watercourses, fisheries, &c. within the same, did not pass the soil of the lake, distinguishing the case from that of Lord v. Commissioners of Sydney, on account of the size and navigability of the lake; and Fitzgerald, B., was of opinion that, assuming that the presumption that by a grant of lands adjacent to a fresh water river (the grantees being the owners of the soil of the river) the soil of the river passes ad medium filum aquæ, applied to such lakes as Lough Erne, the grant of a free fishery when a several and exclusive fishery might have been granted was sufficient to rebut the presumption that the soil was intended to pass ad medium filum aquæ. In Marshall v. Ulleswater, the plaintiff, who proved a grant to him of a several and exclusive fishery in the Lake of Ulleswater, was held on that account to be the owner of the soil of the lake; the majority of the Court, however, expressing a doubt whether the soil of lakes, like fresh water rivers, belonged primâ facie to the adjoining owners or to the Crown.1 There seems no doubt but that the public may acquire Navigation. a right of navigation in a non-tidal lake in the same way as on a non-tidal river.2 In pools and small non-navigable lakes, the right of Fishing. fishing of course belongs primâ facie to the riparian owners ad medium filum aquæ. It seems somewhat doubtful, however, whether this presumption extends to large navigable lakes, or whether a public right of fishery may not exist in such waters. The Irish Court of Exchequer Chamber have held, in the case of Bloomfield v. Johnson,3 that the public right of fishery cannot exist in non-tidal navigable lakes; and in the subsequent case of Bristow v. Cormican, the Irish Court of Exchequer held that they were bound by this decision; but the judges in this case, both in 1 3 B. & S. 732. See also Reg. v. Barrow, 34 Justice of Peace, p. 53. 2 See Marshall v. Ulleswater Co., 3 B. & S. 732; Bloomfield v. Johnson, Ir. R., 8 C. L. 68; Bristow v. Cormican, 3 App. C. 641; Marshall 4 Ir. R., 10 C. L. 398, 412. Ownership of soil of. the Court of Exchequer and in the Court of Exchequer Chamber, strongly dissented from this view of the law, though without overruling it. The case went to the House of Lords on another ground; and their lordships, though not deciding the point, seem doubtful as to whether the decision in Bloomfield v. Johnson could be supported.1 Artificial Watercourses. naturae We have spoken hitherto exclusively of natural bodies of water flowing ex jure natural from the earth; but it is necessary to add a few words with regard to watercourses which owe their existence to artificial means. Where an artificial watercourse is made by a man on his own land, of course no question as to the ownership of the soil of it, or the rights over it, can arise; but the case will be different where such a watercourse is made on the land of another. In such a case the right to the watercourse can only be created by grant or by long continued enjoyment, from which the existence of a former grant may be reasonably presumed,2 or by Act of Parliament. "A grant of a watercourse in law may," says Jessel, M. R., "mean "one of three things, especially when coupled with other "words. It may mean the easement, or the right to the "running of water; and it may mean the channel, pipe 66 66 3 or drain which contains the water; and it may mean the "land over which the water flows. Which it does mean "must be shown by the context; and if there is no con 66 text, I apprehend that it would not mean anything but "the easement or right to the flow of the water." The right, therefore, to the ownership of the bed of such watercourses depends entirely on the words of the instrument which creates them, interpreted according to the 13 App. Cas. 641. See also Reg. v. Barrow, 34 Just. of Peace, 53; and post, Ch. VI. 2 See Rameshur Singh v. Koonj Behari Pattuck, 4 App. Cas. 121. 3 See Mason v. Shrewsbury Railway, L. R., 6 Q. B. 586, per Cockburn, C. J. Taylor v. St. Helens, 6 Ch. D.. (C. A.) 264. usual rules of construction. The most important of these artificial watercourses-viz. canals, sewers, and waterworks -are wholly the creatures of statute; and the rights of property in them of course depend on, and are regulated in each case by, the individual statute to which it owes its origin, and by those statutes which apply to such works generally. The full consideration of such artificial watercourses will be given in a later chapter.2 1 Badger v. Yorkshire Rail. Co., 5 Jur., N. S. 459. 2 See post, Ch. V.; and as to rights in artificial watercourses, see Ch. IV. CHAPTER III. OF NATURAL RIGHTS OF WATER, AND THEREIN OF THE Riparian rally. Natural Rights and Duties of Riparian Owners. HITHERTO We have treated almost exclusively of the rights gene- ownership of the soil over which water flows, and of those rights incident to and arising out of the ownership of such soil. In the present Chapter we purpose to consider what are usually termed riparian rights, or rights of proprietors of land on the banks of streams, arising, strictly speaking, not from the ownership of the bed over which the water flows, but from the right of access which such proprietors have to the water. In the case of non-tidal waters, where the owner of land on the banks is primâ facie owner of half the bed, this may appear a fine-drawn distinction; but on the banks of tidal waters, where the ownership of the bed is primâ facie in the Crown, the distinction will be manifest, as the origin of such rights cannot be referred to ownership of the bed. Founded on the right of access to the stream. 66 66 6 "With respect to the ownership of the bed of the "river," says Lord Selborne in Lyon v. Fishmongers' Company, "this cannot be the natural foundation of riparian rights properly so called, because the word 'riparian' is relative to the bank, and not to the bed, of "the stream; and the connection, when it exists, of property on the bank with property in the bed of the "stream depends not upon nature, but on grant or presumption of law. In some tidal navigable rivers (as 11 App. Cas. 683. "the Severn), parts of the bed of the tidal stream belong "to riparian owners; and it appears from Mr. Angell's "book (often quoted in our Courts), that in Pennsylvania "and Alabama, States whose jurisprudence is founded "generally on English law, the whole property in the "beds of large non-tidal navigable rivers is in the State. "The title to the soil constituting the bed of a river does "not carry with it any exclusive right of property in the "running water of the stream, which can only be appro"priated by severance, and which may be lawfully so "appropriated by everyone having a right of access "to it." to waters channel. The principles of law to be hereafter stated apply to all Only exist as watercourses flowing in a certain and definite channel, flowing in a whether above or below ground; for if the course of a defined subterranean stream be well known, the rights with regard to it will be the same as if it had been wholly above ground. But waters, whether above or below ground, having no certain course or defined limits, such as those merely percolating through the strata of the earth, and those diffused over its surface, are not watercourses, nor are they subject to the law of watercourses.1 The law relating to percolating water, and water without a defined course, will be considered at the end of this Chapter. non-navi It is manifest that the property of riparian owners may Rights on exist on the banks of tidal navigable rivers as well as on navigable and non-navigable streams. Riparian owners on the former gable rivers identical, save have similar rights and natural easements to those belong- where coning to riparian proprietors above the flow of the tide, trolled by public right underlying and controlled, though not extinguished, by of navigation. the public right of navigation. This latter right the proprietor on a navigable river enjoys, "superadded to "his riparian rights." His riparian rights are subordinated to the public right "in this respect, that whereas tion of a 66 Watercourse," see ante, 1 Chasemore v. Richards, 7 H. L. 349; Acton v. Blundell, 12 M. & W. 324; Dickenson v. Grand Junction Canal, 7 Ex. 282. For defini |