| Topic: | Re:Re:A BETTER DESIGB FOR EVERYONE - Watermans Park Moorings | |
| Posted by: | Nigel Moore | |
| Date/Time: | 29/04/16 13:10:00 |
| In reply to Sarah – “How does somebody 'win' a mooring on a permanent basis? Is it like land where it can be claimed after a number of years, 12, is it? . . . How do the river laws work, if there is a simple answer ... " “River Laws” are not a simple matter; volumes have been published on them over the centuries. However, there are a few simple principles that are pertinent to your queries. The Thames is classified in English law as a public navigable river, which means it is available [under common law] for all to use, whether for commerce or pleasure. English common law does, though, differ significantly from Roman law in that the Public Right of Navigation [PRN] does not include any right to moor to private river banks [Ball v Herbert, 1789, and Rose v Groves]; it does permit mooring to the river bed, only on a strictly temporary basis in the course of a journey, or where certain conditions render that continued attachment to the land reasonable [e.g. inclement weather]. Applying the principle to tidal waters is more complex of course, because there will be occasions when even a travelling vessel will be caught out and has to ground out between tides. This is considered part of the PRN. Where conflict arises, riparian rights as well as PRN's, trump the rights of the riverbed owner. Acquisition of property rights in rivers and tidal waters is not quite the same or as simple as most adverse possession claims on dry land. All of a public navigable waterway being subject to PRN’s, they qualify as a “King’s Highway” for general public use, and the adverse possession principle cannot apply – because excluding other members of the public from the highway would constitute a criminal offence [which disqualifies the act of possession enuring to the benefit of the criminal]; it would not be a simple usurpation of civil rights of ownership. That simple issue has been clouded in the case law of recent years, but I won’t go into that now. All I will say is that the 12 year period that applies to AP normally, is 60 years when it comes to AP against the Crown. What is incontestable however, as established in case law, is that a prescriptive right to USE of the riverbed may be acquired. The classic example being Attorney General v Wright, CA, 1897, where rights of immemorial user established a presumption of legal origin. It has to be borne in mind that Parliament can expressly amend, abolish or modify private rights, and powers granted under the PLA Acts do enter into play in this area. |