this passage, or of the subsequent statement that the rivers which Bracton declares to be public, "must be taken to be rivers that are arms of the sea."1 In the same chapter, which is entitled "Of the right of prerogative in private or fresh rivers," it is said that the king has jurisdiction to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges and boats, and to reform the obstructions or annoyances therein; that these public streams which are highways by water, are called royal, not in reference to the propriety of the river, but to the public use, and that they are under the king's special care and protection, whether the soil be his or not. In chapter four it is said that the king has the right of property in the sea, and in the shore and in the creeks and arms thereof, where the sea flows and re-flows, and so far only as the sea so flows and reflows; and that, although the water be fresh at high water, yet the denomination of an arm of the sea continues, if it flow and re-flow. These passages support the doctrine that the public have no rights in any fresh-water river except that of navigation. The authorship of the work 2 would not, per water; and as the highways by land are called altae viae regiae, so these publick rivers for publick passage are called fluvii regales, and haut streames le roy; not in reference to the propriety of the river, but to the publick use; all things of publick safety and convenience being in a special manner under the king's care, supervision, and protection. And, therefore, the report in Sir John Davys, of the piscary of Banne, mistakes the reason of those books, that call these streames le roy, as if they were so called in respect of propriety (as 19 Ass. 6 Dy. 11), for they are called so, because they are of publick use, and under the king's special care and protection, whether the soil be his or not." The case of the Banne is also criticized in other respects in De Jure Maris, c. 5. With respect to the right of fishing, it is said that salmons, "though they are great fish, are not royal fish, as the report of Sir John Davies in the case of the fishing of Banne would intimate." The other passage relates to the acquisition by a subject of rights in the sea by prescription or usage, in which it is said: "I have added the more, because there are certain glances and intimations in the case of the piscary of Banne, in Sir John Davies's reports, as if the fishing in these kinds of royal rivers were not acquirable but by special charter, which is certainly untrue; for they are acquirable by prescription or usage, as well as royal fish may be." De Jure Maris, c. 4; Hargrave's Law Tracts, 12. 2 Ante, § 18. haps, be of importance, were it not for the fact that, being associated with the name of Lord Hale, the positions here taken have been frequently accepted as a sufficient authority, without inquiring whether the positions themselves had a sound basis. The work is posthumous, and there appears to be no evidence that it was revised or intended for publication, or at what period of the author's life it was written, while Lord Hale's name has not made it, in all respects, incontrovertible.3 § 50. The early authorities being thus discordant, no certain rule is supplied by the earlier English cases, which relate either to tidal rivers or to fresh rivers which do not appear to be navigable. In Bulstrode v. Hall, and other cases, which, upon the facts, involved no rights in places above the tide, rivers are said to belong to the king as far as the sea ebbs and flows in them. So in Carter v. Murcot,5 and Rex v. 48. 1 See Phear's Rights of Water, 47, & C. 106; 2 Bligh, N. S. 147; post, c. 5. Fourth, It is now established that the * See Hall on the Seashore, Intro- right of towage along the banks of duction. 3 In the light of modern decisions, the following rules laid down in this treatise are not law: First, That the realm of England extends beyond low-water mark, and includes the adjacent seas, whether they are within the body of a county or not. De Jure Maris, c. 4; Hargrave's Law Tracts, 10; Contra, Regina v. Keyn, 2 Ex. D. 63, referred to ante, §§ 13, 14. Second, That "any man may justify the removal of a common nuisance, either at land or by water, because every man is concerned in it." De Portibus Maris, c. 7; Hargrave's Law Tracts, 87; Contra, see post, § 128; Third, That alluvion "is de jure communi, by the law of England, the king's, viz.: if by any marks or measures it can be known what is so gained." De Jure Maris, c. 6; Hargrave's Law Tracts, 28; Contra, Foster v. Wright, 4 C. P. D. 100; In re Hull & Selby Railway, 5 M. & W. 327; Rex v. Yarborough, 3B. rivers does not exist in the absence of usage, grant, etc., notwithstanding the intimation in this book that this is a common-law right. De Portibus Maris, c. 7; Hargrave's Law Tracts, 86; Ball v. Herbert, 3 T. R. 253; Blanchard v. Porter, 11 Ohio, 100; post, § 150, c. 4. The view that has been expressed in this country that this treatise is of so high authority that there is no appeal from it (6 Cowen, 536, note; Cobb v. Davenport, 3 Vroom, 369, 379) would appear, therefore, to be somewhat exaggerated. 41 Sid. 148. See, also, Rex v. Trinity House, Id. 86; and cases ante, § 18, notes; Malcomson v. O'Dea, 10 H. L. Cas. 619; Warren v. Mathews, 1 Salk. 357; 6 Mod. 73; Carter v. Murcot, 4 Burr. 2162. 54 Burr. 2162. In this case the only question was whether the plaintiff had by prescription a right of several fishery at the place in question, which was admitted to be a Smith, Lord Mansfield's opinions were to the effect that the distinction is between those rivers in which the sea flows, and those in which it does not; but the cases related solely to tide waters. Upon the other hand, in Lord Fitzwalter's case, before Chief Justice Hale, and in Rex v. Wharton,3 before Chief Justice Holt, a case which has been referred to 4 as bearing upon this question, the rivers in question are not only called private rivers, but there is no intimation that they were, in fact, capable of navigation. 2 § 51. The rule thus indicated may be adequate for a country like England, where the rivers are small and rarely navigable in their natural condition above the tide, and where, also, the question has not often arisen. In Ireland, navigable river and arm of the sea. Lord Mansfield said: "The rule of law is uniform. In rivers not navigable, the proprietors of the land have the right of fishery on their respective sides; and it generally extends ad filum medium aquae. But in navigable rivers, the proprietors of the land on either side have it not; the fishery is common; it is prima facie in the king, and is public. If any one claims it exclusively, he must show a right. If he can show a right by prescription, he may then exercise an exclusive right, though the presumption is against him, unless he can prove such a prescriptive right." 12 Dougl. 441. See ante, § 44. 21 Mod. 105. The question here was as to the defendant's right of exclusive fishery in the river of Wallfleet, and Hale, C. J., said: "In case of a private river, the lord's having the soil is good evidence to prove that he hath the right of fishing, and it puts the proof upon them that claim liberam piscariam. But in case of a river that flows and reflows, and is an arm of the sea, there, prima facie, it is common to all." 3 12 Mod. 510; s. c. Holt, 499. This case was an indictment for riot, "the cause of the riot being the right of a private river." According to the report in 12 Mod., Holt, C. J., said: "If a river run continuously between the land of two persons, each of them is, by common right, owner of that part of the river which is next his land, and may let it to another or to a stranger." See, also, Gibbs v. Woolliscott, 3 Salk. 291. 4 Hopkins Academy v. Dickinson, 9 Cush. 544, 547. 5 The word "private" in this connection would seem to exclude rivers, whether fresh or salt, that are capable of navigation. Although in the second chapter of the treatise De Jure Maris the heading is, "Of the right of the prerogative in private or fresh rivers," and the expression, "a fresh or private river," is again used there; yet in that and the following chapter, the terms "public rivers" and "public streams are applied to all rivers that are a common passage. 6 In Elder v. Burrus, 6 Humph. (Tenn.) 366, Turley, J., said: “All laws are, or ought to be, an adaptation of principles of action to the state or condition of a country, and to its moral and social position. There are many rules of action recognized where the rivers are larger, the question was directly presented, apparently for the first time in the United Kingdom, in Murphy v. Ryan,1 decided by the Irish Court of Common Pleas in 1868. This was an action of trespass for breaking and entering the plaintiff's close covered with water, called the River Barrow, and fishing therein. The issue presented, upon a demurrer to the defendant's plea, was whether, the Barrow being admitted to be from time immemorial a public and navigable river above and beyond the ebb and flow of the sea, and the alleged trespass being above that point, the defendant as one of the public had there the privilege of fishing. The demurrer was allowed, it being considered that no river had "been ever held navigable, so as to vest in the Crown its bed and soil, and in the public the right of fishing, merely because it has been used as a general highway for the purpose of navigation; and that, beyond the point to which the sea ebbs and flows, even in a river so used for public purposes, the soil is prima facie in the riparian owners, and the right of fishing private.” § 52. According to recent decisions in England, the title of the riparian owners extends to the centre of all non-tidal streams, but the ground of prescription on which this rule now rests is different from that supported by the early in England as suitable, which it would be folly in the extreme, in countries differently located, to recognize as law; and, in our opinion, this distinction between rivers navigable' and not navigable,' causing it to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short courses of her rivers, and the wellknown fact that there are none of them navigable above tide-water but for very small craft, well warrants the distinction there drawn by the common law. But very different is the situation of the continental powers of Europe in this particular. Their streams are many of them large and long and navigable to a great extent above tide-water; and accordingly we find that the civil law, which regulates and governs those countries, has adopted a very different rule." 2 Ir. R. 2 C. L. 143. Orr Ewing v. Colquhoun, 2 App. Cas. 839; Bickett v. Morris, L. R. 1 H. L. Sc. 47; Murphy v. Ryan, Ir. R. 2 C. L. 143; Dwyer v. Rich, Ir. R. 4 C. L. 424; Miller v. Little, 2 L. R. Ir. 304; Hargreaves v. Diddams, L. R. 10 Q. B. 582; Marshall v. Ulleswater Nav. Co., 3 B. & S. 742; Bristow v. Cormican, 3 App. Cas. 641, 666; Ir. R. 10 C. L. 398, 412, 435; Bloomfield v. Johnston, Ir. R. 8 C. L. 68; Mussett v. Burch, 35 L. T. N. s. 486; Hudson v. McRae, 4 B. & S. 585; Grant v. Oxford, L. R. 4 Q. B. 9. authorities, and is inapplicable in this country.1 In 1838, the question was regarded as not fully settled by Lord Denman, C. J., who, in Williams v. Wilcox, said: "It is clear that the channels of public navigable rivers were always highways: up to the point reached by the flow of the tide, the soil was pre 1 Post, § 53. 28 Ad. & El. 314, 333. This important passage of the opinion in Williams v. Wilcox is not noticed by Mr. Houck in his work on Rivers, in which he combats the supposed rule of the common law, or in Mr. Angell's works on Tide Waters and Watercourses. Although noticed in Hall on the Seashore (2d ed.), 3, note (f), and in Phear's Rights of Water, its meaning seems to have been misunderstood by those writers, Lord Denman's doubt being there referred to as if it related to tidal rivers, and as settled by Lord St. Leonard's opinion in Lord Advocate v. Hamilton, 1 Macq. H. L. 46, in which the language of the court was limited to navigable rivers. A comparison of the two cases, and an examination of the passage in De Jure Maris, c. 2, pl. 3, referred to in Williams v. Wilcox, shows that the two judges were thinking of different subjects. See Murphy v. Ryan, Ir. R. 2 C. L. 143, 153, 154; Ipswich Dock v. Overseers, 7 B. & S. 310, 335. In Bristow v. Cormican, 3 App. Cas. 641, 666; Ir. R. 10 C. L. 425, it was held that the crown has no title de jure to the soil or fisheries of an inland lake; and Lord Blackburn, referring to the doubt expressed by Wightman, J., in Marshall v. Ulleswater Navigation Co., 3 B. & S. 742, upon the question whether the soil of lakes, like that of fresh-water rivers, prima facie belonged to the riparian owners ad filum aquae, or to the Crown, said: "That learned judge did not think that the law as to land covered by still water was so clearly settled to be the same as the law as to land covered by running water, as to justify him in unnecessarily deciding that it was the same. . . . I own myself to be unable to see any reason why the law should not be the same, at least where the lake is so small, or the adjoining manor so large, that the whole lake is included in one property. Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad filum aquae, should apply to a lake, is a different question. It does not seem very convenient that each proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked on to his frontage. But no question arises in this case as to the rights of the riparian proprietors among themselves, for no title is made by either party through any one as riparian owner." In the same case in the lower court, Pallas, C. B. (p. 402), considered that the question whether◄ "navigable" was synonymous with tidal," so as to limit the public right of fishing to tide waters, would be worthy of grave consideration, if it were unfettered by authority; and Dowse, B., referring to the American decisions said (p. 412) that it would amount to an absurdity if a man, who owned a strip of land containing perhaps a quarter of an acre on the bank of the Mississippi, should be entitled to a several fishery extending threequarters of a mile out to the middle of the river. In the Exchequer Chamber (Ibid. p. 412, 434), Whiteside, C. J., declared the test afforded by the tide to be "an arbitrary rule, repugnant to reason, convenience, and the common sense of mankind." |