give a party an adverse right against those whose lands lay lower down the stream, and to whom it was injurious; and that a possession of above nineteen years, which was shown in that case, was not sufficient." (See Cox v. Matthews, 1 Ventr. 237, cited 5 B. & Ad. 25.) For the important alterations which have been made on this subject by stat 2 & 3 Will. 4, c. 71, ss. 2, 4, 5, 6, 8, see ante, pp. 6, 17, 21, 25, 27. It seems to be a correct proposition of law, that the possessor of land through which a natural stream runs has a right to the advantage of that stream flowing in its natural course, and to use it when he pleases for any purposes of his own, not inconsistent with a similar right in the proprietors of the land above and below; that neither can any proprietor above diminish the quantity or injure the quality of the water which would otherwise descend, nor can any proprietor below throw back the water without his licence or grant; and that whether the loss by diversion of the general benefit of such a stream be or be not such an injury in point of law as to sustain an action without some special damage, yet as soon as the proprietor of the land has applied it to some purpose of utility, or is prevented from so doing by the diversion, he has a right of action against the person diverting. (See Wood v. Waud, 13 Jur. 472, post.)

The converse proposition, that the right to flowing water is publici juris, and that the first person who can get possession of the stream and apply it to a good purpose has a good title to it against all the world, including the proprietor of the lands below, who has no right of action against him unless such proprietor has already applied the stream to some useful purpose also, with which the diversion interferes, and in default of his having done so, may altogether deprive him of the benefit of the water, is said to have originated in a mistaken view of the principles laid down in Bealey v. Shaw, 6 East, 208; Saunders v. Newman, 1 B. & Ald. 258; Williams v. Morland, 2 B. & C. 913. In Williams v. Morland, (2 B. & C. 910,) Bayley, J., said, "Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it: subject to that right, all the rest of the water remains publici juris. The party who obtains a right to the exclusive enjoyment of the water, does so in derogation of the primitive right of the public." In Liggins v. Inge, (7 Bing. 692,) Tindal, C. J., said, "Water flowing in a stream, it is well settled by the law of England, is publici juris. By the Roman law, running water, light, and air, were considered as some of those things which were res communes, and which were defined, things the property of which belongs to no person, but the use to all. And, by the law of England, the person who first appropriates any part of this water flowing through his land to his own use, has the right to the use of so much as he then appropriates against any other." (See 2 Black. Comm. 14; Bealey v. Shaw, 6 East, 208.) Lord Denman, C. J., however, said, "that none of these dicta, when properly understood with reference to the cases in which they were cited, and the original authorities in the Roman law, from which the position that water is publici juris is deduced, ought to be considered as authorities that the first occupier or first person who chooses to appropriate a natural stream to a useful purpose has a title against the owner of land below, and may deprive him of the benefit of the natural flow of water." (Mason v. Hill, 5 B. & Ad. 23.) His lordship, after citing from the Roman law, 2 Inst. tit. 1, s. 1; Dig. book 43, tit. 13, 13, s. 4, proceeded thus, "From these authorities, it seems that the Roman law considered running water, not as a bonum vacans, in which any one might acquire a property, but as public or common, in this sense only, that all might drink it, or apply it to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that particular portion which he might have abstracted from the stream, and of which he had the possession, and during the time of such possession only. We think that no other interpretation ought to be put upon the passage in Blackstone (2 Bl. Com. 14), and that the dicta of the learned judges above referred to, in which water is said to be publici juris, are not to be understood in any other way than this sense; and it appears to us that there is no authority in our law, nor, as far as we know, in the Roman law (which, however, is no authority in ours), that the first occupant, though he may be the proprietor of the

land above, has any right by diverting the stream to deprive the owner of the land below of the special benefit and advantage of the natural flow of water therein. (Mason v. Hill, 5 B. & Ad. 24.) See Arkwright v. Gell (5 Mees. & W. 220), where Parke, B., said, “The object of the judgment in Mason v. Hill was to set right the mistaken notion which had got abroad in consequence of certain dicta in Williams v. Morland (2 B. & C. 910), that flowing water is publici juris, and that the first occupant of it for a beneficial purpose may appropriate it."

The right to have the stream to flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it; that none have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has a right to the usufruct of the stream of water which flows through it.

This right to the benefit and advantages of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state, but it is only a right to the flow of the water and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence. (Per Parke, B., Embrey v. Owen, 6 Exch. 369.)

The position, that the first occupant of running water for a beneficial purpose has a good title to it, is perfectly true in this sense, that neither the owner of the land below can pen back the water nor the owner of the land above divert it to his prejudice. In this, as in other cases of injuries to real property, possession is a good title against a wrong-doer: and the owner of the land who applies the stream that runs through it to the use of a mill newly erected, or other purposes, if the stream is diverted or obstructed, may recover for the consequential injury to the mill. (The Earl of Rutland v. Bowler, Palmer, 290.) But it is a very different question whether he can take away from the owner of the land below one of its natural advantages which is capable of being applied to profitable purposes, and generally increases the fertility of the soil, even when unapplied, and deprive him of it altogether by anticipating him in its application to an useful purpose. If this be so a considerable part of the value of an estate, which, in manufacturing districts particularly, is much enhanced by the existence of an unappropriated stream of water with a fall within its limits, might at any time be taken away and, by parity of reasoning, a valuable mineral or brine spring might be abstracted from the proprietor in whose land it arises, and converted to the profit of another. (Mason v. Hill, 5 B. & Ad. 18.)

To constitute a watercourse in which rights may be acquired by user, the flow of water must possess that unity of character by which the flow on one person's land can be identified with that on his neighbour's land. Water which squanders itself over an indefinite surface is not a proper subjectmatter for the acquisition of a right by user. (Briscoe v. Drought, 11 Ir. Com. Law Rep., N. S. 250, Exch. Cham.)

For upwards of fifty years the rain fall and drainage of a main street of a town situate on the slope of a hill had, for the convenience of the inhabitants, run down through a kennel on each side of the street into a culvert which connected the kennels at the end of the street, and discharged its contents into an open lane through which they flowed into the plaintiff's drain, and were used by him for agricultural purposes, the surplus flowing off into the Shannon. There was no definite channel for the stream of water and sewerage to flow in through the lane, which was the passage to the fair green of the town, and was the property of the defendant; but the lane being lower on one side than the other, the stream flowed along the lower side, spreading more or less over the surface of the lane, and sometimes in floods covering the entire surface. The defendant having stopped the passage by which the stream at the end of the lane flowed into the plaintiff's drain, and diverted the water into a drain upon his own land: it was held,

that there was evidence of a watercourse, viz. water flowing between banks more or less defined. (Ib.) It was held, also, as long as the inhabitants of the town permitted the water and sewerage to continue so to flow, the plaintiff had as against the defendant required a right by presumption of grant to have it continue to flow into his drain, and that the defendant had as against the plaintiff acquired in like manner a correlative right to have the flow continue without such obstruction by the plaintiff as would flood or injure the defendant's lands. (Ib.) It seems that the inhabitants of the town had as against both the plaintiff and defendant, and all intervening proprietors, acquired an easement of having their drainage transmitted through the lane into the Shannon, but that neither the plaintiff nor the defendant, nor any other intermediate proprietor, could as against the inhabitants of the town insist on the continuance of the flow of water and sewerage, if the inhabitants or any of them chose to stop or divert its flow, or alter their system of drainage. (Ib.) When the question at the trial is whether there is a watercourse or not, the judge ought, before he leaves that question to the jury, to instruct them as to what constitutes a watercourse in law. (Ib.)

Where a river is not navigable, the presumption is, that the soil is the Ownership of soil property of the owners on each side to the middle of the river, and conse- of rivers. quently they are entitled to a co-extensive right of fishing. And if a man is owner of the land on both sides, by common presumption he is owner of the whole river. (Hale, de Jure Maris, cap. 1; Carter v. Murcot, 4 Burr. 2162; Harg. L. Tracts, 5; Rex v. Wharton, 12 Mod. 510.) Where in trespass quare clausum fregit the plaintiff claimed the whole bed of the river flowing between his land and the defendant's, the defendant contending that each was entitled ad medium filum aquæ; it was held, that evidence of acts of ownership exercised by the plaintiff upon the banks of the river on the defendant's side lower down the stream, and where it flowed between the plaintiff's land and a farm of C. adjoining the defendant's land, and also of repairs done by the plaintiff to a fence which divided C.'s farm from the river, and was in continuation of a fence dividing the defendant's land from the river, was admissible for the plaintiff. (Jones v. Williams, 2 Mees. & W. 326.)

A right to the use of flowing water does not necessarily depend upon the ownership of the soil covered by such water. (Lord v. Commissioners of Sydney City, 12 Moo. P. C. C. 473.)

In the case of a navigable river, the presumption is, that the soil is vested in the crown, yet a subject may claim a prescriptive right to a several fishery in an arm of the sea even against the crown. (Mayor, &c. of Oxford v. Richardson, 4 T. R. 439. See Rex v. Smith, 2 Doug. 411.) But by grant or prescription a subject may have the interest in the water and soil of navigable rivers, as the City of London has been stated to have the soil and property of the Thames by grant (Dav. 56 b; Com. Dig. Navigation (B); but this has been questioned in some modern cases. (AttorneyGeneral v. Corporation of London, 8 Beav. 270; 2 Mac. & G. 247; 2 Hall & T. 1; Attorney-General v. Johnson, 2 J. Wils. C. C. 87.)

With respect to rivers that are not navigable, the proprietors of the banks on each side have an interest in the fishery of common right. So that every inland river that is not navigable appertains to the owners of the soil. Where such rivers run between two manors, and are the boundaries between them, one moiety of the river and fishery belongs to one lord, the other to the other lord. (Davies, R. 155.) 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. Trespass for breaking down a weir appurtenant to a fishery. Justification, that the weir was wrongfully erected across part of a public and navigable river, the Severn, where the king's subjects had a right to navigate, and that the rest of the river was choked up, so that the defendants could not navigate without breaking down the weir. Replication, that the part where the weir stood

Navigable rivers.

was distinct from the channel where the right of navigation existed, and was not a public navigable river. Rejoinder, that the part was a part of the Severn, and that the king's subjects had a right to navigate there when the rest was choked up; and that the rest was choked up. Surrejoinder, traversing the right. It was held, that in support of this traverse the plaintiff might show user to raise presumption of such a grant as above, and was not bound for the purpose of introducing such proof to set out his right more specifically on the record. 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; 3 Nev. & P. 606.)

Where a grant of wreck was made by Hen. 2, and confirmed by Hen. 8, to the proprietor of land on the coast, who within forty years had constructed an embankment across a small bog to reclaim sea mud, and had since asserted an exclusive right to the soil, without opposition, it was held, that from such usage anterior usage might be presumed; and that the usage, coupled with the terms of the grant, served to elucidate it, and to establish the right so asserted. (Chad v. Tilsed, 2 Brod. & Bing. 403.) By an act of parliament, reciting that a certain tract of land daily overflowed by the sea, and to which the king in right of his crown claimed title might be rendered productive if embanked, and that his majesty had consented to such embankment, a part of the said land, called Lipson Bay, was granted to a company for that purpose. On one side of the bay was the northern side of an estate called Lipson Ground, forming an irregular declivity, in parts perpendicular, and in parts sloping down to the sea-shore, and overgrown with brushwood and old trees. The company, in embanking the bay, made a drain on this side, in the same direction with the cliff, cutting through it in parts, but leaving several recesses of small extent between the projecting points. These recesses used to be overspread with sea-weed and beach, and were covered by the high water of the ordinary spring tides, but not by the medium tides. It was held, in the absence of proof as to acts of ownership, that the soil of these recesses must be presumed to have belonged to the owner of the adjoining estate, and not to the crown, and did not therefore pass to the embankment company by the act of parliament. (Lowe v. Govett, 3 B. & Ad. 863.) 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 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.)

Acts of ownership exercised by the lord of a manor, upon the seashore adjoining, between high and low water mark-such as the exclusive taking of sand, stones and seaweed-may be called in aid to show that the shore is parcel of the manor, where an ancient grant under which the manor appears to have been held, and which professes to grant the manor with "wreck of the sea," "several fishery" and other rights of an extensive description, does not expressly purport to convey "littus maris." (Calmady v. Rowe, 6 C. B. 861.)

Whether a river be navigable or not is a question of fact for the jury. (Vooght v. Winch, 2 B. & Ald. 662.) The flux or reflux of the tide is evidence of a navigable river. (Miles v. Rose, 5 Taunt. 705.) The channel of a public river is properly described as a common highway (Anon. 1 Campb. 517, n.), although the analogy between it and a highway on land is not complete in all particulars; and there is no one circumstance which more decisively affixes on a river the character of being public and navigable in this sense of a highway than the flow and reflow of the tide in it. (Mayor, &c. of Colchester v. Brooke, 7 Q. B. 373.)

By 13 Geo. 2, c. 36, s. 2, a corporation was empowered to do all things necessary to make the Medway navigable, and the river so to be made navigable and all lands to be by them made use of for the benefit of the

navigation were thereby vested in the corporation, their successors, heirs and assigns for ever: it was held that the act conferred upon the corporation such an interest in all the water of the river for the purposes of the navigation as were interfered with by the abstraction of any part by the riparian proprietors, and that it was not necessary that there should be an actual damage to the navigation to entitle the corporation to sue for such abstraction. (Medway Navigation Company v. Earl Romney, 9 C. B., N. S. 575; 7 Jur., N. S. 846; 30 L. J., C. P. 263.

The liberty of passage on a public navigable river is not suspended when the tide is too low for vessels to float. The public right in this respect includes all such rights as, with relation to the circumstances of each river, are necessary for the convenient passage of vessels along the channel. It is therefore no excuse, if a vessel, which cannot reach her place of destination in a single tide, remains aground till the tide serves, although, by custom or agreement, a fine may be payable to the lord of the soil for such grounding. 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. Mayor, &c. of Colchester v. Brooke, 7 Q. B. 339.

The public have a right to use steam power in navigating public canals, provided it occasions no more than the ordinary injury to it. (Case v. Midland Railway Company, 27 Beav. 247; 5 Jur., N. S. 1017; 28 L. J., Chan. 727.

Experiments were directed to be made by a civil engineer in order to ascertain the effect of steam navigation on a canal. (Ib.)

A perpetual injunction was granted to restrain a canal company from preventing a railway company using steam on the canal, the railway company undertaking not to exceed a speed of three miles an hour. (Ib.)

A judgment in an action on the case, disaffirming an exclusive right to a river, is strong evidence in another action trying the same right, but not conclusive. On a question whether a creek be a public navigable river or not, instances of persons going up it for the purpose of cutting reeds, and on parties of pleasure, without the consent of the person claiming exclusive property in the creek, are evidence sufficient for the jury to presume it a public river. (Miles v. Rose, 1 Marsh. 313; 5 Taunt. 705; 4 Maule & S. 101.) It was held in that case that the cutting of rushes in the creek by strangers, without interruption, was a strong circumstance to show that the river was public, and the fact that pleasure-boats were accustomed to sail up the creek was also relied on. But a right to a track path on each side of the river Tees (alternately) for towing without paying any acknowledgment, was found upon a trial at bar. (Pierce v. Lord Falconberge, 1 Burr. 292.) If an act of parliament for enclosing and allotting the commons and waste lands of a parish through which a navigable river flows empower commissioners to set out such public and private roads and ways as they shall think necessary, and direct that all roads and ways not so set out shall be deemed part of the lands to be allotted, an ancient towing-path upon the banks of the river, though not set out by the commissioners, still subsists, for it is not within their jurisdiction. (Simpson v. Scales, 2 Bos. & P. 496.) A statute authorizing the making of a new course for a navigable river, and turning the whole part into a floating harbour, will not without words for the purpose put an end to a public towing-path upon that part; but such towingpath will be liable to be used as such for the purposes of the harbour, and it will make no difference though the river was a tide river, and not navigable at low water. (Rex v. Tippett, 1 Russ. on Crimes, 346, 3rd ed.)

The public at large have no common law right to bathe in the sea, and, as Rights as to seaincident thereto, of crossing the shore on foot or with bathing machines for shore. that purpose. (Blundell v. Catterall, 5 B. & Ad. 268.) So there is not at common law a general right in the public of entering the seashore for the purpose of taking seaweed. (Howe v. Stowell, 1 Alcock & Napier, 348.) A grant by the crown to a subject of the soil of the seashore below low