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to market at a smaller expense and in a better condition, in both which respects the public were benefited;" and he then left to their decision the following questions: "Were the staiths erected in a reasonable place? Was there a reasonable space left for the public navigation in the Tyne? Were the staiths a public benefit? Did the public benefit countervail the prejudice done to individuals?" The jury said that in consequence of this direction they found the defendants not guilty.

The case was brought before the full court, consisting of the same judge, Mr. Justice Bayley, and two other very eminent judges, Mr. Justice Holroyd and Lord Tenterden. Mr. Justice Bayley adhered to his own opinion; Lord Tenterden differed; Mr. Justice Holroyd, though he came to the conclusion the verdict should not be disturbed, did not lay down the law quite in the same terms as Mr. Justice Bayley as regards the public benefit. As I understand it, he only put the law to this extent, that the public benefit might possibly countervail the public injury; for really they are both public, so that, taking it on the whole, the public was benefited. That case came under discussion in the case of Rex v. Ward (4 A. & E. 384), where Sir William Follett, whose interest it was to support Rex v. Russell as far as he could, thus speaks of it (4 A. & E., 395): "The doctrine of Rex v. Russell need not come under discussion; nor is there any conflict of authorities. Erections may be made in a harbor, below high-water mark, and in places where vessels might perhaps have sailed; and the question whether they are a nuisance, or not, will depend on this: whether, upon the whole, the produce public benefit; not giving to the terms public benefit' too extended a sense, but applying them to the public frequenting the port."

I take it that that statement in argument of Sir William Follett was a correct statement of the law. Lord Denman, in giving the opinion of the full Court of Queen's Bench, says (4 A. & E. 402): "The greatest weight is due to the authority of Mr. Justice Bayley, who thus charged the jury, and after

wards upheld his opinion in this court; and no person can hesitate to ascribe every quality of an excellent judge to Mr. Justice Holroyd, who agreed with him in thinking that the rule for a new trial for misdirection ought to be discharged. But, when we examine the grounds of this opinion, as delivered by the latter, they will not be found to support in any degree the proposition just noticed in the summing-up "—that is, in the summing of Mr. Justice Bayley -"on the contrary, he plainly consid ers the topic to have been introduced as an answer to some observations invidiously made to the defendant's prejudice, by the counsel who conducted the prosecution, and thinks that it must be qualified throughout the summingup, and even to its close, by its connection with that argument. Mr. Justice Bayley himself, who delivered his judg ment after Mr. Justice Holroyd, takes a much wider range, maintaining the right to estimate the balance of public benefit and public inconvenience, and to take into the account of the former the advantages that may be derived from the change by any part of the public. He takes for an example the purchasers of coals sent from the indicted staith to a distant market. Lord Tenterden thought it wrong to submit such extensive views to the jury, and that the question ought simply to have been, whether the navigation and passage of vessels over this public navigable river was injured by those erections.""

Now that is the final judgment; but there had been a previous judgment, a short judgment, as to the whole of the case, and what Lord Denman said was this (4 A. & E., 400): "My understanding at the trial certainly was, that the question was much the same as that in Rex v. Russell (6 B. & C., 566), a case the authority of which has been much doubted, and is perhaps likely to be more so as it is further examined." So that it must be taken to have been the opinion of the full Court of Queen's Bench, in Lord Denman's time, that the summing-up of Mr. Justice Bayley in Rex v. Russell could not be supported; he does not say so in distinct and clear

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terms, but the effect of the judgment of the full court was, that they agreed with Lord Tenterden and disagreed with Mr. Justice Bayley. What really were the points on which they disagreed? I think they were two, and I think on those two points the charge of Mr. Justice Bayley was erroneous. In the first place, I think the benefit, whatever it is, must be a public benefit to the same public, that is, the same public who use the navigation, or, as it was put by Sir William Follett, "the public frequenting the port." In the next place, I think that the benefit to the public must be a direct benefit, whereas the benefit which he was considering was an indirect, and, as it appears to me, too remote a benefit. It was that coals came to the London market in rather a better condition, and were possibly sold at a lower price. That does not appear to me to be a public benefit in the sense of the term in which it ought to be used when considering the question of nuisance.

Then, it may be asked, what is a public benefit in my view? I say it is a benefit of a similar nature, showing that on the balance of convenience and inconvenience the public at that place not only lose nothing, but gain something by the erection. There are two cases in the books which will illustrate my meaning, and I think fairly show what sort of public benefit it is. The first is this: In the case of a tidal harbor of irregular shape it may be desirable to straighten the sides, the result of which would be, of course, in the parts where you take away the waterway, to diminish the area usable for navigation; in those parts where you add to the water-way you would increase the area. If, in the course of this straightening, the whole of the harbor is made larger and more commodious, then I think the public benefit gained at the particular point where the navigable water is narrow overbalances the public injury, and, in that sense, that improvement of the harbor would not be a nuisance; and that is what I understand Lord Hale intends to say in the passage which has been referred to.

Another case is this, which also appears in reported cases: Suppose you have a navigable river, and it is necessary to cross it by a bridge, and the river is too wide to allow of a bridge of a single span, you must then put one or more piers into the middle of the river, and, of course, according to the extent you introduce bridge piers or bridge arches into a navigable river, you to some extent diminish the waterway, and to some extent, perhaps to a more or less material extent, obstruct the navigation. But it is for the public benefit at that spot that a public road should be carried over the river by the bridge, and that benefit may so far exceed the trifling injury, if injury it be, to the navigation, that on the whole a court of justice may fairly come to the conclusion that a public benefit of a much greater amount has been conferred on the public than the trifling injury occasioned by the insertion of the piers into the bed of the river. that case also it would be a public benefit that would counterbalance the public injury. I give those as illustrations, but I think it must be confined, as put by Sir William Follett in his argument, to cases of public benefit, and not used in too extended a sense.

In

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single stake in the stream, something too trifling to bear discussion; but where there is really an interference with the navigation, of course it is not within that doctrine. Then, is there an interference? Upon that, when you come to look at the facts, there really does not seem to be much room for argument. I cannot consider the comparison which has been so often suggested, both in the evidence and in the argument, of the illegal state of things produced by the defendant before he constructed these works, and the state of things produced by the new works. I must look upon it that the defendant has not acquired a right to keep his platform or his sloping piles there, and has chosen to remove them; that the case must be treated exactly in the same way as if they had never existed; and therefore the question is, whether erecting these piles, and putting up this platform in this narrow river, can, to a person of ordinary common sense, on the facts which I am about to state, be considered as an interference with the navigation. [His Honor then reviewed the evidence as to the width of the river, the size of the vessels navigating it, and the probable obstruction which the defendant's works would occasion, and continued :]

I am of opinion that this is a material obstruction to the navigation, and would be indictable at law as a nuisance. If it was necessary to rest my decision on that, I should have no difficulty in doing so; but I do not think it is necessary, for there is another ground also, and a ground of very great importance, upon which I say the informant is entitled to a decree, and that is this-that no man has a right to put an obstruction in the bed of a navigable river. As I understand the law, it is not an answer to say that at this moment the obstruction is not a nuisance: it may become so; a change may take place either in the mode of navigating the river, that is, as regards the vessels using the river, or a new mode of constructing vessels may be adopted, or a change may take place as regards the form of the harbor itself by removing an obstruction, or otherwise, which might make that navigable which was not before navi

gable in any useful sense. If you allow the obstruction to remain, you allow the person erecting the obstruction to obtain by law, by reason of the lapse of time, a right to keep the obstruction there, so that when the time arrives at which the obstruction really impedes the navigation, you will not be able to remove it. It is for that reason so important that a person complaining of the obstruction, though not able to maintain an indictment for nuisance because an actual nuisance has not yet been committed, should be able to come to a court of equity and ask that court to restrain the continuance of that obstruction.

This matter has been considered several times. I will refer to two cases on the point, though they do not actually relate to a public navigable river. The first is a case of Bickett v. Morris, (Law Rep., 1 H. L., Sc. 47). That decided this-that in the case of a private river, where there were two riparian owners, each entitled to the soil ad medium filum aquæ, both entitled to the uninterrupted flow of water, neither of those could erect on his own land any structure which might be eventually, though not then, an obstruction to navigation. Now, as Lord Westbury put it, this decision establishes the important principle that an encroachment on the alveus of a running stream may be complained of without the necessity of proving that damage has been sustained or likely to be sustained, the reason being that which I have given-that you cannot tell what may happen hereafter, and that the obstruction itself being allowed to remain will gain for the obstructor a prescriptive right. That was a Scotch case, but it was decided by English judges, and expressly on the ground that the Scotch and English law was the same; so it is an authority for English law. That is a case to a certain extent à fortiori, because there the man was erecting a structure on his own soil, the half part of the river belonging to him.

The point was considered as regards a navigable river in the case of Attorney-General v. Earl of Lonsdale, (Law Rep., 7 Eq., 377), where Vice-Chancellor Malins distinctly held that the same