The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24


Der their judgment was reversed By 4 majority
of four judges 10 three. The opinions of seven
judges have been thus oyerrulcd by minority
of Jour- OF the six judges whose assistance
your lordships had upon the hearing OF the
appeal all OF them, with the exception of Mr..
Jnstice Blackburn, eoneurred in the judgment
ing the facts: aBy the Thames Embsnkment
Act the metropolitan board of works
was authorized to construct an embankment on
the north side of the Thames from Westminster
bridge TO Blackfriars bridge. In the course of
performing the necessary works il became neces-
sary to remove the causeway and the
landing place connected herewith, and
house and premises from direct access to the
river In the place where the water had PIE
siously flowed solid embankment was made,
which has since become public highway. The
Plaintiff gave the defendants notice that he
claimed compensation as well Tor the entering
upon ana taking by them OF the causeway, pier,
or letty for the removal and obstruction OF the
use and enjoyment of the landing place, and for
all other damage sustained or TO be sustained by
him by such injurious affecting of his said mes
saage OF dwelling house, and other lands, premi-
ses and Entertainments"
Under the various acts referred to the arbi-
traitors had awarded a certain amount for the
interest that the plaintiff had, first, in the said
causeway, pier and jetty; second, for the shut
ting up OF the said landing place; third, for the
damage BY the depreciation OF the said mansion,
house, lands, tenenents and Entertainments, and
by otherwise iniuriousiy affecting the same by
the execution by the said board of their said
works, and by the exercise OF the powers of the
said act. 80 | now proceed TO consider
whether the umpire has included in his award
any head OF damage not properly the subject OF
compensation.
iii appears to me that the notice OF claim is
rather imperfectIy framed, however, it
has never been questioned that the umpire had
authority TO take into his consideration the
INJURY 10 Montagu house, arising from the
construction ana use OF the embankment. There
can be no doubt, aud none has been entertained,
that the plaintiff is entitled to compensation in
respect Oh the taking away the eauseway and
landing place, and the injury arising 10 his
house and premises by depriying him of access
to the rlver. The only question upon which
there has been difference OF opinion among
the judges Is, whether the umpire was author
lzed to give compensation OF Montagu house
by the conversation OF the land between il and
the river into highway, aud the consequent
public use OF it.
"The board OF works were empowered to make
an embankment, or right-of-way, under the
act, along the river III front OF the true land,
and II the upland owner sustained any loss OF
river frontage, or otherwise, by reason of the
exercise OF this power, the board could compen-
safe the owner for such loss of frontage.
The 9th section OF the act contemplates
two descriptions oil damages likely to be sus-
tanned by the upland owner One, by loss of the
river frontage; the other in any other manner.
by reason OF the embankment.n
IL can hardly be doubted that in addition to
the damage sustained by the loss OF the river
frontage, the house must have been Injurious
ly Affected e., deprecated in value--by the
interposition between IL and the river OF an en-
bankment To be used public highway"
And Lord Cairns said: at has appeared TO me
throughout out that the property OF the plaintiff in
called riparian property The meaning of that
is that il had water frontage. The meaning OF
its having water frontage was this: that it had
right to the undsturbed flow of the river,
which passed along the whole frontage of the
property in the form III which it had formerly
been accustomed to pass. That being the state
OF things the water frontage, with these rights,
which the plaintiff in error possessed, were taken
for the purposes OF the act. Beyond all doubt
the water night was property belonging to the
piaintih, Tor which compensation was TO be
made, ana il was for the arbitrator to assess the
compensation to which the plaintiff was en-
titled upon that footing
This case then seemingly decides that the IN
land owner is entitled to the Use OF the flow of
the water to his land irrespective of whether or
not he had jetty or wharf erected or the own
ership of sh re; that this water right was
property and that 1t WAS such property as con-
templatcd by the Thames act to be compensated
for in damages if the owner was deprived
thereof, in short, that he had the right of access
While, among other courts there is the dispute
to whether not this is the decision .the
point in the case, the house OF lords, by which
the case was decided in a subsequent case. Lyou
W.. Fisimonger, IHira, have said in plain, dis
tinct, unequivoeal language, that the Duke of
Buceieucb ease recognizes the right of access to
riparian owner and have followed and adopted
the case on the proposition that riparian owner
has right TO the exclusive access to the river
that it lis private right to the enjoyment of the
ground for an action for damages, or for an in
junction., and that this right 'sdoes not depeud
upon the ownership OF the soil, or of the water"
The Lyon vs.. Fishmonger case was decided in
the house OF lords i'll 1876. Lyon was the owner
OF the upland bordering on the river Thames ut
that point subject to the ebb and flow of the
tide. An inlet OF the river was the western
boundary OF his land, "aDd thus the upland
proprietor enjoyed the advantage of double
river frontage TO the south on the main line of
the river, and TO the west on Wickworths Hole
or Gil la had a .E Al.
western boundary, the Fishmonger company
had erected wharf on the west, but whether as
III ana owner or not does not appear. In 1872,
uloer the Thames act, the Fishmonger company
obtained permission Ito make an embankrnent
III front OF their wharf up to the main line of
the river, which would have had the effect of
preventing Lyon having use of his wharf on
the western side The question for decision
was whether or not Lyon was entitled TO dam
ages because of the erection of the Fishmonger
emban kment depriving him OF access to the
west side Of his wharf directly from the river
While this is the precise point directly before
the court we must not overlook the fact that
the crown conceded that Lyons right of access
from the front or southern frontage OF the river
was right OF property incident TO his upland
ownership, simply claiming that he had no spe-
cial right OF access by the western side, aside
from the right in common with the rest of the
public. In brief for the crown, the solicitor
general says "The right now contended for is
not that OF a riparian proprietor. The riparian
right, so FAR us the applicant Is concerned, is
that OF access from the south front of his wharf
10 the river, and that access is not, and never
had been proposed 10 be, interfered with. The
appellant has still perfectly free access to the
river, but he claims, without reference to any
thing but his own convenience, to have the
power OF mooring his barges by the side OF his
warehouse; to have, III fact, double frontage
to the river"
The question therefore was whether or not
Lyons right of access to the wharf on the west
whether II was right recognized by the Thames
act 10 entitle him 10 compensation. 1t
was coBtended no compensation should
be given e,t because nS.o. i, wa, WAS not
that IL was the public right OF navigation en-
joyed in company with the rest of the public,
and therefore, not having deprived him OF any
private right, there was no damage; there being
no damage, he was not entitled TO compensation.
II was further contended by the crown that
the compensation contemplated by the act was
only TO protect proprietary rights long estab
lished and incapable of being interfered with
without serious injury TO individual. ''If the
south frontage had been interfered with. there
would have been an injury, and the upland
owner would have had ground of complaint.
That had not been shown, and the interference
with the use of the water on the west side was
no substantial INJURY. OF which he could COM
plain The legal right OF the upland owner
was right To the use OF his river frontage: that
he would enjoy now as he had enjoyed ii before.
In no way whatever was il proposed To be inter
Tered with. he crown claimed that
the Duke OF Buccleuch case did not
apply 10 the Lyon Fishmonger case be-
cause IN the Duke OF buecleugh case
the right which 70 found "A claim for com
peDsatlon was required to be clearly an existing
private night, whilst in the Lyon Fishmouger
Case there was no such private right that the
upland owner had all that he required for using
the property front OF his warehouse to- wit:
the south frontage. "IIe had IA right of access
20 that front, but he had no other private right
ana that one was not affected. Right of free
navigation one he enjoyed in common with
the rest OF the world and which could not form
the ground Tor a private action. He
had 10 special right OF access by The side of his
L.