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 right of way over a feature of the land; this could not include a river, and accordingly, the Act does not govern questions of public rights of navigation over a river, as regards the acquisition of public rights of way by long user. ‘A river . . is more complex consisting as it does not only of the bed and banks which contain the water and which are capable of ownership, but of the running water which, so long as it flows within the banks, is res nullius.’
The 1932 Act was modelled on the Prescription Act 1832. In the 1932 Act the phrase right of way ‘can only be used in the sense of a physical feature on land which the public has used for the purposes of passage.’ but the Act clearly distinguished (1(8)) between land and water. ‘. . section 1 of the Act of 1932 does not apply to navigable rivers.’
Lord Bridge of Harwich, Lord Oliver of Aylmerton, Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Lowry
Gazette 15-Jan-1992, [1991] 3 WLR 1126, [1992] 1 AC 425, (1991) 63 P and CR 411, (1991) 90 LGR 15
lip
Rights of Way Act 1932 1(1)(8)
England and Wales
Citing:
Appeal from – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton CA 1991
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 . .
Cited – Wills Trustees v Cairngorm Canoeing and Sailing School HL 1976
The public right of navigation (PRN) is a right to public use of the river. The river may be used by the public for purposes of exercise and recreation as well as transport and commerce. At common law PRN cannot be lost by lack of use over time. ‘A . .
Cited – Williams v Wilcox 1838
The channel of a public navigable river is a King’s highway. . .
Cited – Marshall v Ulleswater Steam Navigation Co 1871
A public right of navigation may, according to the nature of the locus, embrace the right to navigate in no defined channel over the whole surface of an inland lake . .
Cited – Simpson v Attorney General HL 1904
Lord Lindley said: ‘the doctrine once a highway always a highway is, I believe, applicable to rivers as to roads’ . .
Cited – Attorney-General v Wright CA 1897
The nouns ‘mooring’ and ‘moorings’ have been judicially defined as ‘a mode of anchoring a vessel by means of a fastening in the ground, either an anchor or something heavy or a chain and buoy, as will allow a vessel picking up the buoy when she . .
Cited – Simpson v Attorney General 1901
The analogy between public rights of navigation and public rights of way over land is not complete. . .
Cited – Bourke v Davis 1899
A public right of navigation over a river is ‘similar to a right of highway on land not covered by water.’ Before 1885, public rights of navigation did not exist over tributaries of the Thames where there was no prescriptive user. . .
Cited – Bower v Hill CCP 1835
The plaintiff, in his declaration, claimed as appurtenant to his close, ‘a certain way from the said close . . . unto and along a certain stream or watercourse . . . unto and into a certain navigable river’
Held: There is nothing to prevent a . .
Cited – Porter v Ipswich Corporation 1922
Greer J said: ‘The expression ‘dedicated to public use’ is used in reference to land which itself remains the property of the owner in fee of the soil, but for some definite purposes is dedicated to public use.’ . .
Cited – Schweder v Worthing Gas Light and Coke Co (No. 2) 1913
Where land is dedicated as a public street, what is dedicated is the soil of the way itself and the subjacent soil to the extent necessary for its maintenance. . .
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 – Denaby and Cadeby Main Collieries v Anson 1911
A right of public navigation includes the necessary incidents of such passage including the right to drop an anchor. In principle it is possible to acquire title to part of the bed of a tidal river or to the foreshore through the occupation of a . .
Cited – Leach v Rex HL 1912
Save insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law. . .
Cited – Barras v Aberdeen Steam Trawling and Fishing Co HL 17-Mar-1933
The court looked at the inference that a statute’s draughtsman could be assumed when using a phrase to rely on a known interpretation of that phrase.
Viscount Buckmaster said: ‘It has long been a well established principle to be applied in the . .
Cited – Ormond Investment Co Ltd v Betts HL 1928
The House considered the interpretation of a statute dealing with public rights of navigation.
Held: ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the . .
Cited – Fairey v Southampton City Council CA 1956
The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under . .
Cited – 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 . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited by:
Appealed to – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton CA 1991
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 . .
Lists of cited by and citing cases may be incomplete.
Land, Transport
Leading Case
Updated: 09 November 2021; Ref: scu.77972
