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 entitled 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 to the contrary. 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 zuldition by alluvium belongs to the land to which it attaches itself ; unless the lands of the proprietors on each side has been marked out by other known boundaries, such as stakes, &e. in the river. (Bracton ' De acquirendo rerun dominio,"Dig.' 41, tit. I, s. 7.) But if the course of the river is changed suddenly and sensibly, then the boundaries of the Lends will be, as they were before, in the midst of the deserted channel of the river. Special custom may also alter this general presumption of law. Though fresh-water rivers are presumed to be the property of adjacent landowners, yet no such owner can set up a ferry and demand a toll unless by prescription or by charter from the king. In early times also the king by his prerogative might prevent all persons from fishing or fowling in any river until he had first taken his pleasure there. This was effected by directing a precept to the sheriff com manding him to cause all persons to abstain from approaching the banks. By Magna Charts this prerogative was restricted to such streams as it had been exercised upon in the tune of Henry I. Subsequently the custom was to name the rivers in the precept to the sheriff; among these was the Avon, at least that part which flows through Worcestershire. Eventually the prerogative fell into disuse. In those rivers which are navigable, and in which the public have a common right to 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 property, but also where they arc come to be private property ; such rivers are called " flurii regales," " haut etreames le roy," " 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 bud 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 high
way on land attach to such rivers. Accordingly any nuisances or obstructions upon them may be indicted even though the nuheutces be in the private soil of any person ; or the nitieinces and obstructions may be abated by individuals without process of law. It must not however be inferred that all the incidents of a land highway 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 land highway, in planing over the adjacent land. And though a river is a public navigable river, there is not therefore any right at common law for parties to use the banks of it as a towing-path.
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. Canis says that the soil of the sea and of royal rivers belongs to the king. But the expression, if intended to apply to all parts of the rivers where the public have a right of passage, appears too comprehensive.
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 property 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 claim; 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 ejusdem'; Catlin, 'On Sewers?) The property in the mere running water is in no one; but the Proprietor of adjoining land is entitled to the reasonable use of it as it rune by his land. "And consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors who may be affected by his operations, no proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, or throw the water back upon the proprietors above. Every proprietor who claims a right either to throw the water tack above, or to diminish the quantity of water which is to descend below, must, in order to main tain his claim, either ',rove an actual grant or license from the proprietors affected by Ins operations, or must prove an uninterrupted enjoyment of twenty years.'