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it lies alongside the wharf to unload.” But, although the above passages would seem to imply that the right to moor alongside a wharf is nothing more than a part of the public right of navigation, and, therefore, exerciseable without reference to the ownership of the wharf frontage, there are other passages showing that Lord Justice Mellish did not mean to go so far in giving to all persons such a “hateful privilege of vexing their neighbours.” “We cannot find," he said, “any authority to the effect that the riparian proprietor whose property terminates at high water-mark, has any greater rights over the river, or the shore between high and low water, than any one else, except this : that the fact of his being the owner of private property immediately adjoining the shore of the Crown, enables him to go on the shore for the purpose of embarking and disembarking from vessels on the river at parts of the shore where other persons cannot get; and at high water, if the water comes up to his property, he can bring a vessel close up to his property, and so use his property as a wharf for the loading or unloading of goods." The right to bring a vessel close up to a wharf, is there treated as a right which can only be possessed by the owner of the wharf; but Lord Justice Mellish, while apparently admitting the existence of that right as one possessed only by the owner of the wharf, thought that it was merely part of the public right of navigation, and, as such, extinguishable by the license of the Conservators of the Thames. The House of Lords, however, as we shall presently see, have decided that one element at least of the right in question, namely, the right of access, is a private right.
If the right to moor alongside private wharves for the purpose of loading or unloading, is part of the public right of navigation, it must have been part of the right originally yielded to the public by the policy of the law, for the benefit of trade and commerce. But what benefit could possibly have been conferred upon commerce by the existence of such a right? Although, by the civil law, the public appear to have had a right to land on the banks of navigable rivers,* the case of Ball v. Herbert + decided, once and for ever, that no such right was known to the English Law. If, then, the public had no right to land themselves, or their goods, what possible object could be served by allowing them to moor alongside ? The public facilities for loading and unloading were ample, without creating any such inequitable and useless right. A person who owned a wharf could moor there such vessels as he had proper accommodation for, and, for all other vessels he could, like the rest of the public who did not care to purchase a river frontage, use a public wharf or moor in the pool, which was, in fact, the common way of mooring. The most extensive right of mooring which can be exercised in the pool, is a right to moor for the purpose of loading and unloading, and it would be unreasonable that the public should actually have an equally extensive right to moor alongside a private wharf.
The cases contain little that bears directly upon the point, whether the public right of navigation includes a right to moor alongside a private wharf so as to overlap it, but they establish clearly that riparian proprietors have a private right of access to their property; and, if that be so, it follows that the public right of navigation cannot include a right to moor, so as to destroy that right of access. The public right must end where the private right begins, and there is ample and recent authority supporting and defining the private right, while the extension in question of the public right is condemned by reason and unsupported by authority.
In the case of Stephen v. Costor, I the plaintiff, a wharfinger, sued to recover wharfage and cranage dues, in respect of part of the cargo of a barge which had been moored alongside and fastened to his wharf. Part of the cargo had been unloaded and landed upon the wharf, and dues paid in respect of it ; but, while that was being done, another part of the cargo was being put into lighters from the other side of the barge, and carried away on board these lighters. The plaintiff claimed dues in respect of that latter portion of the cargo, but the Court decided in favour of the defendant; basing their judgment, however, solely upon the form of the action and the construction of the Act of Parliament which authorized the plaintiff to claim dues. Lord Mansfield, in his judgment, expressly negatives the existence of a common law right to moor in such a way as to overlap or obstruct the access to a wharf. “ If” he said, “ an injury has been done to the wharfingers by lying before their wharf, or by fastening the vessel to it, without right, or in any way whatever they may have their remedy in another method, but not under this Act of Parliament.” And, again, “a wharfinger has his remedy in damages, as he had before the Act, if the vessel should colourably come and lie before his wharf, or moor or fasten to it, without intention of loading or unloading upon it,” which, under the Act, he had a right to do on payment of the dues exigible.
* Riparum quoque usus publicus est juris gentium, sicut ipsius fluminis. Itaque navem ad eas adplicare, funes arboribus ibi natis religare, onus aliquod in his reponere, cuilibet liberum est, sicut per ipsum flumen navigare."'--Just. Inst. Lib. 2, Tit. 1, $ 4.
† 3 T.R. 253.
3 Burr. 1408.
The case of Wyatt v. Thompson * is a strong authority against the existence of any common law right to moor, so as to interfere with the access to a private wharf. That was an action of trespass for cutting the mooring rope of the plaintiff's barge, which had been, without consent, fastened to the defendant's wharf in the Thames; and the plaintiff, in his replication to the defendant's plea, that the barge was wrongfully fastened and moored to his wharf, justified his trespass by alleging a custom for all the king's subjects sailing, rowing, and passing by and with their barges upon the said river, during the time of low water,
• 1 Esp. 252.
to moor and fasten their barges by ropes to any wharf most convenient for that purpose, and to keep them so moored until high water, leaving sufficient room during the time of such mooring and fastening for all persons having occasion to use the said wharves. Lord Kenyon thought that the witnesses had proved the custom pleaded, and the jury found “That the custom of mooring barges at low water is for one tide at the piles in front of the wharf, and, if there are no piles, the custom does not allow the barges to moor at the wharf unless through distress.” Now, if there existed a common law right to anchor or to moor the barge in a place where it obstructed the access to a wharf, there would have been no necessity for the plaintiff to rely upon a custom.
There is an anonymous case reported in a foot note in i Camp. 517, but the report is so imperfect that it is scarcely a trustworthy authority. It was an action for disturbing the plaintiff's fishery in the Tweed, by mooring a ship “ against a rock on the bank of the river where she delivered her cargo ;” and was, therefore, a conflict between a person exercising the primary right of navigation, and another seeking to protect the subordinate right of fishery, both being public or common rights. The rock where the defendant's ship had moored seems to have been a usual mooring place, and the riparian proprietor probably consented to the vessel being moored, as it is clear that without his consent the goods could not have been landed as they were. Wood, B., in giving judgment in favour of the defendant, said, “A navigable river is a public highway, and all persons have a right to come there in ships, and to unload, moor, and stay there as long as they please. Nevertheless, if they abuse that right so as to work a private injury, they are liable to an action. * * * The only case I remember like this, was where a man obstinately refused to move his ship from opposite a wharf, although it would have been just the same if he had moved a little one way or the other; and, therefore, he abused his right, and the plaintiff recovered.” The case he refers to, seems to have been one where a ship was moored in the pool opposite a wharf, where there is no doubt a public right to moor, but one which must be exercised reasonably, and with due regard to the convenience of the riparian owners, as of the rest of the public.
In the case of Rex v. Russell,* Holroyd, J., in the course of his judgment, says, “ The defendants getting their coals by a proper access to and upon the river, would have a right to load ships lying and continuing in the river for that purpose by the means of keels, although the doing so might be a temporary, and by doing it successively to different ships, might be a continued, though not total, obstruction or inconvenience to the navigation. And there would be a right to keep the ships and keels in the river for that purpose in convenient and proper places, at times not confined to the times of their being in actual use.” A right to moor in convenient and proper places, is a very different thing from a right to moor in such a manner as to overlap a private wharf, and deprive its owner of his right of access to any part of his wharf frontage.
But, let us deal for a moment with the question from the other point of view, that, namely, which negatives the existence of a public right to moor alongside a private wharf without the consent of its owner, by proving the existence of a private right of access to the wharf which would be interfered with by the exercise of any such public right. The existence of the right in question may be disproved, either by showing that the public right of navigation does not include it, or by showing that the private rights possessed by the riparian proprietors do exclude it.
The earliest and most important case is that of Rose v. Groves,+ which has recently been explained and approved by the House of Lords.I That was an action brought by the
* 6 B. & C. 566. † 5 M. & G. 613. Lyon v. The Fishmongers Company. 1 App. Cas. 662.