Head 23: Rivers, Lochs and The Sea Flashcards
What is the Alveus?
The alveus is the river or sea bed. The principal examples are lochs and rivers. Ownership depends on whether the water is tidal or non-tidal.
What is the Alveus of tidal waters? Who owns it?
⁃ The alveus of tidal waters relates to the alveus of salt water (the sea or certain sea lochs).
⁃ The alveus of tidal waters is property of Crown by Royal Prerogative, within territorial waters. (Subject to a limit of 12 nautical miles from home under Territorial Sea Act 1987.)
This right is part of the regalia minora and so can be sold or leased. Part of Crown prerogative
Shetland Salmon Farmers Association v Crown Estate Commissioners 1991
⁃ The Shetland fish farmers argued that the sea bed was udal (owned by the nearest landowner(s) to the sea of Shetland). However the court held that the right here arose from the Royal Prerogative rather than the feudal system. [Nothing more was said - look up.]
What is the foreshore?
⁃ Foreshore[ In layman’s language - the part of the sand which gets wet.] (= part of the shore which is wholly covered by the sea at high tide and wholly uncovered at low tide of ordinary spring tides) belongs to the Crown where it has not been feued out/disponed or acquired by prescription. The position is different in Orkney and Shetland which have always been subject to dual, rather than feudal law.
Who manages the sea bed?
The sea bed is managed by the Crown Estate Commissioners.
Who owns the alveus of non-tidal waters?
There is a presumption that the alveus of non-tidal waters is the property of owners of banks ad medium filum[ So the person who owns the bank of the river on one side of the river owns the river bed to the middle of the river, and the owner of the bank on the other side owns the other half of the river.]. Riparian property owners are entitled to use their section of water to catch fish but this excludes salmon.
For lochs they will be divided into sectors depending on who owns the surrounding land:
[see drawing examples notes]
Note that titles or prescription may provide another rule in individual cases [the above is just a presumption.]
Who owns the alveus?
The owner of the alveus is known as a riparian proprietor.
What duties do a riparian proprietor have?
They have a duty not to interfere with the water or its natural flow.
What is the duty owed by the superior heritor to the inferior?
The superior heritor (proprietor further up the river) must transmit to the inferior the water of the stream undiminished in quality and undeteriorated in quality or their actions may be interdicted.
Who owns running water?
Running water is ownerless (so it can be acquired by occupancy, for example by filling a buck)
Who owns standing water?
This is not clear, but arguably belongs to the person on whose land it stands.
What right does the riparian proprietor have in the parts of the river/loch which he or she does NOT own?
Each riparian proprietor has a right of common interest in those parts of the river/loch which he or she does not own. You are entitled to do what you like in the part you own, provided you don’t affect the common interest rights of the others (e.g. fishing, sailing etc).
What is the content of the common interest right?
The content of common interest is open (since it is common law, not statutory), at least in theory, but it would seem to include:
(a) Obligation to refrain from acts which materially interfere with the water or with its natural flow
⁃ E.g. this prevents building on the alveus blocking the flow or diverting the river or polluting the river.
⁃ *Morris v Bicket (1864)
⁃ However water may be extracted for ‘primary’ (ie domestic) use.
⁃ This would seem to include washing yourself or your things - but it would not include using for industrial purposes (e.g. bottling mineral water)
(b) (For lochs only) obligation to allow fellow proprietors to fish and sail.
*Morris v Bicket (1864)
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