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Attorney-General Ex Relatio Yorkshire Derwent Trust Ltd and Another -v- Brotherton and Others

Court: House of Lords

Date: 5 December 1991

Coram: Lord Bridge of Harwich, Lord Oliver of Aylmerton

References: [1991] 3 WLR 1126


Their Lordships took time for consideration.

JUDGMENT

Lord Bridge of Harwich.

My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Oliver of Aylmerton, Lord Goff of Chieveley and Lord Jauncey of Tullichettle. I agree with them and for the reasons they give I would allow the appeal.

Lord Oliver of Aylmerton.

My Lords, this appeal raises what, in the end, is a short but by no means simple point of construction as to the ambit of section 1 of the Rights of Way Act 1932 as amended by subsequent statutes. The question arises in this way. The appellants, who are the defendants in the action, are, either personally or in their capacity as trustees, the owners of land in Yorkshire lying between Malton and Stamford Bridge through which flows the River Derwent. The action is brought by the Attorney-General on the relation of the Yorkshire Derwent Trust Ltd., a charitable body formed for the purpose of restoring the Derwent as a navigable river, and the Town Council of Malton, which is concerned to protect, for recreational purposes, any public rights of navigation which exist on the river. It arises out of the denial by the first four defendants that any public right of navigation on the Derwent existed through their land. It is unnecessary for the purposes of the appeal to set out in any detail the procedural history of the action beyond saying that there remain a number of factual and legal issues which will require to be determined whatever the result of the appeal and that it became apparent from the pleadings that a number of preliminary issues required to be determined before the action could conveniently be tried. Accordingly, on 25 July 1986, Millett J., in chambers, directed that five questions be tried as preliminary issues. Four of these related to the position prior to and after the River Derwent Navigation Act 1702 (1 Ann. c. 14), the construction of that Act and the effect of an order made in 1935 under the Land Drainage Acts. They are not material to this appeal which is solely concerned with question 5, the terms of which were as follows:

"(1) Whether all or any (and if so, which) of the following provisions applied or apply to public rights of navigation: (a) section 1 of the Rights of Way Act 1932; (b) section 1 of the Rights of Way Act 1932 as amended by section 58 of the National Parks and Access to the Countryside Act 1949; (c) section 34 of the Highways Act 1959; (d) section 31 of the Highways Act 1980. (2) If the answer to (1) is in the affirmative, whether all or any (and if so, which) of such provisions as may be held to have applied or apply to public rights of navigation applied or apply to navigation by members of the public over along and past the relevant land before the confirmation of the 1935 Order."

Question 5 was answered by Vinelott J. [1990] Ch. 136 in the negative but his decision was reversed by the Court of Appeal [1991] Ch. 185, who answered the first part of the question in the affirmative and the second in the negative. Speaking for myself, I think that nothing turns, for relevant purposes, upon the provisions of the sections of the Acts of 1949, 1959 and 1980 referred to in the question, although I will refer to them briefly later for the sake of completeness. The essential question is that of the proper interpretation of section 1(1) of the Rights of Way Act 1932. That Act was passed in order to regulate and facilitate the establishment of public rights of way by virtue of long-continued user and it will be convenient at the outset to set out the critical provisions which are those contained in subsections (1) and (8) of section 1. Section 1(1) provides:

"Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of 20 years there was not at any time any person in possession of such land capable of dedicating such way."

Subsection (2) provides that where any such way has been enjoyed for a full period of 40 years it shall bedeemed conclusively to have been dedicated as a highway unless there issufficient evidence that there was no intention during that period to dedicate the way. If subsection (1) and subsection (2) stood alone I should regard Vinelott J.'s decision as unassailable. Having remarked that the Act of 1932 must be construed in accordance with the ordinary usage of the English language, he added [1990] Ch. 136, 145E, ". . . I do not think that any ordinary educated user of the English language would regard a right of navigation as a right of way over land . . ." With that I entirely agree. But subsections (1) and (2) do not stand alone. They are qualified by subsection (8) which provides: "For the purposes of this section the expression 'land' includes land covered with water," and it is upon the meaning of these words in the context of the Act that the answer to the question must turn.

The argument for the plaintiffs which found favour with the Court of Appeal may be shortly summarised in the following propositions. First, in a number of cases and learned treatises or textbooks prior to 1932, a right of navigation is referred to either as or as analogous to a public highway. Since, therefore, a highway is no more than a way over which members of the public enjoy rights of passage, it is no misuse of language to refer to a right to navigate as a "right of way." Secondly, since a waterway consists of water in a channel through land, it is equally no misuse of language to refer to a right of navigation as a right of way "over" land. The vessel is in contact with and is carried by the surface of the water, but the water runs over land. Thirdly, the purpose of the Act - that is to say, that of overcoming the difficulties inherent in establishing a dedication by sufficiently continuous user - is as applicable to the establishment of a right of navigation as it is to establishing a right to walk or drive on terra firma. Fourthly, a river or other waterway is properly and literally described as "land covered by water," the land being the bed of the stream, lake or pond in which the water is contained.

Attractively though the argument was put by Mr. Christie on behalf of the plaintiffs, I have not been persuaded that the problem can be solved by so enticingly simple a progression. The major premise - that a right of navigation may properly be spoken of as a highway and, therefore, as a "way" - does no doubt find some support in reported judgments of high authority prior to 1932 - going back indeed to the 18th century. The impressive citation of authorities uncovered by the industry of counsel is admirably set out in the judgment of the Court of Appeal and little purpose would be served by repeating it. Those references range from, for instance, the bald statement of Lord Denman C.J. in Williams v. Wilcox (1838) 8 Ad. & E. 314, 329, that the channel of a public navigable river is a King's highway to the description by Kay J. in Bourke v. Davis (1889) 44 Ch.D. 110, 120, (particularly significant perhaps in the light of the terms of subsection (8)) of the claim in that case as "similar to a right of highway on land not covered by water." Similar references are found in textbooks and treatises to public navigable rivers as "common highways" or "highways by water." Thus Pratt's Law of Highways, 13th ed. (1893), contains, at pp. 5-7, the following passage:

"Highways by water. - It is immaterial whether the land over which the right of passage exists is or is not covered with water. The right of navigation is simply a right of way; and a navigable river, a ferry, an inland lake, or a canal maintained under statutory authority for purposes of navigation, which is free and open to the public, is governed by the general principles applicable to all highways. There are some important differences between highways by land and highways by water . . . A highway which crosses a river by means of a ford, or a public footpath which crosses a stream by means of stepping-stones, does not thereby cease to be a highway . . . "

On the other hand, itis pointed out that both in the Highway Act 1835 (5 & 6 Will. 4, c. 50)and in the Local Government Act 1894 (56 & 57 Vict. c. 73) "highway" is either defined in terms which would exclude a right of navigation or isused in contexts which are consistent only with ways on land. The Court of Appeal's comment [1991] Ch. 185, 196E, that this demonstrates the draftsman's consciousness that, unless restricted, references to "highways" would include references to rights of navigation is, in my judgment, less than convincing, for its seems to me equally consistent with its never having occurred to the draftsman that such rights would be comprehended in the term. But in any event, I doubt whether much help can be derived from statutes clearly concerned with existing highways repairable by the inhabitants at large or at public expense in the construction of a different statute addressed to a quite different situation.

Now there are, of course, obvious analogies which can be drawn between traffic on land and waterborne traffic. Both involve the passage of men or vehicles above or on the surface of the ground in a given direction - a characteristic which they also share with air traffic. It would be surprising, therefore, if at least some of the incidents of a right of passage by water were not compared analogically with those of a right of passage by land. For instance, since both involve passage across or through private property one would expect to find, as indeed one does find, that the origins of both lie in grant or presumed grant by the owner of the soil over or through which they pass. But, as has been mentioned in several of the cases cited, the analogy is not a perfect one (see, for instance, Attorney-General v. Simpson [1901] 2 Ch. 671, 687, per Farwell J. and Simpson v. Attorney-General [1904] A.C. 476, 509, per Lord Lindley) and there are obvious differences between a highway on land and a waterway. Thus a public right on land depends upon proof of public user over an exactly demonstrated course, whereas a river exists permanently and as a natural feature; and, at any rate in Scotland, the right does not depend upon there being two public termini: see Wills' Trustees v. Cairngorm Canoeing and Sailing School Ltd. 1976 S.C. (H.L.) 30, per Lord Wilberforce, at pp. 125, 126, and per Lord Fraser of Tullybelton, at p. 167. Equally, a right of navigation may, it seems, according to the nature of the locus, embrace the right to navigate in no defined channel over the whole surface of an inland lake: see Marshall v. Ulleswater Steam Navigation Co. (1871) L.R. 7 Q.B. 166, 172. Further, there is, apart from statute or custom, no person under the obligation of keeping the banks in repair or the channel free for navigation; and if the stream dries up or becomes choked there is no right either to deviate or to trespass upon the soil in order to clear it. Moreover, it may embrace simply the passage of articles without human accompaniment (for instance, the floating of logs on the current either singly or in rafts) (see the case of Wills' Trustees) and involves ordinary incidents peculiar to the medium of its exercise and inapplicable to land transport, such as the right to moor or to drop anchor on the soil of the river bed for purposes incidental to passage: Attorney-General v. Wright [1897] 2 Q.B. 318, 321, 323 and Denaby and Cadeby Main Collieries v. Anson [1911] 1 K.B. 171, 176, 199, 211. But, in any event, a discussion of the similarities or differences between rights of passage by land or water, although etymologically interesting, does little in my view to assist in answering what seems to me to be the central question in this appeal, which is not what are the legal incidents of a highway but what, given that the draftsman of the Act of 1932 must be presumed to have intended to use words in their ordinary sense in the absence of some received technical meaning, was the ordinary meaning prior to 1932 to be attributed to the expression "a way upon or over land."

Now it would no doubt be technically correct to describe a river running longitudinally through an estate as providing a "way" of passing from one end of the estate to the other, using "way" in the sense of "mode" or "method." And indeed in Bower v. Hill (1835) 2 Scott 535, where the plaintiff, by his declaration, had claimed as appurtenant to his close, "a certain way from the said close . . . unto and along a certain stream or watercourse . . . unto and into a certain navigable river," Tindal C.J., in the Common Pleas, does not appear to have regarded the right claimed as misdescribed. But granted that there is nothing to prevent a landowner from granting a private easement of passage in these terms, I cannot think that in 1932 anyone would have described such a right naturally as a "right of way over land." It is interesting to note, for instance, that in Orr Ewing v. Colquhoun (1877) 2 App.Cas. 839, where all their Lordships relied upon the analogy of a highway when speaking of public rights of navigation, Lord Blackburn, at p. 854, referred to the acquisition by user of a "right of way on land, or a right of navigation on an inland water. . ." One can properly describe a cart track, for instance, as a "way across the field" but nobody, even a lawyer, would ordinarily apply that description to a river. I cannot, for instance, think that any reader of Alfred Lord Tennyson would have regarded the Lady of Shalott, as she floated down to Camelot through the noises of the night, as exercising a right of way over the subjacent soil.

In the end, of course, the question is simply one of construing the language used in the context of the Act as a whole. Although it is entitled "the Rights of Way Act 1932" and is described in the long title as "An Act to amend the law relating to public rights of way," in fact the expression "right of way" is used only once in the Act. That is in section 4, which concerns the remedies of a remainderman for the prevention of the acquisition by the public of a right of way. Elsewhere in the Act the expression used is "a way" and it is, I think, clear from the context that it can only be used in the sense of a physical feature on land which the public has used for the purposes of passage. Section 1(1) is concerned with "a way . . . upon or over any land." The plaintiffs' initial submission was that this referred not to a right of way as a legal concept, a construction which would give rise to obvious difficulties, since, ex hypothesi, there could be no such right until the period of user had passed, but (if I have understood the submission correctly) to an abstract two-dimensional concept consisting of a course or direction of travel combined with a width limited by the area of use. Rupert Brooke's long deceased curates passing across the vicarage lawn at Grantchester on "lissom, clerical, printless toe" might, I suppose, be regarded as establishing such a way but I freely confess that I have found this too subtle an analysis and one which I simply cannot reconcile with the statutory language. The subsection speaks of "user" by the public and of the way being "actually enjoyed" and "dedicated" as a highway and it seems to me clear that what is being referred to in the expression "a way . . . upon or over land" is the physical site upon which the feature described as "the way" runs. Clearly, after the appropriate period of user, something is deemed to be dedicated to the public use as a highway. And what is dedicated cannot, as I see it, be anything but the land itself. You do not dedicate a right or a direction of travel. You create a right by dedicating the land for use as a public passage.

"The expression 'dedicated to public use' is used in reference to land which itself remains the property of the owner in fee of the soil, but for some definite purposes is dedicated to public use:" Porter v. Ipswich Corporation [1922] 2 K.B. 145, 151, per Greer J.

Thus, where land is dedicated as a public street, what is dedicated is the soil of the way itself and the subjacent soil to the extent necessary for its maintenance: see Schweder v. Worthing Gas Light and Coke Co. (No. 2) [1913] 1 Ch. 118, 124, per Eve J. This reference to dedication of "the way" is repeated in subsections (2) and (3) and the concept of the way as a physical entity appears all the more clearly from the latter subsection. This enables a landowner to prevent the acquisition of public rights by the erection of a notice inconsistent with dedication. Its importance in the present context is that it speaks of "the land over which any such way passes," of the notice being visible to those "using the way" and of the council in whose area "the way is situate." Again, subsection (6) provides for the periods of years mentioned in subsections (1) and (2) to be taken to be the periods next before the time when "the right of the public to use a way" is brought into question, thus clearly distinguishing between the the incorporeal right and the physical feature over which the right is exercised.

Reading this section so far, I cannot, speaking for myself, envisage any ordinary English reader - even one aware that public rights of navigation over non-tidal waters had been sometimes referred to by way of analogy as "highways" - considering that the expression "a way upon or over land" was apt to refer to the permanent feature of a lake or of a river running through land. "A way over land" would not, in any ordinary usage, suggest a stream or a river, much less an inland lake, and no ordinary reader would think of land as referring to the surface of water. Indeed, clearly the draftsman of the section did not regard water itself or that part of the earth's surface which lies below water as ordinarily comprised in the meaning of "land," for he went out of his way to attach to it what he clearly regarded as a secondary or unnatural meaning not applicable to the Act as a whole. Subsection (8) expands the meaning of "land" not generally but only "for the purposes of this section." I do not think, in this connection, that anything can be made to turn on the use of the words "upon or over" as pointing to a difference between, for instance, a track (which is "upon" land) and a waterway (which is "over" land). I suppose, for example, that the span of a railway bridge may be said to be "over" land without being "upon" it. Moreover the draftsman himself clearly attached no importance to any such fancied distinction for he dropped the word "upon" in subsection (4), restored it in section 3 and dropped it again in section 4. In truth, the word "upon" adds nothing. It is no more the conveyancer's jargon and seems to have been taken over from section 2 of the Prescription Act 1832 (2 & 3 Will. 4, c. 71) where the formula "upon, over or from" was used in relation to easements generally and where it clearly did serve a useful purpose.

I confess that I find it difficult to understand precisely what the draftsman was intending to achieve in subsection (8). If the intention had been to treat rivers, streams and lakes as "ways" and to deem their beds to be dedicated as highways under subsections (1) or (2) I find it inconceivable that he would not have said so in express and intelligible terms. As it is, to read subsection (8) as referring to the course of a river and in that sense to read it as incorporated referentially into subsection (1) simply does not make sense as a matter of English. It does not and does not purport to attach any unusual or expanded meaning to the physical feature described by the word "way" but merely to attach an expanded meaning to the "land" over which the way runs and I find it impossible to believe that any draftsman called upon to facilitate the acquisition of public rights of navigation over streams and rivers as well as over "ways" in the conventional sense would have resorted to so inapt a formula for achieving his desired result. I can see that it might possibly be argued (although I find it difficult to accept) that since a public navigable river has, as already mentioned, been sometimes described as a "highway," the "way" referred to in subsection (1) could be construed as including the physical feature of a river, which does, of course, literally run over land (i.e. the bed of the stream). But that construction cannot then be accommodated with subsection (8). If, as is suggested, subsection (8) was inserted to indicate the inclusion in "land" of the site of a river, then one ends up with a construction of "a way upon or over land" as "a river upon or over a river" and this simply does not make sense.

Furthermore, one is left with the further question - if he did want to achieve that result, why restrict his expanded definition of "land" to section 1? The "way" in section 1 which, for the reasons which I have endeavoured to state, must refer to a physical track, path or road and is quite inappropriate to refer to a river or lake, features again in sections 2 and 3 and it cannot sensibly have been the draftsman's intention, if he intended the Act to operate at all in relation to rights of navigation, to exclude them from the operation of the savings or the provisions as to evidence.

Plainly, however, subsection (8) was intended to fulfil some purpose in relation to section 1 and the plaintiffs ask, as they are entitled to, if it was not intended thus to bring within the section public rights of navigation on the surface of water, what was its purpose? For my part, I am in agreement with Vinelott J. I can think of no other purpose for the addition of this subsection than ex abundanti cautela to counteract any argument, however ill-founded, that a way which runs, for instance, through a ford, is not a way "upon or over land" or that the periods of 20 and 40 years are to be considered as interrupted because the site of the way is covered, either permanently or temporarily by water.

I should perhaps add that I am not much impressed by the argument which found favour with the judge that the references to the notices envisaged by of section 1(3) demonstrate that water-borne rights of passage were not contemplated. This seems to me an entirely neutral provision for I can see no reason why such a notice should not be maintained in a suitable site in or near a river or lake. What I find conclusive against the plaintiffs' case is the repeated use of the word "way" in contexts which, as it seems to me, make it entirely clear that what was in contemplation was a physical path or track situate on the land itself.

I am fortified in the conclusion which I have reached by a number of further considerations in addition to that of the pure construction of the words used. In the first place, it is, I think, clear - and, indeed, this is common ground - that the draftsman of the Act was modelling himself in relation to public rights of way on the Prescription Act 1832 which was directed to the same general purpose in relation to private easements, that is to say, the facilitation of prescriptive claims. He clearly had that Act before him and, as already mentioned, he seems to have adopted the formula "upon and over" from it, although perhaps without appreciating that the subject matter of that Act dictated its use. What is significant is that section 2 of the Act of 1832 refers in terms to "any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water . . ." - a phrase entirely appropriate to cover the rights of navigation over private streams or lakes. Yet, in adapting the prescriptive periods prescribed by that section to the subject matter of public rights of way, the draftsman appears deliberately to have omitted the references to watercourses and to ways or rights upon or over "land or water." With this clear model before him, it is very difficult to believe, had it been his intention to apply the provisions of the new Act to public rights of navigation, that the draftsman would have chosen so obscure a route to effect it.

Secondly, your Lordships have been referred both to an article "The Rights of Way Act 1932, its history and meaning" by Sir Lawrence Chubb published in October 1932 in the Journal of the Commons Society, vol. 2, No. 8, pp. 244-266, commenting on the history of the Act of 1932 and to the memorandum attached to the Bill when it was published. From these it is clear that there had for many years been pressure from preservation societies and ramblers' clubs for legislation to facilitate the establishment and preservation of footpaths and bridleways by overcoming the difficulty frequently experienced in proving continued user over a period during which there might, because the land was in settlement, have been no competent grantor capable of making a dedication. This is referred to in the memorandum where there is also mentioned the difficulty experienced by local authorities in fulfilling their duties under section 26 of the Local Government Act 1894 in relation to preserving public rights of way in their areas. This is, at best, a negative point but it is a pointer in the same direction. The mischief which the Act was intended to cure was the difficulty which had arisen in relation to public footpaths and ways and there is no suggestion that any problem had arisen in relation to waterways or that waterways were in anybody's contemplation as giving rise to any problem at the date of the Act.

Thirdly, there has to be borne in mind the position at common law both of the rights of the public and of private landowners. The rights of the public (including, of course, public rights of navigation) could be established either from express dedication or from dedication presumed from long-continued user. The private landowner, for his part, was able to resist the presumption of dedication arising from user by demonstrating that the land was in settlement at the material time so that there was no landowner competent to dedicate. That ability was clearly qualified by the Act and extinguished altogether if 40 years user was proved. There is, however, a presumption that except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law: see, e.g. Leach v. Rex [1912] A.C. 305, 310. Undoubtedly in relation to rights of way on land the Rights of Way Act 1932 clearly and unambiguously did and was intended to qualify the landowner's common law rights. But whatever else may be said about section 1(8), if and so far as it might possibly have been intended to qualify a landowner's right to resist the establishment of rights of navigation over streams or rivers passing through his land, it is very far from being clear and unambiguous.

Turning to the later Acts referred to in question 5, the defendants have sought to pray these in aid in construing what Parliament intended in 1932. The provisions of these subsequent statutes, however, whilst certainly doing nothing to detract from what I consider to be the correct construction of the Act of 1932, are not in my opinion of any assistance. Section 58 of the National Parks and Access to the Countryside Act 1949 merely amended the Act of 1932 by expunging subsection (2) of section 1 entirely and deleting the reference to the absence of a person in possession capable of dedicating in subsection (1). Section 1 as a whole was repealed and replaced by section 34 of the Highways Act 1959, the opportunity being taken to drop the words "upon or over" and substitute simply "over." Subsection (8) of section 1 was replaced by section 34(11) but with identical wording. However, in section 294(1) "highway" was defined "except where the context otherwise requires" in terms which expressly exclude a waterway. Having regard to what I have concluded to be the correct construction of the Act of 1932 I find this without significance. Clearly the context does not otherwise require. The Highways Act 1980 adds nothing of any significance. It repeats section 294(1) in section 328(1) and it reproduces section 34 of the Act of 1959 in section 31 in all essential respects but with immaterial changes in the order of the subsections.

Accordingly, I find nothing in the subsequent statutes, even supposing them to be admissible for this purpose, which bears upon the construction of the Act of 1932.

As to that question, there is one final point to which I ought to advert. The Court of Appeal considered that even treating the words of the Act as ambiguous (which, contrary to the view which I have formed, they held that they were not) nevertheless any ambiguity was resolved by reference to the principle enunciated by Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. [1933] A.C. 402, 411, that where a word of doubtful meaning has received a clear judicial interpretation, a subsequent statute which incorporates the same word is interpreted in the sense previously assigned to it. Thus, the argument ran, since a right of navigation had been referred to by Lord Hatherley in Orr Ewing v. Colquhoun, 2 App.Cas. 839, 846, as a right of way and by Kay J. in Bourke v. Davis, 44 Ch.D. 110, 120 as "similar to a right of highway on land not covered by water" and since it had been referred to in other cases either actually or by analogy as a highway, it followed that "way upon or over land" in section 1(1) must clearly be construed as including a right of navigation. My Lords, I hope that I do not misstate the reasoning, but I have to say that it seems to me to be unsustainable. The words which fall to be construed are the words "a way upon or over land" and I find no case in which those words have been given "a clear judicial interpretation." Such an interpretation cannot, as I think, within Viscount Buckmaster's principle be deduced from judicial interpretations of quite different words in quite different contexts. For the reasons which I have endeavoured to explain, I would accordingly allow the appeal and affirm the decision of Vinelott J., answering question 5(1) in the negative. Question 5(2) accordingly does not arise.

Lord Goff of Chieveley.

My Lords, this appeal raises a question of construction of section 1 of the Rights of Way Act 1932. The long title of the Act reads as follows: "An Act to amend the law relating to public rights of way; and for purposes connected therewith." The relevant subsections of section 1 are subsections (1) and (8). These provide as follows:

"(1) Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of 20 years there was not at any time any person in possession of such land capable of dedicating such way. "(8) For the purposes of this section the expression 'land' includes land covered with water."

The question for consideration on this appeal is whether section 1(1), read together with section 1(8), is applicable to public rights of navigation on non-tidal waters. The defendants say that the subsection applies only to public rights of way on land, i.e. footpaths, bridlepaths and carriageways. The plaintiffs say that in addition it applies to public rights of navigation on non-tidal waters. The defendants' contention found favour with Vinelott J.; that of the plaintiffs found favour with the Court of Appeal.

I approach the matters as follows. I start with the words of section 1(1), read of course with section 1(8). I have to say at once that, as a matter of first impression, it would never have occurred to me that these provisions were intended to apply to public rights of navigation. I cannot help thinking that, if the draftsman had intended that result, he would simply have said so. However Mr. Christie, for the plaintiffs, submitted that the draftsman had nevertheless achieved the same result by drafting the two subsections in their present form. His submission was founded in part on the words "upon or over land" in subsection (1), and in part on the provision in subsection (8) that for the purposes of section 1 the expression "land" includes land covered with water. The function of the latter, he said, is to render subsection (1) applicable to public rights of navigation on non-tidal waters. Nobody owns the water; and so such a right must be over the land underneath, which is land covered with water.

This would be a most convoluted way of making subsection (1) applicable to public rights of navigation; and in the course of argument before your Lordships it became plain that Mr. Christie's construction simply does not work. The crucial word in the subsection is "way." If a way has been enjoyed by the public in a certain manner and for a certain time, it will be deemed to have been dedicated as a highway. Now in my opinion, when the subsection speaks of a way having been enjoyed and having been dedicated as a highway, it must be referring to the land over which the way, for example a footpath, runs. That is what is enjoyed by the public; and that is what is deemed to have been dedicated. Moreover the footpath can properly be described as a way upon or over land. But if we try to apply the words of the subsection to a public right of navigation, we immediately run into difficulty; for if such a right relates to a way over land covered by water, it cannot here refer to the physical land at all. This is because Mr. Christie's submission requires that, in the expression - a way over land covered by water - the word "over" should be used in the sense of "above," in contradistinction to "upon;" but if so the way cannot refer to the land itself and so cannot be the subject of dedication.

Mr. Dehn, for the defendants, sought to explain the expression "upon or over any land" on the basis that the words "over any land" referred to bridges. I do not think that this is right. First of all, apart from one or two rather unusual examples, given in the course of argument, of bridges made of ropes and poles (which seemed to me to be more likely to occur in the Andes than in the Cotswolds), bridges form part of the land; and so the introduction of the word "over" in an English Act such as this is not necessary to accommodate bridges. But second, section 1(3) refers to "the land over which any such way passes;" and section 4 too dispenses with the word "upon" and speaks only of "a right of way over . . . land." This accords with ordinary speech, because we speak of a right of way over land rather than a right of way upon land. Having regard to these provisions it seems to me that, in section 1(1), the draftsman was only using the words "upon or over" in a tautologous manner, as a conveyancer might do, and that of the two words so used the surplus word is not "over" but "upon." It appears likely that the unnecessary introduction of "upon" was derived by the draftsman from section 2 of the Prescription Act 1832. I am comforted to find that this conclusion is consistent with two later Acts of Parliament, the Highways Acts of 1959 and 1980. In both of these, section 1(1) of the Act of 1932 was re-enacted with modifications, and in both the word "upon" was dispensed with (see section 34 of the Act of 1959, and section 31 of the Act of 1980).

It follows, in my opinion, that no significance can be attached to the word "over" in section 1(1) of the Act of 1932, in contradistinction to the word "upon" in the subsection; and so a crucial plank for Mr. Christie's argument disappears. It further follows that, as Vinelott J. thought [1990] Ch. 136, 145H, section 1(8) of the Act must have been introduced, not for the important (though improbable) purpose of making the section applicable to public rights of navigation, but for the unimportant purpose of making it plain that section 1(1) applied even where the relevant land was covered with water, as for example in the case of a ford. Having regard to the layout of the section, this appears in any event to be the more probable function of subsection (8).

Confirmation for this construction of section 1 of the Act of 1932 is to be found in the mischief which this piece of legislation was evidently designed to cure. There was produced to your Lordships (though not, I understand, to the Court of Appeal) the Memorandum which accompanied the Rights of Way Bill when laid before Parliament. This referred to the fact that, by reason of uncertainty in the law, local authorities charged under the Local Government Act 1894 with the duty of preserving rights of way were unwilling to move when the existence of family settlements of the relevant land was suspected; and to deal with this problem it was proposed in the Bill that, where evidence was given of 40 years uninterrupted user of a way, the claim of the public would not be defeated by showing that the land had been in family settlement during that period. It was thus intended to provide that the law as regards the evidence required to establish a public right of way should be assimilated to that required to establish a private right of way under the Prescription Act 1832. All this was evidently directed towards rights of way over land. There was no reference to public rights of navigation in the Memorandum, nor in the Act. Moreover it appears that, with the invention first of railways and then of motor lorries, public rights of navigation on non-tidal waters were becoming less and less important; and there is nothing to lead us to believe that, in 1932, there was any call for legislation in respect of such rights as there was in respect of rights of way over land. In any event it appears that, although public rights of navigation have been regarded as analogous to public rights of way over land, historically they have been treated separately in legislation. I wish to add that in Orr Ewing v. Colquhoun, 2 App.Cas. 839, 846, where Lord Hatherley stated that public rights of navigation were properly described as rights of way, that observation was not directly relevant to any point of decision in that case, in which Lord Blackburn was careful to distinguish between the two forms of right: see p. 854.

Finally, there was available to your Lordships a fuller citation of textbook authority than was made available to the Court of Appeal. The material upon which the Court of Appeal relied to support the construction which they favoured consisted only of Lumley's Public Health, 12th ed. (1951), vol. II, p. 1604, and a commentary on the Act of 1932 published by the Commons Society ("The Rights of Way Act 1932, its history and meaning" by Sir Lawrence Chubb, in the Journal of the Commons Society, vol. 2, No. 8, pp. 244-266). The former is scarcely in point; and the latter is difficult to reconcile with the mischief which the Act of 1932 was evidently intended to cure. On the other hand the earliest textbook on the Act, Freeman's Rights of Way (1934), supports the contention of the appellants. Furthermore, and perhaps most important of all, there is a total silence on the subject in two highly relevant textbooks - Coulson & Forbes on the Law of Waters and Land Drainage, 6th ed. (1952), and Pratt and Mackenzie's Law of Highways, 20th ed. (1962) - which indicates that it never occurred to the editors of either of these books that the Act of 1932 applied to public rights of navigation.

For these reasons, in agreement with my noble and learned friends, Lord Oliver of Aylmerton and Lord Jauncey of Tullychettle, I too would allow the appeal.

Lord Jauncey of Tullichettle.

My Lords, the primary issue in this appeal is whether the word "way" in section 1(1) of the Rights of Way Act 1932 is habile to include a navigable non-tidal river. If it is not the appeal succeeds. If it is certain sections of the Highways Act 1959 and the Highways Act 1980 will have to be looked at in order to determine whether they have altered the position which obtained under the Act of 1932. Section 1 of the Act of 1932 is in the following terms:

"(1) Where a way, not being of such a character that user thereof by the public could not give rise at common law to any presumption of dedication, upon or over any land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way."

Land is defined by subsection (8) as "including land covered with water."

The case went to trial before Vinelott J. on a number of preliminary questions of which only one, question 5, is relevant to this appeal:

"(1) Whether all or any (and if so, which) of the following provisions applied or apply to public rights of navigation: (a) section 1 of the Rights of Way Act 1932; (b) section 1 of [that Act] as amended by section 58 of the National Parks and Access to the Countryside Act 1949; (c) section 34 of the Highways Act 1959; (d) section 31 of the Highways Act 1980. (2) If the answer to (1) is in the affirmative, whether all or any (and if so, which) of such provisions as may be held to have applied or apply to public rights of navigation applied or apply to navigation by members of the public over along and past the relevant land before the confirmation of the 1935 Order."

Vinelott J. answered the question in the negative and the Court of Appeal answered the first part in the affirmative declaring that all the statutory provisions therein mentioned applied to public rights of navigation in non-tidal waters.

My Lords, there are certain essential prerequisites to the operation of section 1(1), namely: (i) there must be a way; (ii) that way must be upon or over land including land covered with water; (iii) the way must have been enjoyed by the public as of right for the specified period; and (iv) the way must be such that it is capable of dedication.

In my view, the word "way" should have the same meaning wherever it occurs throughout section 1. In subsection (3) reference is made to "land over which any such way passes" and to councils of various areas "in which the way is situate." Subsection (6) refers to the "right of the public to use a way," thereby sharply drawing the distinction between the incorporeal right and the land over which it may be exercised. Furthermore, dedication of land to public use is a perfectly comprehensible concept whereas dedication of a mere right is incomprehensible particularly where no justiciable right can exist until dedication has taken place. It is thus clear that the word is being used not in the sense of an incorporeal right but rather in the sense of a physical feature.

The Court of Appeal, after considering a number of decisions in which a public navigable river had been treated as or as analogous to a highway on land, concluded that [1991] Ch. 185, 196F:

"Accordingly we are satisfied that, at the time when the Act of 1932 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 such rights of navigation were properly described as rights of way: see per Lord Hatherley in Orr Ewing v. Colquhoun (1877) 2 App. Cas. 839, 846."

With all respect to the Court of Appeal, I feel that they were there addressing themselves to the wrong question. Before a public non-tidal navigable river can be deemed to be dedicated as a highway for the purposes of section 1(1) of the Act of 1932 it must be shown to have been a way for the purposes of that subsection. The decisions referred to by the Court of Appeal afford no assistance in determining whether a non-tidal navigable river can properly be described as a way. Furthermore, it is reading too much into the dictum of Lord Hatherley in Orr Ewing v. Colquhoun, 2 App.Cas. 839, 846, to infer that he was equiparating a right of navigation in all its legal characteristics to those of a right of way on land. In that case the constitution of the public right of navigation was not in issue and I do not read Lord Hatherley's observations as going further than saying that just as a right of way on land confers a right of public passage, so does a right of navigation and that without any consideration of the modes of constitution or extinction of each right. When Lord Blackburn in Orr Ewing v. Colquhoun, at p. 854, bracketed together a right of way on land and a right of navigation on water, it is clear that he was concerned only with the right of passage which was of the essence of both rights. The distinction between the constitution and extinction of the respective rights is clearly brought out in the speech of Lord Fraser of Tullybelton in Wills' Trustees v. Cairngorm Canoeing and Sailing School Ltd., 1976 S.C. (H.L.) 30, 167-168.

To treat a right of navigation as though it were a right of way over water similar in all respects to a right of way on land is misleading. The two rights are similar inasmuch as each confers upon the public the right of passage but it has always been recognised that there are important distinctions as my noble and learned friend, Lord Oliver of Aylmerton points out in his speech. To give only one further example, if a footpath becomes impassable at any particular point the public may deviate therefrom onto adjoining land in order to circumvent the obstruction. If a river silts up or otherwise ceases to be navigable from natural causes the public have no right to use the bank or dried up bed for passage nor to cut a new channel: Williams v. Wilcox (1838) 8 Ad. & E. 314, 329, Lord Denman C.J.

The primary meaning of "way" in the Oxford English Dictionary is: "I. Road, path. 1. A track prepared or available for travelling along; a road, street, lane, or path." The only reference to water is in the context of the passage of a ship through the water, for example, having "way on." Coke's Commentary on Littleton, vol. 1 (1832), p. 56(a), states that there are three kinds of ways, "First, a foot way . . . The second is a foot way and horse way . . . The third is via or aditus, which contains the other two, and also a cart way." In Woolrych on the Law of Ways, 2nd ed. (1847), written with reference to the Prescription Act 1832, the author refers to three types of way all of which are upon land. The only use of the word "way" in the context of a navigable river to which your Lordships were referred was the following passage in Comyns, A Digest of the Laws of England (1764), vol. II, p. 286:

"Chimin. A way to a market, a great road, etc., common to all passengers, is a highway. Per Hale, 1 Vent. 189. A navigable river is in the nature of a highway; and if the water alters its course, the way alters: per Thorp, 22 Ass. 93."

However, the learned author was there using the word "way" in the context of the course of the river or line of the highway rather than of the river itself as constituting a way.

Prima facie therefore it would appear that prior to the passing of the Act of 1932 the word "way," as descriptive of a physical feature, had been confined to ways over land. In order to consider whether section 1 of that Act and in particular the extended definition of land in section 1(8) altered the position, it is necessary to examine in detail the precise nature of a navigable river. A path or road consists of a strip of ground whose ownership is vested in someone over which persons, animals or vehicles can pass while remaining in contact with the road or path. The soil is essential to the passage. A river, on the other hand, is more complex consisting as it does not only of the bed and banks which contain the water and which are capable of ownership, but of the running water which, so long as it flows within the banks, is res nullius. However without the flowing water navigation is impossible. The public navigating do not pass over the bed of the river in the sense that they are in contact with it, rather do they pass through the flowing water. The soil acts merely as a container for the water and otherwise performs no function in relation to the passage. Indeed the public have no right to use the bed or banks of the river other than perhaps for anchoring in an emergency and for landing at a place where they are entitled so to do. Apart from the fact that no normal person would describe a navigable river as a "way over land covered with water" the subsection presupposes that the physical feature which has enabled the public to pass to and fro is capable of ownership and hence dedication. In the case of a path or road that physical feature is of course the land over which it runs. In the case of a river the physical feature which makes navigation possible is the flowing water which is incapable of ownership and hence dedication. A navigable river simply does not fit into the type of way to which section 1(1) applies even when the extended definition of land in section 1(8) is taken into account.

If the draftsman had intended to bring navigable rivers within the ambit of section 1 he could very easily have done so in simple and comprehensible language. The Act of 1932 is in many respects similar to the Prescription Act 1832 and it has been stated, correctly in my view, that certain words in section 1(6) of the Act of 1932 have obviously been taken from the similar words of section 4 of the Act of 1832: Fairey v. Southampton County Council [1956] 2 Q.B. 439, per Lord Goddard C.J., at p. 448, and per Denning L.J., at p. 456. Section 2 of the Act of 1832 refers to "any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water . . .". Section 1(1) of the Act of 1932 refers only to "a way . . . upon or over any land" including, of course, land covered with water. The omission in the Act of 1932 of any reference to watercourses or uses of water suggests that the draftsman, far from intending to bring navigable rivers within the ambit of section 1, consciously omitted them. The extended definition of land does not provide a substitute for the above words found in the Act of 1832. I agree with Vinelott J. that the extended definition is apt to cover situations such as a ford or a causeway subject to flooding or perhaps to stepping-stones in a stream: Attorney-General ex rel. Yorkshire Derwent Trust Ltd. v. Brotherton [1990] Ch. 136, 145. But I do not consider that it was ever intended to apply to navigable rivers. The draftsman may have included subsection (8) ob majorem cautelam to forestall any argument that a way which passed through a ford or over stepping-stones was no longer a way upon or over land. Further support for the view that the draftsman did not intend to bring navigable rivers within the ambit of section 1 of the Act of 1932 is to be found in section 4 thereof which provides:

"The person entitled to the remainder or reversion immediately expectant upon the determination of a tenancy for life or pour autre vie in land shall have the like remedies by action for trespass or an injunction to prevent the acquisition by the public of a right of way over such land as if he were in possession thereof."

Land in this section is not subject to the extended definition in section 1(8) and it is therefore perfectly clear that the right of way referred to is one over land. If section 1 applied both to public rights over land and over water, one would have expected section 4 to have similar application. For the foregoing reasons I have reached the conclusion that section 1 of the Act of 1932 does not apply to navigable rivers.

In reaching the above conclusion I am fortified by two further considerations. In the first place, the Court of Appeal after referring to dicta of Scott L.J. in Jones v. Bates [1938] 2 All E.R. 237, 244-245, concluded [1991] Ch. 185, 200H:

"If . . . the object of the Act of 1932 was to simplify the law relating to the proof of the acquisition of public rights of way over highways, there is no reason to assume that the draftsman deliberately set out to exclude one particular class of highway, viz. navigable rivers."

I would agree with the assumption as to the object of the Act but disagree with the reasoning based thereon. As I have already remarked, the draftsman must be assumed to have had before him the Act of 1832 and to have deliberately omitted from the later Act any references to watercourses or use of water. Furthermore, there is nothing in any of the material before this House to suggest that the mischiefs at which the Act was directed were problems of proof other than those relating to ways on land. Indeed this is perhaps not surprising in view of the decline in commercial inland navigation brought about by the railways and the motor lorry. The readily transportable fibreglass vessel so much now used as a pleasure craft was unknown in 1932. Since the Act undoubtedly altered the common law rights of proprietors whose land was liable to dedication for public use, such alteration must, in the absence of clear words to the contrary, be assumed to be such as to alter the common law no further than was necessary to remedy the perceived mischief: Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [1975] A.C. 591, 614B, per Lord Reid. In the second place, the provisions of section 1 of the Act of 1932 were substantially re-enacted in section 34 of the Highways Act 1959 which was in turn repealed and re-enacted in section 31 of the Highways Act 1980. In both these Acts, a highway was defined as excluding waterways unless the context otherwise requires. I have already concluded that the context does not so require in section 1(1) of the Act of 1932 and the fact that the Acts of 1959 and 1980 were never intended to cover rivers is a further pointer to the proper construction of the Act of 1932 if contrary to my earlier views there should be any doubt but that it might have been intended to apply to navigable rivers: Ormond Investment Co. Ltd. v. Betts [1928] A.C. 143, 156, per Lord Buckmaster.

For the foregoing reasons I am satisfied that section 1 of the Act of 1932 is not applicable to the relevant stretches of the River Derwent and that the appeal should be allowed.

Lord Lowry. My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Oliver of Aylmerton, Lord Goff of Chieveley and Lord Jauncey of Tullichettle. I agree with them and, for the reasons given by my noble and learned friends, I, too, would allow the appeal.

ORDER Appeal allowed with costs in Court of Appeal and House of Lords.


Crown Copyright acknowledged

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