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Water Rights

WATER RIGHTS. By the law of England the property in the bed and water of a tidal river, as high as the tide ebbs and flows at a medium spring tide, is presumed to be in the crown or as a franchise in a grantee of the crown, such as the lord of a manor, or a district council, and to be extra-parochial. The bed and water of a non-tidal river are presumed to belong to the person through whose land it flows, or, if it divide two properties, to the riparian proprietors, the rights of each extending to midstream (ad medium filum aquae). In order to give riparian rights, the river must flow in a defined channel, or at least above ground. The diminution of underground water collected by percolation, even though malicious, does not give a cause of action to the owner of the land in which it collects, it being merely damnum sine injuria, though he is entitled to have it unpolluted unless a right of pollution be gained against him by prescription. The right to draw water from another's well is an easement, not a profit a prendre, and is therefore claimable by custom. As a general rule a riparian proprietor, whether on a tidal or a non-tidal river, has full rights of user of his property. Most of the statute law will be found in the Sea Fisheries Acts 1843 to 1891, and the Salmon and Freshwater Fisheries Acts 1861 to 1886. In certain cases the rights of the riparian proprietors are subject to the intervening rights of other persons. These rights vary according as the river is navigable or not, or tidal or not. For instance, all the riparian proprietors might combine to divert a non-navigable river, though one alone could not do so as against the others, but no combination of riparian proprietors could defeat the right of the public to have a navigable river maintained undiverted. We shall here consider shortly the rights enjoyed by, and the limitations XXVHI. 13 imposed upon, riparian proprietors, in addition to those falling under the head of fishery or navigation. In these matters English law is in substantial accordance with the law of other countries, most of the rules being deduced from Roman law. Perhaps the main difference is that running water is in Roman law a res communis, like the air and the sea. In England, owing to the greater value of river water for manufacturing and other purposes, it cannot be said to be common property, even though it may be used for navigation. The effect of this difference is that certain rights, public in Roman law, such as mooring and unloading cargo, bathing, drying nets, fishing for oysters, digging for sand, towing, etc., are only acquirable by prescription or custom in England. By Roman law, a hut might lawfully be built on the shore of the sea or of a tidal river; in England such a building would be a mere trespass. Preaching on the foreshore is not legal unless by custom or prescription (Llandudno Urban Council v. Woods, 1899, 2 Ch. 705). Nor may a fisherman who dredges for oysters appropriate a part of the foreshore for storing them (Truro Corporation v. Rowe, 1902, 2 K.B. 709).

The right of use of the water of a natural stream cannot be better described than in the words of Lord Kingsdown in 1858: " By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land for instance, to the reasonable use of the water for domestic purposes and for his cattle, and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up a stream for the purposes of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury " (Miner v. Gilmour, 12 Moore's P.C. Cases, 156). The rights of riparian proprietors where the flow of water is artificial rest on a different principle. As the artificial stream is made by a person for his own benefit, any right of another person as a riparian proprietor does not arise at common law, as in the case of a natural stream, but must be established by grant or prescription. If its origin be unknown the inference appears to be that riparian proprietors have the same rights as if the stream had been a natural one (Baily v. Clark, 1902, I Ch. 649). The rights of a person not a riparian proprietor who uses land abutting on a river or stream by the licence or grant of the riparian proprietor are not as full as though he were a riparian proprietor, for he cannot be imposed as a riparian proprietor upon the other proprietors without their consent. The effect of this appears to be that he is not entitled to sensibly affect their rights, even by the ordinary as distinguished from the extraordinary use of the water. Even a riparian proprietor cannot divert the stream to a place outside his tenement and there use it for purposes unconnected with the tenement (McCartney v. Londonderry & Lough Swilly Rly. Co., 1904, A.C. 301).

The limitations to which the right of the riparian proprietor is subject may be divided into those existing by common right, those imposed for public purposes, and those established against him bycrown grant or by custom or prescription. Under the first head comes the public right of navigation, of anchorage and fishery from boats (in tidal waters), and of taking shell-fish (and probably other fish except royal fish) on the shore of tidal waters as far as any right of several fishery does not intervene. Under the second head would fall the right of eminent domain by which the state takes riparian rights for public purposes, compensating the proprietor, the restrictions upon the sporting rights of the proprietor, as by acts forbidding the taking of fish in close time, and tne Wild Birds Protection Acts, and the restrictions on the ground of public health, as by the Rivers Pollution Act 1876 and the regulations of port sanitary authorities. The jurisdiction of the state over rivers in England may be exercised by officers of the crown, as by commissioners of sewers or by the Board of Trade, under the Crown Lands Act 1866. A bridge is erected and maintained by the county authorities, and the riparian proprietor must bear any inconvenience resulting from it. An example of an adverse right by crown grant is a ferry or a port. The crown, moreover, as the guardian of the realm, has jurisdiction to restrain the removal of the foreshore, the natural barrier of the sea, by its owner in case of apprehended danger to the coast. The rights established against a riparian proprietor oy private persons must as a rule be based on prescription or custom, only on prescription where they are in the nature of profits a prendre. The public cannot claim such rights by prescription, still less by custom. Among such rights are the right to land, to discharge cargo, to tow, to dry nets, to beach boats, to take sand, shingle or water, to have a sea-wall maintained, to pollute the water (subject to the Rivers Pollution Act), to water cattle, etc. In some cases the validity of local riparian customs has been recognized by the legislature. The right to enter on lands adjoining tidal waters for the purpose of watching for and landing herrings, pilchards and other sea-fish was confirmed to the fishermen of Somerset, Devon and Cornwall by I Jac. I. c. 23. Digging sand on the shore of tidal waters for use as manure on the land was granted to the inhabitants of Devon and Cornwall by 7 Jac. I. c. 18. The public right of taking or killing rabbits in the daytime on any sea bank or river bank in the county of Lincoln, so far as the tide extends, or within one furlong of such bank, was preserved by the Larceny Act 1881. It should be noticed that rights of the public may be subject to private rights. Where the river is navigable, although the right of navigation is common to the subjects of the realm, it may be connected with a right to exclusive access to riparian land, the invasion of which may form the ground for legal proceedings by the riparian proprietor (see Lyon v. The Fishmongers' Company, 1876, I A.C. 662). There is no common-law right of support by subterranean water. A grant of land passes all watercourses, unless reserved to the grantor.

A freshwater lake appears to be governed by the same law as a non-tidal river, surface water being pars soli. The preponderance of authority is in favour of the right of the riparian proprietors as against the crown. Most of the law will be found in Bristow v. Cormican, 1878, 3 A.C. 648.

Unlawful and malicious injury to sea and river banks, towing paths, sluices, flood-gates, mill-dams, etc., or poisoning fish, is a crime under the Malicious Damage Act 1861.

Ferry is a franchise created by grant or prescription. When created it is a highway of a special description, a monopoly to be used only .for the public advantage, so that the toll levied must be reasonable. The grantee may have an action or an injunction for infringement of his rights by competition unless the infringement be by act of parliament. In Hopkins v. G.N. Ry. Co., 1877, 2 Q.B.D. 224 (followed in Dibden v. Skirrow, 10x37, I Ch. 437), it was held that the owner of a ferry cannot maintain an action for loss of traffic caused by a new bridge or ferry made to provide for new traffic. Many ferries are now regulated by local acts.

Weir, the gurges of Domesday, the kideUus of Magna Carta, as appurtenant to a fishery, is a nuisance at common law unless granted by the crown before 1272. From the etymology of kidellus the weir was probably at first of wicker, later of timber or stone. The owner of a several fishery in tidal waters cannot maintain his claim to a weir unless he can show a title going back to Magna Carta. In private waters he must claim by grant or prescription. Numerous fishery acts from 25 Ed w. I II . st . 4, c. 4 deal with weirs, especially with regard to salmon fishery. An interesting case is Hanbury v. Jenkins, 1901, 2 Ch. 401, where it was held that a grant of " wears " in the Usk by Henry VIII. i 1516 passed the bed of the river as well as the right of fishing.

Mill may be erected by any one, subject to local regulations and to his detaining the water no longer than is reasonably necessary for the working of the wheel. But if a dam be put across running water, the erection of it can only be justified by grant or prescription, or (in a manor) by manorial custom. On navigable rivers it must have existed before 1272. The owner of it cannot pen up the water permanently so as to make a pond of it.

Bathing. The reported cases affect only sea-bathing, but Hall (p. 160) is of opinion that a right to bathe in private waters may exist by prescription or custom. There is no common-law right to bathe in the sea or to place bathing-machines on the shore. Prescription or custom is necessary to support a claim, whether the foreshore is the property of the crown or of a private owner (Brinckman v. Matley, 1904, 2 Ch. 313). Bathing in the sea or in rivers is now often regulated by the by-laws of a local authority.

Scotland. The law of Scotland is in general accordance with that of England. One of the principal differences is that in Scotland, if a charter state that the sea is the boundary of a grant, the foreshore is included in the grant, subject to the burden of crown rights for public purposes. Persons engaged in the herring fishery off the coast of Scotland have, by n Geo. III. c. 31, the right to use the shore for 100 yds. from high-water mark for landing and drying nets, erecting huts and curing fish. By the Army Act 1881, s. 143, soldiers on the march in Scotland pay only half toll at ferries. The right of ferry is one of the regalia minora acquirable by prescriptive possession on a charter of barony. Sea-greens are private property. The right to take seaweed from another's foreshore may be prescribed as a servitude. Interference with the free passage of salmon by abstraction of water to artificial channels is restrainable by interdict (Pirie v. Earl of Kintore, 1906, A.C. 478). See the Salmon Fisheries (Scotland) Acts 1828 to 1868.

In Ireland the law is in general accordance with that of England. In R. v. Clinton, I.R. 4 C.L. 6, the Irish court went perhaps beyond any English precedent in holding that to carry away drift seaweed from the foreshore is not larceny. The Rivers Pollution Act 1876 was re-enacted for Ireland by the similar act of 1893.

In the United States the common law of England was originally the law, the state succeeding to the right of the crown. This was no doubt sufficient in the thirteen original states, which are not traversed by rivers of the largest size, but was not generally followed when it became obvious that new conditions, unknown in England, had arisen. Accordingly the soil cf navigable rivers, fresh or salt, and of lakes, is vested in the state, which has power to regulate navigation and impose tolls. The admiralty jurisdiction of the United States extends to all public navigable rivers and lakes where commerce is carried on between different states or with foreign nations (Genesee Chief v. Fitzhugh, 12 Howard's Rep. 443). And in a case decided in 1893 it was held that the open waters of the great lakes are " high seas " within the meaning of 5346 of the Revised Statutes (U.S. v. Rodgers, 150 U.S. Rep. 249). A state may establish ferries and authorize dams. But if water from a dam overflow a public highway, an indictable nuisance is caused. The right of eminent domain is exercised to a greater extent than in England in the compulsory acquisition of sites for mills and the construction of levees or embankments, especially on the Mississippi. In the drier country of the west and in the mining districts, the common law as to irrigation has had to be altered, and what was called the " Arid Region Doctrine " was gradually established. By it the first user of water has a right by priority of occupation if he give notice to the public of an intention to appropriate, provided that he be competent to hold land.

AUTHORITIES. Hall's Essay on the Rights of the Crown on the SeaShore (1830) has been re-edited in 1875 and 1888. See also S. A. and H. S. Moore, History and Law of Fisheries (1903). Among American authorities are the works of Angell, Gould and Pomeroy, on Waters and Watercourses, Washburn on Easements, Angell on the Right of Property in Tide Waters, Kirney on Irrigation and the Report to the Senate on Irrigation (1900). (J. W.)

Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)

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