1875

Lyon v. Fishmongers' Company,

L.JJ.

account of the obstruction, but surely they could have prosecuted an indictment to enforce their right of landing. There are two cases in which the courts of common law 692] have had to consider the consequences of an obstruction which prevented persons from landing at a wharf where they were entitled to land. In the Eastern Counties Railway Company v. Dorling (') the plaintiffs and the defendant were the owners of rival steamboats, and were entitled to use the same wharf at Ipswich, by the license of the wharfinger, to land and embark their passengers. wharf could only be approached by the steamboats at high tide, and the plaintiffs had placed a dummy in front of the wharf to enable them to land and embark passengers at all times of the tide. The action was in trespass against the defendant for using the plaintiff's dummy, and it was held that the defendant was entitled to use the plaintiff's dummy at high tide when the dummy prevented the defendant's vessel from getting to the wharf, but not at low tide, when the vessel could not have got to the wharf even if there had been no dummy. A great number of pleas were pleaded, but they all depended on the public right of navigation, and nothing was said about any private right in the wharfinger. In Marshall v. Ulleswater Company (3) the plaintiff was the owner of the soil covered with water, and kept up a pier in the lake which prevented the defendants from bringing their steamboats close to the land immediately adjoining the pier, of which land the defendants were lessees. That, therefore, was a case in which the riparian proprietor was directly deprived of access to his own property. was held that the defendants were entitled to use the plaintiff's pier, but their right to do so was entirely rested upon the lake being a public navigable lake. There were no pleadings, but Mr. Justice Blackburn states what would have been the proper plea for the defendants to have pleaded. He says (), "I think that if this case turned on a plea it would be sufficient to allege that the plaintiff maintained the pier in such a place that it was impossible for the public to use their right to navigate without either knocking down or removing it, and therefore the defendants having a right to go, went, doing no unnecessary damage, across the pier."

It

We cite these cases not as decisions that there is no such private right as alleged, but as proving that the wharfinger 693] is amply *protected in his right of access to his wharf (1) 5 C. B. (N.S.), 821. (3) Law Rep., 7 Q. B., 173.

(2) Law Rep., 7 Q. B., 166.

L.JJ.

Lyon v. Fishmongers' Company.

1875

by his interest as one of the public in the right of public navigation, and that there is no necessity to invent any private right in him as a riparian proprietor. There also appears to us to be great difficulty in making any sound distinction between an obstruction in a river which makes the access to a wharf less convenient, and an obstruction in the river which absolutely stops it up. As a general rule, whatever renders the enjoyment of an easement, either natural or acquired, less convenient, or partially obstructs it, is as much a violation of the right as that which totally destroys it. A riparian proprietor above the flow of the tide can bring an action against a person who diverts a half or any substantial quantity of the water as well as if he diverted the whole. So, a person entitled to a carriageway or a footway can bring an action against a person who puts up a gate or a stile where there was no gate or stile before, although such gate or stile may only cause a slight inconvenience in using the way. If a wharfinger had really a private right, distinct from the public right of navigation, to a free access from the river to his wharf, it seems to us that he could bring an action grounded on his private right against any one who rendered that access less convenient; but Kearns v. Cordwainers' Company (') and the AttorneyGeneral v. Conservators of the Thames (2) are direct decisions that he can bring no such action.

On the whole, we are of opinion that the right of a wharfinger to bring an action or file a bill on account of an obstruction in the river which renders the access to his wharf less convenient, and his right to bring an action or suit on account of an obstruction in the river which deprives him of all access to his wharf, depend on the same legal principle, namely, that he suffers a particular damage from a public nuisance, and that in neither case is there a violation of any private right of his, distinct from the public right of navigation which is in all the Queen's subjects. If this conclusion is correct, it seems to us to follow that we cannot affirm the decision of the Vice-Chancellor consistently with the cases of Kearns v. Cordwainers' Company and the Attorney-General v. Conservators of the Thames, and we are certainly not prepared to *over- [694 rule these decisions. They have, no doubt, been extensively acted upon, and we think they were rightly decided. If the conservators could not license the erection of any wharf or pier which to a greater or less extent interfered with the access of any wharfinger to his wharf, the conser(2) 1 H & M., 1,

(1) 6 C. B. (N.S.), 388.

14 ENG. REP.

107

1875

Lyon v. Fishmongers' Company.

L.JJ.

vators could not exercise their powers in the way intended by the Legislature. We think that the rights which are reserved by the 179th section are the private rights of the owners and occupiers of wharfs, and not their interest in the public navigation of the river.

On these grounds we think that the decree of the ViceChancellor must be reversed and the bill dismissed with costs, except the costs occasioned by the defendants the Fishmongers' Company's claim of an exclusive right to the use of Winckworth's Hole, which costs are to be paid to the plaintiff, one set of costs to be set off against the other. Solicitors for the plaintiff: Messrs. Brettell, Smythe & Brettell.

Solicitors for the Fishmongers' Company: Messrs. Humphreys & Morgan.

See ante, 386 note.

INDEX.

6. Salvage. Salvage services having been
rendered to a ship laden with cargo, a
salvage suit was instituted against
ship, freight and cargo. Separate ap-
pearances were entered on behalf of
the owner of the ship and the owner
of the cargo. The owner of the cargo
filed an affidavit of value stating the 1.
value of the cargo, and the owner of
the ship filed an affidavit of value stat-
ing the value of the ship and freight.
At the hearing, the court, taking these
values as accurate, by its decree
awarded to the salvors a certain sum
as salvage. Some time afterwards, the
owner of the cargo discovered that he
had by mistake included in his valu-
ation of the cargo the value of the
freight, and that the freight was of
more value than appeared by the affi-
davit of value filed on behalf of the
owner of the ship, and he made appli-
cation to the court to reduce the value
of the cargo, and to reduce the amount
it had previously decreed as salvage.
On the mistake being proved:

Held, that the court had power to
correct the mistake and to make the ne-
cessary alterations in the decree. The
Armstrong.
663

7. The captain of a Queen's ship lying
at anchor in a foreign port received
intelligence that an English steamer
was outside the port disabled, and in
a position of great danger, and com-
municated with the master of a screw
steamer which was under charter to
the Lords of the Admiralty as a trans-
port, and was then coaling in the port.
In consequence of this communication
the transport, after taking on board
one officer and a party of petty officers'
and seamen from the Queen's ship, pro-
ceeded to the disabled vessel and suc-
ceeded in placing her in safety. As
salvage remuneration for the services
so rendered a sum of £1,000 was ten-
dered and accepted in a cause of sal-
vage instituted on behalf of the own-
ers, master, and crew of the transport,
and the captain, officers, and crew of
the Queen's ship. On an application
to apportion this sum:
The court awarded £400 to the owners,

master, and crew of the transport,
£400 to the captain of the Queen's ship
and the party of petty officers and
seamen who went on board the trans-

port, and £200 to the officer who ac-
companied them.. The Nile.

See BILL OF LADING, 420.
SHIPS AND VESSELS.

ADVANCEMENT.

693

Stock which had been acquired by a
lady as the survivor of her husband,
who had transferred it into their joint
names, was transferred by her into the
names of herself, her daughter, who
had recently married, and her daugh-
ter's husband; and the dividends of
the stock were enjoyed by the trans-
feror during her life. The daughter
predeceased her mother, and the son-
in-law survived them both :

Held (affirming the decision of Hall,
V.C.), that there was no resulting trust,
and that the son-in-law was entitled to
the fund. Batstone v. Salter.
714

AGENT.

See CRIMINAL LAW, 643-645 note.
PRINCIPAL AND AGENT.

AGREEMENT.

1. Held (reversing the decision of Bacon,
V.C.), that, under an agreement for a
lease to contain "all usual and custom-
ary mining clauses," the landlord was
not entitled to have inserted in the
lease a proviso for re-entry on breach
of any of the covenants by the lessee,
or otherwise than on non-payment of

rent.

Semble, the rule is not limited to
mining leases. Hodgkinson v. Crowe.
823

See ALTERATION, 579, 585 note.
PERFORMANCE, 365.
TITLE, 562, 577 note,
USAGE, 177, 210 note.

ALTERATION.

1. The plaintiff was employed by the de-
fendant to erect buildings on the defen-