The Company of Proprietors of the Navigation of the River Medway v The Right Hon Charles Earl of Romney and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1861 |
| Date | 01 January 1861 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 226
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 30 L. J. C. P. 236; 4 L. T. 87; 7 Jur. N. S. 846; 8 W. R. 489. Referred to, Brumfitt v. Roberts, 1870, L. R. 5 C. P. 233; Wilts and Berks Canal Navigation Company v. Swindon Waterworks Company, 1873-75, L. R. 9 Ch. 455, n.; L. R. 7 H. L. 697.
[575] the company of proprietors of the navigation of the medway v. the eight hon. charles earl of rom.nky and others. 1861. [S. C. 30 L. J. C. P. 236 ; 4 L. T. 87 ; 7 Jur. N. S. 846 ; 8 W. R. 489. Referred to, Urumfitt v. Uobertx, 1870, L. R. 5 G. P. 233 ; Wilts and Berk* (hud Navigation Company v. Swindon Water-work* (lompany, 1873-75, L. R. 0 Ch. 455, n. : L. R. 7 H. L."697.] By a public act of parliament (13 (t. 2, c. 261), certain persona were incorporated, with the usual powers, for the purpose of making the river Medway and streams thereinto flowing navigable, and it was amongst other things enacted that " the said river or streams so to be made navigable, and all lands, tenements, and hereditaments to be by them (the company) made use of for the benefit of the said navigation by virtue of a former act and that act, should be and were thereby vested in the said company, their successors, heirs, and assigns for ever." - The defendants erected works on the banks of the river for the purpose of raising, and thereby raised, water from the river, for the supply of the county lunatic asylum and county gaol : - Held, that the statute created in the company a property and interest in the water of the river which was interfered with by the abstraction of it for tiio purposes to which it was applied by the defendants, - purposes more extensive than those for which a riparian proprietor, as such, could insist upon appropriating the stream as it passed by his land ; arid that it was not necessary to tho maintenance of the action that there should be actual damage to the navigation, inasmuch as the legislature intended to give the company such an interest in all the water of the river for the purposes of the navigation as was interfered with by the .abstraction of any part thereof. - Whether or not the riparian proprietors could exercise for the benefit of the land adjoining the river the rights which ordinarily belong to such proprietors, - quajre 1 This action was brought by the plaintiffs against the defendants for an alleged trespass committed on land claimed by the plaintiffs, described as land covered with water, called the River Medway, by entering thereon and placing a pipe therein for conveying water from the said river, and also for continuing the pipe in the said land aftfr notice to; remove or stop up the same; and also for an alleged wrongful diversion and abstraction of water from the said river, whereby the depth of the water was alleged to have been diminished and the river rendered less navigable, - the plaintiffs claiming, under the acts of parliament hereinafter mentioned, to be the owners and proprietors of the river and in possession thereof and of the water flowing along the same, and by reason thereof entitled to the full use and enjoyment of such water without interruption by the defendants. The defendants by their pleas denied the alleged trespass and wrongful acts and the alleged rights claimed by the plaintiff's. And the defendants further1 alleged that tho river was a common public and navigable river, subject to the tolls mentioned in the said [676] acts of parliament, and that only under the said acts of parliament was the said land the plaintiffs' for the purposes only in those acts mentioned ; and that the: defendants, as justices of the peace for the county, and members of the committee of visitors for.the county lunatic asylum and of the county gaol, claimed a right to convey water ifrom the river to the county lunatic asylum and to the county gaol, and to divert and abstract water from the said river for the necessary drink and domestic usa of the inhabitants of the said gaol and asylum, and to lay and continue the pipe (a) Willes, J., was engaged in the Divorce Court. 9C. B,:(N.S.)577. THE MEDWAY COMPANY V. THE EARL OF EOMNEY 227 in the river Medway for those purposes ; and alleged that they did not sensibly or in any material degree diminish the depth of the water in the said river, nor were the waters thereof rendered less navigable or the navigation impeded or interfered with. The plaintiff's demurred to the two last pleas and joined issue on all the pleas ; and the case came on for trial at the Kent Summer Assizes, 1859, before Crowder, J., and a special jury, when, by consent of the parties, and, by order of nisi prius, a verdict was taken for the plaintiffs, subject to the opinion of the court upon the following case :- The parties are a body corporate acting under the provisions of an act of parliament made and passed in the 17th year of the reign of King Charles the Second (c. 11), intituled " An Act for making the river of Medway navigable, in the counties of Kent and Sussex," and of another act of parliament made and passed in the I .'Jth year of the reign of King George the Second (c. 2(i), intituled "An Act to revive, explain, and amend an act made iti the Kith and 17th years of the reign of his late Majesty King Charles the Second, intituled ' An Act for making the river of Medway navigable, in the counties of Kent und Sussex,'" Copies of these acts of parliament accompanied and were to be deemed to form part of the case. [577] Since the passing of the said acts of parliament, the plaintiff's, within the limits mentioned in such acts, and for the purposes of those acts, have made and kept the river Medway navigable, and from time to time cleansed, widened, and deepened the same, and removed impediments to the navigation, and constructed between Forest Row and Maicistone fourteen locks and weirs, tumbling-bays, and other works for the improvement of the navigation, and, amongst others, they have constructed a lock on the river at East Farleigh, in the county of Kent, distant about two miles from Maidstone, higher up the river, and between Maidstone and Forest Row. The plaintiffs have also from time to time since the passing of the said acts been in the habit of Belling sand and gravel which has been dug out of the bed of the river in the necessary process of deepening the same, and have also during the same period been accustomed to dig out and sell to parties applying for the same, as well as to grant to the adjoining land-owners upon their application permission to dig out of the bed of the river and remove for their own use, sand and gravel which presented no obstruction to the navigation : but no sand or gravel, so far as appears, has ever since the passing of the said acts been removed from the bed of the river without the permission of the plaintiffs. Since the passing of the said acts persons desirous of erecting mills along that part of the...
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...a natural watercourse: such rights can only be created by statute. That has been the law since the old case of The Company of Proprietors of the River Medway v Earl of Romney (1861) 9 CB (NS) 575. The statutory provision in that case provided that “the said river or streams so to be made na......
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