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But although the right be locally unlimited, it must be exercised with due regard to the particular circumstances of each river, so as to secure to each person an equally reasonable use of right of passage, as well as of the other rights forming the public right of navigation. Any person wrongfully placing an obstruction in the river, which prevents the convenient exercise of the right, is indictable. There may, however, be a physical obstruction of the right which is not indictable as a nuisance. A person exercising the same, or some other branch of the right of navigation may cause a physical obstruction for the time being to the right of passage, and, when that occurs, it becomes a question to reconcile the existence of the two inconsistent rights by compelling each to be exercised in the way that is most reasonable under the circumstances, and that will interfere least with the reasonable use of the other. “ Each of the above-mentioned,” said Mr. Justice Holroyd in Rex v. Russell, speaking of the rights collectively called the public right of navigation, “must at times occasionally yield and become subordinate as may be necessary or reasonable, at least in part, to some of the others. The public (that is each individual) has not an absolute right to navigate i.e., sail over) every part of the river, but only when there is not otherwise a legal pre-occupation (as in some cases there may be) by others.” If an act which creates a physical obstruction of the right of passage is in itself a reasonable user of some public right, or the exercise of private right, then it is not a nuisance, but a legal pre-occupation of a part of the river, preventing, for the time being, the exercise of the right of passage.
And as it is not every physical obstruction that is a nuisance, so it is not every person that can abate or complain of an obstruction, even when it is a nuisance. An obstruction of a public right affects with equal prejudice each member of the public whose common right is obstructed. In providing a remedy for such an obstruction there are therefore two evils to be avoided; on the one hand, to prevent immunity in his wrong-doing being secured to the person creating the nuisance because of nobody undertaking what would be everybody's duty, and, on the other, to protect the wrong-doer from being harassed by actions on the part of each one of the public, when one action would be sufficient to assert the public right. The Crown, as the guardian of the public interest, is therefore entrusted with the duty of indicting the offender, and no single person has any right of action in respect of an injury which is nothing more than the result of an infringement of a public right.
But if any one of the public suffer a particular injury, which, although it results from the violation of a right which he possesses in common with the rest of the public, affects his interests in a greater degree than it affects the rest of the public, then he has a right of action in respect of that particular damage. The distinction which gives a private person a right of action in the one case, while it denies it to him in the other, is very subtle, and, as it has been sometimes drawn in particular cases, almost unintelligible. It is a question rather of procedure than of legal right, and has been often misunderstood on account of the use of the word "private" to describe the particular injury suffered by the specially aggrieved member of the public. The case of Rose v. Groves* has frequently been cited in support of the proposition that if an individual suffers private damage by the violation of a public right he has a right of action. That case decided nothing of the kind, being an action, not for the violation of a public, but for the infringement of a private right, namely, a riparian owner's right of access to his premises. But the erroneous view taken of that decision, recently corrected by the House of Lords in Lyons v. The Fishmongers' Company,t arose to a great extent from the loose and inaccurate use of the word private. Private damage literally means damage resulting from the infringement of a private right. When, therefore, it came to be applied to describe the particular damage the presence of which entitles one of the public to sue for the violation of a public right, then, by a vicious course of reasoning in a circle, the private rights of owners of riparian property abutting on navigable rivers came to be looked on as “ private" in the same sense only that the right of a person suing in respect of particular, or, as it was wrongly called, private damage, was private. The nature of the particular damage which gives a right of action against the creator of a nuisance in a navigable river is very clearly defined in the case of Rose v. Miles.* The defendant in that case had fastened a barge across a navigable creek, and thus prevented the passage of a barge belonging to the plaintiff. The Court held that the action would lie because “the present case admits of this distinction from most of the other cases, that here the plaintiff was interrupted in the actual enjoyment of the highway." + The damage, proof of which is necessary to support an action in respect of a nuisance, is then nothing more than an expression for the distinction drawn for the purposes of procedure between the damage sustained by all the public in whom, theoretically, a public right is vested, and the damage sustained by that portion of the public who were actually prevented by the nuisance from using the right on a particular occasion, and thereby suffered special damage.
* 5 M. and G., 613.
^ Not yet reported.
The authorities which establish the existence of the right of passage, establish also the other rights comprised within the full meaning of the phrase "public right of navigation," the next in importance of which is the right of anchorage. The proprietary right of the Crown in the soil is subject to the public right of anchorage, and as the “ liberty of passage is not suspended when the tide is too low for vessels to float, it is no excess if a vessel which cannot reach her place of
* 4 M. & S. 101.
Per Dampier, J.
destination in a single tide, remains aground till the tide serves; although, by custom or agreement, a fine may be payable to the lord of the soil for such grounding." *
But the right to anchor must not be confounded with the right to moor for the purpose of loading and unloading. These are wholly distinct rights, exerciseable under different conditions. It is a matter of considerable practical importance, if one is rightly to understand the authorities, to bear this distinction in mind, because a right to anchor may exist where there is no right to moor; † and it is all the more necessary to do so, because the language of some of the cases is rather loose in this respect, the word “moor” being used in two senses, at one time as synonymous with “anchor," and, at another, as implying the exercise of a right to load and unload.
The right to anchor is not locally unlimited, like the right of passage. It can be exercised only in such places as are usual and reasonable, having regard to the circumstances of the river. In the case of Rose V. Miles, the plaintiff succeeded, not because the defendant had no right to anchor, for the creek was navigable, and that right therefore existed, but because he anchored in an unreasonable place and manner. So, although the right of fishery is subordinate to the right of navigation, yet, if the master of a vessel should unnecessarily anchor in fishing-ground, he is answerable in damages. I
One of the leading cases on the subject of the right of anchorage, is The Mayor of Colchester v. Brooke, s which was decided by the Court of Queen's Bench in the year 1845. The plaintiff was the owner of certain oyster-fishery beds,
* Hall's Essay on the Rights of the Crown in the sea-shores of the Realm. Second Edition, by Richard Loveland, p. 43.
† "Anchorage and moorage are very different things,” per Lord Mansfield in Stephen v. Costor, 2 Burt. 1408.
Angell on Tidal Waters, 2nd edit. p. 81.
§ 7 Q.B. 339.
and sued the defendant for damage caused to these beds by the defendant's ship grounding thereon. The defendant pleaded that, the river being navigable, he had a right to ground his ship, although, by so doing, he damaged the oyster-beds. Coltman. J., at the trial, directed the jury that “if a river is navigable, it is so whether the tide is in or out;" and the jury, accordingly, found a verdict for the defendant. A rule nisi for a new trial on the ground of misdirection contained in the above passage, was obtained by the plaintiff, and afterwards discharged by the Court of Queen's Bench. Lord Denman, C.J., in giving judgment, said, " the plaintiffs contended that a right to navigate, pass, and repass, was merely a right to float along, and that the facts shewed that in this part of the river such a right could not exist at all times of the tide.” And, after remarking that no authority directly in point had been cited at the bar, and that the Court, after considerable search had been unable to find any, but that, upon principle, the matter seemed clear, he continued, “It is more reasonable to hold that the term 'navigable' is a relative and comprehensive term, containing within it all such rights upon the water way, as, with relation to the circumstances of such river, are necessary for the full and convenient passage of vessels and boats along the channel." · It is clear from the judgment in the last-mentioned case, that the right to anchor can be exercised only in such places, and for such times, as may be necessary for the convenient exercise of the right of passage, and is part of the public right of navigation, not because of its having any connection with the right to moor for the purpose of loading and unloading, but because the right of passage could not be conveniently exercised without it. This is made still more clear by the case of Gann v. The Free Fishers of Whitstable, * decided by the House of Lords in the year 1865. That was an action to try the right of the Lord of the Manor of Whitstable to exact a payment for the right to anchor in the sea
* 20 C.B. (N.S.), 1.