666 666 66 6 666 666 666 686 666 "its general nature is thus explained by Sir M. Hale, at the "beginning of cap. 2 of his treatise, De Jure Maris' (Stuart "Moore's History of the Foreshore,' p. 372): The King, by "an ancient right of prerogative, hath had a certain interest in "many fresh rivers, even where the sea doth not flow or reflow, as well as in salt or arms of the sea; and those are these 'which follow: First, a right of franchise or privilege that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the King. "He may make a ferry for his own use or the use of his family, "but not for the common use of all the King's subjects passing "that way; because it doth in consequence tend to a common 'charge, and is become a thing of public interest and use, and 'every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz., that it give attendance at due times, keep a boat in due "order, and take but reasonable toll; for if he fail in these he "is fineable.' It is laid down in Peter v. Kendal1 that it is not "necessary that the owner of a ferry should have the property in "the soil on either side of the stream. He must have a right to use the land on both sides of the water, for the purpose of embark"ing and disembarking his passengers, but he need not have "any property in the soil on either side. It is sufficient if the "landing-place be a public highway. Now this charter recites "that Spencer had made the river Ouse' navigable and passable' "within certain limits. This is true in the sense that Spencer, "by making locks and sluices, had made it navigable throughout "those limits, whereas it had been before navigable only in "sections-that is, from mill-dam to mill-dam. Spencer had "erected at the side of each mill-dam, on land belonging to himself, a lock or sluice; he had a right, as a member of the "public, to pass from mill-dam to mill-dam; he could, by virtue "of his own legal title to the locks and sluices, continue his passage beyond the mill-dams. The franchise appears to me, on the true construction of the charter, to be the exclusive "right of conveying goods in boats by means of the navigation "which Spencer had created-that is, the through navigation "rendered possible by the new locks or sluices. This right closely resembles that of a ferry, and I can see no reason why "it should not be in the power of the Crown to create it. The 66 66 66 16 B. & C. 703, 710, 711; 30 R. R. 504. Lakes. Origin of conservancy. "exercise of the right would impose on the grantee obliga"tions similar to those of a ferryman, as, for example, to "attend at the locks at due times, to keep them in proper "working order, and to take reasonable tolls. In Allnut v. "Inglis Lord Ellenborough, C. J., said at p. 538: 'There "is no doubt that the general principle is favoured both "in law and justice, that every man may fix what price he "pleases upon his own property or the use of it; but if, for a "particular purpose, the public have a right to resort to his "premises and make use of them, and he have a monopoly in "them for that purpose, if he will take the benefit of that 'monopoly, he must, as an equivalent, perform the duty "attached to it on reasonable terms.' In my judgment, the "defendant's predecessor in title, by applying for and putting in "use the charter of 14 Car. I., gave the public the right to "resort to the locks and sluices which were his property for the purpose of passing from section to section of the river Ouse, and, inasmuch as the same charter conferred on that predecessor a monopoly for that purpose, he and his successors "come under an obligation to perform the duties attached to "that monopoly." 666 66 66 With regard to large inland navigable lakes, it would seem to be doubtful whether such lakes are navigable by the public at common law. However, there is no doubt that rights. of navigation may be acquired and have practically been acquired in all such lakes even where the soil of them is private property.3 The Conservancy of Navigation. Lord Hale says, that the office of conservancy is of two kinds: 1st, That relating to nuisances in rivers, founded on statute 1 Hen. IV. c. 12, whereby it is enacted that there shall be commissions granted to survey and keep the waters of great rivers, and to correct and amend the defaults; and 2nd, The conservancy relating to fishing, mentioned in the statute 1 Eliz. 1 12 East, 257; 11 R. R. 452. 2 As to this, see Bristowe v. Cormican, Ir. R., 10 C. L. 432, per Whiteside, C. J.; 3 App. Cas. 641; Blomfield v. Johnson, Ir. R., 8 C. L. C. 8. 3 Marshall v. Ulleswater Co., 3 B. & S. 732; L. R., 7 Q. B. 582; 41 L.J., Q. B. 41; 25 L. T. 793; Micklethwaite v. Vincent, 67 L. T. 225, and ante, pp. 105 et seq., 376 et seq. p. 23. Hale, de Jure Maris, Harg. Tracts, c. 17, and founded on the Statute of Westminster 2, c. 47, for the protection of salmon.1 the Crown, The duty of the conservancy of navigation appears to have Formerly in been entrusted to the Crown as representative of the State. Thus we find that from the earliest times the King, in virtue of his office of Lord High Admiral, was conservator of all ports, havens, rivers, creeks, and arms of the sea, and protector of the navigation thereof; and, according to Sir M. Hale, there was a jurisdiction in the Crown 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. The wording of the early statutes as to weirssuch as the 22nd chapter of Magna Charta, "that all weirs from "henceforth shall be utterly put down by Thames and Medway, "and through all England, but only by the sea coasts"—is evidence of the nature of this prerogative, which was, however, delegated to various subordinate authorities, of which the commissioners of sewers were the most important. 3 + The origin of commissions of sewers, and the principal points Commissions relating to them, so far as they deal with matters connected with of sewers. the law relating to water, have been treated of in a former chapter. It will be necessary, however, again briefly to refer to the subject. 6 9 the word sewer. The term "sewer" is uncertain as regards its derivation, some Meaning of maintaining that it is compounded of seoir, to sit, and eau, water;" others that it means merely to sue or issue, whence suera, while some again derive it from sea and were.8 Mr. Serjeant Callis holds it to be diminutive of river, it being a freshwater trench. compassed in on both sides with a bank, while in modern Acts it is treated as a general term comprising sewers and drains of 1 Ibid. By 17 Ric. II. c. 9, also, it is enacted that "justices of the peace be conservators of the statutes touching "salmons," the statutes there named being 13 Edw. I. c. 47, and 13 Ric. II. c. 19. 2 Hale, de Jure Maris, Harg. Tr. p. 23. It was the custom and duty of the kings of England to defend the realm against the sea, as well as against enemies; Woolrych, 12; Callis, 80; Hudson v. Tabor, 2 C. P. D. 290 (C. A.) ; 46 L. J., Q. B. 63; 36 L. T. 492; see ante, Chap. I. pp. 34 et seq. 3 Ibid.; Lord Denman in Williams v. Wilcox, 8 A. & E. 333; 47 R. R. 595. Lord Hale says, "The king has an in- 4 Cf. chapters xv. and xvi. of Magna Ante, Chap. I. pp. 32 et seq. 6 Termes de la Ley; Woolrych, Law of Sewers, 3rd ed. p. 1. 74 Inst. 275; Woolrych, Law of Sewers, 3rd ed. p. 1. 8 Callis, 80; Woolrych, Law of Sewers, 3rd ed. p. 1. 9 Ibid. Duties and powers of commissioners. 66 every description, except drains connecting houses with cesspools,1 and includes also a marsh wall or embankment. Its application seems to be equally wide. Lord Coke states that "There are 'three manner of statutes which concern sewers. The first "consists in maintaining and repairing walls, sewers, &c. The "second, in destroying and removing nuisances. The third, "which concerns both these points, as well in destroying as in "maintaining." Lord Holt again says, that commissions of sewers to defend the sea were very ancient, and, even in some cases, by special prescription; but that sewers for melioration of land were by Act of Parliament." 6 It was pointed out in the chapter already alluded to, that the powers of commissioners of sewers are derived from the statutes 6 Hen. VI. c. 5, and, more particularly, from the Act of 23 Hen. VIII. c. 5, which was known as the Bill of Sewers. It will also be remembered that the principal subjects under the jurisdiction of commissions issued under the latter enactment, which was modified and amended by subsequent Acts, were-1, Sea walls and such like defences; 2, Bridges, trenches, mills, and other things incident to river conservancy, which might in some case prove obstructions; 3, Navigable rivers; 4, Watercourses, streams and pools; and 5, Sewers and gutters. With regard to these, their duty was to maintain such as were useful, and to remove nuisances, while the commissions were temporary in their nature and all amenable to the Crown. Modern requirements, however, have led to great changes in the nature of these commissions, the inconvenience of the temporary duration of which was soon felt. Not only are commissions of sewers, when once issued, to be now deemed to continue until such time as they may be superseded by the Crown, and their ordinances made indefeasible, until set aside by subsequent Courts of Sewers; but many of their functions have been transferred by legislation to various bodies of modern growth. 1 11 & 12 Vict. c. 63, s. 2: 18 & 19 Vict. 2 Poplar Board v. Knight, 28 L. J., The Vill of Shandrigany v. The Cases, 643; Woolrych, 3; cf. Hudson v. 5 See ante, Chap. I. pp. 34 et seq. 6 Inter alia of such amending Acts may be noted-13 Eliz. c. 9; 3 & 4 Will. IV. c. 22; 24 & 25 Vict. c. 133, s. 14. 7 Sect. 14 of 24 & 25 Vict. c. 133. Thus, their jurisdiction with regard to sewers (using the word Now vested 2 3 commis- With respect to watercourses, streams and pools, the authority or inclosures 4 1. The drainage of land, straightening, widening, deepening, 2. The irrigation and warping of land : 3. The embanking and weiring of land from the sea and manner: * 10. The construction of engine houses, water-wheels, saw and 11. The construction or improvement of jetties or landing-places 1 The principal Acts relating to Loans Acts, 1875 and 1876). 2 The principal statutes on this point 3 By sect. 2. |