This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The waters of a canal, having been devoted by the Legislature to that special purpose, are, as respects the power of adjoining owners to acquire a right over them, on a different footing from waters flowing in their natural stream, or in an ordinary artificial watercourse; and the above stated rule that the purpose for which artificial waters have been collected must be regarded in determining whether any prescriptive rights have been acquired over them, applies with especial force to the waters of canals (i).
A right to pump water from a mine, and to use it, and then let it pass over adjoining land, has been held to be a right of "watercourse" within the Prescription Act (7c).
Right to pump water from a mine and use it;
(d) Greatrex v. Hayward, (1853) 8 Ex. 291; 22 L. J. Ex. 137; Wood v. Waud, (1849) 3 Ex. 748; 18 L. J. Ex. 305; Hanna v. Pollock, 1900, 2 Ir. R. 664.
(e) Staffordshire Canal Co. v. Birmingham Canal Co., (1866) L. R. 1 H. L. 254; 35 L. J. Ch. 757; and see Creyke v. Level of Hatfield Chase, (1896) 12 T. L. R. 383.
(f) Arkwright v. Gell, (1839) 5 M. & W. 203; 8 L. J. N. S. Ex. 201; Gale, 10th ed. 280, 282.
(g) Wood v. Waud, (1849) 3 Ex. 748; 18 L. J. Ex. 305; Arkwright v. Gell, sup.; Gale, 279.
(h) Burrows v. Lang, 1901, 2 Ch. 502; 70 L. J. Ch. 607. Cf. Whitmores (Edenbridge), Ltd. v. Stanford, 1909, 1 Ch. pp. 436, 437.
(t) Staffordshire Canal Co. v. Birmingham Canal Co., (1866) L. R. 1 H. L. 254; 35 L. J. Ch. 757; and see Mason v. Shrewsbury & Hereford R. Co., (1871) L. R. 6 Q. B. 5.78; 40 L. J. Q. B. 293.
(k) Wright v. Williams, (1836) 1 M. & W. 77; Gale, 10th ed. 409; Goddard, 8th ed. 321, 328.
So, a right to discharge rain-water from the roof of a house upon adjoining land may be acquired by twenty years' user (I). A reservation of "the free running of water and soil coming from any buildings and lands contiguous to the premises demised" was held to mean only water in its natural condition, and such matters as are the result of the ordinary use of land for purposes of habitation, and not to include refuse from a manufactory (m).
To discharge rain-water.
Reservation of water and soil.
The bed of all tidal navigable (n) rivers, and of all arms of the sea, presumably belongs to the Crown; but primarily for the benefit of the subjects. And the public right of navigation is paramount to the private right even of an express grantee of the soil (o). Where a river is not tidal the riparian proprietor on either side is presumed to be the owner of the soil usque ad medium aquae (p); and it is presumed that on a conveyance of the land abutting on such river, whether freehold or leasehold (q), the soil of the alveus ad medium aquce is intended to pass (r). But the presumption may be rebutted by the surrounding circumstances showing a contrary intention (s). It is not, however, sufficient evidence of a contrary intention to show that the soil of the river was not included in the measurements given in the parcels (t), nor that circumstances make it disadvantageous to the vendor that the soil should pass (u), nor that the vendor was owner of both banks of the river (x). But the presumption does not arise where it is shown that the bed of the river would not have passed even though expressly mentioned (y).
Rights of the Crown and others to the soil of watercourse.
(l) Thomas v. T., (1835) 2 C. M. & R. 34; Goddard, 515.
(m) Chadwick v. Marsden, (1867) L. R. 2 Ex. 285; 36 L. J. Ex. 177; Phillimore v. Watford, 1913, 2 Ch. 434.
(n) Murphy v. Ryan, (1868) 2 I. R. C. L. 143, 152; Earl of Ilchester v. Rashleigh, (1889) 61 L. T. 477; 38 W. R. 104.
(o) Gann v. Free Fishers of Whitstable, (1864) 11 H. L. C. 192; 12 L. T. 150; see, too, Malcolmson v. O'dea, (1863) 10 H. L. C. 593; 12 W. R. 178.
(p) Wishart v. Wyllie, (1853) 1 Macq. 389; 1 W. R. 538; Wright v. Howard, (1823) 1 S. &; S. 190; see, too, Re Popple and Barratt, (1877) 25 W. R. 248, case of a public drain or dyke in fen district. The rule does not apply to minerals under an adjoining canal, Chamber Coll. Co. v. Rochdale Canal Co., (1895) 73 L. T. 258; 64 L. J. Q. B. 645.
(q) Tilbury v. Silva, (1890) 45 Ch. D. 98; and see C. L. R. Co. v. City of London Land Tax Commrs., 1911, 1 Ch. 467; 1911, 2 Ch. 467.
(r) The presumption is the same as regards roads, R. v. Pratt, (1855) 3 C. L. R. 686; 24 L. J. M. C. 113; C. L. R. Co. v. City of London Land Tax Commrs., 1911, 2 Ch. pp. 473, 474. Where the river is divided by islands the medium is the central line between the banks, not the centre of the main channel, Menzies v. Breadalbane (No. 1), (1902) 4 F. 55, Ct. of Sees.; but see Great Torrington Conservators v. Moore Stevens, 1904, 1 Ch. 347; 73 L. J. Ch. 124, where it was held that the line to be drawn must not be through the island, but through the stream between the island and the plaintiff's land.
Although waters above the flow and reflow of the tide are prima facie private rivers, the public may acquire a right to navigate the same by dedication, or immemorial user, or Act of Parliament. The right thus acquired is simply a right of way similar to the right of the public to passage along a public road or path. It is a narrower right than the right of the public to navigation in the sea (z). The public who have acquired a right to navigate an inland water have no right of property in the bed, nor have they a right of public fishery (a).
The law relating to the ownership of the bed and generally, is the same for large internal waters or lakes as for small ones (b).
The right of fishing in the sea between high and low water mark, in tidal waters and in public navigable rivers so far as the tide ebbs and flows, is prima facie vested in all subjects of the realm (c). As between the Crown or the Crown's grantee and a seaside landowner, the right of the former is presumably limited by the line of medium high-tide, between the spring and the neap tides (d).