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VI.~—-NOTES ON RECENT CASES (ENGLISH).
“ HE ownership in the soil under navigable waters is
different to the ownership over land.” “But we have the right of an ancient fishery in this part of the river.” “ But fish do not go into the soil. I can never understand what difference ancient fishery rights make to questions of ownership.” “In the case of Gann v. Three Fishermen of Whitstable it was laid down that the right to anchor at pleasure in navigable water did not include the right to put down moorings. The case was decided by the House of Lords.” “ Surely you do not suppose we want the authority of the House of Lords or that of the House of all the grandmothers in England to tell us that anchoring a vessel in the ordinary course of things is an incident to the right of navigation ? All I can say, if such authority is necessary we shall next have an authority cited to enable us to hold that it is an incident to the enjoyment of life for a man to blow his nose.” This conversation took place between counsel in a case as to foreshore rights and the Master of the Rolls, the latter commencing the subject. The question was as to whether persons using navigable waters in a river have as against the owner of the soil, the right to put down permanent moorings. Certain yachtsmen, boat-owners and fishermen of the town of Leigh, in Essex, sought to restrain the defendant, a fish salesman and lessee of the Hadleigh Ray fishery off that town, from interfering with the moorings on the foreshore. It was contended by the plaintiffs that from time immemorial the fishermen and boat-owners at Leigh had moored their craft to moorings which they had put down on the foreshore. The defendant had taken a lease of the fishery, and subsequently gave the plaintiffs notice that if they did not pay him a rent, he should prevent them from mooring at the spot in question, alleging it was within his fishery grounds. Compliance with defendant’s claim was refused by plaintiff, and as defendant removed some of the moorings, this injunction was sought to restrain interference. The dispute went before the Divisional Court and there the plaintiffs obtained a verdict with an injunction, but, inasmuch, as the plaintiffs had failed to shew that the mooring ground was not within the defendant’s fishery, the defendant was held to be entitled to costs on that part of the case. The defendant took the matter to the Court of Appeal, contending that the right claimed by the plaintiffs to anchor their boats was not incidental to that of ordinary navigation, and defendant, being a lessee from the lord of the manor, could cut away and remove permanent moorings. The Master of the Rolls pointed to the case of yachts at Cowes, where the owners were perfectly at liberty to put down moorings which they could come back to. The land there was vested in the Crown, and it could not be supposed that their right to do so came from any special grant. Counsel pointed out that at the time this case of Attorney-General v. Wright was being tried in the Divisional Court, a question of whether a right alleged to have been enjoyed by the public generally could exist at law, was being decided by Vice-Chancellor Chatterton in the Irish Court. The question there was whether the fact that the land about the Giants Causeway had been open for generations to tourists and others, who wandered about the locality in order to enjoy the scenery, gave by the prescription the public a right to continue to go there without let or hinderance, the property having been purchased by a company who desired to impose a toll. The Court held that no such right as was claimed on behalf of the public could exist at law. The respondents in the present case submitted that this right bad been enjoyed by all those who used this part of the river, either for business or pleasure from time immemorial, and that they had acquired that right either by a direct grant from the Crown, or by arrangement with a predecessor of the present owner of the soil. The conduct of the defendant in cutting adrift their boats and removing their moorings was unjustifiable. The particular part of the river was in ancient charters mentioned as belonging to the Port of London. From the earliest time the Crown had been very jealous of any interference with the right of the subject to anchor his vessel where he would. The locus in quo, said the Court in this matter, was a place in the navigable part in the lower Thames. The inhabitants of Leigh on behalfof themselves claimed the right not merely to drop anchor from time to time there, but to put down moorings to which they could return at will. The defendant was the owner under a license of the foreshore, which was covered with water at high tide, and he contended that the inhabitants had no right to fix anything to his soil to which they could moor their boats. He claimed the right to treat those who did so as trespassing, and that he was entitled to cut their boats adrift and seize as his property, to do with what he liked everything they had affixed to his land. It was, though, pointed out by the Court, that a right belonged to every Englishman to anchor his boat, anywhere that he wished in navigable waters. Why should this be cut down to that of merely dropping an anchor? The Court considered that a fisherman was entitled to keep his boats moored a little way from the beach if he so wished, and to return at leisure to his moorings. This prescriptive right, enjoyed by every Englishman to anchor his boat anywhere round the coast of England, was sufficient to justify the acts of the plaintiff complained of by the defendant. There was ample evidence on which it could be assumed that
they had this right by express grant from the Crown, or by arrangement with the former owners of the soil.
In November last the Government held a sale by auction of surplus stores at Woolwich Arsenal, and among the lots sold was one consisting of four cases of sweet spirit of nitre. Prior to the sale it was said to have been arranged between plaintiff and defendant that they should not bid against each other, that the defendant should purchase the goods, and that after the sale they should agree as to how it was to be disposed of. At the sale the goods were knocked down to the defendant for £5, and it was subsequently arranged that the defendant should sell the goods to plaintiff for £6. The value of the goods were stated to be £13 10s. The defendant failed to perform his contract, and the plaintiff brought the present action. V At the trial the Deputy County Court Judge (Mr. Sills) held that the arrangement between the parties prior to the sale was a conspiracy to cheat the Government, and non-suited the plaintiff. The question for the Divisional Court was whether there had been a conspiracy, and whether the Deputy County Court Judge was wrong in non-suiting the plaintiff, and the Divisional Court held that there was nothing apparently illegal in what the parties did. The Government should have employed a “ puffer ” within certain limits. The case was one the Divisional Court considered ought to go back to the County Court Judge to be heard. The Deputy County Court Judge was wrong in his law, and, to enable him to come to a decision on the facts, he must hear the
evidence. On the case going back to the Woolwich County .
Court, His Honour Judge Addison pointed out that it would be quite legitimate for persons attending a sale to agree amongst themselves not to bid against each other,
and to buy as cheaply as possible. That could not be called a “knock-out sale”; other persons could bid and buy as well. Fraud and conspiracy could not be advanced unless lay buyers were hustled about or intimidated by a ring. If the object of the conspiracy was to defraud the Government, then it was unlawful and fraudulent; that would be a “ knock-out” sale in the strict meaning of the term, but in this case the plaintiff had made a reasonable contract with the defendant. The parties had arranged not to benefit people by a sort of mad competition, and it was quite clear they did not prevent the public from buying if they wished to do so. The case was a simple one and the contract was good. A “ knock-out” sale was illegal, because conspiracy and fraud must be used in carrying it out. But here there had simply been an arrangement between a few men not to bid against each other. As judgment was in favour of the plaintiff, he came out of the affair (Leopard v. Litoan), as his counsel aptly phrased it, with clean hands.
Some valuable suggestions fell from Mr. Justice Kekewich in the recent case of Norton v. Mills. A firm of mechanical instrument makers and music sellers frequently let their upper rooms for lessons in pianoforte playing and singing, and the plaintiffs alleged that a great nuisance was caused by this loud singing, as the pupils had often to sustain a high note of the scale, and this singing continued for several hours. The Divisional Court granted an injunction prohibiting the singing lessons and practice on the particular premises so as to cause annoyance or injury to the plaintiffs. The question then arose who was to pay the costs? This depended on whether there was a nuisance existing in June, I896, when the writ was issued. If the