36 



being public or private is, whether the river be 

 public or not ; for although Lord Mansfield, and 

 several others, use the term navigable, it seems 

 only to be applied as evidence of the river be- 

 ing public. 



It is in effect said by Blackstone, vol. ii. 

 p. 8. that originally, all land and water was 

 public and common to all ; and private pro- 

 perty arose merely from inclosing, fencing, or 

 separating a part from the general mass, and 

 holding or occupying it separately by the pub- 

 lic acquiescence. 



All such rivers, brooks, or streams, as are 

 not navigable, and run through private, sepa- 

 rate, or inclosed grounds, and which the pub- 

 lic cannot have free access to without tres- 

 passing, I apprehend to be private : and these 

 I conceive are the only descriptions of proper- 

 ty intended to be protected by the 5 Geo. III. 

 c. 14. and the different other Acts of Parlia- 

 ment for the preservation of fish and fisheries, 

 unless otherwise particularly mentioned. 



But all such rivers and streams as have time 

 out of mind been navigable, or which the public 

 have a right to navigate, or have a free access 



