Page images

navigable river. There are other rights, both public and private, and it is very necessary to distinguish clearly between those that are public, and those that are private.

No single individual has an absolute right to exercise any of the rights, forming in the aggregate the public right of navigation. The right of each individual is carved out of the public or common right, but the several rights so carved out, are not, like the various rights which can be possessed by different persons over a subject of private property, mutually exclusive. The exercise of any portion of the public right by one person does not, even for a moment, suspend the possession by all other persons of exactly the same right, although it does of course hinder, for the time being those other persons from exercising their right. Thus, the problem in each case is to regulate the exercise of a right, which is admittedly possessed by all, but for the enjoyment of which a temporarily exclusive exercise is necessary, so as to confer, as far as may be, an equal benefit on all the persons possessing the right.

It is plain that the solution of that problem must vary according to the circumstances of each case. Perhaps only one person may wish to exercise the right in question, and in such a case he could do so unrestrictedly. But if several persons seek to exercise public rights which cannot be exercised in the same place, or at the same time, without clashing, then the Courts apply the rule that each person has equal right to a reasonable use. The public right, in fact, is neither more nor less than what a jury consider reasonable, having regard to all the circumstances of the particular occasion, convenience, or necessity in question, and to the relative benefit obtainable by the persons seeking to exercise the inconsistent rights, as well as to the ordinary character of the rights sought to be exercised, or to those considerations of public benefit which, while they required the creation of the rights, determine likewise the extent and conditions of their user.

But very different questions arise when there is a conflict between a public and a private right. These are mutually exclusive. The principles of give and take, of reasonable user cannot be applied to smooth over their inconsistencies. The owner of a private right is entitled to its full and exclusive enjoyment in what manner he pleases, always keeping within the maxim Sic utere tuo ut alienum non ladas. He cannot be compelled to share his right to a reasonable, or to any, extent with the public. If he were compelled to do so, his right would not be private. It is true that the public right of navigation overrides and qualifies all other rights inconsistent with its reasonable exercise; and, therefore, no private right can possibly exist within the limits of the definition of that public right. But the public right of navigation does not cover all the benefit that can be obtained from a navigable river. After the requirements of the public right are satisfied, there still remain valuable rights that are the subject of private property. And when private rights on a navigable river are spoken of, those rights are meant which are beyond the limits of the definition of the public right of navigation, and which do not therefore depend for their existence and exercise upon considerations of their effect upon the exercise of that right.

The ownership of the soil or bed of navigable rivers is vested in the Crown. But this ownership is subject to the public right of navigation, and to the private rights possessed by riparian proprietors, such as the right of access to and from their property on the river.* “ The bed of all navigable rivers, where the tide flows and reflows," says Lord Westbury in Gann v. The Free Fishers of Whitstable,t “is by law vested in the Crown; but this ownership of the Crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from or interfere with the right of navigation, which belongs by law to the subjects of the realm.”

Lyon v. The Fishmongers' Co. in the House of Lords, not yet reported.

† 20 O.B. (N.S.) 1.

The public right of fishery, too, which primâ facie exists in all navigable rivers, is subordinate to the public right of navigation. But each of these rights must be used with due regard to the reasonable exercise of the other. The right of navigation, “though superior, does not take away the right of fishery, but only limits it; and limits it only as far as it interferes with its own fair, useful, or legitimate exercise.” *

The right of navigation is an ancient common law right, and, being so, its limits and the conditions of its exercise “are either to be found in the opinions of lawyers delivered as axioms, or to be collected from the universal and immemorial usage throughout the country.”+ The right, as it is gathered from these sources, cannot be altered or abridged except by Act of Parliament. Neither can the right be extended. Such as it was in the beginning, when the river over which it exists became navigable, so it remains, even although the modern improvements and appliances of navigation, and the necessities of extended commerce require its extension. The right must be the same right which has existed from time immemorial. For example, the right to moor in a recess in a river, even when a comparatively valueless right, seldom exercised, and by few people, cannot be taken away by building a wharf, although commerce would be greatly benefited by the change. “ The public,” said Lord Abbott, C.J., in Rex v. Lord Grosvenor, I where the point arose, “have a right to all the convenience which the former state of the river afforded, unless by the change some greater degree of convenience is rendered.”

The expression used in the last clause of the sentence just quoted led to a remarkable and almost successful attempt to introduce a new principle, by means of which the right of navigation might be made more elastic, more capable of being adapted to the varying and increasing needs and progress of commerce. The owners of a coal mine on the north bank of the Tyne, having been accustomed to load and unload, by means of keels, ships moored in the pool, erected staiths projecting into the river, which would enable them to ship coals directly from the wharf into the vessels at all states of the tide. It was proved that by means of these staiths coals could be loaded more quickly, more cheaply, and in better condition. They, however, blocked up a certain part of the channel along which craft could formerly have sailed, and were therefore a physical obstruction to the right of passage. The jury acquitted the defendants on the direction of Mr. Justice Bayley, that “if they thought that the abridgment of the right of passage was for a public purpose, and produced a public benefit, and if it was in a reasonable situation, and a reasonable space was left for the passage of vessels navigating the river,” * they ought to acquit the defendants. A rule nisi to enter a verdict of guilty was afterwards discharged by Holroyd and Bayley, JJ. (Lord Tenterden, C.J., dissenting,) on the ground that although the right of passage had been to some extent abridged, the abridgement was for the benefit of commerce, and was not unreasonable. “The right of the public upon the waters of a port or navigable river,” said Bayley, J., “is not confined to the purposes of passage; trade and commerce are the chief objects, and the right of passage is chiefly subservient to these ends." Lord Tenterden thought that the case should go for a new trial, because the jury ought not to consider the possible public benefit to arise from a nuisance, but merely whether, in fact, an erection complained of is or is not a nuisance. The case is now overruled, the dissenting opinion of Lord 'Tenterden having been approved by numerous later decisions. The error into which the majority of the Court in this case fell, and which was pointed out by Lord Tenterden, consisted in this, that they treated the public right of navigation as a right which could be increased at one point, and diminished at another, altering it so as to suit the exigencies of commerce. The exercise of the right may be varied and changed in every possible way that a jury can be persuaded to consider reasonable, but the limits of the right itself must not be exceeded. And probably, on the whole, commerce is benefited by this rule. If the right of navigation could be abridged, altered, and extended, according to the notions of different juries, there would be great uncertainty, much interference with private rights, and constant litigation. Speaking of the arguments which prevailed in Rex v. Russell, Lord Denman, in Rex y. Ward,* said, “In the infinite variety of active occupation always going forward in this industrious community, no greater evil can be conceived than the encouragement of capitalists and adventurers to interfere with well-known public rights from motives of personal interest, on the speculation that the changes made may be rendered lawful by ultimately being thought to supply the public with something better than what they actually enjoy. There is no practical inconvenience in abiding by the opposite principle, for daily experience proves that great and acknowledged public improvement soon leads to a corresponding change in the law, accompanied, however, with the just condition of being compelled to compensate any portion of the public which may suffer for their advantage."

* Angoll ou Tidal Waters, 2nd edit., p. 81. † Per Lord Kenyon in Ball v. Herbert, 3 T.R. 253.

2 Stark, 511.

* Rex v. Russell, 6 B. & C. 566.

The chief element of the public right of navigation is the right to pass and repass along and over a navigable river. This right may be exercised by every kind of vessel, in all parts of the river, and at all states of the tide. “We cannot conceive such right,” said Lord Denman, speaking of the right of passage, “to have been originally other than a right locally unlimited to pass in all and every part of the channel.t

* 4 Ad. & E. 384, † Williams y, IVilcox, 8 Ad. and E. 314.

« PreviousContinue »