Marshall against The Ulleswater Steam Navigation Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 1863 |
| Date | 21 February 1863 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 274
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 6 B. & S. 570. Observed upon, Johnsion v. Bloomfield 1867, Ir. R. 8 C. L. 68. Dictum not approved Bristow v. Cormican, 1878, 3 App. Cas. 666. Applied, Moffutt v. Power, 1889, 5 T. L. R. 656. Discussed, Attorney-General v. emerson, (1891) A. C. 654. Applied, Hindson v. Adhby, (1896) 2 Ch. 10. Referred to, Ecoryd v. Coulthard, (1897) 2 Ch. 571; (1898) 2 Ch. 358.
marshall against the ulleswater steam navigation company (limited). Saturday, February 21st, 1863.-Several fishery. Soil of lakes. Presumption. Prerogative.-1. The allegation of a several fishery, primfi, facie, imports ownership of the soil: per Wightman and Mellor JJ.; Cockburn C.J. dissenting, but holding this Court bound by the authorities to that effect.-'2. Qusere, whether the soil of lakes, like that of fresh water rivers, prima facie belongs to the owner of the land or of the manors on either side, ad medium filum aqute, or whether it belongs to the king in right of his prerogative? [Affirmed in Exchequer Chamber, 6 B. & S. 570. Observed upon, Johnston v. Bloom-field, 1867, Ir. R. 8 C. L. 68. Dictum not approved, Bristow v. Ooi'mican, 1878, 3 App. Gas. 666. Applied, Moffatt v. Power, 1889, 5 T. L. R. 656. Discussed, Attorney-General v. Emerson, [1891] A. C. 654. Applied, Hindson v. Ashby, [1896] 2 Ch. 10. Referred to, Eeroyd v. Coulthard, [1897] 2 Ch. 571 ; [1898] 2 Ch. 358.] The firat count of the declaration alleged that the defendants on divers days and times broke and entered certain land of the plaintiff covered with water, being a part of Ulleswater Lake, abutting partly on certain land of one Henry William Askew, and partly on certain other land of the plaintiff, and partly on certain land of one Henry Howard, and with steamboats of the defend-[733]-ants, came into and upon, and iailed upon and over the said land covered with water, to and from a certain pier or jetty of and belonging to the plaintiff, and wrongfully caused divers persons to go upon the said pier or jetty, and there to embark or disembark from the said steamboats, and wrongfully caused the said persons to sail in the said steamboats upon and over the said land covered with water, and by means of the said steamboats so navigating there, and the disturbance of the waters there occasioned by the same, disturbed, destroyed, and drove away the fish of the plaintiff there then being. The second count alleged that, before and at the time of the grievances hereinafter mentioned, the plaintiff was possessed of certain several fisheries in certain parts of a certain lake or land covered with water called Ulleswater Lake, and the defendants wrongfully caused certain steamboats to be navigated, used and propjlled in and upon, and over the said lake, and the said parts thereof, and by means thereof stirred up and disturbed the waters of the said lake and the said fisheries of the plaintiff, the defendants, in and about and whilst navigating tho said steamboats, there 3 B. &S. 734. MARSHALL V. ULLESWATER STEAM NAVIGATION CO. 275 cast and threw into and upjn the said lake and fisheries, divers large quantities of ashes, cinders, dust and other noxious refuse and materials. And the plaintiff says that, by means of the premises, the fish of and in the said fisheries were disturbed, driven away and destroyed, and thereby the plaintiff could not have and enjoy the said fisheries in as ample and beneficial a manner as he ought to have done, and otherwise might and would have done, and lost and was deprived of the benefit and profit of his said fisheries. The declaration concluded by claiming 1001. Pleas. First. To the whole declaration, not guilty. [734] Second. To the first count, that the land on which the trespasses were alleged to have been committed was not the land of the plaintiff. Third. To the same, that before, and at the times of the committing the acts complained of, there was, and of right ought to have been, a certain common and public highway, into, through, over and along the land in which &c., for all the liego subjects of the Queen to sail, navigate, pass and repays, with boats, vessels, and steamboats, at all times of the year at their free will and pleasure, and that the acts complained of were an use by the defendants of the said highway. Fourth. To the second count, that the plaintiff was not possessed of the several fisheries, nor of any of them. Fifth. To the same, except to so much as charged the defendants with casting and throwing into and upon the lake and fisheries the ashea, cinders, dust and other noxious refuse and materials, that, before and at the time of committing the acts complained of, there was, and of right ought to have been, a certain common and public highway into, through, over, and along the said lake, and the parts in which were the alleged fisheries of the plaintiff, for all the liege subjects of the Queen to sail, navigate, pass and repass, with boats, vessels, and steamboats, at all times of the year, at their free will and pleasure, and that the acts complained of were an use by the defendants of the said highway. Sixth. To the same, that the parts of the lake in which were the alleged fisheries of the plaintiff were, at the times of the committing of the acts complained of, the soil and freehold of divers persons, and that the defendants caused the said steamboats to be navigated, used and propelled in and upon and over the said lake, and [735] the said parts thereof, by the leave and in the exercise of the rights of such last mentioned persona as such owners of the soil and freehold of the said parts of the said lake as aforesaid, and that the acts complained of were necessarily done by the defendants in so causing the said steamboats to be navigated, used, and propelled as aforesaid, and not otherwise; and the defendants did no more than they were authorized to do in the exercise of the said rights, and the said acts complained of were committed by the defendants oti no other occasions and for no other purposes than as aforesaid. Seventh. To the whole declaration, that the defendants committed the acts complained of by the plaintiff's leave. Eighth. To the first count, so far as it related to the acts complained of in respect of and as to and concerning the said pier or jetty that the said pier or jetty was not the plaintiff's. Explications. First. The plaintiff took issue on all the pleas. Second; As to the third, fifth, and sixth pleas, that the plaintiff sued not only for the trespasses and grievances in those pleas admitted, but also for trespasses and grievances committed by the defendants in excess of the alleged rights, and also in other parts of the said land and lake and on other occasions and for other purposes than those referred to in those pleas. There was also a demurrer to the sixth plea. The defendants joined issue on all the pleas, and pleaded to the new assignment not guilty, and joined in demurrer to the sixth plea. The plaintiff joined issue on the plea to the new assignment. The issues in fact were tried, before Martin B., at the Summer Assizes for Westmoreland, 1861, when it ap-[736]-peared that the plaintiff sued as lord of the manor of G-lenridding, bordering on the Ulleswater Lake, and that the defendants were a Company incorporated under The Joint Stock Companies Act, 1856, 19 & 20 Viet. c. 47, for the purpose of running steam boats on that lake, and that for the embarkation and landing of passengers they had erected a pier, part of which was on 276 MARSHALL V. ULLESWATER STEAM NAVIGATION CO. 3 B. & S. 737. its soil or bed. The plaintiff claimed the ownership of the soil and freehold of that portion of the lake where the pier or jetty was erected and over which the steam boats passed, by virtue of a right of several fishery therein. The evidence and admissions in the cause shewed that the barony of Barton included that portion of the lake of Ulleswater which is within the county of Westmoreland, extending as it appeared to about the middle of the lake; and it would seem that before the reign of King Edward the First, and before the statute "Quia Emptores" and the declaratory extensions thereof by the statutes of Edward the Second and Edward the Third, the manor of Patterdale with other manors, were by subinfeudation carved out of the barony of Barton, and apparently the manor of Patterdale had assigned to it that portion of the lake called Ulleswater Head, which comprises within its boundaries the locus in quo; and that by another subinfeudation the manor of Glenriddirig was carved out of the manor of Patterdale. By an indenture, bearing date the 12th January, 10th Charles the First (1635), made between Richard Threlkeld and others (the then lords of the manor), of the one part, and Lancelot Dawes and others, the then tenants of the manor and lordship of Glenridding, in Patterdale, in the county of Westmoreland, of the other part, the customs of the manor are declared and confirmed. By deed of the 12th August, 1640 (16 Car. 1), E. [737] Threlkeld and others conveyed to Mrs. Joanna Mounsey, widow, her heirs and assigns, the manor of Glenriddiug with the appurtenances. By deed of 19th October, 1741, Edward Hodgson, of Blawick, in Patterdale, in consideration of 21. 2s., gave, granted, aliened, bargained, sold, enfeofFed and confirmed unto George Mounsey, of Patterdale Hall, his heirs and assigns for ever, "all that part of his the said Edward Hodgson's fishery in Hullawater Head, situate and being on the west side of the mouth of the river Goldrill, called The Eah, (that is to say), from the eastern bank or shore of the said river westward, through Parkside Field, as far as the said fishery extendeth; together with all the right, title, interest, claim and demand whatsoever which the said Edward Hodgson now hath of in and...
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R. v. Nikal (J.B.), (1996) 196 N.R. 1 (SCC)
...(1983), 143 D.L.R.(3d) 608 (Ont. H.C.), refd to. [para. 73]. Marshall v. Ulleswater Steam Navigation Co. (1863), 3 B. & S. 732; 122 E.R. 274, refd to. [para. Holford v. Bailey (1846), 8 Q.B. 1000; 115 E.R. 1150, refd to. [para. 81]. R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.......
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R. v. Nikal (J.B.), (1996) 74 B.C.A.C. 161 (SCC)
...(1983), 143 D.L.R.(3d) 608 (Ont. H.C.), refd to. [para. 73]. Marshall v. Ulleswater Steam Navigation Co. (1863), 3 B. & S. 732; 122 E.R. 274, refd to. [para. Holford v. Bailey (1846), 8 Q.B. 1000; 115 E.R. 1150, refd to. [para. 81]. R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.......