Posted on August 26, 2012The “Law” of Navigation In the last ten years I’ve been trying to understand why Wales and England have such a unique situation with regard the public using rivers and lakes that aren’t tidal. When I started out the commonly held doctrine was that all inland water is “owned” by someone. However, dig a bit and its pretty clear that the water is owned by no-one, just like wild brids and fish belong to no-one. If the water was owned, every flood would lead to the downstream neighbours seeking compensation from the upstream owner. The early law, or at least the “charter” laying out the intention of the Law, the Magna Carta, confers a Right to enjoy the waters. Despite many parts of this document being repealed, the one relating to Navigation is still in force today. There is a well developed history that indicates that this was observed until a Humphry William Woolrych wrote a treatise in 1850 on the Law of Water. In this he held the opinion that there is no Public Right. However, in Law, nowhere in statute is Navigation prohibited. Academic research papers today argue strongly that Woolrych made some significant errors in his logic. This is currently unchallenged. In fact those countries that formed their own legal system from the basis of English law (like America) hold true to the original intention of law. All of these were prior to Woolrych. In the UK, in 1976, there is a notorious piece of case law Rawson vs Peters. In this case, a canoeist was paddling on a piece of water that an angling club chose to argue it “owned”. The angling club brought a trespass case against the canoeist citing damages to their fishing rights. Unfortunately the canoeist did not turn up in court, and without any defence Lord Denning had no choice but to awarded nominal damages (50p) to the angling club on the grounds of trespass. This piece of case law is now the one piece of law upon which the argument that inland water is not Navigable (swam, canoed, rowed, paddled, etc) by the Public. What is often overlooked though, is in his direction Lord Denning refused to grant an injunction restricting the canoeists right to Navigate. What this single peice of case law actually says, therefore, is that without providing a defence to trespass Denning had no choice but to award damages but, and this is the pivotal piece of information, he would not control Public Navigation. I’ve read lots and lots of old Railway Acts and Highways Acts (pre Woolrych) that make clear that bridges should “have a span that allows the passage of lighters” this to me is indicative of the intention in law to allow Navigation. Lighters were cargo carrying barges and the construction of these is evident along many inland rivers way, way above the tidal limit. There is anecdotal evidence that Navigation was taken by farmers floating bales of wool down rivers, families using the rivers as modes of transport and many recreational events centred around major water courses. The indication is that this was taken as of Right. Even in living memory there are accounts of this being the case until someone holding fishing rights asserted it was “their” water alone. I’d also question why for example, on canals and the Thames that angling clubs don’t control the Navigation rights. I accept that these waterways have explicit laws permitting Navigation, but the title deeds I’ve seen for fishing rights are always silent on this area. By now the entrenched, passionate opinion of the Law by those with game fishing rights has much acceptance. Those that hold or are influenced by very lucrative fishing rights argue they control Navigation and those that use the water don’t believe that the Navigation is controlled by those with angling rights. Financially, it is a David and Goliath argument. It is a sweeping generalisiation, but most fishing clubs with game fishing rights are very well financed, often underwritten by a membership of wealth. Those that want to go splash in the water, largely don’t want an argument and represent themselves. As such, many can be easily intimdated by a solicitors letter. As the number of people wanting to enjoy the outdoors increases the 1976 position is questioned more and more. As the discussion goes into more and more detail I can’t but think that this argument, this battle line, is one drawn on very shaky ground. There are some, in my view, very questionable statements being made by some riparian owners. These are increasingly gaining interest from modern day legal commentators and these tests will inevitably help redefine case law. The general Public and Governments of England and Wales now buy into a commonly held view which may not actually have foundation. There is a lot at stake. But that is only my opinion.