Nature versus the common law III: Canadian and Indian rivers

Bhanutpt, Krishna River

In the previous post in this series, we looked at how nineteenth-century American courts debated whether the common law rules of riparian rights applied to the grand American rivers, seemingly so different from those of England. But the question of whether the common law applied to environments unlike England's soon arose in territories around the British Empire as well. Robert Travers has argued that while judges in England had used ideas of natural law to modify the common law, in India natural law arguments were used in some contexts to support the replacement of local law by English norms. Here, however, we see the reverse, with nature invoked to reject English rules of water law in favor of new norms, felt to be more appropriate to the local environment.

In an 1842 case (Esson v M’Master, 3 NBR 501 (1842)) the New Brunswick Supreme Court noted the "great difference in the character of the small rivers of England and those of this Province", but thought that this consideration "may be thought more fit for the Legislature than the Court ". Yet the same court in 1849 (Rowe v Titus, 6 NBR 326 (1849)) adopted the ruling of an American court, following the argument of counsel that:

The principles of the law of England, in respect to rivers, cannot be applied to this country : there the rivers are not subject to such sudden freshets, nor are they used for the same purposes as in this country ; the cases therefore on this subject in the United States, where the rivers are used for the same purposes as in this country, will be very important.

The idea that Canadian courts should follow American courts rather than English ones when dealing with rivers was not limited to New Brunswick. In an 1852 case (R v Meyers, 3 UCCP 305 (1852)), Chief Justice James Macaulay of the Upper Canada (Ontario) Court of Common Pleas, after examining the English precedents which normally would be thought binding in the British colony, demonstrated the legal power of geography over the common law by contrasting English precedents with decisions from "this side of the Atlantic", lumping together American and Canadian cases without distinguishing between them. Macaulay's judgment was also significant in ruling that the test for navigability of a river was its "natural capacity", not its use in practice, once again demonstrating the normative power of nature. The influence of American jurisprudence was evident as well in an 1882 opinion of Justice Samuel Strong of the Supreme Court of Canada :

I do not hesitate to say that the rule which appears to have been adopted as a principle of the common law as administered in England, that no rivers are to be considered in law as public and navigable above the ebb and flow of the tide, is not applicable to the great rivers of this continent, as has been determined by the Supreme Court of the United States and by the courts of most of the States […]

(A similar discussion arose in Quebec with regard to the local law inherited from France, according to which rivers that were neither navigable nor flottable by rafts belonged to the riparian owners, while rivers flottable belonged to the Crown. An 1859 appeal to the province's Court of Queen's Bench over fishing rights in the Jacques Cartier River (Boswell v Denis, 10 Lower Canada Reports 294) raised the question of whether the French law applied to the geographical conditions of Quebec. Evidence showed that rafts could not be floated down the Jacques Cartier's falls and rapids, leading the trial court to hold that the river was non-flottable and therefore the fishing rights belonged to the riparians. The appellant's lawyer argued that "the doctrine laid down by the French writers with respect to rivers in France was not applicable to the rivers of this continent", continuing with rhetoric, familiar from the U.S. cases discussed above, praising the power and size of the river in question. While the majority of the Queen's Bench rejected the appeal, Judge Thomas Aylwin thought the river should be considered public : "Our rivers cannot be compared with those of France or Europe ; the Jacques Cartier is a good sized river and has plenty of water." Similarly, in a 1905 case on the definition of navigability (Lefaivre v Attorney General, 14 Rapports Judiciares (B.R.) 115), Justice Hall of the province's Court of King's Bench justified his reliance on American cases : "United States authorities upon this question possess more than ordinary interest for Canadian Courts, as the conditions there were and are precisely like those in this country.")

In the 1908 case of Keewatin Power Co. v Kenora (16 Ontario Law Reports 184), on the other hand, Justice Meredith of the Ontario Court of Appeals mocked the environmental jingoism of many American and Canadian decisions :

It is not without its amusing features to have the super-tidal waters of Great Britain and Ireland treated as if they were but mere ponds and rivulets when this question is discussed here. It ought not to be, though it may be, necessary to bring to mind the fact that some of the inland waters of the United Kingdom are really not so insignificant, even when compared with such "magnificent water stretches" as the east or the west branches of the Winnipeg River at the Lake of the Woods […]. It is to be hoped that "spread-eaglism" or bombastry, however much it may naturally infest a new and fresh country in other fields, will not be permitted to invade the domain of its law.

While environmental similarities were thus often felt by many Canadian courts to be more legally significant than strict lines of legal authority, this was not always the case.

As we will further see in later posts, the epicenter of the debate over the normative force of nature in water law now moved to India, with environments radically different from those both Britain and North America, yet under tighter political control of the imperial metropolis. In a 1919 case, Secretary of State v Bommadevara Venkatanarasimha (58 Indian Cases 689), the Madras High Court discussed the question that had earlier plagued American and Canadian courts, whether a riverbed in a navigable but non-tidal river belonged to the riparian landowners or to the government. At issue was a portion of the Krishna River that had turned into dry land, and was now being claimed by the Zemindar of North Vallur, who owned the adjoining lands. After quoting at length from a Privy Council case, Srinath Roy v Dinabandhu Sen (to be discussed), with its quotes from the Pennsylvania cases Carson v Blazer and Zimmerman v Union Canal Co., Justice Sadasiva Aiyar asked :

Having regard then to the historical, geographical, social and physical conditions of India, is there any presumption which could be safely made as to the ownership of the bed of a river like the Krishna in that portion of its length which has the characteristics and is affected by […] seasonable fluctuations […] ? […] The reason put forward in some English decisions […] does not, in my opinion, apply to Indian conditions just as it has been held not to apply to conditions in America.

Justice Burn, too, highlighted the importance of local geography, pointing out that the Krishna was three to four miles wide and discharged 100 times the amount of water as the Thames during the flood season ; "the contrast of physical conditions with those of English streams is capital." He then went on to argue : 

The peculiar historical and geographical reasons which led to the evolution of the English rule that 'tidality decided the point at which ownership of the bed should be public on one side and private on the other' have no counter part [sic] in this country. On the other hand, certain of the considerations which led to the modification of the English rule by some American Courts […] are applicable to the great navigable rivers of India.

The Madras court thus rejected the rules of English common law in favor of the American version, due to supposed similarities between the "great navigable rivers" of the two countries. At the same time, it preferred the rule of Bengal, a neighboring Indian jurisdiction, according to which only streams navigable throughout the year were publicly owned, rejecting a different rule advanced by some American authorities.