Williams v. Wilcox.-Rule. without liability to any other proprietor for damages caused thereby. Taylor v. Fickas, 64 Indiana, 167; Cairo & Vincennes R. Co. v. Stevens, 73 id. 278; Shelbyville & Brandewine Turnpike Co. v. Green, 99 id. 205; Jean v. Pennsylvania Co., 9 Indiana Appeals, 56. When the right of obstructing and damming a stream is legally acquired, the dam must always be so strongly constructed as to resist all ordinary floods and freshets, though they occur only occasionally through a series of years, and a lower proprietor is entitled to damages when he is injured by a failure so to build it. Sabine v. Johnson, 35 Wisconsin, 185, 203; Bristol Hydraulic Co. v. Boyer, 67 Indiana, 236; Gray v. Harris, 107 Massachusetts, 492; Cork v. Blossom, 162 id. 330; Townes v. Augusta, 46 South Carolina, 15; Gould on Waters (3d ed.), ss. 211 c, 298. WAY. See "HIGHWAY," 12 R. C. 505 et seq. WEIR. WILLIAMS v. WILCOX. RULE. THE navigable channel of a public navigable river is a King's highway; and every obstruction to the navigable channel, whether within the flux and reflux of the tide or not, and whether purporting to be sanctioned by a Crown grant or otherwise, is, by the common law, illegal. But where a weir has been erected before the time of Edward I., under the sanction of a grant from the Crown, its existence, even to the effect of the obstruction of the public navigation, is legalised by the statutes of that reign. Williams v. Wilcox and another, 8 Adol. & Ellis, 314, 315. Navigable River. Obstruction. Public Right. 427 A weir appurtenant to a fishery, obstructing the whole or part of a [314] navigable river, is legal, if granted by the Crown before the commencement of the reign of Edward I. Such a grant may be inferred from evidence of its having existed before that time. If the weir, when so first granted, obstruct the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only navigable passage remaining. Trespass for breaking down a weir appurtenant to a fishery. Justification, that the weir was wrongfully erected across part of a public and navigable river, the Severn, where the King's subjects had a right to navigate, and that the rest of the river was choked up so that defendants could not navigate without breaking down the weir. Replication, that the part where the weir stood was distinct from the channel where the right of navigation existed, and was not a public navigable river. Rejoinder, that the part was a part of the Severn, and the King's subjects had a right to navigate there when the rest was choked up, and that the rest was choked up. Surrejoinder, traversing the right. Held, that in support of this traverse plaintiff might show user to raise presumption of such a grant as above, and was not bound, for the purpose of introducing such proof, to set out his right more specifically on the record. Where the Crown had no right to obstruct the whole passage of a navigable river, it had no right to erect a weir obstructing a part, except subject to the rights of the public; and therefore, in such a case, the weir would become illegal upon the rest of the river being so choked that there could be no passage elsewhere. A party objecting to the production of a copy, on account of due search not having been made for the original, must make the objection, at the time of the trial, distinctly on that ground; if he does not, the Court will not afterwards entertain it. Trespass for throwing down a weir of plaintiff, appurtenant to his fishery, and seizing, taking, and carrying away the materials thereof, to wit, one thousand stakes and one thousand yards of pleaching work of wood of plaintiff, and converting, &c., and thereby hindering plaintiff from having the benefit and enjoyment of the weir, &c. * Pleas, 1. Not guilty. [* 315] 2. That the said weir, stakes, and pleaching work of wood of the plaintiff, before the said times when, &c., had been wrongfully erected, and placed, and set up, in and across part of a Williams v. Wilcox and another, 8 Adol. & Ellis, 315, 316. public navigable river called the Severn; that the said part of the said river in which, &c., was a part of the said river situate between Worcester and Shrewsbury, and that the said river now is, and at the said several times when, &c., was a public and common navigable river for all the liege, &c., to navigate and pass with barges on the said river between Worcester and Shrewsbury, and that all the liege, &c., before and at the said times when, &c., of right ought to have navigated and passed, and still of right, &c., with barges in and along the said river from Worcester to Shrewsbury at all times of the year, at their free will and pleasure; that defendants, being liege, &c., at the said times when, &c., had occasion to use the said river, and to navigate and pass in and along the said river between Worcester and Shrewsbury, with a certain barge of defendants, in going and passing from Worcester to Shrewsbury, and had navigated and passed with the said barge in and along the said river from Worcester to the said part of the said river in which, &c. ; and, because the said weir, &c., had, before the said several times when, &c., been wrongfully erected, &c., and were then wrongfully remaining and standing in and across the said part of the said river in which, &c., and obstructing the same, and because a certain other part of the said river, near and adjoining to the said part of the said river, in which, &c., was, at the said times when, &c., choked and stopped up, so that, without breaking down, throwing down, prostrating, and destroy[316] ing the said weir, &c., defendants could not then navigate or pass with their said barge through, over, and along the said river from Worcester to Shrewsbury as they ought to have done, and because defendants could not then remove the obstructions in, or open, the said other part of the said river which was so choked and stopped up, or pass over or navigate the said part of the said river in which, &c., defendants, at the said several times when, &c., in order to remove the said obstruction in the said part of the said river in which, &c., and to enable themselves to pass with and navigate their said barge in and upon the said part of the said river in which, &c., broke down, &c., the weir, and the materials thereof, to wit, &c., and took and carried away the same to a small and convenient distance, &c., which are the same, &c. * Replication. That true it is that the river Severn was and is a public navigable river, as in the plea mentioned, and that the Williams v. Wilcox and another, 8 Adol. & Ellis, 316, 317. said weir, &c., before the said times when, &c., had been erected, &c., in and across a part of the said river, as in the plea mentioned; but the plaintiff in fact says that the said part of the said river, in and across which the said weir, &c., had been so erected, &c., was a part of the said river other than, and wholly distinct from, the channel of the same in which the liege, &c., had navigated and passed and of right ought, &c., as in the plea in that behalf mentioned, and lying between the said channel of the said river and the northeastern bank thereof; and that the said part of the said river in and across which the said weir, &c., had been so erected, &c., is not, and at the said several times when, &c., was not, a public common navigable river for all the liege, &c., to navigate, &c., on the said part of the said river, in which, &c., from Worcester, &c., nor * ought the liege, &c., before or [* 317] at the said times when, &c., of right to have navigated, &c., nor still of right, &c., in and along the said part of the said river in which, &c., from Worcester, &c., at all times, &c., in manner and form, &c. Rejoinder. That the said part of the said river, in and across which the said weir, &c., had been so erected and placed, is, and at the said several times when, &c., was, part of the said river Severn; and that the liege, &c., before and at the said times when, &c., ought of right to have navigated and passed with barges in and along the said part of the said river in which, &c., from Worcester to Shrewsbury, at all times of the year, at their free, &c., when and so often as the channel of the said river had been or was choked or stopped up so as to prevent the liege, &c., from navigating and passing with barges in, through, over, or along the said river except by navigating and passing in, through, or along the said part of the said river in which, &c.; and that the said channel of the said river, being the said part of the said river in the plea mentioned to have been near to the said part of the said river in which, &c., and to have been so choked up as aforesaid, was, at the said times when, &c., choked and stopped up so as to prevent the liege, &c., from navigating and passing with barges in, over, through, or along the said river except by navigating and passing in, over, through, and along the said part of the said river, in which, &c. Verification. Surrejoinder. That the liege, &c., before and at the said times when, &c., ought not of right to have navigated and passed with Williams v. Wilcox and another, 8 Adol. & Ellis, 317–327. barges in and along the said part of the said river in [* 318] which, &c., from Worcester, &c., at * all times, &c., when and so often as the channel, &c., in manner and form, &c. Conclusion to the country; and issue thereon. On the trial before WILLIAMS, J., at the Shropshire Spring Assizes, 1836, the plaintiff proved the trespass, and, in support of his issue on the second plea, produced evidence to show the antiquity of the weir and fishery, beginning with an extract from Domesday Book, in which the fishery is mentioned. A great number of documents were put in by him; among others, an extract from the chartulary of Haghmon Abbey, containing copies of grants of the fishery to the church, and of a way to the fishery; the earliest appearing to have been made in the year 1172-3. This chartulary appeared to contain copies of the deeds and charters relating to the property of the abbey; but no evidence was given of search for the originals. A judgment was also put in of Michaelmas Term, 1 Hen. VI., in a cause wherein the Abbot of Haghmon was indicted for obstructing the navigation of the Severn, and pleaded an immemorial right of taking fish in the weir, that the navigation was not obstructed, and that the weir was not made since 3 Edw. I.; all which was found in his favour. The counsel for the defendants objected that no ancient right could be paramount to the right of navigation; and that, at any rate, the antiquity of such a special right could not be given in evidence under this issue, but its nature or origin, by grant or otherwise, should have been expressly pleaded. The learned Judge received the evidence, and left it to the jury to say whether there had been an immemorial right, under a grant from the Crown, of obstruct * ing the navigation by the weir, even when the rest of [* 319] the channel was obstructed. The jury found for the plaintiff. In Easter Term, 1836, Maule, on the objections urged at the trial, and for misdirection, and also on the ground that no search for the originals of the deeds in the chartulary had been shown, obtained a rule nisi for arresting the judgment, or for a new trial. The case was argued in Michaelmas Term, 1837, before Lord DENMAN, Ch. J., PATTESON, WILLIAMS, and COLERIDGE, JJ.; and, in Midsummer Term, 1838, June 13th, [327] Lord DENMAN, Ch. J., delivered the judgment of the Court. |