Page:Harvard Law Review Volume 4.djvu/34

I8 HARVARD LAW REVIEW. II. If the foregoing analysis of natural rights be correct, it follows, for two reasons, that the English right of access cannot be a natural right. First, it is not a right limited to land in its nat- ural condition ; it is not a right given by the law that the owner may preserve intact his own property, but it is a right over the land of another to get to a point where a public right may be exercised.^ Secondly, the right of access cannot be a natural right, because it is not the result purely of natural conditions, but is dependent for its existence upon the existence of the public right before re- ferred to. The pubHc, including the riparian owner, having the right to navigate the stream, a private right distinct from the pub- Hc right ^ is given the riparian owner, as owner, to enable him to get to navigable water, where he can exercise his public right. The public right depends not upon the natural condition of the stream, whether it is in fact navigable, but rather upon whether the stream is de jure navigable, — whether, in other words, it is a public highway. The fact that in America streams de facto navi- gable are public highways only obscures the real question. The riparian right of access exists because the land to which it at- taches abuts on a public highway, and the fact that the State has made the natural condition of the stream the test of the public right, cannot make the private right of access a natural right. had been used for twenty years to go over to the plaintiff's land." Per Lord Denman, C. J., Flight V. Thomas, lo A. & E. 590. " The right of diverting water ... is an easement." Per Cockburn, C. J., Mason V. Shrewsbury Ry. Co., L. R. 6 Q. B. 578; 40 L. J., Q. B. 293. 1 " This right of access would ceem to incl ude the right of landing in the ordinary man- ner and of passing over the soil of the bed of the river for that purpose, even where the soil is not in the Crown but in a private owner, as it is necessary for the full enjoyment of the right of navigation (Rose v. Miles, 4 M. & S. loi; remarks of Park, J., in Duke of Newcastle v. Clark, Moore, Rep. 666), and as the right of navigation exists at all states of the tide (Mayor of Colchester v. Brooke, Q. B. 639)." Coulson & Forbes, Law of Waters, p. 421. 2 "The distinction between the right of access from the river to a riparian frontage, and the right of navigation when upon it, is more than once adverted to by the Lord Chancellor, — viz., in Lyon v. Fishmongers' Co., i App. Cas. 662, — who referred, cer- tainly not with disapproval, to the judgment of Lord Hatherley, when Vice-Chancellor, in the case of Attorney-General v. The Conservators of the Thames (i IT. & M. i), where that distinction is pointedly taken and acted upon." Bell v. The Corporation of Quebec, 41 L. T. Rep. N. s. 451, at p. 455.