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History of the Manor
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Bridges, Rivers, Streams, Lakes etc.
What is a Manor?
The ManorManor Courts Subjects of Court Jurisdiction and Enquiry
Manorial Tenants Manorial Rights
1. The Manor
The word 'manor' (from the Latin manerium) is used in two distinct ways, to
refer to:the seat of a gentry landowner: a 'manor house' or, to use the
English vernacular term which survives still in the names of many country
houses and farms, a 'hall';a landed estate, the property of a landowner, the
'lord of the manor', whose manor house was the administrative focus of the
estate. Large landed estates were divided into more than one manor, each
an administrative unit used for accounting and rent-collecting purposes.By
the later middle ages manors had acquired a third characteristic, which
came to define them, distinguishing a 'manor' from other types of
landholding:the right of the lord of the manor to hold a manor court,
through which he exercised jurisdiction over his tenants who held land in
the manor.Manors varied widely in size. A typical manor consisted of a
village and its lands (a territorial unit termed a 'township' across northern
England) but a single village might contain two or more manors or, more
commonly in Cumbria [check], a manor might cover land in more than one
township. The land within a manor broadly fell into two types:demesne
land: the land farmed directly on behalf of the lord himself as a 'home
farm';tenant land: land granted out to tenants who farmed it on their own
behalf, paying rents and services to the lord in return for their use of the
land. Tenants were of two broad classes; freeholders and those holding by
'bond' or unfree tenures, the villeins of the middle ages, who came to be
known as copyholders or (in northern England) tenants holding by
customary tenantright, by the 16th century.
2. Manor Courts
Manor courts were held 'for lord and neighbourhood', their principal
functions being the preservation of the rights of the lord, on the one hand,
and the regulation of relations between tenants, on the other. The latter
function merged into dealing with breaches of the peace, and a third strand
in the work of the court leet was their public role of dealing with criminal
affairs and carrying out the various statutory obligations laid on them. This
combination of being a branch of the King's judiciary, an arm of the lord of
the manor's estate administration, and a forum for the discussion of
matters of concern to the community as a whole is well illustrated by the
compilations of byelaws which survive for some manors.The court room of
Preston Patrick Hall, WestmorlandThere were two main types of manor
court, the court baron and the court leet, though some early manor court
records do not specify the type of court, stating simply that it was the 'court'
(Latin curia) of the manor in question. On many manors by the late-
medieval period courts baron, dealing largely with minor pleas, were held
every three or four weeks, while agrarian business was dealt with at the
'head court' (curia capitalis), which was generally a court leet and was held
twice each year, in Spring and Autumn. The pattern is described in a survey
of Burgh by Sands barony in c.1589, which reads (spelling modernised):Also
there hath been accustomed to be kept within the said manor, time out of
mind, every three weeks in [the] year a Court Baron, saving in the time of
harvest, viz. from Lammas [1st August] to Michaelmas [29th September],
and two Court Leets, the one within a month after Michaelmas and the
other within a month after Easter, by reason whereof the lord of the said
manor was yearly answered of all such escheats, fines, amercements,
casualties and other profits as were found to be due within the time of
every of the said courts. (Cumbria Record Office (Carlisle),
D/Lons/L5/2/41/49).This extract also demonstrates the importance of
manor courts as a source of income for the lord. Money flowed into the
lord's coffers from most aspects of the courts' proceedings, particularly in
the form of amercements from people infringing byelaws and the lord's
rights and entry fines when tenancies changed hands.The three-weekly
meetings of courts baron tended to decline across time. In many Cumbrian
manors by the later 16th century only two courts were held, usually in April
or May and in October; sometimes only one court was held each year.2a.
The work of the manor court may be divided into three main
areas:providing a record of changes of tenancy by recording surrenders and
admittances to copyhold land. In manors with much copyhold or
customary tenantright land, although transfers of such land by death or
alienation continued to be recorded on verdict sheets of the manor court, a
separate court of dimissions was sometimes held to provide a more formal
record of the transfer and of the entry fine paid to the lord. making byelaws
and punishing wrongdoers (orders and presentments). Byelaws (pains) and
more specific orders aimed to uphold the lord's privileges and 'good
neighbourhood'(neighbourly relations) within the manorial community.
Those offending against the orders and byelaws made by the manor court,
or breaking the King's peace or statutes which fell under the jurisdiction of a
court leet were 'amerced' or fined.hearing pleas between tenants of the
manor in cases of alleged debt, trespass, etc. These minor civil cases often
formed the bulk of business at courts held between the head courts, the
customs of the manor often requiring tenants to bring such pleas to the
manor court rather than any other body.2b. The principal types of manor
court may be summarised as follows:Court Baron. The basic manorial
institution, dealing largely with internal matters on the estate, including
infringements of the lord's rights and prerogatives, agrarian disputes
between tenants and changes of tenancy. At the heart of the court baron's
work lay the customs of the manor, which varied from manor to manor and
governed the details of how tenants held their land (hence the term
'customary tenure'). Courts baron also had the power to hear civil pleas
involving sums of up to 40s. Some courts baron met every three weeks,
particularly where pleas formed the core of their business.Court Customary.
Legally, a court for customary tenants rather than freeholders. In practice,
the term is rarely encountered and customary tenants did suit at the court
baron.Court Leet. Some manorial lords also had the right to hold a court
leet with view of frankpledge, which was required to meet twice a year and
had a wider remit as an arm of royal justice dealing with minor breaches of
the peace and public order and administering the provisions of a series of
Tudor statutes. The term 'view of frankpledge' (Latin: visus franciplegii)
harked back to the Anglo-Saxon system of peace-keeping where groups of
ten men undertook to be responsible for each other's behaviour. In the
context of the court leet, the phrase 'view of frankpledge' was short-hand
for the additional judicial rights held by the court. Courts leet upheld the
'assize of bread and ale' by appointing ale-tasters to ensure that standards
were maintained, and also had the right to appoint township
constables.Byrlaw court. Byrlaw courts (rendered in Latin as plebiscitum)
were found in Scotland and parts of northern England, including southern
Cumbria. The name (and its variants, such as 'birlie', 'burlaw', 'bireley' and
'barley') derived from the Old Norse byjar-log ('law community' or 'law
district'), suggesting that byrlaw courts originated in assemblies of the local
community. The remit of byrlaw courts in Scotland was spelt out by the
sixteenth-century lawyer Sir John Skene, who wrote that 'laws of "Burlaw"
are made and determined by consent of neighbours, elected and chosen by
common consent, in the courts called the Byrlaw courts, in which cognition
is taken of complaints betwixt neighbour and neighbour.' Their function
was therefore very close to that of manorial courts and, in Cumbria, byrlaw
courts appear to have been subsumed into courts baron. The name was
preserved in the seigniory of Millom, where the local manor courts were
termed 'court baron and bierley.'Court of Dimissions. Separate courts to
which customary or copyhold tenants came to surrender their tenancies
and be admitted tenant. They were held, for example, for the manors of
the extensive estates of the earls of Northumberland (and their successors)
in western Cumberland.Court of Survey. A special meeting of a manor court,
called to produce a written survey, listing the tenants, their holdings and the
terms of their tenures.Lowbyre, near Alston, the meeting place of the courts
of the manor of Alston Moor, Cumberland. Surviving court rolls from the
17th century state explicitly that the courts were held here and a reference
to the manor as 'the manor of Alston alias Lowbyre' in 1507 (Calendar of
Patent Rolls, Henry VII, ii.542) suggests that they had been held here at an
earlier date. The 1507 reference also illustrates how the name of the place
from which a manor was administered could be used as the name of the
manor itself.
3. Subjects of Court Jurisdiction and Enquiry Manor courts
Manor Courts or Couts Baron dealt with a wide range of subjects. They
made orders and formulated byelaws. People who infringed them were
'presented' and were subject to a financial penalty. The orders and
presentments of the courts can be grouped under the following headings:a)
Public order offences:breaches of the King's peace, whether fighting
(affrays), uproar or hubbub ('hubbleshows'), drawing blood ('blouds';
'bloodwites'), pilfering ('petty micherie') or slanders;potentially
inflammatory behaviour, such as eavesdropping or walking by night;rogues
and vagabonds.b) Infringement of the lord's privileges:fishing and hunting
without licence. Statutes forbade the keeping of greyhounds and the
tracing of hares in the snow;cutting timber and underwood without
licence;breaking the lord's soil (generally by encroaching or making 'intakes'
on the manorial waste);failing to grind corn at the lord's mill. It should be
noted that the lord also had a financial interest in several of the concerns
included in the following two groupings -c) Offences against the stability of
the community:allowing houses to fall into decay;subdividing or 'taverning'
of holdings;keeping undertenants or 'inmates' (also referred to in northern
England as 'byfires', 'byholdes' or 'undersettles'). This attempt to limit the
numbers of the poor in a community was reinforced by statutes which
forbade the building of cottages without land, and the harbouring of
inmates (1 Eliz I, c.17; 31 Eliz I, c.7.)d) Offences against good neighbourhood
and common rights:infringements of the customary practices regarding the
impounding of stray livestock. These included 'rescues', when an individual
attempted to recapture animals when they were being driven to the
common pound or pinfold by an officer of the lord; and 'fold breaks', when
stock were taken from the pinfold without making the necessary payment
to the lord, known as 'pound loose'. overcharging the common with
livestock which had no right there. This could include 'foreign cattle'
belonging to people without a right of pasture; 'overstint' by putting on the
pastures more animals than an individual had a right to; and bringing
livestock into the manor by agistment. unneighbourly or inconsiderate
livestock management, including driving stock to the common by the wrong
route or 'drift'; using the wrong marks on sheep and cattle; putting diseased
stock on the common; and hounding the livestock of others. failure to
maintain fences, walls and gates, and to keep water in its right course.
breaches of statute, such as the act of 1540 specified a minimum height for
stallions put on to common pastures (32 Hen VIII, c.13); or the legislation
controlling the dates on which moorland could be burned (7 Jas. I, c.17)
4. Manorial Tenants Freehold.
The freeholders or 'free tenants' of a manor held their land 'for ever'; in
other words there was no known date by which the tenancy would end.
Freehold land was not subject to the customs of the manor.Copyhold. The
form of tenure which descended from the unfree, villein tenures of the
middle ages. Copyhold land was defined legally as land held 'by copy of
court roll [hence the term 'copyhold'] at the will of the lord, according to the
customs of the manor.' The precise nature of the tenure (the customs
governing payment of entry fines, for example) thus varied from manor to
manor. In Cumbria most copyhold tenures developed by the 16th century
into customary tenantright.Customary tenantright. A form of tenure
common throughout Cumbria and adjacent counties, which gave the tenant
a security akin to a freehold (in that he could devise or sell his property
freely) but required the payment of both an entry fine on change of tenant
and a general fine on change of lord, as well as other customary dues, such
as the payment of a heriot. It was thus a variant of copyhold: tenants were
admitted by the manor court and held their land by copy of court roll. The
roots of customary tenantright have been much debated: the security that
the tenure gave to tenants was fiercely contested by manorial lords in the
16th and early 17th centuries but the royal courts ultimately upheld the
tenants' rights.
5. Manorial Rights
A Seignory or Lordship of a manor carried with it a bundle of rights over
land within the manor, even over land that was in the hands of tenants.
Manorial records therefore include much material about these rights,
including the lords' rights over the following:Manorial waste. Common
land, the unenclosed moorland, fell, mountain or marsh, which remained in
its semi-natural state, not appropriated to any individual. By the Statute of
Merton of 1236, ownership of such 'wastes' in a manor were vested in the
lord of the manor. In practice, the lord's ability to change the use of the
waste (by enclosure) was restricted by the common rights of the tenants of
the manor, rights which normally included common rights of pasture,
turbary and estovers. Tenants often encroached on the waste, by enclosing
'intakes' of land, which were frequently accepted on payment of rent to the
lord. Over 370,000 acres (152,850 ha) of manorial waste were enclosed in
Cumberland and Westmorland during the Parliamentary enclosure
movement between 1760 and the late 19th century but over 276,000 acres
(112,000 ha) of remains as common land in Cumbria today.Game. The right
to hunt wild animals on the demesne and on the wastes of the manor was
generally the lord's privilege. After 1710, lords of manors were required by
the Game Acts to register the appointment of gamekeepers with the county
authorities, the Clerk to Quarter Sessions. These registers are usually
preserved with the Quarter Sessions records in county record
offices.Fisheries. Similarly, the lord of the manor generally retained the
right to wild fish (i.e. fish in rivers rather than contained in fishponds) and
could demand payment from people fishing in rivers and lakes within his
manor.Mills. The lord of the manor could require his tenants to grind their
grain at his mill, extracting from them a mill toll (called 'multure'). An
equivalent system of binding tenants to use the lord's mill was found in
Cumbria in the case of fulling mills (mills for thickening woollen cloth),
where a toll called 'walker' or 'walking silver' was sometimes paid. Minerals.
The lord of the manor retained rights to the minerals under copyhold land.
Mineral rights might become extremely valuable, where the manor lay on a
mineral which could be exploited commercially. In parts of Cumbria the
greater part of the value of a manorial lordship lay in the possession of
mineral rights during the centuries of the Industrial Revolution: coal and
iron ore in West Cumberland, lead in the North Pennines; slate and metal
ores in the Lake District.Woodland. Manorial custom drew a distinction
between timber (particularly the large and valuable species such as oak and
ash) and underwood, the scrub and bushes. Tenants usually had the right
to take underwood growing on their lands but lords retained the right to
timber growing on copyhold land, as well as the rights to woodland on their
demesnes. The lords' timber rights meant that tenants could not fell
mature trees on their land, even for use on their holding: instead they had
to apply to the manorial officers for licence to fell timber. When copyhold
or customary tenantright land was enfranchised, the value of woodland was
often valued in detail, since timber rights were one of the rights the tenants
were buying from the lord
WATER RIGHTS. By the law of England the property in the bed and water of
a tidal river, as high as the tide ebbs and flows at a medium spring tide, is
presumed to be in the crown or as a franchise in a grantee of the crown,
such as the lord of a manor, or a district council, and to be extra-parochial.
The bed and water of a non-tidal river are presumed to belong to the
person through whose land it flows, or, if it divide two properties, to the
riparian proprietors, the rights of each extending to midstream (ad medium
filum aquae). In order to give riparian rights, the river must flow in a defined
channel, or at least above ground. The diminution of underground water
collected by percolation, even though malicious, does not give a cause of
action to the owner of the land in which it collects, it being merely damnum
sine injuria, though he is entitled to have it unpolluted unless a right of
pollution be gained against him by prescription. The right to draw water
from another's well is an easement, not a profit a prendre, and is therefore
claimable by custom. As a general rule a riparian proprietor, whether on a
tidal or a non-tidal river, has full rights of user of his property. Most of the
statute law will be found in the Sea Fisheries Acts 1843 to 1891, and the
Salmon and Freshwater Fisheries Acts 1861 to 1886. In certain cases the
rights of the riparian proprietors are subject to the intervening rights of
other persons. These rights vary according as the river is navigable or not,
or tidal or not. For instance, all the riparian proprietors might combine 'to
divert a non-navigable river, though one alone could not do so as against
the others, but no combination of riparian proprietors could defeat the
right of the public to have a navigable river maintained undiverted. We shall
here consider shortly the rights enjoyed by, and the limitations XXVIII. 13
imposed upon, riparian proprietors, in addition to those falling under the
head of fishery or navigation. In these matters English law is in substantial
accordance with the law of other countries, most of the rules being
deduced from Roman law. Perhaps the main difference is that running
water is in Roman law a res communis, like the air and the sea. In England,
owing to the greater value of river water for manufacturing and other
purposes, it cannot be said to be common property, even though it may be
used for navigation. The effect of this difference is that certain rights, public
in Roman law, such as mooring and unloading cargo, bathing, drying nets,
fishing for oysters, digging for sand, towing, &c., are only acquirable by
prescription or custom in England. By Roman law, a hut might lawfully be
built on the shore of the sea or of a tidal river; in England such a building
would be a mere trespass. Preaching on the foreshore is not legal unless by
custom or prescription (Llandudno Urban Council v. Woods, 189 9, 2 Ch.
705). Nor may a fisherman who dredges for oysters appropriate a part of
the foreshore for storing them (Truro Corporation v. Rowe, 1902, 2 K.B. 709).
The right of use of the water of a natural stream cannot be better described
than in the words of Lord Kingsdown in 1858: " By the general law
applicable to running streams, every riparian proprietor has a right to what
may be called the ordinary use of water flowing past his land - for instance,
to the reasonable use of the water for domestic purposes and for his cattle,
and this without regard to the effect which such use may have in case of a
deficiency upon proprietors lower down the stream. But, further, he has a
right to the use of it for any purpose, or what may be deemed the
extraordinary use of it, provided he does not thereby interfere with the
rights of other proprietors, either above or below him. Subject to this
condition, he may dam up a stream for the purposes of a mill, or divert the
water for the purpose of irrigation. But he has no right to intercept the
regular flow of the stream, if he thereby interferes with the lawful use of the
water by other proprietors, and inflicts upon them a sensible injury " (Miner
v. Gilmour, 12 Moore's P.C. Cases, 156). The rights of riparian proprietors
where the flow of water is artificial rest on a different principle. As the
artificial stream is made by a person for his own benefit, any right of
another person as a riparian proprietor does not arise at common law, as in
the case of a natural stream, but must be established by grant or
prescription. If its origin be unknown the inference appears to be that
riparian proprietors have the same rights as if the stream had been a
natural one (Baily v. Clark, 1902, 1 Ch. 649). The rights of a person not a
riparian proprietor who uses land abutting on a river or stream by the
licence or grant of the riparian proprietor are not as full as though he were
a riparian proprietor, for he cannot be imposed as a riparian proprietor
upon the other proprietors without their consent. The effect of this appears
to be that he is not entitled to sensibly affect their rights, even by the
ordinary as distinguished from the extraordinary use of the water. Even a
riparian proprietor cannot divert the stream to a place outside his
tenement and there use it for purposes unconnected with the tenement
(McCartney v. Londonderry & Lough Swilly Rly. Co., 1904, A.C. 301).
The limitations to which the right of the riparian proprietor is subject "may
be divided into those existing by common right, those imposed for public
purposes, and those established against him by crown grant or by custom
or prescription. Under the first head comes the public right of navigation, of
anchorage and fishery from boats (in tidal waters), and of taking shell-fish
(and probably other fish except royal fish) on the shore of tidal waters as far
as any right of several fishery does not intervene. Under the second head
would fall the right of eminent domain by which the state takes riparian
rights for public purposes, compensating the proprietor, the restrictions
upon the sporting rights of the proprietor, as by acts forbidding the taking
of fish in close time, and the Wild Birds Protection Acts, and the restrictions
on the ground of public health, as by the Rivers Pollution Act 1876 and the
regulations of port sanitary authorities. The jurisdiction of the state over
rivers in England may be exercised by officers of the crown, as by
commissioners of sewers or by the Board of Trade, under the Crown Lands
Act 1866. A bridge is erected and maintained by the county authorities, and
the riparian proprietor must bear any inconvenience resulting from it. An
example of an adverse right by crown grant is a ferry or a port. The crown,
moreover, as the guardian of the realm, has jurisdiction to restrain the
removal of the foreshore, the natural barrier of the sea, by its owner in case
of apprehended danger to the coast. The rights established against a
riparian proprietor by private persons must as a rule be based on
prescription or custom, only on prescription where they are in the nature of
profits a prendre. The public cannot claim such rights by prescription, still
less by custom. Among such rights are the right to land, to discharge cargo,
to tow, to dry nets, to beach boats, to take sand, shingle or water, to have a
sea-wall maintained, to pollute the water (subject to the Rivers Pollution
Act), to water cattle, &c. In some cases the validity of local riparian customs
has been recognized by the legislature. The right to enter on lands adjoining
tidal waters for the purpose of watching for and landing herrings, pilchards
and other sea-fish was confirmed to the fishermen of Somerset, Devon and
Cornwall by I Jac. I. c. 23. Digging sand on the shore of tidal waters for use
as manure on the land was granted to the inhabitants of Devon and
Cornwall by 7 Jac. I. c. 18. The public right of taking or killing rabbits in the
daytime on any sea bank or river bank in the county of Lincoln, so far as the
tide extends, or within one furlong of such bank, was preserved by the
Larceny Act 1881. It should be noticed that rights of the public may be
subject to private rights. Where the river is navigable, although the right of
navigation is common to the subjects of the realm, it may be connected
with a right to exclusive access to riparian land, the invasion of which may
form the ground for legal proceedings by the riparian proprietor (see Lyon
v. The Fishmongers' Company, 1876, I A.C. 662). There is no common-law
right of support by subterranean water. A grant of land passes all
watercourses, unless reserved to the grantor.
A freshwater lake appears to be governed by the same law as a non-tidal
river, surface water being pars soli. The preponderance of authority is in
favour of the right of the riparian proprietors as against the crown. Most of
the law will be found in Bristow v. Cormican, 1878, 3 A.C. 648.
Unlawful and malicious injury to sea and river banks, towing paths, sluices,
flood-gates, mill-dams, &c., or poisoning fish, is a crime under the Malicious
Damage Act 1861.
Ferry is a franchise created by grant or prescription. When created it is a
highway of a special description, a monopoly to be used only for the public
advantage, so that the toll levied must be reasonable. The grantee may
have an action or an injunction for infringement of his rights by competition
unless the infringement be by act of parliament. In Hopkins v. G.N. Ry. Co.,
1877, 2 Q.B.D. 224 (followed in Dibden v. Skirrow, 1907, I Ch. 437), it was
held that the owner of a ferry cannot maintain an action for loss of traffic
caused by a new bridge or ferry made to provide for new traffic. Many
ferries are now regulated by local acts.
Weir, the gurges of Domesday, the kidellus of Magna Carta, as appurtenant
to a fishery, is a nuisance at common law unless granted by the crown
before 1272. From the etymology of kidellus the weir was probably at first
of wicker, later of timber or stone. The owner of a several fishery in tidal
waters cannot maintain his claim to a weir unless he can show a title going
back to Magna Carta. In private waters he must claim by grant or
prescription. Numerous fishery acts from 25 Edw. III. st. 4, c. 4 deal with
weirs, especially with regard to salmon fishery. An interesting case is
Hanbury v. Jenkins, 1901, 2 Ch. 401, where it was held that a grant of "
wears " in the Usk by Henry VIII. in 1516 passed the bed of the river as well
as the right of fishing.
Mill may be erected by any one, subject to local regulations and to his
detaining the water no longer than is reasonably necessary for the working
of the wheel. But if a dam be put across running water, the erection of it
can only be justified by grant or prescription, or (in a manor) by manorial
custom. On navigable rivers it must have existed before 1272. The owner of
it cannot pen up the water permanently so as to make a pond of it.
Bathing
The reported cases affect only sea-bathing, but Hall (p. 160) is of opinion
that a right to bathe in private waters may exist by prescription or custom.
There is no common-law right to bathe in the sea or to place bathing-
machines on the shore. Prescription or custom is necessary to support a
claim, whether .the foreshore is the property of the crown or of a private
owner (Brinckman v. Malley, 1904, 2 Ch. 313). Bathing in the sea or in rivers
is now often regulated by the by-laws of a local authority.
Scotland
The law of Scotland is in general accordance with that of England. One of
the principal differences is that in Scotland, if a charter state that the sea is
the boundary of a grant, the foreshore is included in the grant, subject to
the burden of crown rights for public purposes. Persons engaged in the
herring fishery off the coast of Scotland have, by II Geo. III. c. 31, the right to
use the shore for loo yds. from high-water mark for landing and drying nets,
erecting huts and curing fish. By the Army Act 1881, s. 143, soldiers on the
march in Scotland pay only half toll at ferries. The right of ferry is one of the
regalia minora acquirable by prescriptive possession on a charter of barony.
Sea-greens are private property. The right to take seaweed from another's
foreshore may be prescribed as a servitude. Interference with the free
passage of salmon by abstraction of water to artificial channels is
restrainable by interdict (Pixie v. Earl of Kintore, 1906, A.C. 478). See the
Salmon Fisheries (Scotland) Acts 1828 to 1868.
In Ireland the law is in general accordance with that of England. In R. v.
Clinton, I.R. 4 C.L. 6, the Irish court went perhaps beyond any English
precedent in holding that to carry away drift seaweed from the foreshore is
not larceny. The Rivers Pollution Act 1876 was re-enacted for Ireland by the
similar act of 1893.
In the United States the common law of England was originally the law, the
state succeeding to the right of the crown. This was no doubt sufficient in
the thirteen original states, which are not traversed by rivers of the largest
size, but was not generally followed when it became obvious that new
conditions, unknown in England, had arisen. Accordingly the soil of
navigable rivers, fresh or salt, and of lakes, is vested in the state, which has
power to regulate navigation and impose tolls. The admiralty jurisdiction of
the United States extends to all public navigable rivers and lakes where
commerce is carried on between different states or with foreign nations
(Genesee Chief v. Fitzhugh, 12 Howard's Rep. 443). And in a case decided in
1893 it was held that the open waters of the great lakes are " high seas "
within the meaning of § 534 6 of the Revised Statutes (U.S. v. Rodgers, 150
U.S. Rep. 249). A state may establish ferries and authorize dams. But if
water from a dam overflow a public highway, an indictable nuisance is
caused. The right of eminent domain is exercised to a greater extent than in
England in the compulsory acquisition of sites for mills and the construction
of levees or embankments, especially on the Mississippi. In the drier
country of the west and in the mining districts, the common law as to
irrigation has had to be altered, and what was called the. " Arid Region
Doctrine " was gradually established. By it the first user of water has a right
by priority of occupation if he give notice to the public of an intention to
appropriate, provided that he be competent to hold land.
Authorities
Hall's Essay on the Rights of the Crown on the SeaShore (1830) has been re-
edited in 1875 and 1888. See also S. A. and H. S. Moore, History and Law of
Fisheries (1903). Among American authorities are the works of Angell,
Gould and Pomeroy, on Waters and Watercourses, Washburn on
Easements, Angell on the Right of Property in Tide Waters, Kirney on
Irrigation and the Report to the Senate on Irrigation (1900). (J. W.)