There has been a lot said about uses of inland waterways in the past to and a considerable amount of the work has been undertaken by Rev’d Dr Douglas Caffyn
River Transport 1189 – 1600. Thesis by Rev’d Dr Douglas Caffyn
For all with an interest in the law and public access rights to inland waters in England, the recently published thesis “River Transport 1189 – 1600 by the Rev’d Dr. Douglas Caffyn has stimulated much interest. This latest research on inland waters has gained him the degree of Doctor of Philosophy from the University of Sussex.
The thesis, and a supporting synopsis of this work entitled “Boats on our rivers again” follows on from his earlier work “The Right of Navigation on Non-tidal waters and the Common Law “2004. All are available at www.caffynonrivers.co.uk.
Caffyn challenges the present day understanding of the law that all unregulated rivers are private (rivers without an active navigation authority); and considers there is public access to these waters. Caffyn has concluded:-
- all rivers which were physically usable were legally usable,
- there is a high probability that each section of a river which is now physically usable was usable by small boats in the period 1189-1600,
- on the balance of probabilities each section of a river which is now physically usable was used during that period.
- there is therefore, a public right of navigation on all unregulated rivers which are physically usable
Investigation is made as to which rivers were physically usable, which were legally usable and the economics of land and river transport. The legal opinion that all unregulated rivers are private is discussed. The evidence of historic use is examined and these records are compared with the recent limits of use of the rivers. Many of the rivers listed are familiar to canoeists and not without access problems.
The strength of the research warrants the widest attention as a significant contribution to the access debate. As an open question, Caffyn has asked if there are any significant errors in his research .
Following the publication of the thesis in February 2011, Douglas Caffyn has since made the following notes available on the background to producing this research:
“In places there are ‘those with other interests’ (TWOIs) who seek exclusive use of the rivers, at all times of the day, for all of the year. The 19th century Law Books said that land owners had ‘sole and despotic dominion over their land in total exclusion of the right of any other individual in the universe’. Because of the actions of the TWOIs there are some counties where there is no non-tidal river which canoeists can use freely.
When one carries out research honestly it is not known where it will lead. The facts control what is written. Since 2004 my work has been widely distributed and has not been challenged, although there have been TWOIs who have refused to accept it. No organisation or individual interested in the use of rivers has published any alternative academically acceptable opinion concerning public rights of navigation.
For almost a hundred years some TWOIs have thought that they had the right to keep boaters off the rivers. I believe that the way forward is for us to share the rivers and for no one to ignore the interests of others and environmental considerations.
There is enough water for all, if all the water is available at suitable times and everyone cooperates.”(Rev’d Dr D Caffyn)
The Right of Navigation on Non-Tidal Rivers and the Common Law
This was a major piece of work that preceded research published in 2004 by the Rev’d Douglas Caffyn. Douglas, a former Chairman of the Access Management Committee, produced the paper based on a thesis submitted to the University of Kent for the degree of Master of Laws.
This is a summary of the report:-
The preface to an Act of 1472 stated, “Whereas, by the laudable Statute of Magna Carta, among other things …. was made for the great Wealth of all this Land, in avoiding the Straitness of all Rivers, so that Ships and Boats might have in them their large and free Passage.”
The paper reviews the evidence that prior to 1830 there was a generally acted public right of navigation on all rivers which were physically navigable. The wording of River Navigation Acts are examined and are shown not to be inconsistent with this interpretation of the law.
In 1830 H.W. Woolwrych claimed that all non-tidal rivers are private unless a public right of navigation has been established by statute, long use or dedication. The errors in his text are examined and it is argued that subsequent commentators have followed his misconceptions. Four leading cases from the 19th and 20th centauries are then considered.
In the paper it is shown that the public right has not been lost but that there always has been, and there continues to be, a public right of navigation on all non-tidal rivers which are naturally physically navigable by small boats.