Rights of way — Public rights — Navigation on non-tidal waters — Issue of construction — Whether statutory rights of way “upon or over land” apt to include non-tidal waters — Riparian owners contending that provision applicable only to public rights of way over land — Whether general right of public navigation included — Appeal by riparian owners allowed
The action was brought by the Attorney-General on the relation of the Yorkshire Derwent Trust Ltd, the plaintiffs in the action and the respondents in the appeal, a charitable body formed for the purpose of the restoration of the Derwent as a navigable river, and the town council of Malton, which were concerned to preserve any public rights of recreation. The appellants were the defendants to the action personally or in their capacity as trustees as the owners of land lying between Malton and Stamford Bridge through which the Derwent flows.
The issue between them concerned whether section 1 of the Rights of Way Act 1932 (as amended by subsequent statutes) applied to public rights of navigation on a non-tidal river. Vinelott J accepted the defendants’ argument that the section applied only to public rights of way on land, ie footpaths, bridlepaths and carriageways. Reversing that decision, the Court of Appeal allowed the Attorney-General’s appeal, holding that section 1 did so apply: see [1990] EGCS 107. It found for the plaintiffs on the grounds, inter alia, that a right of navigation was analogous to a public highway and that it was no misuse of language to refer to a right to navigate as a “right of way”. Similarly it was no misuse of language to refer to a right of navigation as a right of way “over” land. The defendants appealed to the House of Lords.
Section 1(1) of the Rights of Way Act 1932 provides:
“Where a way … upon or over any land has been actually enjoyed by the public as of right and without interruption for … 20 years, such way shall be deemed to have been dedicated as a highway…”.
Section 1(8) states: “For the purposes of this section the expression ‘land’ includes land covered with water.”
Held The appeal was allowed.
1. While there were obvious analogies to be drawn between traffic on land and waterborne traffic, there were also obvious differences: a public right on land depended upon proof of public user over an exactly demonstrated course whereas a river was a natural feature, so that a right of navigation did not embrace the right to navigate in a defined channel. Further, apart from statute or custom, there was no obligation of keeping the banks in repair or the channel free for navigation, which could embrace simply the passage of articles without human accompaniment (eg the floating of logs). It also involved ordinary incidents peculiar to the medium such as the right to moor or drop anchor.
2. With regard to the central question, ie what the draftsman of the 1932 Act was presumed to have intended as the meaning of the expression “a way … upon or over any land”, construing the language in the context of the Act as a whole, “a way” could only be used in the sense of a physical feature on land which the public used for the purposes of passage. “A way … upon or over any land” was the physical site upon which the “way” ran; what was dedicated could not be anything but the land itself. No ordinary English reader — even one aware that public rights of navigation over non-tidal water could be referred to as “highways” — would consider the expression “a way … upon or over any land” as apt to refer to the permanent feature of a river running through land.
3. There was difficulty in understanding what was intended to be achieved by subsection (8), but there seemed to be no other purpose than to counteract any argument, however ill-founded, that a way which ran, for instance, through a ford was not a way “upon or over any land” or that the specified periods of user were to be considered as interrupted because the site of the way was covered by water whether permanently or temporarily.
Conrad Dehn QC and David Ainger (instructed by Eversheds, agents for Hepworth & Chadwick, of Leeds) appeared for the appellants: and Eric Christie and Nicholas Peacock (instructed by Payne Hicks Beach) appeared for the respondents.
