SIMON
FACT
SHEET NUMBER 2
NAVIGATION
RIGHTS
The use of
fishing waters, in particular rivers for pleasure purposes by canoeists and
rowers is a frequent source of conflict with anglers exercising their lawful
rights. The passage of boats
disturbs fish and interferes with floats and lines and casting for fly
fishing.
The use of
rivers for navigational purposes can be regular use by an identifiable
organisation or more occasional use by canoeists who may have travelled
considerable distances to reach the water.
Whatever the use the owners of fishing rights often want to know what
their rights are and what rights can be acquired by those who use the water for
navigation.
A first
fundamental distinction is between tidal and non-tidal waters. In tidal waters there is a public right
of navigation just as there is a public right of fishery. In non-tidal waters the situation is
completely different and the rest of this fact sheet deals with the situation
in non-tidal waters.
Rights in and
over water, whether still or running are based on the ownership of the land
adjacent to the water in question.
There is a presumption that the owner of the bank of a river also owns
to the middle line of the bed of the river or lake that the land abuts. Obviously, if both banks of the river or
the whole of the lake are owned then the whole of the bed is owned.
Ownership only
relates to the land that lies underneath the water (i.e. the bed) and not the
water itself. However ownership of
the bed of the river or lake gives rise to rights at common law that are known
as riparian rights. See Fact Sheet 9 - Water Law. In general terms ownership of the bed of
the river gives the owner the right to use the river for whatever purpose they
choose provided that such use does not interfere with use by other riparian
owners. Thus an owner has the right
to use its stretch of water for navigational purposes, and to exercise the
right of fishing.
At the same time
the owner of rights is also able to prevent others from exercising riparian
rights over their land including the use of the water for navigation. Unauthorised use is trespass and can
form the basis for legal action (see below).
Anglers enjoy
their fishing rights in various ways.
First they may own or lease the bed of the river or lake and land
adjacent to it. If so they then
enjoy the riparian rights set out above and can take action to prevent
unauthorised use of the river or lake.
Alternatively the rights to fish may be granted separately from the land
or the use of the land including the water may be granted by licence rather
than a formal lease. In either of
these cases, the riparian rights referred to above do not pass and remain with
the owner of the land itself. In
this case any unlawful use would have to be dealt with by the owner of the
land.
In summary
therefore it is the owner of the land beneath the river or lake who has the
right to prevent the unauthorised use of the water for boating purposes. If fishing rights are leased separately
from the land itself, then if possible the landlord should be persuaded to
include a clause in the lease agreeing to bring action against unauthorised
users if asked.
As indicated
above, the basic rule is that there is no right of navigation over privately
owned waters. However there are
certain circumstances in which such a right can be acquired in non-tidal
waters. These can be split into two
categories. First is the
acquisition of public rights of navigation and the second the acquisition of
private rights.
The importance
of this issue was highlighted by the case of Attorney General v Brotherton
and others, which related to the use of the Derwent in
A public right
of navigation may be acquired in one of three ways.
(a) Act
of Parliament
In the case of
some rivers a private Act of Parliament was passed authorising some part of that river to be used for
navigational purposes. Commonly
such rights were granted at the time of the industrial revolution when water
was the principal means of moving goods.
Some times the use of a stretch of non-tidal river suitably dredged was
a more effective method of providing a means of transport than the construction
of a canal. In the Derwent case
(see above) there had been an Act of Parliament which allowed a public right of
navigation.
If a public
right to navigate by Act of Parliament exists, it is necessary to look
carefully at the extent of the right granted. The rights may not extend to unlimited
use e.g. by canoes. Also, as in the
Derwent case it may be argued that the rights have fallen into disuse.
(b) Immemorial
user
It was an important
conclusion of the Derwent case that the way in which a public right of way can
be acquired over water is different to the way in which a right of way over
land can be acquired by virtue of the Rights of Way Act 1932. That Act provides that a right of way
over land can be acquired by continuous public user for a period of forty
years. However in the case of a
public right of navigation the persons asserting the right of the public to
navigate must demonstrate user since time immemorial. Underlying this principle is the notion
that before the Magna Carta, when the bed of rivers were not capable of private
ownership, rivers were public property.
Thus if use of such rights can be shown that far back a public right can
be acquired. However apart from that
possibility there is no ownership of the flowing water and therefore no
property against which a right can be claimed.
To establish
immemorial user in practice it would be necessary to demonstrate use so far
back that there is no evidence to show there was ever a time when the water was
not used for navigation.
(c) Dedication
or grant by the owner
It is possible for the owner of land abutting water to
dedicate it for use by the public for navigation or make some specific grant to
the public or a section of it to use a water for navigation
In the absence
of a right having been acquired in one of these ways, a public right cannot be
claimed for navigation.
As well as a public right being
acquired it is also possible that a private right can be acquired.
If such a right
is claimed then it has to by way of an easement. An easement is a legal right to do
something on the land of another.
The most common form of easement is a right of way.
In order to
acquire an easement certain requirements have to be established. First there has to be a dominant and a
servient tenement. In simple
language this means that there has to be one piece of land that benefits from
the right claimed and another that is burdened with that use.
This is
important in the context of the acquisition of a private right of
navigation. No matter how long the
use of the water for boating purposes has been unless the person exercising
that right can show that the use benefits land then no easement can be
acquired. Thus in the case of use
of a river by canoeists it is very unlikely that this requirement would be met,
since it is unlikely that the canoeists own land near to the river that would
benefit.
It is not
essential that the land to be benefited is immediately adjacent to the river
but there has to be an obvious connection and benefit to the land in question.
There are three further
requirements that have to be satisfied before an easement can be claimed.
First the right
claimed must have been exercised without force. In the case of navigation if the right
had been exercised in the face of physical attempts to stop it, or if fences
had been taken down to gain access the requirement would not have been met.
Secondly, the
right must have been exercised openly, so that the owner of the land against
whom the right is claimed would have been aware of the use at all relevant
times.
Thirdly the
right must not have been enjoyed by permission. It is an essential characteristic of an
easement that the right is established by long user to do something that would
otherwise be unlawful. Thus if the
right is exercised by consent then the owner of the land that is burdened by
the use has made the use lawful, but has the ability to terminate the use if he
wishes on the terms of the agreement.
If the above requirements
are met then the right claimed can be acquired by evidence of user for
sufficient length of time. This
evidence can be established in one of three ways.
First by
prescription at common law. In this
case user since “time immemorial” must be shown, see above. However common law now provides by case law
that evidence of use for twenty years will be deemed sufficient.
Secondly, by the
doctrine of lost modern grant. A
grant will be presumed on the basis of user of any period for upwards of twenty
years.
Finally the
right may be acquired under the Prescription Act of 1832. This Act provides that a right can be
established if evidence is produced of twenty years use immediately before an
action to establish the right claimed.
In simple terms
therefore someone who wants to establish a right of navigation will need to
show twenty years uninterrupted use.
There are two
other important aspects to mention.
First it is essential that the use has been continuous over the twenty
year period. Thus if the exercise
of the right has ceased for any significant period then the use lapses and the
twenty year period would start to run again.
Secondly the use
must be of the same type throughout the twenty years. In the context of navigation this would
mean for example that the use of a river for rowing followed by the use of the
same river for canoeing may well be considered a different use and so would not
form a single continuous period.
However if the
use is of the same type then the use can be increased without complaint. It will of course be a question of fact
whether the increase in use is excessive to the degree that the nature of the
right exercised has in reality changed and become a different use.
If you are faced with
unlawful use of your waters for boating purposes, the first step is to try and
establish whether the users have acquired any private or public right to use
the waters, applying the principles set out above. It is of course for the person claiming
the right to prove that they have the right.
If the view is
formed that there is no right then there are two courses of action open to
you. First it is possible to
negotiate terms on which access is to be allowed. This enables an owner to control the
times and the extent of any use of the water. As indicated above if use is by
permission then the clock cannot run for the purposes of a right being obtained
by prescription. Having an
agreement therefore puts the exercise of the right firmly in the control of the
owner.
The second
option is to commence legal action to prevent further use. This would be by way of an action for
trespass. The action would include
claims for an injunction and damages.
If the defendant
claims a right to use the water for boating purposes then the case will be
decided on evidence given to determine whether a right can be established using
the above principles. Litigation is
of course expensive and it is important to decide on the merits of each parties
positions as early as possible.
A particular
problem faced by fishery owners is the use of rivers for canoeing by
individuals who may have come a considerable distance, and nay not be
affiliated to, e.g. a club or scout group.
In this case the identity of the canoeists may not be known. This may not be an insuperable problem
since the courts will in some circumstances allow an injunction to be granted
against persons unknown. However if
proceedings are to be issued in the first place it is desirable to have at
least one named defendant. Thus if
you are faced with use of this sort it is important to try and establish the
identity of the individuals involved.
It will be clear from the
above that it is important to take some action when faced with unlawful use of
the water for boating purposes in order to prevent a legal right being obtained
by long user. The erection of signs
stating that the waters are private and boating is not allowed will help, but
will not in itself prevent time running if no other steps are taken to prevent
known use. As indicated above the
best way to stop time running is to ensure that further use is with
consent. This need not necessarily
be by formal agreement. Any
indication that the boat users have acknowledged your right to control boating
use whether verbally or in writing may suffice.
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Please note
that this fact sheet is intended to give general guidance on the stated area of
law. We cannot accept any
responsibility for the consequences of relying on this fact sheet in relation to
particular circumstances of which we are not aware.
Simon Jackson Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691 791439
Fax: 01691 791583
e-mail. srbj@btconnect.com