The river Derwent passed through land. Before steps could be taken to re-open the river to public navigation, the court had to decide what rights of way existed over it.
Held: The 1932 Act did apply, and public rights of way applied, but no public rights had been created in this particular case. Several cases and learned textbooks before 1932 refer to a right of navigation as or as analogous to a public highway. If a highway is no more than a way over which members of the public enjoy rights of passage, it is no misuse of language to refer to a right to navigate as a ‘right of way’. A waterway is water in a channel passing through land, and it is no misuse of language to refer to a right of navigation as a right of way ‘over’ land. The vessel is in contact with and is carried by the surface of the water, but the water runs over land. The Act sets out to overcome the difficulties inherent in establishing a dedication by sufficiently continuous user. This applies to establishing a right of navigation just as much as as it does to establishing a right to walk or drive on terra firma. Last, a river or other waterway is properly and literally described as ‘land covered by water,’ the land being the bed of the stream, lake or pond in which the water is contained. ‘Accordingly we are satisfied that, at the time when the Act of 1932 was passed, the general law was such that public rights of way could exist over a navigable river which was then, in legal parlance, a highway and that such rights of navigation were properly described as rights of way’ and ‘If . . . the object of the Act of 1932 was to simplify the law relating to the proof of the acquisition of public rights of way over highways, there is no reason to assume that the draftsman deliberately set out to exclude one particular class of highway, viz. navigable rivers.’
Citations:
[1991] Ch 185
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton ChD 1990
The 1932 Act did not apply to public rights of navigation over a river. Vinelott J said: ‘ I do not think that any ordinary educated user of the English language would regard a right of navigation as a right of way over land . .’ The extended . .
Appealed to – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Cited – Orr Ewing v Colquhoun HL 1877
The House relied upon analogies to compare public rights of navigation over watercourses and rights of way over land, but recognised the differences in language which would be used and the incidents of the rights. . .
Cited by:
Appeal from – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 13 May 2022; Ref: scu.214604