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1871

Marshall v. Ulleswater Company.

the defendants pleaded “not guilty," upon which issue was joined.

6. The cause came on to be tried at the summer assizes of the

year 1861, at Appleby, when a verdict on the issue joined upon the defendants' third plea was found in favor of the defendants, and a verdict as to all the other issues was found in favor of the plaintiff. A rule nisi was afterwards obtained by 169] the defendants *in the Court of Queen's Bench to set aside the verdict on the issues so found in favor of the plaintiff, and instead thereof, to enter the verdict thereon for the defendants, pursuant to leave reserved at the trial, which rule was, upon argument, discharged. Judgment was thereupon entered accordingly, and upon an appeal by the defendants to the Court of Exchequer Chamber, the decision of the Court of Queen's Bench, in discharging the rule, was affirmed: Marshall v. Ulleswater Steam Navigation Co. (').

7. The land covered with water, which is referred to in the action of June, 1860, included that portion of Ulleswater Lake which adjoins the land leased by Askew to the defendants, and the pier or jetty also referred to in the same action is that portion of the pier or jetty which extends into the lake as herein mentioned. The latter portion of the pier or jetty was made and constructed without the plaintiff's consent, and against his will, and has never been removed, and still remains as originally built.

8. If that portion of the pier or jetty which so extends into the lake were removed, the defendants would be able to bring their steamboats upon that portion of the lake which lies near to the land leased to them by Askew, and so near that, by means of a temporary stage or platform extending from the steamboats to that portion of the pier or jetty which is built upon the land leased to the defendants by Askew, they could disembark, and land passengers and goods from such steamboats, on the land leased to them by Askew, and also embark passengers and goods in such steamboats from the land; but in consequence of that portion of the pier or jetty which extends into the lake having been made and constructed, and not having been removed, and remaining as it was originally built, the

(1) 3 B. & S., 732; 32 L. J. (Q. B.), 139.

1871

Marshall v. Ulleswater Company. defendants are prevented from disembarking and landing and embarking passengers and goods without using that portion of the pier or jetty which extends into the lake.

9. The waters of the lake, at the part where the same adjoins the land leased to the defendants, are so shallow that it would be impossible for the defendants to bring their steamboats so near their land that they could land passengers and goods from the *steamboats directly upon their land, or take passen- (170 gers or goods on board the steamboats directly from their land without either a temporary or permanent stage or jetty, or platform being placed over and across the bed of the lake between the defendant's land and the steamboats.

10. Since the judgment in the action of June, 1860, was entered and affirmed, the defendants have on many occasions brought their steamboats upon the lake near to the land so leased to them by Askew, for the purpose of disembarking, and landing, and embarking passengers, and goods from and upon such steamboats upon and from the last mentioned land, and because that portion of the pier or jetty which extends into the lake had not been removed, but remained as originally built, so that without using that portion of the pier or jetty for the purpose of landing and embarking passengers, they could not land and embark passengers and goods, they used that portion of the pier or jetty for the purpose.

11. The user by the defendants of that portion of the pier or jetty which extends into the lake, for the purposes, and in the manner hereinbefore mentioned, was without the leave or consent of the plaintiff, and against his will.

12. On the 18th of July, 1867, the present action was brought in respect of the use by the defendants, for the purposes aforesaid, of that portion of the pier or jetty which extends into the lake at and during periods subsequent to the times to which the former action related.

13. The Court were to be at liberty to draw any inferences which a jury might draw.

The question for the opinion of the Court was, whether the use by the defendants, for the purposes aforesaid, of that portion of the pier or jetty which extends into the said lake was legally justifiable under the circumstances above stated.

1871

Marshall v. Ulleswater Company.

Manisty, Q. C. (Forbes with him), for the plaintiff. The pier is part of the plaintiff's freehold, and the defendants have no right to use it.

[MELLOR, J. In Lade v. Shepherd (1) it was held that the owner of the soil of a street which he had dedicated to the public, 171] *might maintain an action against the proprietor of adjoining land who had rested one end of a plank on the road, so as to form a bridge from his premises.]

The defendants may navigate the waters of the lake, but must not touch the soil of the plaintiff. If they wish to land from their steam-vessels, which cannot come close to shore, they should do so by means of small boats. Even placing a gangway from the vessels to land would be a trespass, for cujus est solum ejus est usque ad cælum, and the public have a mere right of navigation. As the original erection of the pier was a wrongful act of the defendants, being a trespass to the freehold of the plaintiff, and also an obstruction to the navigation of the lake, they cannot justify themselves in using the pier by 'alleging that it is an obstruction to the public right, and thereby take advantage of their own wrong.

Holker, Q. C. (Kemplay with him), for the defendants. If the pier did not exist, the steam-vessels might be brought as near as possible to the shore, and the defendants might land their passengers by means of a boat; and they would have an equal right to do so by means of a gangway. But the pier is there, and is an obstruction. The defendants need not, however, remove it themselves, for they may use it; Eastern Counties Ry. Co. v. Dorling (%). The defendant there was held justified in passing over the plaintiffs' barge, which was permanently moored in a navigable river so as to obstruct the approach of the defendant to a quay at which he had a right to land. That case would exactly resemble the present, if the plaintiff had erected the pier; but the fact of Agnew having built it makes no real distinction. The obstruction, although created by another, was maintained by the plaintiff; and the maxim that no man shall take advantage of his own wrong does not apply, for the continued existence of the pier is not the fault of the defendants.

Manisty, Q. C., replied. (") 2 Str., 1004.

5 C. B. (N. S.), 821 ; 28 L. J.(C. P.), 202.

1871

Marshall v. Ulleswater Company. BLACKBURN, J. Our judgment must be for the defendants. I think that to the complaint of the plaintiff a good defence might be pleaded. The admitted facts are, first, that the plaintiff is owner of the soil forming the bed of Lake Ulleswater, including *the part upon which the pier stands; secondly, (172 that the public have a right of highway over the lake, without any restriction as to the use of vessels, except that which is imposed by the breadth and depth of the water. It is wellestablished law, that where there is a public highway the owners of land adjoining thereto have a right to go upon the highway from any spot on their own land ("). They cannot, of course, pass over the soil of others without leave; and he who has dedicated the road to the public at large has no right to complain that a particular individual has come upon it at one spot rather than another. Consequently, every person in the vicinity of Lake Ulleswater whose land abuts on the edge of the lake has a right to come down to the brink of the water for the purpose of going upon it to exercise the public right of navigation, which is admitted to exist.

Now, I apprehend that where there is a right of that kind the necessary incidents are involved in it, and therefore that, on a navigable river like the Thames, where a person with his barge has to come to the land, it is not essential that he should find some spot where the water is so deep that the barge can float up to the bank close enough to enable him to step ashore, but that he has the reasonable and usual modes of disembarking incidental to the navigation of vessels; if the water were a few feet in depth he would probably use a boat; if very shallow, he could wade, or, if his vessel lay conveniently near, he might place a plank across from it to land. And, therefore, the rule of law is, that the owner of the adjoining land, and those whom he permits to go thereon, have a right to cross to and from their vessels by either wading or walking over a plank, but that they have no right to disturb the soil covered with water, as by permanently fixing anchors. Mr. Askew and the defendants had a right to go on his land before this pier was built, by wading or using small boats, or throwing a plank across from their vessels; they had the public right so to do. We have next to ascertain what is the effect of building the pier. (1) See the late case of St. Mary, Neuington v. Jacobs, ante, p. 47.

1871

Marshall v. Ulleswater Company.

Now, Mr. Askew erected a pier on his own land, as he justly might; but it seems that he carried it out twenty-six feet further on piles driven into the bed of the lake, and so interfered 173] with the ground of the plaintiff, and *committed a trespass, in consequence of which the plaintiff acquired a right to knock down so much of the pier as extended into the lake, or to take it as annexed to and part of his soil. He has adopted the latter alternative; for, bringing this action, he says, in effect, “I have got this pier, and I complain of you, the defendants, for wrongfully causing persons to pass over and upon it, in order to embark and disembark, and sail across Ulleswater lake.” It seems to me that he is completely assuming that the pier has become his own, saying, “I use my right of property thus acquired for the purpose of prohibiting any one of the public from going on the lake at that particular spot, and I will bring an action against you if you encourage the public to come.” That is as positively maintaining the pier, and maintaining it with the object of preventing the public from getting to the boats, as well can be.

It is not denied that if, as in Eastern Counties Ry. Co. v. Dorling ('), the plaintiff himself had made and maintained this pier, persons obstructed by it would have a right to step on it to get to the boats. The ordinary plea of obstruction to a right of way is, that the party either broke the obstacle, or removed it, doing no unnecessary damage. Here, any one'entitled to embark or disembark at Mr. Agnew's premises might say, “ I found this pier preventing me going on or from the lake; I did not knock it down, but put my foot on it to get across.” It seems to me that he would be perfectly right to justify thus if the pier had been put up by the plaintiff. Then what possible difference does it make that it was put up by another person under his, the plaintiff's, own eyes ? None. Mr. Manisty argues that this is a case of a man taking advantage of his own wrong. Mr. Askew, however, did not cause this pier to be erected for the purpose of obstructing navigation, but for the very purpose of assisting it. Unfortunately, he raised his pier on the land of another, who, instead of using it to facilitate, uses it to interfere with navigation. That, in my opinion, is clearly maintaining it, and puts the plaintiff into the same position as if he had built

(1) 5 C. B. (N. S.), 821 ; 28 L. J. (C. P.), 202.

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