Background to the case
Bourke, who owned the land either side of the Mole at a point between Cobham and Esher, obstructed the river with posts and chains. Davis removed the obstruction to the passage of the boats. Bourke went to court seeking an injunction to prevent interference to the chain across the river.
Davis defence of his his action was that the river had been long been used for boats, without opposition, and because of this there was now a public right of navigation (Long user). The river was also a highway with a public right to pass.
Bourke's case was that the river had not been used except by consent of the owners.
The judge rejected any right through long public use - any historical use for purposes other than recreational boating had been rare and most boating was from private property with the consent of those owners along the river.
The court then considered if the river was a highway.
This was rejected on the following grounds:
The river was not capable of being navigated by 'even canoes' in its natural state (although weirs and dams created a series of artificial ponds with sufficient depth for boats.
There was no public access to the river - even where public roads crossed the river boats could not be launched as railings prevented access.
Even if there was public access at one point the river was not a way between 2 places.
Even if it was accessible by the public it had no maintenance for the purposes of making it capable of being navigated and could not therefore be comparable to a cul-de-sac on a highway.
It was conceded that a body of water (lake) touched at one point by a public road could have a public right of navigation.
What could happen if this case happened now? (05-2016)
1) The river Mole is clearly physically navigable in its natural state by (even by canoes) today
2) There is public access to the river
3) There is a way along the river
4) An act of 1665 appears to confirm existence of prior navigation rights on the river mole
River Itchen, River Test, River Mole, River Ravensbourne, River Wandle (Surrey), Great
Ouse - 16 and 17 Car II c. 12 (1665)
“Provided always, that all such Boats of such Burthen in such manner and for such uses as
have been used or accustomed to pass in or upon any of the said Rivers or any of them,
before the Making, new Cleansing or Scouring the said River, or Enlarging the Passages
thereof and other the aforesaid Premises, and the making this Act, shall and may continue
freely to go and pass in or upon the said Rivers and other the Premises, so far and in such a
manner as was or is accustomed before the Deepening, Enlarging or Making thereof this
Act, or anything herein Contained to the contrary in anywise notwithstanding.”If there is no previous act creating these rights, then they must be historic rights.
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