them by the Act of 1894 are all subservient thereto, and except for these purposes no powers are granted to them at all. I omit the powers given to them for keeping the waters of the Thames pure, for these have no bearing on this case. C. A. 1897 THAMES CONSERVATORS V. SMEED, Keeping this in mind, I take first of all s. 87, to see what powers are thereby granted to the conservators, for it is upon DEAN & Co. the true construction of this section that the decision of this A. L. Smith L.J. case depends. The section is as follows: "Any person with and in accordance with the licence of the conservators under the hand of the chairman .... may dredge and raise gravel, sand, ballast, and other substances from the bed of the Thames other than that portion thereof mentioned in the section of this Act whereof the marginal note is 'reservation of part of the bed or soil,'" that is "other than that portion of the bed or soil or shore of the Thames "— to state it shortly-reserved to Her Majesty (see s. 59)—" but subject to the provisions of this Act it shall not be lawful for any person other than the conservators, their agents, servants, and workmen to dredge or raise any gravel, sand, ballast, or other substance from the bed of the Thames other than that portion thereof mentioned in the said section "—i.e., s. 59—“except with and in accordance with such licence, and if any person acts in contravention of this enactment he shall for every such offence be liable to a penalty not exceeding 201. without prejudice to any other remedy or proceeding against him: Provided that nothing in this section shall take away, prejudice, or affect the rights, if any, of dredging or raising gravel, sand, ballast, or other substances from the bed of the Thames above the City Stone above Staines Bridge which would have been vested in or exercisable by the owners of the soil of such bed if this Act had not been passed." It must here be noticed that there is no saving clause in this section which is designated as an enactment in favour of owners of the soil of the bed of the Thames below Staines, though it is argued that such a saving clause should be read into this section. I will deal with this hereafter. As I read. this section it empowers the conservators to grant licences to persons to dredge, and raise gravel and other substances from C. A. 1897 THAMES TORS V. SMEED, the bed of the Lower Thames, and it prohibits any one not a licensee (except the conservators by themselves, their agents and servants) from so doing. Now the question is, what do CONSERVA- the words "from the bed of the Thames other than that portion of the bed, or soil, or shores of the Thames reserved to Her DEAN & Co. Majesty" mean? Do they mean the bed of the Thames. A. L. Smith L.J. between ordinary high water mark on one side and ordinary high water mark on the other side of the river; or do they mean only that part of the bed of the Thames which is exclusive of the shores? There is certainly no such limitation in the section. Then what is the primâ facie meaning of the words the "bed of the Thames "? In my judgment they denote that portion of the river which in the ordinary and regular course of nature is covered by the waters of the river. It need not be constantly covered if in the ordinary course of things it is habitually covered. I will cite a passage from the judgment in an American case, namely, that of the State of Alabama v. State of Georgia (1), which I cited in my judgment in Hindson v. Ashby (2), for it exactly conveys what I understand by the meaning of the phrase "bed of a river." It is this: "The bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn." This, when applied to a tidal river, means without reference to extraordinary tides at any time of the year. This in my judgment is the primâ facie meaning of the words "bed of the Thames," and the question is, in the Act of 1894, is there a context which causes the words not to bear their primâ facie and ordinary meaning? In the unreported case in 1891 of Goolden v. Conservators of the Thames (3), a construction was placed by the House of Lords upon the words "bed of the Thames" in s. 6 of the Thames Conservancy Act of 1867, which Act, although repealed (2) [1896] 2 Ch. 1, at p. 25. (3) Unreported. (1) (1859) 64 U. S. 515. C. A. 1897 THAMES CONSERVA TORS by the Act of 1894, has, as regards ss. 6 and 7 thereof, in substance been re-enacted in the Act of 1894 by ss. 83 and 87, with the addition of the saving clause in s. 87 in favour of the owners of lands above Staines. This case throws a considerable light upon some of the points raised in the present action, though I notice that neither my brother Cave nor my brother Wills, in DEAN & Co. their judgments in the case of Pearce v. Bunting (1), alluded to A. L. Smith L.J. it. It is to review their decision in this last case that the present action is brought. Sect. 6 of the Act of 1867, upon which the House of Lords gave judgment, is as follows: "The Conservators may from time to time dredge, dig, raise, take up, and remove any shoals, shelves, or banks in the bed of the Thames and deepen and otherwise improve the same between the City Stone near Staines and Cricklade and may carry away, and sell, or otherwise dispose of the gravel, sand, and other substances thereby obtained." Sect. 7 is this: "It shall not be lawful for any person other than the Conservators, their agents, servants, and workmen to dredge, dig, or raise any gravel, sand, or other substance from the bed of the Thames between the City Stone near Staines and Cricklade except with the licence or consent of the Conservators under their Common Seal. . . . and, if any person acts in any respect in contravention of this section, he shall for every such offence be liable on summary conviction to a penalty not exceeding £20 without prejudice to any other remedy or proceeding against him." These sections when passed only applied to the Upper Thames above Staines, but by s. 29 of the Thames Navigation Act, 1870, these two sections were made to extend and apply to the Thames below the City Stone, near Staines, to Yantlett Creek. Thus, after the year 1870, these two sections applied to the whole Thames from Cricklade to Yantlett Creek, and did so when Goolden's Case (2) was decided in 1891 by the House of Lords. Whatever the "bed of the Thames" meant in s. 6 of the Act of 1867, it meant the same in s. 7 of that Act, which last section is almost identical with. s. 87 of the Act of 1894, excepting the proviso saving the rights of owners above Staines, which is expressly inserted in s. 87 of (1) [1896] 2 Q. B. 360. (2) Unreported. V. SMEED, C. A. 1897 THAMES TORS v. SMEED, the Act of 1894. The House of Lords in Goolden's Case (1) held that the words "bed of the Thames " in s. 6 of the Act of 1867, meant the soil underneath the waters of the river situated CONSERVA- between bank and bank, and the dredging powers of the conservators conferred by this section extended not only to that DEAN & Co. part of the Thames above Staines which was navigable, but A. L. Smith L.J. also to that part of the Thames which was not navigable and which was the private property of a riparian owner. That this section was held to take away and interfere with private rights is beyond dispute, and that although no compensation was given to the owner of the soil for this deprivation of his rights. The House of Lords also held that the dredging powers of the conservators were limited to improving the bed of the river, that is, to the exercise of the powers conferred upon them by the Acts, and that, if dredging were carried on by the conservators for purposes other than that of exercising the powers conferred upon them by the Act, such dredging would not be permissible. I think that what the House of Lords then held has pointed application to the true construction of s. 87 of the Act of 1894. I now turn to the group of sections with the heading Dredging and Ballasting" in the Act of 1894, namely, ss. 83 to 89 inclusive, of which group s. 87 forms a part, to see what are the powers the conservators have had conferred upon them as regards dredging and ballasting by these sections, and to see whether any context can be derived therefrom as to any special meaning to be applied to the term "bed of the Thames." Sects. 83 to 86 inclusive are sections enabling the conservators to do certain acts. Sect. 87 is the section which empowers the conservators to prohibit others from doing certain acts. Now s. 83 enacts that the conservators may from time to time do all or any of the following things-(1.) For the purpose of maintaining and improving and freeing or keeping free from obstruction the navigation of the Thames: (a) "Dredge, cleanse and scour the Thames." This, I should say, embraces the whole of the Thames within the jurisdiction of the conservators, and so far as is material to this case, from high water mark on the one side of the river to high water mark on the (1) Unreported. C. A. 1897 THAMES CONSERVATORS v. SMEED, other below Teddington Lock to Yantlett Creek. It is over this area the navigation of the Thames, whether for profit or pleasure, is entitled to pass and repass (s. 72), and over this area the conservators are empowered to dredge, cleanse, and scour the Thames for navigation purposes. Dredging necessarily involves raising the gravel, sand, and other matter DEAN & Co. dredged, for otherwise what is the use of dredging? (b) "Alter, A. L. Smith L.J. deepen, restrict, enlarge, widen, diminish, lengthen, shorten, straighten, and improve the bed and channel of the Thames." It is not necessary for this case to determine whether the context of the sub-section limits the "bed of the Thames." (c) "Reduce or remove shoals, shelves, banks, or other accumulations in the Thames." This, as it seems to me, is the same as sub-s. (a) which I have dealt with. (d) "Abate or all impediments, obstructions, and annoyances remove This . . in the Thames or on the banks or shores thereof." sub-section appears to have been taken from s. 98 of the Thames Conservancy Act of 1857. By s. 3 of the Act of 1894 "shore" means "shores of the Thames so far as the tide flows and reflows" (i.e. up to Teddington Lock) "between high and low water marks at ordinary tides." It will be noticed that these four sub-sections to s. 1 deal with what the conservators may do for maintaining, improving, and keeping free from obstruction the navigation of the Thames. But they have other powers. By sub-s. 2 of s. 83 the conservators may dredge, and raise gravel, sand, and other substances from the Thames. This phrase appears to me to be equivalent to what I have dealt with under sub-s. (a), but only for the purposes of the towpaths and for filling up creeks, inlets, bends, flats, and slob lands in and adjoining the Thames, and for constructing, altering, and repairing such works. There is a proviso to this sub-section in favour of that part of the river above Staines, namely, that gravel, sand, and other substances dredged or raised above Staines for these purposes shall be used for such purposes above Staines. This section also has reference to the matter of the better navigation of the Thames. By sub-s. 3 of s. 83 the conservators may dredge, and raise "from the Thames" below Teddington Lock, ballast for supplying VOL. II. 1897. 2 B 2 |