Rights of way — River Derwent — Riparian owners denying any public rights of navigation — Whether public right of navigation over river — Whether Highways Acts 1959-80 apply — Appeal allowed in part — River capable of being a public highway — Public right of navigation capable of arising over non-tidal navigable river
The appellant trust is restoring the River Derwent and sought a declaration as to the existence, if any, of public rights of navigation on the river between Malton and Sutton. The defendants, riparian owners, denied any rights exist taking the view that it is in the public interest that the relevant stretch of the river, which is still comparatively unspoiled, should be preserved as a haven for wildlife, for which it is famous.
Vinelott J determined ((1989) 59 P & CR 60) a number of preliminary questions as follows: (1) On the evidence there was a public right of navigation up to Sutton. (2) The “Act for making the River Derwent … navigable”, enacted in 1702, only gave rights of navigation subject to the payment of tolls. (3) There was no presumption of dedication as a right of public navigation in the absence of the 1702 Act despite the increase in pleasure use. (4) The Land Drainage Act 1930 and the River Derwent Act Revocation Order 1935 ended any public rights of navigation then existing. (5) Although a right of navigation is a right of way, exercised over subjacent land, a river was not thereby a public highway. The scheme of the Rights of Way Act 1932 and the Highways Acts 1959-80, such as the right of a landowner to give notice to negative any intention to grant rights, could not apply.
In the trust’s appeal, questions 2, 3, 4 and 5 were in issue.
Held The appeal was dismissed in relation to questions 2, 3 and 4 and allowed in relation to question 5.
In relation to question 5: (1) At the time when the 1932 Act was passed, the general law was such that public rights of way could exist over a navigable river which was then, in legal parlance, a highway and that rights of navigation were properly described as rights of way: see Orr-Ewing v Colquhoun (1877) 2 App Cas 839. (2) In the case of navigable non-tidal rivers the owners of the bed of the river (normally the riparian owners) were (and are) the persons capable of dedicating the navigation to public use: see Jones v Bates [1938] 2 All ER 237. (3) The draftsman of the Prescription Act 1832 certainly appears to have contemplated the possibility of the acquisition by prescription of a private right of way over water.
There is nothing in the literal meaning of the words used in the Rights of Way Act 1932, quite apart from any consideration of the pre-existing law or the mischief which the Act was intended to remedy, which suggests that the Act was not intended to include public rights of navigation over a non-tidal river. When the 1932 Act is construed by reference to the pre-existing law, it clearly included rights of navigation over a navigable non-tidal river. Further there is no reason to assume that the draftsman deliberately set out to exclude one particular class of highway, viz navigable rivers.
It follows that the following provisions apply to public rights of navigation in non-tidal waters: Rights of Way Act 1932, section 1 (and as amended by the National Parks and Access to the Countryside Act 1949, section 58); Highways Act 1959, section 34; and Highways Act 1980, section 31. Although these provisions are capable of acting retrospectively, in the present case any user before the 1935 order was referable to the statutory rights under the 1702 Act and was not of such character as would at common law have given rise to a presumption of dedication. Accordingly, none of those provisions applied or apply to navigation by members of the public over along and past the land held by the respondent riparian owners.
Eric Christie and Nicholas Peacock (instructed by Payne Hicks Beach) appeared for the appellant; and William Ainger (instructed by Hepworth & Chadwick, of Leeds) appeared for the respondents.
