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

entity OF the act, this south frontage access be-
tween his wharf and the river. had been
cut OF or 1nterfered with he might have
maintained an action for damages: and
that IN any public work executed under the
power OF the lands clauses consolidation act
the destruction or interruption Of this access
would be an "injuriously affecting OF the ap-
peiiants land within the meaning that act 1.-The
night TO compensation in such a case under the
terms OF the lands clauses consolidation act
was as well established in this house in the
eases OF the Duke OF Buccleuch.' Then discuss
ing what are the ordinary rights of the owner OF
awharf upon the banks of nayigable rivers
''unquestlonably the owner of u wharf on the
river oank has, like every other subject OF the
realm the night of navigating the river as one of
the public. This, however is not right com
ing 10 MIN qua owner or occuper OF any lands
on , .ne nank, nor Is II night which, per &C. be
nemDer OF the public. But when this right of
navigation IS connected with exclusive ac-
cess 10 and from particular wharf, il assumes
ayery different character. II ceases to be right
neid IN common with the rest of the public Tor
other members OF the public have no access TO or
from the river at the particular place. and il be-
comes a form of enjoyment OF the land and of
the river in connection with the land, the dis
turoance OF which may be yindicated in dam
ages Dy an action, or restrained by an Injunction;
taxing away OF river frontage OF wharf, or of
the raising OF an impeachment along the front
age, lnterrupting the access between the wharf
auq the rlVer, may be an injury 10 the public
right OF navigation, but il is the less an in
Jury to the owner of the wharf, which, in the
absence OF any parliamentary authority, would
vented 1t appears to me impossible to say that
mode OF enjoyment of land on the bank of a
navigabe river which is thus valuable, and as
10 when land owner can thus protect himself
against disturbances, is otherwise than right
or claim to which the owner of land on the bank
OF the river is by law entitled within the mean
ing or such saving clause as that which have
READ. The title OF the appellant, however, APP
pears to me to stand still higher than have
t thus put IT. Lord Justice Mellish takes notice
that it was contended on behalf of the wharf
niger that the owner of premises abut.ing on
navlgaple river where the tide does not flow and
retfow, has rights belonging to him Ms a rinariau
proprietor wholly distinct from the public right
OF navigation, and he goes on TO observe that the
iord justices had been unable TO find any au-
thorlfy Tor holding that riparian proprietor
where the toe flows and refiows has
any rights or natural easements vested in him
similar 10 those which have been held in uumer-
Gus cases TO belong To riparian proprietor ON
the banks OF natural stream above the flow OF
the tide. Lord Mellish, while conceding that
the riparian owner OF a non-navigablc stream
had riparian rights, yet he claims that when a
naylgabie stream, that is, where the tide flows
and reiiows, he did not have any such rights or
natural easements vested in him. Bit the lord
chancellor differs with him and says. ''With
much deieTence for the lord justice, | should
nave thought that some authority should have
been produced to show that the nat
ural rights possessed by the riparian
proprietor, as such n nonnavigable
river are not possessed by riparian
proprietor on a navigable river. 1t cannot, as it
seems 10 me, be open 10 doubt, that If the ap-
pelant at the time of the passing of the conserv-
ancy act had the ordinary rights of riparian
owner in the water OF the river that right was
maintained by the saving clause; and being in
fringed, as il clearly was infringed, by the en-
bankment of the Fishmongcr's Company he
ought TO be protected by the injunction of the
court Alter reviewing the authorities upon
which the lower court relied, he says: at is
suffelent TO say that these cases appear to me to
be Irrelevant, and that the question is not as
to lnyenting private right in the riparian pro-
prietor, but what are the rights of riparian
proprietor actually existent which are referred
TO IN and saved by the 179th section"
Lord Chelmsford discusses two propositions
"First, what were the powers of the eonserv-
ators, and the restriction of these powers, in re-
spect to the private rights of individuals see
ond, whether there is any individual right or
privilege in the owner of Lyons wharf peculiar
70 his river frontage, distinct and different from
proposition he agrees with the lord
chancellor that while the judges of
the lower court could find no authority
tor holding that the riparian proprietor ON a
river where the tide ebbs and flows has rights to
easements vested in him similar to riparian
proprietors on the river above the flow, says:
i lind no authority for the contrary proposition,
ana see no sound principle upon which the
distinction between the two descriptions of
natural streams can be supported. And il APP
pears 10 me that eases have been decided which
are strongly opposite to it, Why a riparian
proprietor on tidal river should not possess all
the peculiar advantages which the position of
his property with relation to the river affords
him, provided they occasion no obstruction to
Q.
The court below had decided against LYONS
on the ground that riparian proprietor "has no
rights over the river OF shore of the river be-
yond the rights OF the rest OF the public" Lord
Salborne discusses the authorities on which the
lower court 50 held. He, however, holds that
these authorities do not sustain the position of
the lower court He then refers to the Duke OF
Buccleuch ease and says that the lower court
took no notice of that decision in their judg-
ment though that case was conclusive author
ity III favor ot appellant Lyons that the Duke OF
Buccleuch case determined that the riparian
owner was "entitled to compensation in respect
to lands being njuriously affected by being de-
prived OF access TO the river and to the Dock
and, if the lower court had considered the Duke
of Buccleuch and other eases, a consideration
thereof would have led the lower court to a
different conclusion.
Lord Selborne says that the lower court
founded their Judgment upon these two propo
sitions: First, that riparian proprietor upon
the bank OF tidal navigable river has no
rights or natural easements similar 10 those
which belong to riparian proprietor ON the
bank OF natural stream above the flows OF the
tide; second, that the riparian proprietor whose
frontage and means of access TO such tidal river
is cut OFT by encroachment, from adjoining land
into the stream, suffers no loss or abridgment of
private right belonging to him as such riparian
proprietor, but is only damniied i'm common
with the rest of the public by the diminution OF
the water space in the nayigable stream, and by
such obstruction rs may he consequent thereon.
And he, with the colleagues who had spoken
before him, agreed that the lower court were in
error when they held that there were no author
tiles in variance with these two propositions;
that, on the contrary, these propositions held by
the lower court were in variance with the
authorities, and specially cites the Duke of
Buecleuch case as being in variance with the
Judgment OF the lower court. Upon principle
as we'll as upon these authorities, am OF opin
ion that private riparian rights may and do
exist in tidal navigable river
AS he Is discussing now upon principle, and
principles and authorities should so ''hand
in hand, we quote extensively: The most
material differences between the stream above
and the stream below the limit of the tides are,
that in an estuary arm of the sea there exists,
by the common law, public rights in respect of
navigation aud otherwise which do not gen
orally lin this country exist in the non-tidal
parts OF the stream; and that the fundus or bed
OF the noI-tidal parts of the stream belongs
generally, TO the riparian proprieters, while in
the estuary IL belongs generally to the crown.
But the rights OF riparian proprietor, so far as
they relate to any natural stream, exist jurc
adtUTd, because his lands had, BY nature, the
advantage OF being washed by the stream; and
ii the facts OF nature constitute the foundation
of the right, am unable to why the law
should not recognize and follow the course of
nature III every part OF the same stream. Water
which Is more or less salt by reason OF the How
of the tides may still be useful for many domes
tic and other purposes, though there are no
doubt some purposes which fresh water only
will serve. The general law 10 riparian
rights is not stated by any authorities, that am
aware of, in terms which require this distinc-
ton, and II there is any sound principle on
which fought 10 be made, the burden OF proof
seems TO me to lie on those who 80 affirm. As
for the public right of navigation. IL may well
eo-exist with private riparian rights, which
must, OF course, be enjoyed subject 10
1t, Just as where there Is no navigation, each
riparian pToprietors right is concurrent with,
aud is SO far limited by, the rights Of other pro
pFietOrs' He then discussed who n riparian
owner is. and proceeds .fyen If IL could be
shown that the riparian rights of the proprietor
OF land on the bank of a tidal navlgab!e river
are so similar 10 those OF q proprietor above the
flow OF the tide should be of opinion that he
s4lsarHtg raafrE