Judgement

Appeal (No. 4 of 1923) from a decree of the High Court in its appellate jurisdiction (April 4, 1925) reversing a decree of the Court in its original jurisdiction (July 8, 1924).

The suit was brought in the High Court by Leon Shain Sway against M. E. Moolla & Sons, Ld., but owing to devolutions of title after the appeal to the High Court the present parties were substituted.

The plaintiff alleged by his plaint that the upper part of a creek communicating with a tidal river was a public waterway, and that the defendants had wrongfully placed piles so as to obstruct his user of it for the purpose of floating logs to his saw-mill on land adjoining the creek. He claimed an order for the removal of the piles, an injunction and damages. The claim to damages was not proceeded with.

The facts appear from the judgment of the Judicial Committee.

The trial judge (Beasley J.) dismissed the suit, holding that the upper creek was not a public waterway.

On appeal the decision was reversed by Robinson C.J. and Maung Gyi J., and a decree made directing the removal of the piles and granting an injunction.

1929. Dec. 2, 4, 5. Dunne K.C. and R. W. Leach for the appellants. It was Laid down by Lord Mansfield in Mayor of Lynn v. Turner ((1774) Cowp. 86.) that a creek was not a public navigable channel merely because it was tidal, and in Rex v. Montague (2) Bayley J. added that it did not become so where it was navigable at certain states of the tide for a very short time and by very small boats. These rulings were applied by the Board in Sim E Bak v. Ang Yong Huat ([ 1923] A. C. 429.) in the Straits Settlements, and they are equally applicable to India. The evidence, both as to the user of the upper creek and as to the flow of the tide, does not show that the upper creek ever was a public waterway. Further, the evidence shows that it was only in exceptionally high tides that the water came up to the bank of the plaintiffs land. The public right of navigation is only over the bed as vested in the Government as part of the public domain ; that extends only so far as the ordinary tides flow Attorney-General v. Chambers. (( 1854) 4 D. M. & G. 206.) There was therefore a space left between any waterway and the plaintiffs land, and that space was the property of the defendants, who owned the whole of the upper creek. The plaintiff not being a riparian owner on the waterway (if any) had not the rights discussed in Lyon v. Fishmongers Co. (( 1876) 1 App. Cas. 662.) De Gruyther K.C. and Pennell for the respondents. The whole creek forms part of the Rangoon River, which is a navigable river, and the creek is therefore a public waterway. It was declared to be so by a decree of the Recorders Court in 1897, which is binding upon the parties. The evidence shows that from 1905 to 1914, when the plaintiff gave up his former mill, the whole creek was used for floating logs, and until 1906 it was habitually used by boats. That constituted it a public waterway, and nothing has occurred to alter its character. The effect of the observations of Bayley J. in Rex v. Montague ((1825) 4 B. & C. 589, 602.) was merely that a channel is not necessarily navigable because it is tidal. The facts in Sim E Bak v. Ang Yong Huat ((1825) 4 B. & C. 539.) were very different from those in this case ; it related to an excavation made by removing clay and used only by boats of the clay workers. In India the test whether a channel is a public waterway is its navigability, and is not dependent upon the tidal flow Chunder Jahesh v. Ram Chunder Mookerjee. (( 1871) 15 Suth. W. R. 212.) That decision was recognized in Srinath Roy v. Dinabandhu Sen. (( 1914) I. L. R. 42 C. 489, 526.) There was, therefore, a public waterway in the upper creek. Moreover, it came right up to the plaintiffs land. The right of the public is co-extensive with the Governments ownership of the bed. That ownership extends from bank to bank; in India, at any rate, it is not limited by the line of ordinary high t