1902 Encyclopedia > Riparian Laws

Riparian Laws

RIPARIAN LAWS. By the law of England the property in the bed and water of a tidal river as high as the tide ebbs and flows at a medium spring tide is pre-sumed to be in the crown or a grantee of the crown, generally the lord of a manor, and the bed and water of a non-tidal river are presumed to belong to the person through whose land it flows, or, if it divide two properties, to the riparian proprietors, the rights of each extending to mid-stream (ad medium filum aquse). In order to give riparian rights, the river must flow in a defined channel, or at least above ground. The diminution of underground water collected by percolation does not give a cause of action to the owner of the land in which it collects, though he is entitled to have it unpolluted unless a right of pol-lution be gained against him by prescription. As a general rule a riparian proprietor, whether on a tidal or a non-tidal river, has full rights of user of his property. The most important limitations of these rights will be found under the headings FISHERIES and NAVIGATION LAWS. In both these cases the rights of the riparian proprietors are subject to the intervening rights of other persons. These rights vary according as the river is navigable or not, or tidal or not. For instance, all the riparian proprietors might combine to divert a non-navigable river, though one alone could not do so as against the others, but no combination of riparian proprietors could defeat the right of the public to have a navigable river maintained undiverted. It is proposed in this place to consider shortly the rights enjoyed by, and the limitations imposed upon, riparian proprietors, in addition to those falling under the head of fishery or navigation. In these matters English law is in substantial accordance with the law of other countries, most of the rules being deduced from Roman law. Perhaps the main difference is that running water is in Roman law a res communis, like the air and the sea. In England, owing to the greater value of river water for manufacturing and other purposes, it cannot be said to be common property, even though it may be used for navigation. The effect of this difference is that certain rights, public in Roman law, such as mooring and unloading cargo, bathing and towing, are only acquirable by prescription or custom in England. A hut might lawfully be built on the shore of a tidal river by Roman law; in England such a building would be a mere trespass.

The principal rights enjoyed by riparian owners as such are the right of increase of property by means of alluvion and the right of use of the water.

Alluvion is the gradual and imperceptible increase of land by deposit; a sudden and violent changing of the course of a stream by a flood does not change the property. The addition to property by alluvion, is occasionally of considerable practical importance. In the reign of Charles I. the estate of Lord Berkeley was increased by 300 acres left dry by the Severn. The land was claimed for the crown, but judgment was given in favour of Lord Berkeley. If an island be formed in the stream, it belongs to the proprietor to whose land it is nearest; if it be exactly in mid-stream, it belongs to the riparian proprietors equally. The right of use of the water ef a natural stream cannot be better described than in the words of Lord Kingsdown :—"By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land, —for instance, to the reasonable use of the water for domestic purposes and for his cattle, and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up a stream for the purposes of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury," (Miner v. Gilmour, 12 Moore's Privy Council Cases, 156). The rights of riparian proprietors where the flow of water is artificial rest on a different principle. As the artificial stream is made by a person for his own benefit, any right of another person as a riparian proprietor does not arise at common law, as in the case of a natural stream, but must be established by grant or prescription. The rights of a person not a riparian projirietor who uses land abutting on a river by the licence or grant of the riparian proprietor are not as full as though he were a riparian proprietor, for he cannot be imposed as a riparian proprietor upon the other proprietors without their consent. The effect of this appears to be that he is not entitled to sensibly affect their rights, even by the ordinary as distinguished from the extraordinary use of the water.

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 probably 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 fishery rights of the proprietor, as by Acts forbidding the taking offish in close time, and the restrictions on the ground of public health, as by the Rivers Pollution Act, 1876. The jurisdiction of the state over rivers in England may be exer-cised by officers of the crown, as by commissioners of sewers or by the Board of Trade under the Crown Lands Act, 1866. A bridge is erected and supported 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 (q.v.) or a port. The crown, moreover, as the guardian of the realm, has jurisdiction to restrain the removal of the foreshore, the natural barrier of the sea, by its owner in case of apprehended danger to the coast. The rights established against a riparian proprietor by private persons must as a rule be based on prescription or custom, only on prescription where they are in the nature of profits a prendre (see PRESCRIPTION). Among such rights are the right to bathe, to land, to discharge cargo, to tow, to dry nets, to beach boats, to take sand, shingle, or water, to have a sea-wall main-tained, to pollute the water (subject to the Rivers Pollution Act). In some cases the validity of local riparian customs has been re-cognized by the legislature. The right to enter on lands adjoining tidal waters for the purpose of watching for and landing herrings, pilchards, and other sea-fish was confirmed to the fishermen of Somerset, Devon, and Cornwall by 1 Jac. I. c. 23. The digging of sand on the shore of tidal waters for use as manure on the land was granted to the inhabitants of Devon and Cornwall by 7 Jac. I. c. 18. The public right of taking or killing rabbits in the day-time on any sea bank or river bank in the county of Lincoln, so far as the tide extends, or within one furlong of such bank, was pre-served by 24 & 25 Vict. c. 96, § 17. It should be noticed that rights of the public may be subject to private rights. Where the river is navigable, although the right of navigation is common to the 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, Law Reports—Appeal Cases, vol. i., 662).

A freshwater lake appears to be governed by the same law as a non-tidal river. The preponderance of authority is in favour of the right of the riparian proprietors as against the crown.

Unlawful and malicious injury to sea and river banks, towing paths, sluices, floodgates, milldams, &c., or poisoning fish is a crime under 24 & 25 Vict. c. 97.

Scotland. —The law of Scotland is in general accordance with that of England. One of the principal differences is that in Scotland, if a charter state that the sea is the boundary of a grant, the fore-shore is included in the grant, subject to the burden of crown rights for public purposes. Persous engaged in the herring fishery off the coast of Scotland have, by 11 Geo. III. c. 31, the right to use the shore for 100 yards from high-water mark for landing and drying nets, erecting huts, and curing fish. Similar powers were given to those engaged in any white fish fishery by 29 Geo. II. c. 23 ; but the section of the Act giving these powers was repealed by the Sea Fisheries Act, 1868.

United States.—In the United States the common law of England was originally adopted, the State succeeding to the right of the crown. This was no doubt sufficient in the thirteen original States, where rivers of the largest size do not occur, but was not generally followed in later times when it had become obvious that English law was insufficient to meet the case of the vast rivers and lakes of North America. " In Pennsylvania, North Carolina, South Carolina, Iowa, Mississippi, and Alabama, it has been determined that the common law does not prevail, and that the ownership of the bed or soil of all rivers navigable for any useful purpose of trade or agriculture, wdiether tidal or fresh water, is in the State" (Bouvier, Law Diet., s.v. "Eiver"). The supreme court of the United States in 1857 declared constitutional an Act of Congress of 1845, extending the admiralty jurisdiction of the United States to all public navigable rivers and lakes where commerce is carried on between different States or with foreign nations (The Propeller Genesee Chiefs. Fitzhugh, 12 Howard's Reports, 443). The right of eminent domain has been exercised to a much greater extent than in England in the acquisition of sites for mills under the powers of State legislation in encouragement of trade. Such a course has never been necessary in England (see Angell, Law of Watercourses, § 478). The law as to subterranean water seems to be still unsettled. Some State decisions have recognized a public right to moor vessels and place cargo on the shore. (J. W†.)

The above article was written by: James Williams.

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