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owner of a tavern abutting on the river Thames against the defendant for obstructing the access to the tavern by floating timber on the river, which drifted opposite and against the plaintiff's premises. There was no dispute in that case, that the defendant had a right, as one of the public, to float timber on the river. In the course of the argument, Erskine, J., said, “The defendants had a right to float timber on a navigable river.” The jury found a verdict for the plaintiff, and the case then came before the Court on a motion for a rule to arrest judgment, which was refused. In the course of the argument, Maule, J., said, “ This is not an action for obstructing the river, but for obstructing the access to the plaintiff's house.” And the judgment of Maule, J., is explicit on the point that a riparian owner has a private right of access to his premises, with which the public right of navigation does not and cannot interfere. “The declaration,” he says, "states in substance that the defendant had placed timber upon the river in such a manner as to prevent customers coming to the plaintiff's house. That is an injury to the plaintiff with which the public have nothing whatever to do.” No doubt the defendant could have floated his timber in the pool, although it would have had the effect of seriously diminishing the convenient approach to the plaintiff's house, for the only question would then have been whether the place, time, and conditions of floating it were reasonable. But it was floated so as to prevent access to the plaintiff's premises for a short space of time at high water, just as a ship moored alongside a wharf prevents access, while so moored, to such part of the wharf as it overlaps.
In the case of Kearns v. The Cordwainers Company * the distinction between the right of convenient approach to water-side premises and the right of access to the same premises is the basis of the decision of the Court. The question raised in that case was whether a license granted by the
• 6 C. B. (N.S.) 388.
Consevators of the Thames to a riparian owner to erect a wharf and jetty projecting into the river in front of his premises would protect the licensee from all proceedings in respect of the erection. The Thames Conservancy Act, 1857 (20 & 21 Vict., cap. 147,) sec. 53, gives the Conservators power to license certain erections in the river, although the public right of navigation should be obstructed thereby, but it was argued that they had no such power to interfere with private rights. The Court thought that, for the purposes of the case before them, it was unnecessary to decide that point, because no private right was then interfered with, holding that the license in question was valid because “the erection which the Conservators are about to authorize is not one which is iinmediately brought into contact with or can directly interfere with the access to the premises of the adjoining owners. The whole interference which can be made matter of complaint is simpiy the commodious approach to the premises by means of the river.” So far as the judges in that case expressed opinions upon the nature of a riparian owner's right of access they are now discredited and overruled. Speaking of it in Lyon v. Fishmongers Company the Lord Chancellor said, “ There was no adjacent owner before the Court, and the Court proceeded upon the supposition of what might be said for or against those who were not there to argue their own case. I cannot, therefore, look upon the expressions of the learned Judges in that case as entitled to the same weight as if they had been made after an actual issue of right had arisen.”
So in the Attorney-General v. The Conservators of the Thames,* Lord Hatherley, then Vice-Chancellor, based his decision upholding the validity of a license to make certain erections in the channel of the river expressly upon the fact that the erections in question merely rendered the public right of convenient approach to the relator's premises
"1H. & M. 1.
less commodious leaving the private right of access untouched. But he fully recognizes the existence of a private right of access. “I apprehend," he says, " that the right of the owner of a private wharf, or of roadside property, to have access thereto is a totally different right from the public right of passing and repassing along the highway or the river, and it would be the height of absurdity to say that a private right is not interfered with, when a man, who has been accustomed to enter his house from a highway, finds his doorway made impassable, so that he no longer has access to his house from the public highway. This would equally be a private injury to him whether the right of the public to pass and repass along the highway were or were not at the same time interfered with.... Independentiy of the authorities it seems to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to land of a private proprietor adjoining the road. And though it is easy to suggest metaphysical difficulties when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.”
In the case of Lyon v. The Fishinongers Company, the plaintiff claimed an injunction to restrain the defendants from acting upon a license of the Conservators of the Thames to extend their wharf so as to block up the access to one side of the plaintiff's wharf. It was argued for the defendants that there was no such right in existence as a private right of access to a wharf, and as for the public right of navigation which the plaintiff had been in the habit of exercising when he moored his craft alongside his wharf, it had been extinguished by the license of the Conservators. ViceChancellor Malins granted the injunction, but the Lords Justices reversed his decision. The House of Lords have,
however, recently reversed the decision of the Lords Justices. Their Lordships held that the right of a riparian proprietor to have access to and from his property and the river is a private right entirely distinct from the
Lord Chancellor, “the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him quâ owner or occupier of any lands on the bank, nor is it a right which, per se, he enjoys in a manner different from any other member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place : and it becomes a form of enjoyment of the land and of the river in connection with the land, the disturbance of which may be vindicated in damages by an action or restrained by an injunction. * The taking away of river frontage of a wharf, or the raising of an impediment along the frontage, interrupting the access between the wharf and the river, may be an injury to the public right of navigation ; but it is not the less an injury to the owner of the wharf, which, in the absence of any Parliamentary authority, would be compensated by damages, or altogether prevented.”
The judgments of Lord Chelmsford and Lord Selborne are as emphatic as that of the Lord Chancellor in asserting the possession by every owner of land, having a river frontage, of a private right of access, with which neither the public nor the Conservators of the river can interfere in the slightest degree. Now it is quite clear that a vessel moored alongside one wharf so as to overlap the adjoining wharf does interfere with the right of access to that wharf, and, as no question can arise as to whether the interference is or is not reasonable in cases where a private right is the subject of interference, it follows that the wharf owner whose access is interrupted has a right of action.
But what is the practical distinction between the right of access and the right of commodious approach to a wharf ? In the Attorney General v. The Conservators of the Thames the two rights are distinguished thus: “ The wharf will not be as readily and easily approached, and perhaps not at all by the same route ; but that is a mere interruption to the navigation of the river which they enjoy in common with the public, and not as part of their special right of access. Persons who frequent either this or any wharf will be impeded to a certain extent in the navigation of the river ; but that is an injury to the general right of navigation. It amounts only to this, that the plaintiff's goods will have to take a longer or less convenient course in coming up to their wharf ; an inconvenience the same in kind, though not in degree, as that which the rest of the public will be exposed to. The right interfered with is not the private right of access, which still remains, but the right of approaching froin a distance which forms part of the public right of navigation."
The meaning of that passage seems to be that if sufficient space be left to enable ships of a size suitable to the frontage of the wharf to get alongside, then the right of access is not interfered with, although the ships, in order to reach the wharf, have to take an inconvenient route--for example, in the case of a jetty projecting from the adjoining wharf, are forced, instead of sailing directly along the river up to their wharf, to double the point of the jetty in order to get alongside; but if a ship is actually prevented, for however short a space of time, from getting alongside the wharf, or, being alongside, from leaving it, then the private right of access is interfered with. That is an intelligible and reasonable distinction, and has the high authority of Lord Hatherley to support it.