable causes, presenting conveniences in different parts and on different sides according to the changes of wind or direction of the vessel, and attended by the important circumstance that on no one is any duty imposed by |