RIVER. In a legal sense rivers are divisible into fresh and salt-water rivers. Salt-water rivers are those rivers or parts of rivers in which the tide ebbs and flows. Rivers are also divisible into public or navigable rivers and private rivers.
The property in fresh-water rivers, whether public or private, is presumed to belong to the owners of the adjacent land ; the owner on each side being en titled to the soil of the river and the right of fishing as far as the middle of the stream. But this presumption may be rebutted by evidence of special usage to the contrary. For instance, it may be shown that the river belongs to one per son, and the adjacent land to another ; or that one party owns the river and the soil of it, and another the free or several fishery of the river. If a fresh-water river between the lands of two owners gains on one side by insensibly shifting its course, each owner continues to retain half the river, and the insensible addition by alluvium belongs to the land to which it attaches itself; unless the lands of the proprietors on each side have been marked out by other known boundaries, such as stakes, in the river. This part of the law as to the acquisition by alluvio, is stated by Bracton in the chapter " De se quirendo rerum domino" (fol. 9), and his statement both in substance and expres sion is taken from the Digest (41, tit. 1, a. 7), with which Gains may be compared 70). But if the course of the river is changed suddenly and sensibly, then the boundaries of the lands will be, as they were before, in the midst of the deserted channel of the river. Though fresh water rivers are presumed to be the pro perty of adjacent landowners, yet such owner cannot set up a ferry and demand a toll unless by prescription or by charter from the king.
In those rivers which are navigable, and in which the public have a common right to a passage, the king is said to have " an interest in jurisdiction," and this is so not only in those parts of them which are the king's property, but also where they are become private property ; such rivers are called " fluvii regales," " haat streames le my,' "royal rivers ;" not as indicating the property of the king in the river, but because of their being dedicated to the public use, and all things of public safety and convenience being under his care and protection. Thus a common highway on land is called the king's highway, and navigable rivers are in like manner the king's highway by water. Many of the incidents belonging to a highway on land attach to such rivers.
Accordingly any nuisances or obstructions upon them may be indicted even though the nuisances be in the private soil of any person ; or the nuisances and obstructions may be abated by individuals without process of' law. But all the incidents of a land highway do not attach to such rivers. Thus, if the highway of the river is obstructed, a passenger will not be justified, as he would be in the case of a laud highway, in passing over the ad jacent land. Though a river is a public navigable river, there is not theretbre any right at common law for parties to use the banks of it as a towing-path. (Ball v. Herbert, 3 T 1?., 253.) If a river which is private in use as well as in property be made navigable by the owner, it does not therefore become a public river unless from some act it may be presumed that he has dedicated it to the public. The taking of toll is such an act. Callis says that the soil of the sea and of royal rivers belongs to the king. Bat the expression, if intended to apply to all parts of the rivers where the public have a right of passage, appears too com prehensive.
But there is no doubt that in some such rivers the property may be in the crown; as it was in the river Thames, the pro perty in which, both as to the water and the soil, was conveyed by charter to the lord mayor and citizens of London. And in all rivers as far as the tide flows, the property of the soil is in the king, if no other claims it by prescription. In navigable rivers where the tide flows, the liberty of fishery is common and public to all persons. (Hale, De Jure Maris et Brachiorum cusdem ; Callis, On Sewers.) The mere running water belongs to no one ; but the proprietor of adjoining land is entitled to the reasonable use of it as it runs by his land. "And consequently no proprietor can have the right to use the water to the prejudice of any other pro prietor. Without the consent of the other proprietors who may be affected by his operations, no proprietor can either dimi nish the quantity of water which would otherwise descend to the proprietors be low, or throw the water back upon the proprietors above. Every proprietor who claims a right either to throw the water back above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or licence from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years." (Judgment of Sir J. Leach in Wright v. Howard ; Sim. and Stuart, 109; Gale, On Easements.)