Water Rights

The limitations to which the right of the riparian proprietor is subject may be divided into those existing by common right, those imposed for public purposes, and those established against him by Crown grant or by custom or prescription. Under the first head comes the public right of navigation, of anchorage and fishery from boats (in tidal waters), and of taking shell-fish (and prob ably other fish except royal fish) on the shore of tidal waters as far as any right of several fishery does not intervene. Under the second head would fall the right of eminent domain by which the State takes riparian rights for public purposes, compensating the proprietor, the restrictions upon the sporting rights of the pro prietor, as by Acts forbidding the taking of fish in close time, and the Wild Birds Protection Acts, and the restrictions on the ground of public health, as by the Rivers Pollution Act, 1876, and the regulations of port sanitary authorities. The jurisdiction of the State over rivers in England may be exercised by officers of the Crown, as by commissioners of sewers or by the Board of Trade, under the Crown Lands Act, 1866. These powers have now been transferred to the Ministry of Transport. Rivers are frequently controlled by conservation under special acts, upon which their powers mainly depend (see Thames Conservators v. Kent, 1918, 2 K.B. 272). A bridge is erected and maintained by the county authorities, and the riparian proprietor must bear any inconvenience resulting from it. An example of an adverse right by Crown grant is a ferry or a port. The rights established against a riparian proprietor by private persons include the right to land, to discharge cargo, to tow, to dry nets, to beach boats, to take sand, shingle or water, to have a sea-wall maintained, to pollute the water (subject to Rivers Pollution Act), to water cattle, etc. Where the river is navigable, although right of navigation is com mon to subjects of the realm, it may be connected with a right to exclusive access to riparian land, the invasion of which may form the ground for legal proceedings by the riparian proprietor (see Lyon v. The Fishmongers' Company, 1876, 1 A.C. 662). There is no common-law right of support by subterranean water. A grant of land passes all water-courses, unless reserved to the grantor.

A freshwater lake appears to be governed by the same law as a non-tidal river, surface water being pars soli. The preponderance of authority is in favour of the right of the riparian proprietors as against the Crown. Most of the law will be found in Bristow v. Cormican, 1878, 3 A.C. 648.

Unlawful and malicious injury to sea and river banks, towing paths, sluices, flood-gates, mill-dams, etc., or poisoning fish, is a crime under the Malicious Damage Act, 1861.

A Mill may be erected by any one, subject to local regulations and to his detaining the water no longer than is reasonably neces sary for the working of the wheel. But if a dam be put across running water, the erection of it can only be justified by grant or prescription, or (in a manor) by manorial custom. On navigable rivers it must have existed before 1272. The owner of it cannot pen up the water permanently so as to make a pond of it.

Bathing.—The reported cases affect only sea-bathing, but Hall (p. i6o) is of opinion that a right to bathe in private waters may exist by prescription or custom. There is no common-law right to bathe in the sea or to place bathing-machines on the shore. Pre scription or custom is necessary to support a claim, whether the foreshore is the property of the Crown or of a private owner (Brinckman v. Matley, 1904, 2 Ch. 313). Bathing in the sea or in rivers is now often regulated by the by-laws of a local authority. (See also FERRY ; WEIR.) Scotland.—The law of Scotland is in general accordance with that of England. The Crown has (I) a right of property in the

solum and salmon fisheries of the sea—and tidal navigable rivers— within the three miles' limit, which is inter regalia minora and may be alienated by express or implied grant, and (2) a right of navigation and white fisheries in the same which is inter regalia ma fora and inalienable. A Crown charter of lands "bounded by the sea" is a habile title to prescribe a right to the solum of the foreshore, between high- and low-water mark of ordinary spring tides, and if the charter contain a clause cum piscationibus it is a habile title to prescribe a right to the salmon fishing ex adverso of the lands. Where the foreshore is acquired under a Crown grant it remains subject to public uses incidental to navigation and white fishing. Persons engaged in the herring fishery off the coast of Scotland have, by II Geo. III. c. 31, the right to use the shore for I oo yd. from high-water mark for landing and drying nets, erecting huts and curing fish. The right of ferry is one of the regalia minora acquirable by prescriptive possession on a charter of barony. Sea-greens are private property. The right to take seaweed from another's foreshore may be prescribed as a servitude. The riparian proprietors have several rights in the solum of a fresh-water loch and a right in common to use its sur face for boating, fishing and shooting (Mackenzie v. Banks, 1878, 3 App. Cas. 1324). As between opposite riparian proprietors the medium filum is only of importance in determining rights of prop erty in the so/um, or the exercise of fishing rights, where the oppo site proprietors have each rights of fishing but neither has had exclusive possession. See the Salmon Fisheries (Scotland) Acts 1828 to 1868. In Ireland the law is similar to that of England. In R. v. Clinton, I.R. 4 C.L. 6, the Irish court went perhaps beyond any English precedent in holding that to carry away drift seaweed from the foreshore is not larceny. The Rivers Pollution Act, 1876, was re-enacted for Ireland by the similar Act of 1893.

United States.

In the United States the common law of England was originally the law, the State succeeding to the right of the Crown. This was no doubt sufficient in the 13 original States, which are not traversed by rivers of the largest size, but was not generally followed when it became obvious that new con ditions, unknown in England, had arisen. Accordingly the soil of navigable rivers, fresh or salt, and of lakes, is vested in the State, which has power to regulate navigation and impose tolls. The admiralty jurisdiction of the United States extends to all public navigable rivers and lakes where commerce is carried on between different States or with foreign nations (Genesee Chief v. Fitzhugh, 12 Howard's Rep. 443). And in a case decided in 1893 it was held that the open waters of the great lakes are "high seas" within the meaning of s. 5346 of the Revised Statutes (U.S. v. Rodgers, 15o U.S. Rep. 249). A State may establish ferries and authorize dams. But if water from a dam overflow a public high way, an indictable nuisance is caused. The right of eminent do main is exercised to a greater extent than in England in the com pulsory acquisition of sites for mills and the construction of levees or embankments, especially on the Mississippi. In the drier country of the west and in the mining districts, the common law as to irrigation has had to be altered, and what was called the "Arid Region Doctrine" was gradually established. By it the first user of water has a right by priority of occupation if he give notice to the public of an intention to appropriate, provided that he be competent to hold land. (See EASEMENT; FISHERIES; SERVITUDE.)