Liquid Assets
19 August 2008
At a time when water is very much in the news through our success in the Olympic Games, it is perhaps worth considering certain aspects of the law relating to rivers, canals and watercourses.
Navigation and access
It is a general principle of English law that the owner of land bordering on a water-course also owns the bed of that watercourse up to an imaginary line drawn down the middle. The common law concerning trespass relates to water in the same way as it does to land. The owner of land fronting onto a watercourse can stop people travelling over or to that part of the watercourse owned by him in exactly the same way as he can stop people walking over his land without permission or fishing from his land into the watercourse without his permission.
The public have a right to use a navigable river for navigation similar to the right which they have to pass along a public highway through private land. The extent of that right (beyond the tidal area) depends on the navigability of the river and the proof of use from time immemorial. However as regards rights of access, it is settled that, in general, a riparian owner on a navigable river has, subject to public rights of navigation, the same right of access to the river as an owner on a non-navigable river. The public have no right of access over the landowner's land to the river without the landowner’s permission and (if on the river) have no right to land, moor or use the banks as a towpath.
A right of navigation, where it exists, is a right to use the river to its full capacity. There is no such thing as a limited right of navigation, such as a right limited for canoes. Where a public right of navigation does not exist, agreements to use the river (and to gain access to it) can be negotiated with the owner of the river bank who controls the right to use the river.
Canals
Canals are artificial structures built on land bought by the companies that constructed them. The ownership of the bed of the canal and towpath is separate from that of the adjoining land on either side. Thus, a boat moored in a canal is floating over the bed of the canal, and the canal owner has the common law right of a landowner to give or withhold consent for such use of its land and to charge for that use. In the absence of such consent, the boat is trespassing. The rights of the adjoining landowner for boating and fishing on the canal will normally be governed by the statute that authorised the making of the canal.
Opportunities
When a recent survey was carried out, it was established that there were 65,000 kilometres of rivers over 3 metres wide but only 2,200 kilometres of such rivers with public rights of navigation, i.e., the public have access to less than 4% of rivers in England and Wales. There is a considerable lobby to increase such rights of access, especially from rowers and canoeists. Is there mileage here for an enterprising farmer to diversify and perhaps lay the foundations for more success in 2012?
Latest Events
- November 2008
Forthcoming Events
