Rights of way — River Derwent — Riparian owners denying any public rights of navigation — Whether public right of navigation pre-1702 — Whether any, and if so what, rights created by Act of 1702 — Whether public rights arising subsequently — Whether Land Drainage Acts revoked public rights of navigation — Whether Rights of Way Act 1932 or Highways Acts apply to navigation rights
The plaintiff 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 that any rights now exist.
In relation to the stretch of the river in respect of which the defendants are riparian owners, the following questions were in contention: (1) Whether any public right of navigation existed pre-1702; (2) What rights, if any, were by necessary implication created or existed under the 1702 Act for making the River Derwent navigable; (3) Whether any rights arose subsequent to the 1702 Act by actual user of the river; (4) What was the effect of the Land Drainage Act 1930 and the River Derwent Act Revocation Order 1935 on any rights that then existed; and (5) Whether the Rights of Way Act 1932 or the Highways Acts 1959-1980 apply to public rights of navigation and to the river in question.
Apart from these preliminary questions, there remained the possibility that a navigation right was created post-1935 under the doctrine of a lost modern grant.
Held The questions in contention were answered in favour of the defendants, the riparian owners. (1) On the evidence there was a public right of navigation up to Sutton, but not beyond. (2) The 1702 Act 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; Simpson v A-G [1904] AC 476 distinguished. (4) The Land Drainage Act 1930 and the 1935 order ended any public rights of navigation then existing (but not pre-1702 Act rights). (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 1959-1980, such as the right of a landowner to give notice to negative any intention to grant rights, could not apply.
Although there remained the possibility of rights having been created since 1935 under the doctrine of the lost modern grant, that was a matter for trial after any appeal on the preliminary questions.
Eric Christie and Christopher Pymount (instructed by Payne Hicks Beach) appeared for the plaintiffs; and William Ainger (instructed by Hepworth & Chadwick, of Leeds) appeared for the defendants.