It is presumed in the absence of indication to the contrary, that the bed of a non-tidal river vests equally in the owners of the adjoining riparian lands. This is equivalent to a presumption of ownership of the subsoil of the highway street or road, on the part of adjoining property owners. The presumption of ownership may be rebutted by evidence of a third party’s possession, use or statutory title.
Ownership of land, which has become added to the riverside by accretion, belongs to riparian owner where it is gradual and imperceptible. Where the accretion occurs suddenly, the ownership does not change.
The riparian owner is entitled to access to and regress from the water, whether it is the sea, a tidal river or a lake which is in contact with his land. There must be actual contact laterally or vertically. Where the adjoining owners’ land has been expanded by accretion, the principles rules also apply.
The right of access includes the right to pass over the shore of the bed at all times, the right to moor vessels adjacent to his land for such periods as is necessary to load and unload and in the case of tidal waters, if they cannot be loaded and unloaded in one tide, the right to keep them there until the process is completed.
Interference with the right of access is actionable, by way of action equivalent to trespass. The rights may be exercised by a lease but not necessarily a licensee of the owner.
Navigation in Non-Tidal Waters
There is no common law right of navigation for third parties in non-tidal rivers. This may be otherwise, where the property is vested in the State. Presumptively the subsoil and rivers are vested in the riparian owners and their consent is presumptively required.
The right of navigation in non-tidal waters may be acquired. Once acquired, it is similar to a public right of navigation in tidal water. It must be used in a reasonable manner and in a reasonable way.
A public right of navigation may be established in the same way as a public right of way. This may therefore arise by use since time immemorial, other long use or by grant. It may be made navigable by being dedicated for public use for a long period in much the same as the dedication of a highway. It may be dedicated by a public authority or the state.
The right to navigate in non-tidal water does not confer the incidental benefits of using the banks unless the person has consent. It may exist by reason of necessity or usage. There is no right to toll along the banks. Right may arise by custom or statute.
Once the right of navigation exists in non-tidal waters, same issues which arise in respect of obstruction in tidal waters may apply.
Public Rights of Navigation
The presumptive position is that all waters which are tidal and on which navigation is possible are subject to a public right of navigation. The water in question is subject to the ebb and flow of tide, however not every channel or river.
Once a river is subject to public right to navigation, a private person may not destroy the public right. The right may be extinguished.
The right of navigation in tidal waters applies to the whole bed of river over which the tide flows. It is a right to pass and re-pass. The right must be exercised reasonably. Reasonable stopping may be permitted.
Incidental to the public right to navigation is the right to anchor and remain for a convenient time, to moor and fix moorings in the waterway or in the foreshore, except where it is part of a harbour where the owner has a right to demand tolls or payment in return for benefit conferred.
The right of navigation does not include the right to land persons on the banks of foreshore without permission of the owner. The right may exist by necessity. The public right of navigation does not include a right of towing along the banks or waterway except where this exist by custom, statute, or consent.
The right may not be exercised to the extent it causes a nuisance. It is unlawful to erect an obstruction to navigation and this may be challenged as a public nuisance. Public authorities may have statutory right to place things in the subsoil.
The public right of navigation may be protected by civil proceeding. They may be taken by way of action by private owners. They may be enforced by the Attorney General. Abatement may be permitted. A public nuisance is strictly speaking an indictable offense, which may be prosecuted by the Attorney General.
Where a private person sufferers special or particular damage over when above that of the generality of the public by reason of an obstruction, he may be entitled to abate it without recourse to legal proceedings. This is only in so far as it is necessary to do so to exercise the right. Self-help remedies of this nature are not favoured by the Irish courts.
An action for nuisance may be brought for obstruction. Whether or not the obstruction constitutes a nuisance as a matter of fact. If the obstruction benefits the public, it may be permissible notwithstanding that it is a hindrance to navigation. If however, it significantly obstructs, this will not be justified by some statutory benefit.
The public right of navigation can be extinguished by statute.
The ownership of the foreshore and bed of tidal waters is presumptively vested in the State. See the section on the Foreshore Act, 1933. The State may grant leases and licenses of foreshore. Rights may exist in favour of third-parties predating the foreshore legislation.
The public may have rights over the foreshore of a tidal river when it is not covered by tide. They may have navigation rights in the sea where it is so covered.
An island which arises in tidal water presumptively belongs to the State. This may be rebutted if the area on which the island is formed is the subject of a grant or is in the possession of a third party. An island arising in a non-tidal river belongs to the riparian owner. It follows ownership of the soil.
The soil of lakes and pools including those which are large enough to be a navigable does not necessarily vest in the State. Where it is entirely surrounded by the land of one owner, it is presumed to belong to that owner. Where it belongs to more than one owner, the law is not set.