Of Watercourses. Obstructions to navigation. A corporation, being the conservators of a river, and the owners of the soil between high and low water mark, cannot authorize their lessee to erect a wharf there which produces inconvenience to the public in the use of the river for the purposes of navigation (R. v. Grosvenor, 2 Stark. N. P. C. 511). An action will lie for the special damage occasioned to a party conveying goods along a navigation, by its obstruction by a barge moored across, whereby he was compelled to unload and carry his goods overland (Rose v. Miles, 4 M. & S. 101). Where the defendant wrongfully placed timber in a navigable river, whereby the access to the plaintiff's publichouse was obstructed, an action lay for the particular injury (Rose v. Groves, 5 M. & G. 613; Dobson v. Blackmore, 9 Q. B. 991). A weir appurtenant to a fishery, obstructing the whole or part of a navigable river, is legal, if granted by the Crown before the commencement of the reign of Edward the First. Such a grant may be inferred from evidence of its having existed before that time. If the weir when so first granted obstruct the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only navigable passage remaining. Where the Crown had no right to obstruct the whole passage of a navigable river it had no right to erect a weir obstructing a part, except subject to the rights of the public; and therefore in such a case the weir would become illegal upon the rest of the river being so choked that there could be no passage elsewhere (Williams v. Wilcox, 8 Ad. & Ell. 314; Rolle v. Whyte, L. R. 3 Q. B. 286; Leconfield v. Lonsdale, L. R. 5 C. P. 657). It is not competent, either to the Crown or to a subject, to use the soil of a navigable river for any purpose amounting to a nuisance (A.-G. v. Johnson,, 2 Wils. C. C. 87). If property (as oysters) be placed in the channel of a public navigable river, so as to create a public nuisance, a person navigating is not justified in damaging such property, by running his vessel against it if he has room to pass without so doing; for an individual cannot abate a nuisance if he is not otherwise injured by it than as one of the public. And, therefore, the fact that such property was a nuisance is no excuse for running upon it negligently (Colchester v. Brooke, 7 Q. B. 339; see Hawkins v. Rutter, 1892, 1 Q. B. 668). Where the defendant, as grantee of the Crown, was entitled to the soil of a navigable river, such ownership did not justify him in constructing a jetty which interfered with the navigation (4.-G. v. Lonsdale, 7 Eq. 377). As to moorings fixed in the soil, see A.-G. v. Wright, 1897, 2 Q. B. 324. Conservators empowered by statute to remove obstructions to navigation were held not liable for damage to a barge injured by an obstruction, on the ground that they were unpaid trustees appointed for public purposes and with a discretionary power, but no compulsory duty of removing obstructions (Forbes v. Lea Board, 4 Ex. D. 116; see also Jolliffe v. Wallasey Board, L. R. 9 C. P. 62, where a public body was held guilty of negligence in the performance of a public duty with regard to navigation), Where a vessel is sunk by accident, and without any default in the owner or his servant, in a navigable river, and remains there under water, no duty is ordinarily cast upon the owner to use any precaution, by placing a buoy or otherwise, to prevent other vessels from striking against it (Brown v. Mallett, 5 C. B. 599). An owner of land at the side of a public navigable river cannot erect on the bed of the river, for the benefit of his own trade, any structure, whether an actual obstruction to navigation or not (A.-G. v. Terry, 9 Ch. 423; see Booth v. Ratte, 15 App. Cas. 188). One who erects on the shore of a navigable river, between high and low water mark, a work for the more convenient use of his wharf adjoining, which presents a dangerous obstruction to navigation, is responsible for an injury thereby occasioned to a barge coming to the wharf, without any default on the part of the persons in charge (White v. Phillips, 15 C. B. N. S. 245). As to the liability of wharfingers in respect of the bed of a navigable river adjoining their jetty, see The Moorcock (14 P. Div. 64; The Calliope, Id. 138; and 1891, A. C. 11). As to the right of persons entitled to land from a navigable river on the bank adjoining, to pass over permanent obstructions, see Eastern Counties R. Co. v. Dorling (5 C. B. N. S. 821); Marshall v. Ulleswater Co. (L. R. 7 Q. B. 166). A corporation empowered by statute to improve navigation was held entitled to sue in respect of abstraction of water without proof of actual damage to navigation (Medway Co. v. Romney, 9 C. B. N. S. 575). The Att.-Gen. can restrain interference with the public right of navigation without showing actual injury (A.-G. v. Shrewsbury Co., 21 Ch. D. 752). As to purpresture and the remedy in that case, see 4.-G. v. Johnson (2 Wils. C. C. 87). Of Water courses. (16) The presumption as to the ownership of the soil of rivers depends on Ownership of whether they are tidal or non-tidal (see Orr-Ewing v. Colquhoun, 2 App. soil of tidal Cas. 847). In the case of navigable tidal waters (including rivers, estu- waters. aries, and arms of the sea), the presumption is that the soil is vested in the Crown (Gann v. Free Fisheries of Whitstable, 11 H. L. C. 192: A.-G. v. Tomline, 14 Ch. Div. 69; A.-G. v. Emerson, 1891, A. C. 649). But the soil of tidal waters may be vested in a subject (A.-G. v. Emerson, sup.; Neil v. Devonshire, 8 App. Cas. 135). So the City of London has been stated to own the soil of the Thames (Dav. 56, b; Com. Dig. Navigation (B.); see, however, A.-G. v. London, 2 Mac. & G. 247; A.-G. v. Johnson, 2 J. Wils. C. C. 87). See further as to the bed of the Thames and the powers of the conservators, Thames Conservators v. Port of London, 1894, 1 Q. B. 647; Thames Conservators v. Smeed, 1897, 2 Q. B. 334. A title to the foreshore on a tidal navigable river was held established as against the Crown by acts of possession on the part of an adjoining owner, subject however to the public right of navigation (Lord Adv. v. Blantyre, 4 App. Cas. 770; see A.-G. v. Emerson, sup.). As to the duties of an owner of land abutting on a tidal navigable river, in respect of a river wall, see Nitro-Phosphate Co. v. London and St. Katharine's Docks (9 Ch. Div. 524); Burt v. Victoria Co. (47 L. T. 378). In the case of a non-tidal navigable lake, the Crown has no de jure Soil of nonright to the soil (Bristowe v. Cormican, 3 App. Cas. 641). It is, however, tidal waters doubtful whether the riparian owners are entitled ad medium filum (whether (Ib. 666). In the case of non-tidal navigable rivers, the presumption navigable is that the soil is the property of the owners on each side to the middle or nonof the river, and if a man owns the land on both sides, the navigable); presumption is that the whole bed of the river belongs to him (Blount v. Layard, 1891, 2 Ch. 689, n.). And the same presumptions apply in the case of a non-navigable river (Hale, De Jure Maris, Cap. I.; Carter v. Murcot, 4 Burr. 2162; Harg. L. Tracts, 5; Davies, R. 155; R. v. Wharton, 12 Mod. 510; Bickett v. Morris, L. R. 1 H. L. Sc. 58). But in each case it is a question of fact, and the owner of the land on one side of a river only may be entitled to the whole bed (Jones v. Williams, 2 M. & W. 326). See the evidence of acts of ownership in the last-mentioned case, and in Smith v. Andrews, 1891, 2 Ch. 678; Blount v. Layard, Ib. 681, n. ; Lord Adv. v. Blantyre, 4 App. Cas. 770, 791. As to the relation of the ownership of the soil to the ownership of the fishery, see cases quoted ante, p. 44. passes, The right of ownership of the moiety of the bed of such a river according to a legal presumption, under a conveyance of land on one bank, whether the land is freehold, copyhold, or leasehold (Tilbury v. Silva, 45 Ch. Div. 98); and this even where the conveyance points to a boundary which would not include any part of the bed (Crossley v. Lightowler, 3 Eq. 279); or where the quantity specified in the deed and the colouring on the map, excludes the bed (Micklethwait v. Newlay Co., 33 Ch. Div. 133); or where the river is of more than ordinary breadth (Dwyer v. Rich, I. R. 6 C. L. 144). The presumption applies also where the grantor is owner of both banks of the river (Micklethwait v. Newlay Co., sup.). The presumption may be rebutted by surrounding circumstances (Devonshire v. Pattinson, 20 Q. B. Div. 263); but not by reason of subsequent circumstances not contemplated at the time of the grant (Mickle when river bed passes by conveyance of bank; I Of Water courses. navigation rights; rights in banks; (17) Rights as to the seashore. thwait v. Newlay Co., sup.). It is doubtful whether the presumption applies when the bank is acquired by statutory award made under an Inclosure Act (Ecroyd v. Coulthard, 1897, 2 Ch. 567; Hindson v. Ashby, 1896, 2 Ch. 9. See the cases quoted ante, pp. 44, 57, 58). An act of parliament, passed for the purpose of making navigable a natural river, does not vest in the undertakers of the navigation the bed of the river, but gives them for that purpose the mere privilege of scouring and cleansing it, which is a mere easement (R. v. Mersey Navigation, 9 B. & C. 114; R. v. Thomas, Ib. 95). The proprietors of a navigation have no property either in the soil over which the water flows or in the adjoining banks under an act of parliament allowing them the use of the land through which the river passes (Hollis v. Goldfinch, 1 B. & C. 221). A right to the use of flowing water does not necessarily depend upon the ownership of the soil covered by such water (Lord v. Sydney, 12 Moo. P. C. C. 473). The fee simple in the towing-path by the River Lee remains in the adjoining owner, subject to the rights of the conservators in connection with navigation (Lee Conservators v. Button, 6 App. Cas. 685). As to the liability of conservators for the condition of a towing-path, see Winch v. Thames Conservators (L. R. 9 C. P. 378). The public are not entitled at common law to tow on the banks of ancient navigable rivers; the right must be founded on statute or on usage (Ball v. Herbert, 3 T. R. 256; see 1 Lord Raym. 725; Bull. N. P. 90; 6 Mod. 163, contra; see also Pierce v. Falconberge, 1 Burr. 292). The use of the banks of the river for more than twenty years by fishermen, who have occasionally sloped and levelled them, is evidence of a grant of a right of landing by the owner of the soil, although both the fishery and landing-place once belonged to the same person, and there was no evidence to show that the former owner, or those who claimed under him, knew that the shore had been so used (Gray v. Bond, 2 Brod. & Bing. 667). In the absence of all evidence of particular usage, the extent of the right of the Crown to the seashore landwards is prima facie limited by the line of the medium high tide between the springs and the neaps (A.-G. v. Chambers, 4 D. M. & G. 206; Lowe v. Govett, 3 B. & Ad. 863; Ilchester V. Raishleigh, 61 L. T. 479). The effect of a lease by the Crown of minerals below low-water mark was considered (Lord Adv. v. Wemyss, 1900, A. C. 48). The foreshore is vested in the Crown subject to an obligation to protect the realm from the inroads of the sea by maintaining natural barriers, and neither the Crown nor a subject claiming under the Crown can remove shingle so as to destroy a natural barrier (A.-G. v. Tomline, 14 Ch. Div. 58). The ownership, however, of a several fishery over the foreshore raises a presumption that the soil of the foreshore is vested in such owner (4.-G. v. Emerson, 1891, A. C. 649). The seashore between high and low water mark may be parcel of the adjoining manor (Constable's case, 5 Rep. 107; Harg. L. Tracts, 12; A.-G. v. Hanmer, 27 L. J. Ch. 837); and where, by an ancient grant of the manor, its limits are not defined, modern usage is admissible in evidence to show that such seashore is parcel of the manor (Beaufort v. Swansea, 3 Exch. 413; A.-G. v. Jones, 2 H. & C. 347; Calmady v. Rowe, 6 C. B. 861; see 4.-G. v. Emerson, 1891, A. C. 649). As to the entries on the court rolls, which may be used as evidence in support of the lord's title, see Ex p. Tomline (21 W. R. 475). In a dispute between a lord of the manor and the corporation of an adjoining port as to the right of foreshore, a decision between the parties in an action tried 150 years before, followed by a long enjoyment on the part of the winner, and long acquiescence on the part of the loser, was held to be primâ facie binding on the latter (Ib.. Similarly, usage may explain a grant of wreck (Chad v. Tilsed, 2 Brod. & Bing. 403). A grant by the Crown (as lord of a manor adjoining an estuary) of minerals within the waste was held to pass minerals under the foreshore (A.-G. v. Hanmer, 27 L. J. Ch. 837). As to what words in a grant will pass the soil of the foreshore, see Scratton v. Brown (4 B. & C. 485). A person in possession of foreshore may maintain trespass against a wrongdoer without displacing the Crown's title (Hastings v. Ivall, 19 Eq. 558). The owner of a tenement adjoining the sea was held to have the same right of access to the sea as a riparian proprietor has to a tidal river (A.-G. Straits Settlement v. Wemyss, 13 App. Cas. 192). The public have no right at common law to enter on the shore when dry, except for the purposes of navigation or fishing (Llandudno v. Woods, 1899, 2 Ch. 708). The right of fishing was held to include in the case of oysters the right to deposit them on the foreshore (Truro v. Rowe, 1901, 2 K. B. 870). As to drawing up fishing-boats on the shore, see Ilchester v. Raishleigh, 61 L. T. 478. There is no common law right to bathe in the sea, and as incident thereto of crossing the shore on foot or with bathing machines (Blundell v. Catterall, 5 B. & Ald. 268; see Mace v. Philcox, 15 C. B. N. S. 600; 12 W. R. 670). So there is no common law right of entering seashore to take seaweed (Howe v. Stowell, 1 Alcock & Napier, 348). Where a parish lies on the seashore or extends up to a tidal river, the land between medium high water and low water mark is primâ facie extra-parochial (Bridgwater v. Bootle-cum-Linacre, L. R. 2 Q. B. 4; see Smart v. Suva, 1893, A. C. 301). Of Water courses. (18) Gradual accretions of land from the sea belong to the owner of the land Alluvium. gradually added to (R. v. Yarborough, 3 B. & C. 91; 5 Bing. 163; 2 Bligh, N. S. 147; Doe v. East India Co., 10 Moo. P. C. 140; see Scratton v. Brown, 4 B. & C. 485, where a grant of foreshore was held to pass the foreshore as it shifted from time to time). Similarly in the case of gradual accretions from a non-navigable river (Ford v. Lacey, 30 L. J. Ex. 351). Conversely land gradually encroached upon by water ceases to belong to the former owner (Re Hull and Selby R. Co., 5 M. & W. 327). This law is based on the impossibility of identifying from day to day small additions to or subtractions from land caused by the constant action of running water (see Foster v. Wright, 4 C. P. D. 446). In the case of a river, it was doubted whether the doctrine of accretion would apply where the original bank remained clearly defined (Hindson v. Ashby, 1896, 2 Ch. 27, 28). The title to alluvium, arising from artificial causes, does not differ as to the rights of landowners from the title to alluvium arising from natural causes, where the artificial causes arise from a fair use of the land adjoining the seashore, and not from acts done with a view to the acquisition of the seashore. Where the acts of ownership relied on consisted merely of turning cattle upon a marsh which crossed the invisible line of boundary separating the marsh from the seashore, and the cattle were allowed to stray without interruption, Lord Chelmsford, C., said, "The effect of acts of ownership must depend partly upon the acts themselves, and partly upon the nature of the property upon which they are exercised. If cattle are turned upon enclosed pasture ground, and placed there to feed from time to time, it is strong evidence that it is done under an assertion of right; but where the property is of such a nature that it cannot be easily protected against intrusion, and if it could it would not be worth the trouble of preventing it; there, mere user is not sufficient to establish a right, but it must be founded upon some proof of knowledge and acquiescence by the party interested in resisting it, or by perseverance in the assertion and exercise of the right claimed in the face of opposition (A.-G. v. Chambers, 4 De G. & J. 65; and see Re Hainault Forest Act, 9 C. B. N. S. 648, and Lord Blackburn's remarks in Lord Adv. v. Blantyre, 4 App. Cas. 791; Hindson v. Ashby, 1896, 2 Ch. 24; Hanbury v. Jenkins, 1901, 2 Ch. 421; Re Vernon, 1901, 1 Ir. R. 1). Of Watercourses. (19) Ferries. A ferry is the exclusive right to carry passengers across a river or arm of the sea, from one vill to another, or to connect a continuous line of road leading from one township or vill to another, and not a servitude imposed upon a large area of land, and is wholly unconnected with the ownership or occupation of land (Newton v. Cubitt, 12 C. B. N. S. 32; see R. v. Matthews, 5 El. & Bl. 546). All common ferries have their origin in royal grant or in prescription which presumes such grant (Letton v. Goodden, 2 Eq. 131). A custom of keeping a ferry boat was alleged by a parish (3 Mod. 294). Thirty-five years' exercise of the usage was sufficient to show a legal origin (Trotter v. Harris, 2 Y. & J. 285). In an action for an evasion of a ferry, by carrying passengers across the river near thereto, the defendant cannot plead that from the altered neighbourhood public convenience required that which the defendant has done (Newton v. Cubitt, 5 C. B. N. S. 627). See further as to evasion of a ferry, Huzzey v. Field, 2 C. M. & R. 432; Anon., 1 Ves. sen. 476. A right of ferry is a matter in which the public are interested, and of which, therefore, reputation is evidence; and so also is a verdict or judgment of a court of competent jurisdiction touching the same right, although between other parties (Pim v. Currell, 6 M. & W. 234). A ferry forms part of the king's highway, and its owner is bound, under pain of indictment, to maintain the ferry at all times for the use of the public (Letton v. Goodden, 2 Eq. 131; see A.-G. v. Simpson, 1901, 2 Ch. 692). (1) Support for land in its natural condition : from land. Prima facie rules. (1) Support for Land in its Natural Condition....92. (4) When Right of Action arises...94. Rights in respect of support having been held to be easements within sect. 2 of the Prescription Act, 1832 (Dalton v. Angus, 6 App. Cas. 798; Lemaitre v. Davis, 19 Ch. D. 291; see Simpson v. Godmanchester, 1897, A. C. 709), a short note is here added as to support. First, as to land in its natural condition, unincumbered by building and unexcavated. Questions as to support arise where the title to land A. has been severed from the title to land B., which is subjacent to land A. vertically; or from the title to land C., which is adjacent to land A. laterally. It is settled that, independently of the result of any facts or documents connected with the severance, and also of custom, the owner of land A. is of common right entitled to have it supported vertically by land B. (Humphries v. Brogden, 12 Q. B. 739), and laterally by land C. (Hunt v. Peake, John. 705; Dalton v. Angus, 6 App. Cas. 808); the right to lateral support extending only over that portion of land the existence of which in its natural state is necessary for the support of" land A. (Birmingham v. Allen, 6 Ch. Div. 289). Further, as regards documents effecting the severance. Where the owner of the surface and subsoil severs them, and the document contains no provision bearing on support, the prima facie rule is, that the right of support is attached as of common right to the surface not only where the surface is granted and the subsoil retained (Proud v. Bates, 34 L. J. Ch. 412), but also where the surface is retained and the subsoil is granted (Davis v. Treharne, 6 App. Cas. 460). The fact that the document granting the subsoil is a mining lease is an element to be considered in seeing whether the right of support to the surface is taken away by the |