before an eminent judge, was only a nisi prius decision. It is a short note, vid. 1 Burr. 36, taken by Lord Raymond when he was very young; not even the name of the case is given; and it does not appear what the case was, or how the question arose: I rather think the principal question there was whether, when a right of passage was ascertained, and that was founderous, the party entitled might not go on the adjoining land. However, at most it is only an opinion delivered at nisi prius; opposed to which is that of Lord Ch. J. Willes in the case cited. And Lord Hardwicke's opinion was against the right, as is evident from the manner in which he sent the case of Peirse v. Ld. Fauconberg into this court, which was very fully considered. Therefore, on these authorities, on the silence in the books respecting this common law right, and on account of the extreme inconvenience to which individuals having lands adjoining the public rivers would be subject, I cannot bring my mind to say that the defendant's justification can be supported. Perhaps small evidence of usage before a jury would establish a right by custom on the ground of public convenience; but the right here claimed extends to every bank of every navigable river throughout the kingdom.

ASHHURST, J. I am of opinion, first, that no such general right exists. as that claimed; and, secondly, if any qualified right could be supported, the defendant's plea is not adapted to it. As to the first, it seems extraordinary (if there be any such right) that it is not defined with greater certainty in any of our law books. For it is a right that in its nature must, if it existed, be subject to some restrictions; as that it should be exercised only on one, and that the most convenient, side of the river; for it would in many instances be a very oppressive right if it could be claimed on both sides. The state of property on the Thames is strong evidence to show that no such general right exists; for there is no instance in any part of the banks of that river where the right is claimed on both sides; and yet the defendant's claim would go to establish a right on both sides. The instances which have been mentioned where the right of towing has been given by several Acts of Parliament, also negative the idea of general right; for we are not to suppose that rights should from time to time have been given by the Legislature which existed before; and it is no answer to say that such provisions were inserted ex abundanti cautela. And the reason assigned by the defendant's counsel why such a right was given by the 24 Geo. 2, c. 8, namely, because that part of the river was not navigable before, is not satisfactory; for when once a river becomes navigable, or, in other words, when it is made a common highway for all the king's subjects, that right would immediately attach. On the general ground therefore I think no general right of towing exists. But then it was contended that a right might be supported on making a reasonable compensation to the owner of the land. Lord Hale touches this right very tenderly; for he says that it does not exist without making a reasonable satisfaction. But it is not necessary to enter into that question here; because,

if it were a right sub modo, it ought to have been so claimed in pleading. And even if such a right existed, the party should either pay or tender a reasonable satisfaction in order to give them that right. For it would be to no purpose to give the owner merely a right of action to recover that compensation, when it is to be enforced against strangers passing by, whom the owner cannot know, and who perhaps may be foreigners.

note.

BULLER, J. The defendant's plea on this record rests wholly on a general common law right; in deciding which it is not necessary to go into the question, which has been made respecting the mode of pleading. This being claimed as a common law right, it can only be proved to exist by one of the ways mentioned by my Lord. As to the general usage throughout the kingdom of which the court is obliged to take notice, that clearly does not exist. Then the question is whether in our books, or on records, that right is established for which the defendant contends. The case in Lord Raymond is a very loose and inaccurate Another authority cited is the passage in Bracton, and quoted by Callis; that plainly appears to have been taken from Justinian, and is only part of the civil law; and whether or not that has been adopted by the common law is to be seen by looking into our books; and there it is not to be found. Callis compares a navigable river to an highway; but no two cases can be more distinct. In the latter case, if the way be founderous and out of repair, the public have a right to go on the adjoining land: but if a river should happen to be choked up with mud, that would not give the public a right to cut another passage through the adjoining lands. Therefore I am of opinion that no common law right of towing exists. But I wish not to be precluded by this determination from giving an opinion on the question, which has been made on the pleadings, whenever it shall arise in future. At present I cannot agree with what has been said on that head. This is not like the case of toll thorough. The distinction, which has been made between toll thorough and toll traverse, is not where the question arises on a defence merely, but where the right itself of taking toll has come in question. And the distinction taken is, that the party, who claims toll thorough must show a consideration for it, because it is against common right; but in the case of toll traverse, no consideration need be shown, because that is not against common right. Then if the defendant is right in saying that by the common law he has a right to go on the banks of navigable rivers, he need not show any consideration, and the owner of the land would not be entitled to any satisfaction till after the defendant had used the towing-path. Customs, which are consistent, may be pleaded against each other. And the party pleading a general custom need not show the modification of it, which is not inconsistent with the right claimed by him. The case of Kenchin v. Knight, 1 Wils. 253, is strong to this point: there the defendant pleaded a custom to put swine upon a common; to which the plaintiff replied that he could only put in such swine as were rung, without traversing the custom set up in the

plea and the replication was held good on demurrer, because the customs were not inconsistent. Now here, if every subject has a right to tow on the banks making a reasonable satisfaction, it is not necessary for the party to plead such satisfaction, because that claim arises afterwards. And if it were otherwise, it would be attended with manifest inconvenience; because, the sum not being ascertained, it would be a perpetual dispute between the owners of the barges and the land-owners how much should be paid, which would be destructive of the right of the public, and the navigation would be stopped till the quantum was ascertained. I have said thus much on the subject lest I should be precluded from considering the question, whenever it should arise; but in the present case I am of opinion against the common law right. In addition to the observations made on the cases cited, I think that the instances of the three great rivers alluded to are very strong against the right. From what passed in the case of Vernon v. Prior, it seems as if Lord Ch. J. Willes entertained a wish that the public should have this right, and yet he could find no legal ground on which to support it; for the application to Parliament in 1748 is said to have been made with his approbation. On the River Trent there have been some claims of this sort of a more recent date not unworthy notice. The persons passing there with barges endeavored to set up this right, in consequence of which several actions were brought against the barge-owners, who, on being advised that they could not support the right, suffered judgment to go by default. But they still continued their towing, on which actions were again brought against sixty or seventy persons at the same time, and then they abandoned their claim. The state of the banks of the Thames also affords a strong argument against this common law right; for if it exist, all the houses built on those banks must be considered as nuisances.

GROSE, J. It is enough for me at present to say that I perfectly agree in the general position, that there is not any general common law right of towing. Judgment for the plaintiff.

ANONYMOUS.

NISI PRIUS. 1808.

[Reported 1 Camp. 517, note.]

ACTION for disturbing plaintiff's fishery in the River Tweed. It was proved that defendant's ship was moored against a rock on the bank of the river, where she delivered her cargo, and that plaintiff was prevented by the situation of the ship from taking so many fish as he would otherwise have done. It further appeared, that ships frequently lay there, waiting for a wind, and that there were mooring rings upon the rock, to one of which the ship in question was fastened.

WOOD, B. A navigable river is a public highway; and all persons

have a right to come there in ships, and to unload, moor, and stay there as long as they please. Nevertheless, if they abuse that right so as to work a private injury, they are liable to an action. The question will therefore be, whether the defendant has abused his right? The privilege of the plaintiff must be subservient to the right of the public. It would be of very mischievous consequences if the owner of a fishery could prescribe to the public how and where they are to moor in a navigable river. The only case I remember like this, was where a man obstinately refused to move his ship from opposite a wharf, although it would have been just the same if he had moved a little one way or the other; and therefore he abused his right, and the plaintiff recovered. The defendant had a right to moor and remain where his ship lay, as long as convenience required. Yet if he acted wantonly and maliciously for the purpose of injuring the fishery, the plaintiff is entitled to a verdict, but not otherwise.1

ORIGINAL HARTLEPOOL COMPANY v. GIBB.

CHANCERY DIVISION.

[Reported 5 Ch. D. 713.]

1877.

THE plaintiffs, who were coal-merchants, were lessees and occupiers of a wharf known as Keepier Wharf, abutting on the River Thames at Ratcliff, having a frontage of 125 feet on the river. On the west side of the said wharf was a wharf and a dock known as Ratcliff Cross Dock, occupied by the defendant, and abutting on the river. On the east side of Keepier Wharf was a public landing-place projecting on the river. and preventing any vessel lying alongside the said wharf from overlapping on the east side of such wharf.

The plaintiff's issued their writ on the 25th of November, 1875.

The statement of claim alleged that the plaintiffs, in the ordinary course of their business, employed a steam collier known as the Ludworth, which was brought alongside their wharf for the purpose of unToading, and that this vessel, being 175 feet in keel, and not being able to overlap on the east side of the wharf, was obliged to overlap the adjoining wharf of the defendant.

It was further alleged that the defendant had lately moored or attached by iron chains to the extremity of his wharf, next to that of the plaintiffs', large wooden obstructions, and that such obstructions floated on the river when the tide was up, and projected for some distance into the river, and prevented the plaintiffs from bringing the Ludworth alongside their wharf and there unloading it; that such obstructions amounted to a public nuisance, as interfering with the navigation of the river, and the plaintiffs had requested the Conservators of the Thames to remove 1 See People's Ice Co. v. Excelsior, 44 Mich. 229; Woodman v. Pitman, 79 Me. 456; Cobb v. Bennett, 75 Pa. 326.

them, but they had declined to interfere; and that such obstructions occasioned special and serious damage to the plaintiffs.

The plaintiff's claimed that the defendant might be restrained from allowing the said obstructions to remain so as to prevent the Ludworth from coming and remaining alongside their wharf for the purpose of unloading; and that the damage sustained by the plaintiffs from the acts of the defendant might be assessed and paid to them by the defendant. An interim injunction was obtained by the plaintiffs.

The defendant, by his statement of defence and counter-claim, delivered the 6th of March, 1876, stated that the entrance to his dock called Ratcliff Cross Dock, was 41 feet wide, and the east side of such entrance was 48 feet distant from the west side of Keepier Wharf; that the Ludworth when moored alongside Keepier Wharf, overlapped the defendant's wharf and dock 52 feet, her stern extending 5 feet in front of the dock gates, and at low water she lay on the foreshore between high and low water, and rested on the campshed and piles in front of the defendant's wharf; that the wooden obstructions referred to in the statement of claim were merely an ordinary raft of timber for the use of the defendant; that it had always been the custom on the River Thames for owners of dry docks to moor such rafts of timber in front of their wharves, and that the defendant's raft was so moored by permission of the Conservators of the Thames. The defendant denied that the raft was a public nuisance, or occasioned any damage or loss to the plaintiffs.

The defendant, by way of counter-claim, stated that the plaintiffs hed on several occasions moored the Ludworth so as to overlap the defendant's wharf, and so moored her at unreasonable times, and kept her so moored for an unreasonable time, thus depriving the defendant of all access to, and the use of the frontage to that part of his wharf which Tay between his dock-gates and the plaintiff company's wharf, and was a serious and dangerous obstruction to the access to the defendant's dock, and vessels entering and leaving the same were exposed to great risk of collision with the steamer, and that by reason of such obstruction the defendant was obliged to employ more time and labor in docking and undocking ships than would otherwise be necessary. The defendant alleged that on one occasion the Ludworth remained moored for twenty hours, thereby greatly delaying the undocking of a vessel.

The defendant claimed that the plaintiffs might be restrained by injunction from mooring the Ludworth, or any other vessel, so as to obstruct the access to the defendant's dock and wharf; secondly, that if the court should be of opinion that the plaintiff's were entitled so to moor their steamer or other vessel, that they might be restrained from doing so except at reasonable times, and from keeping it so moored, except for a reasonable time; thirdly, that damages might be awarded to the defendant in respect of the wrongful acts of the plaintiffs.

It appeared that there had been for a considerable time an agreement between the plaintiffs and the defendant, under which the plaintiffs were