river on the south, was called Winckworth's Hole. This inlet extended westward in front of the property belonging to the Fishmongers' Company, to a place called Broken Wharf, and thus the Appellant's property enjoyed the advantage of a double river frontage; to the south, on the main line of the river, to the west, on Winckworth's Hole, at the side. It was alleged that for an indefinite period of time both these means of communicating with the river had been enjoyed by the occupiers of Lyon's Wharf. On the west side there had been steps down to the water from a door, and there had been windows above the door, and there were piles in a line with the south front, behind which barges, conveying goods to the western side of the Appellant's warehouse, could be conveniently and safely moored. All these advantages had been in constant use by the Appellant's tenants. In the year 1857, an Act called the Thames Conservancy Act was passed, by which a body called the Conservators of the Thames was constituted. The liii. section of that Act was in these terms: "It shall be lawful for the Conservators to grant to the owner or occupier of any land fronting and immediately adjoining the river Thames, a license to make any dock, basin, pier, jetty, wharf, quay, or embankment, wall, or other work, immediately in front of his land, and into the body of the said river, upon payment of such fair and reasonable consideration as is by this Act directed, and under and subject to such other conditions and restrictions as the Conservators shall think fit to impose." The Act also contained a section (clxxix.) for protecting private rights (1). The Fishmongers' Company obtained in 1872, from the Conservators, upon a payment of £250, a license or permission to make an embankment in front of their wharf (Winckworth's Wharf) up to the main line of the river, which would have the (1) Sect. clxxix.: "None of the powers by this Act conferred, or anything in this Act contained, shall extend to take away, alter, or abridge, any right, claim, privilege, franchise, exemption, or immunity to which any owner or occupier of any lands, tenements, or hereditaments on the banks of the river, including the banks thereof, or H. L. (E.) 1876 LYON v. FISHMONGERS' 1876 H L. (E.) effect of entirely displacing the water from Winckworth's Hole, and so putting an end to the use which had always been made of it by the occupants of the Appellant's premises. On the embankment thus created, the Fishmongers' Company proposed to erect warehouses. LYON v. FISHMONGERS' The Appellant, to prevent this from being done, filed his bill in Chancery against the Conservators and the Fishmongers' Company, praying that the Fishmongers might be restrained by injunction from constructing these works, or doing anything whereby the Appellant's right of access to the river on the west side of Lyon's Wharf, or the privilege theretofore enjoyed by him of laying and mooring craft, and loading and unloading goods, on the west side of Lyon's Wharf, directly from the river, might be defeated or prejudiced, and also from creating any obstructions so as to interfere with his right of access to the river as aforesaid. And also that the Conservators might be restrained from selling any part of the shore, or granting any license or authority to the Fishmongers' Company for the purposes aforesaid. An interim injunction was granted—and the Fishmongers' Company put in an answer denying the right of the Appellant to the use and enjoyment of free access to the river as alleged, and claiming for the company the exclusive right of user of the water in Winckworth's Hole-and the answer also alleged the license of the Conservators for what was proposed to be done. The Conservators by their answer claimed the right to grant the license under the provisions of the Conservancy Act. Evidence was taken on both sides. The motion for a decree came on before Vice-Chancellor Malins, in April, 1875, when the injunction prayed for was granted (1), the two sets of Defendants being ordered, respectively, to pay the costs of the evidence filed on their own behalf. The Fishmongers' Company appealed to the Lords Justices against this decree, which, on the 30th of July, 1875, was ordered to be reversed, and the bill, as against the Fishmongers' Company, to be dismissed with costs, except the costs occasioned by the claim of the Fishmongers' Company to the exclusive use of Winckworth's Hole (2). (1) Law Rep. 10 Ch. App. 681, n. (2) Law Rep. 10 Ch. App. 679. Mr. Cotton, Q.C., and Mr. R. E. Webster, for the Appellant: . H. L. (E.) 1876 v. COMPANY. Independently of any question on the construction of the Thames Conservancy Act, the decision of the Lords Justices cannot be LYON supported on principle. It could not be disputed that the Appel- FISHMONGERS lant was a riparian owner, yet the Lords Justices denied him, as a riparian owner on a tidal river, any rights with respect to the river which were not enjoyed by every individual who used the river for the purpose of navigation (1). Such a holding was in direct negation to the law as laid down by this House in the case of The Duke of Buccleuch v. The Metropolitan Board of Works (2). A riparian owner has not only the right to the use of the water of a tidal river in the same way, and to the same extent, as any of the other subjects of the realm, but he has also special rights or easements connected with his land on the banks of the river. If those private rights were rendered less valuable, the party prejudiced thereby had a right to compensation, although the work complained of might be done under the authority of an Act of Parliament: The Metropolitan Board of Works v. McCarthy (3). That principle was acted upon in Miner v. Gilmour (4), and still more strongly in Lord v. The Commissioners of Sydney (5). In The Attorney-General v. The Conservators of the Thames (6), which was a proceeding on this Act itself, the Court distinguished between the rights possessed by a riparian owner and one who used the river solely for the purposes of navigation, and held the former to have a clear and established existence, and that the right of access to the land of the owner was a private right which came within the saving in the 179th section of the Act, and only rejected the claim of the owner in that case, upon the ground that what was proposed to be done was not an interference with the private right of access, but only with the public right of navigation which the owner enjoyed in common with all the rest of the subjects. It had long ago been decided in Rose v. Groves (7) that a declaration disclosing an act of damage to a private owner on the banks of the Thames, by obstructing the access from the river to his house, (1) Law Rep. 10 Ch. Ap. 689. (3) Law Rep. 7 H. L. 243. (4) 12 Moo. P. C. 131. (5) Ibid. 473. (6) 1 H. & M. 1. (7) 5 Man. & G. 613. 1876 LYON V. FISH MONGERS' H. L. (E.) shewed a good cause for a claim for compensation. In the Eastern Counties Railway Company v. Dorling (1) a private right in the owner of land upon the banks of a navigable river was also recognised, and an injury affecting it was held to be the subject of COMPANY. Compensation. And in Kearns v. The Cordwainers Company (2) though it was there held that the Conservators under this Act of 1857 might license the erection of a landing platform, which was for the public benefit, and which was thought not to be really injurious to the Plaintiff, the Court expressly declined to say whether the Conservators had power to license such erection so as to interfere with the vested rights of individuals owning land along the shore. Marshall v. The Ulleswater Steam Company (3) in like manner recognised the private rights of an owner of land on the bank of a navigable lake, in addition to those which he enjoyed, in common with the rest of the public, to navigate the lake, and the only question there really related to a conflict between the private rights of two separate sets of persons. The Thames Conservancy Act did not justify what had been done here. It never was the intention of the Legislature to invade and destroy private rights. The object of the Act was to improve the condition of the river and increase the facilities for its easy navigation. That certainly would not be effected by forcing persons who had hitherto enjoyed the use of creeks and inlets for mooring their barges, to moor them in the full course of the river. So far from any intention of this kind being entertained by the Legislature, the 179th section of the Act was expressly directed to prevent existing rights from being invaded. The Solicitor-General (Sir H. Giffard), and Mr. Glasse, Q.C., (Mr. Chitty, Q.C., and Mr. Dundas Gardiner were with them), for the Respondents: The question, what is the public interest in this matter, has not been properly considered, yet that forms the justification for the grant of this license. The river banks had required to be improved, and this Act was passed to facilitate that improvement. The (1) 5 C. B. (N.S.) 821; 28 L. J. (C.P.) 202. (2) 6 C. B. (N.S.) 388; 28 L. J. (C.P.) 285. (3) Law Rep. 7 Q. B. 166. 1876 LYON v. FISHMONGERS' COMPANY. Crown had consented, for this public purpose, to vest its own rights H. L. (E.) in the Conservators appointed under the Act, and the Mayor and citizens of London had done the same. Sects. 50 and 52 exWhen this was done for a pressed this in the clearest manner. great public purpose it was not to be supposed that a small claim of private convenience was intended to be preserved so as to prevent a public improvement. The 179th section had no such purpose in view, and was, therefore, inapplicable to the present case. It was the imperfect condition of the river which had led to the use of Winckworth's Hole in a way now claimed by the Appellant as a matter of right. The object of the 53rd section was to enable the Conservators of the river to improve it by grants of licenses to individual owners of frontages along it, to form piers, jetties, or "embankments," that word being expressly used in the statute, and the security for the rights of individuals was sufficiently provided for by the necessity of appealing to the Conservators for a license to do what was required; and it must be assumed that the discretion thus vested in the Conservators would not be abused. The Court proceeded upon that principle in Kearns v. The Cordwainers' Company (1), and even more strongly in The Attorney-General v. The Conservators of the Thames (2), declaring that it would not assume that a duty imposed on the Conservators would be neglected, and that it could not interfere on a mere question of inconvenience. And with respect to the 179th section, though the Court held that the access to a wharf, which was claimed in that case, was a private right within the saving, yet that a pier which rendered the approach to the wharf less convenient, without rendering access impossible, was an interference, not with the private right of access, but with the public right of navigation, enjoyed by the wharf owner in common with the rest of the public, and that such right was not among those comprised in the statutory saving. That decision really disposed of the present case. The right now contended for is not that of a riparian proprietor. That riparian right, so far as the Appellant is concerned, is that of access from the south front of his wharf to the river, and that access is not, and never has been proposed to be, interfered with. (1) 6 C. B. (N.S.) 388; 28 L. J. (C.P.) 285. (2) 1 H. & M. 1. |