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1.5 Ch 3. River Navigation Acts

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1.5 Ch 3. River Navigation Acts 85 Chapter 3. The River Navigation Acts. Cosmographers do agree that this Island is incomparably furnished with pleasant Rivers, like Veins in the Natural Body, which convey the Blood into all the Parts, whereby the whole is nourished, and made useful; but the Poet tells us, he acts best, qui miscuit utile dulce. (who combines utility with beauty) The Speaker of the Commons to the Lords, 2nd March 1665 Journal of the House of Lords xi, 675 3.1 Introduction In this dissertation ‘River Navigation Act’ is used to refer to an Act which authorised physical work on one or more named rivers so that boats of ‘considerable burthen’1 could pass along the river or rivers, or pass more easily. The Acts are examined here to determine what information can be obtained from their texts as to the Common Law rights of navigation on these rivers before the date of each of the Acts.2 The conclusion is that on most, if not all, of the rivers for which Acts were passed, there was a pre-existing public right of navigation. It is unfortunate that some commentators have misunderstood the purposes of the these Acts. The author of the relevant passage in Halsbury’s Laws of England wrote, ‘Numerous statutes have been passed concerning public rights of navigation on particular rivers.’3 When the Acts are studied it is found that very few, if any, concern ‘the public rights of navigation’. Bonyhady wrote, ‘Parliament enacted a succession of private and local Acts which empowered undertakers either to make navigable existing rivers which were impassable or to construct canals.’4 Very few, if any, of the rivers were impassable to 1 (1766) 6 George III c 94 2 A list of the Acts is given at Appendix A. One Act has not been examined:- (1570) 13 Elizabeth I c 13 River Welland. It is considered that the study of this Act would not result in any material change to the conclusions reached here. Some of the Acts were for making navigable a river and its branches or tributaries, eg. River Ivel (1757) 30 George II c 62 or a river and ‘the rivers and brooks running into the same’, eg. Rivers Wye and Lugg 14 Charles II c 14. Again it is considered that a study of these variations would not alter the conclusions reached here. 3 Halsbury’s Laws of England, Fourth Edition, Reissue Volume 49 (2) (London: Butterworths, 1997), para 742, fn 6 4 Tim Bonyhady, The Law of the Countryside, The Rights of the Public (Abingdon: Professional Books, 1987), 44 86 small boats before the Acts were passed. The phrase ‘make navigable’ as used here by Bonyhady needs to be qualified by the type of boat for which the river was to be made navigable. The phrase ‘made navigable’ which is used in many of the Acts seems to be best understood as meaning ‘make into a navigation’, that is, ‘to alter the physical characteristics of the river so that barges or lighters can pass along them.’ Very few of the Acts state the size of boats which would be able to pass along the rivers after the work was completed.5 However it appears that, in general, the intention was that barges and lighters of the order of 24 to 70 tons would be able to use them. Each river would have had different limits for the maximum length, width and draft. Previously the rivers may, or may not, have been used by punts, dugouts, rowing boats and other craft of similar size, either for recreation or for carrying the produce of the countryside. In addition the rivers may have been used for the floating of wood to the towns.6 Other Acts have the title, ‘An Act for the improvement of the Navigation of the River(s) ….’7 or similar wording.8 It would seem that there was an earlier common law public right of navigation on all these rivers. Another Act has in its title the words, ‘for making ….. more navigable’9 which seems to show that navigability was not a quality existing or absent from a river but rather that navigability was a matter of degree and that improved navigability meant that larger boats could pass along the river possibly for more months of the year. The work authorised was to ‘cleanse scoure open enlarge or straighten ….. to dig or cutt the Banks ….. to make such and soe many new Cuts Trenches or Passages for Water’10 or similar works. In return for the cost of the work carried out, in general, the proprietors, commissioners or navigation authority were authorised by the Acts to charge a toll for the 5 (1766) 6 George III c 94 River Soar. Boats not exceeding 24 tons. (1767) 7 George III c 96 River Swale. A lock must be at least 60ft x 15ft 4in x 4ft, ie to take boats up to about 70 tons. (1790) 30 George III c 52 Sussex Ouse. Boats of less that 10 tons need special permission to pass the locks in summer. (1678) 30 Charles II c 20 River Fal. Provision for different tolls according to whether the boat was of more or less than fifty tons. 6 See section 2.2 above. 7 (1813) 53 George III c 183 Rivers Bury Loughor and LLiede 8 See for example River Ivel (1757) 30 George II c 62 9 (1702) 1 Anne c 11 River Cham alias Granta 10 (1699) 11 William III c 22 River Larke. 87 use of the river. When a charge was made for the use of a river there was often also a duty to maintain the river.11 There are about 73 rivers for which about 180 River Navigation Acts have been passed.12 In general only the first Act for each section of a river can be expected to provide information about the common law rights of navigation on the river.13 3.2 The Statutes After a River Navigation Act was passed there would have been a right of navigation on the river, normally for the general public. Balcombe LJ said with reference to the Act for the river Derwent,14 ‘It would stultify what we regard as the obvious scheme of the Act if the undertakers, having done the works at their own expense, could not reimburse themselves by levying tolls because riparian owners were free to deny merchants and carriers the right to use the river.’15 Assuming Balcombe LJ to have been correct, it follows that either the right of navigation existed before the River Navigation Act was passed or the right was created by the Act either explicitly or by implication. Examination of the text of the Act is likely to establish a right created explicitly. Implicit creation of the right is discussed below.16 Absence of either explicit or implicit creation implies a prior public right of navigation on the river. In every River Navigation Act whenever something was taken or used compensation was payable except for the use of the river. In Yorkshire Derwent Trust Ltd v Brotherton Balcombe LJ said, ‘However warmly the riparian owners or some of them welcomed the Act, the fact is that the river was made navigable by statutory undertakers pursuant to 11 Blundy Clarke & Co Ltd v London and North Eastern Rly Co [1931] 2 KB 334 12 The section of a river to which an Act refers is ignored in this dissertation. For a few rivers a second Act was passed for a different section of a river eg. upstream, (1785) 25 George III c 100 River Arun, or downstream, (1727) 13 George I c 20 River Dun Navigation, (1791) 31 George III c 76 Sussex Ouse. However it appears that the study of the second Act provides no further relevant information about prior rights of navigation. 13 Later Acts might provide for higher tolls, (1744) 18 George II c 13 Beverley Beck; (1800) 40 George III c 54 Sussex Ouse; for appointing new commissioners (1751) 24 George II c 12 Great Ouse; or raising additional funds (1820) 1 George IV c 35 River Ure or similar matters. There were also Letters Patent, or Charters, granted in the first half of the 17th century for improving navigation on certain rivers. It is considered that the study of these provides no information about the prior common law public rights of navigation. 14 (1702) 1 Anne c 14 15 Yorkshire Derwent Trust Ltd v Brotherton (1990) 61 P & C R 198, 208 16 See section 3.2.6 below 88 statutory powers and the riparian owners had (as we conclude below) no lawful choice but to acquiesce in the public use which followed.’17 It seems that counsel never suggested to the court that the reason why no compensation was payable was because the right to use the river had existed from time immemorial on all rivers that were naturally physically navigable. In Halsbury’s Laws of England it is stated that, Numerous statutes have been passed concerning public rights of navigation on particular rivers. An exhaustive classification of these statutes is impracticable, but very generally speaking they may be divided into: (1) statutes containing recitals of immemorial rights and prescribing penalties for interference with those rights; (2) statutes authorising works for the improvement of rivers subject to immemorial rights and authorising the charging of tolls; (3) statutes authorising works for the improvement of rivers not subject to immemorial rights and authorising the charging of tolls together with an express declaration of public rights of navigation; (4) statutes authorising works for the improvement of rivers not subject to immemorial rights and authorising the charging of tolls from which public rights of navigation may be inferred.’18 To this list must be added:- (1a) statutes not containing recitals of immemorial rights but prescribing penalties for interference with those rights; (1b) statutes which authorised works for the improvement of rivers and which provided for the river to be used only by the proprietors.
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