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CG CASE NUMBER: 3/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
TRANSVAAL CANOE UNION First Appellant
THE VICTORIA
LAKE CLUB Second Appellant
and
ROBERT
GARBETT First Respondent
ITHUMALENG CC Second Respondent
CORAM: CORBETT CJ, VIVIER, F H GROSSKOPF JJA, HOWIE et VAN COLLER AJJA
HEARD ON: 18 MAY 1993
DELIVERED ON: 6 SEPTEMBER 1993
JUDGMENT HOWIE AJA
2
On 1st November 1991, the eve of a canoe race on the Crocodile River organised by and under the auspices of appellants, they made an urgent application in the Transvaal Provincial Division for a declarator to the effect that the participants, as a matter of right, were entitled to portage their canoes on the river banks, including the bank situated on the riparian property belonging to second respondent, a close corporation. Because first respondent (who resides on the property with his wife, the sole member of second respondent) had threatened to erect fencing with a view to preventing such portage, appellants also sought an interdict restraining his doing so. The application was opposed from the outset but on agreed terms which were made the subject of an interim order first respondent undertook not to impede participants. The need for an interdict therefore fell away and the race proceeded as arranged. The main relief sought remained in contention and in due course solemn declarations were filed by
3
respondents who also made a counter application for an
order barring any canoeist from entering or carrying his canoe over any part
of
the property concerned "which is not covered by the Crocodile River". The Court
a quo (Van der Walt J) dismissed the application,
allowed the counter
application and granted appellants leave to appeal to this
Court.
The judgment of the Court below is reported as TRANSVAAL
CANOE UNION AND ANOTHER V GARBETT AND ANOTHER 1992 (2) SA 525 (T). The
issues and the basic facts are readily apparent from the report and I shall only
resort to repetition where
necessary for the purposes of this
judgment.
In brief, appellants' main argument on appeal is that at
common law members of the public have the right to canoe on a public river
even
where it flows over privately owned land such as second respondent's property.
This right includes the right to use the riverbanks
as an incident of their use
of the river.
4
Portage is a necessary incident of canoeing. Accordingly, canoeists are
entitled in law to portage anywhere along the riverbanks even
if they are
privately owned. In the alternative it was submitted that that right ought to be
held to arise wherever portage is reasonable
in all the prevailing
circumstances.
Respondents' contention, on the other hand, is in
essence that canoeists have no right to use the riverbanks for any purpose
except
where a registered servitude or other lawful right of way permits this.
Moreover portage is not a necessary incident of the use of
the river.
Consequently the sole manner in which canoeists may lawfully traverse second
respondent's property is by water.
It is appropriate at this stage to set out the
facts and legal principles which were common cause on
the papers or no longer in dispute on appeal. They may
be summarised as follows:
1. The Crocodile River is a public river.
5
2. Members of the public are entitled
as of right to canoe on the river.
(As to these two points see
BUTGEREIT AND ANOTHER V
TRANSVAAL CANOE UNION AND ANOTHER 1988 (1) SA 759 (A).
3. Second respondent's land ("the property") lies on the western side of the river and extends to the middle of the channel.
4. Appellants organise a number of canoe races on the Crocodile River every year. Up to 350 canoeists compete in some of them. The races start and finish on riparian land, the respective owners of which permit access to the river.
5. As the river passes the property it bends westward. At that point, rocky obstructions in the channel cause a series of rapids.
6. The vast majority of the race contestants are insufficiently competent to negotiate the rapids by canoe. They are therefore obliged to circumvent them on land by way of portage in order to reach the next navigable portion of the river and so continue the race.
7. The eastern bank being on the inside of the bend, most competitors portage on that side because it offers by far the shorter detour. However some canoeists regularly use the western bank and indeed did so during the race on 2 November
6
1991.
To complete a survey of the relevant facts it is
necessary to refer shortly to two aspects that were not free from dispute on the
papers.
As to the area of land traversed by portaging canoeists, it
was alleged in the founding affidavit that for the purposes of the race
to be
held the following day portage on the eastern bank would cover a strip of
bush-covered riverbank next to the waterline some
100 metres long and between 2
and 5 metres wide, which was comfortably below what was referred to,
conveniently perhaps, if inappropriately,
as the high-water mark. Respondents
did not suggest that portage on the eastern side could not be accommodated
within an area of
that size but alleged that portage on either side of the river
regularly occurred above the high-water mark. In fact, respondents
averred that
on previous occasions competitors portaging on the western side across the
property had run through the garden. Appellants'
7
guarded reply was that if any canoeist had infringed upon the property
beyond the extent which the law permitted, this they condemned.
It must be
accepted as a fact, therefore, that canoeists have on occasion portaged not only
on the riverbank. It is, furthermore,
a necessary deduction that if the shortest
possible portage route envisaged by appellants was of the order of 100 metres on
the eastern
bank, any portage route over the property - which is on the outside
bend of the river - must be appreciably longer.
Finally on the
facts, respondents alleged that canoeists portaging across the property in the
past had trampled fences and damaged
plants, shrubs and trees in the garden, and
that portaging necessarily caused damage to vegetation on the riverbanks and to
the banks
themselves. These allegations were firmly denied. However, in so far
as the existence or absence of damage is presently relevant
(the question of
nuisance, I may say, has never arisen as an issue in this matter) it
8
must be remembered that both sides sought relief in final
form merely on motion and that, in consequence, the case of PLASCON-EVANS
PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD 1984 (3) SA 620 (A) is applicable
as to whose allegations are decisive (see in particular 634 E-I).
It
is convenient to deal next with two arguments raised on behalf of respondents.
One was that this Court had actually gone as far
as deciding in the
BUTGEREIT matter, supra, that the right to canoe on the Crocodile River
did not include the right to portage. The other argument was that in
the absence
of a servitude or other right of way the banks of a public river were not for
public use in any respect.
In the BUTGEREIT case, having
decided (at 770D) that canoeists were entitled to canoe on the stretch of the
Crocodile River in issue there, this Court
proceeded at 770E-I to consider the
extent to which the subject of portage had been raised in
the
9
papers. After pointing out that one of the
riparian
owners involved in that litigation had alleged
that
canoeists portaged over his property, this
Court
examined the contents of the affidavits and
concluded
that the allegation as to portage was disputed and
that
such dispute could not be resolved on the papers.
Then
followed the passage relied upon by respondents'
counsel
in the present case (at 770H):
"Paragraph (a) of the order of the Court a quo refers to the right of the respondents 'to canoe on the Crocodile River'. This would not include the right to carry canoes over the first appellant's property for the purpose of such canoeing."
In my view it is clearly
implicit in that passage,
viewed in context, that this Court was
merely
interpreting the order of the Court a quo. This is
manifest
from what appears in the immediately following
remarks at
770I-J:
"Eloff DJP, it may be pointed out in this regard, dealt with the case on the basis . . . that there was no allegation that canoeists ever disembarked on the first appellant's property. There was indeed such an allegation
10
but the Court' s view of the matter makes it clear that para (a) of its order was intended to relate only to canoeing, and not to any portage connected with canoeing activities."
Nothing in this
Court's judgment indicates, even implicitly, the intention to decide whether a
canoeist is or is not entitled to portage
as an incident of the right to use a
canoe on a public river. The earlier-quoted passage is therefore of no
assistance to respondents'
case.
As regards respondents' second
argument referred to earlier, this, in summary, was as follows. In Roman-Dutch
law public rivers, including
their banks, became part of the regalia thus
vesting in the States of Holland. As a result, public rights in respect of
riverbanks
fell away. From then on, rights in respect of a riverbank could only
be acquired from the State concerned. This was part of the law
introduced into
South Africa and has remained the legal position until now. Consequently, in the
absence of the State's grant
11
of the ownership in second respondent's land having been
subject to a registered servitude which would enable canoeists to portage
as
they now seek to do, or in the absence of the owner's permission, they have no
right to portage over the property.
The short answer to this
submission is that, as fully explained in the BUTGEREIT case, supra, at
768A-J, what in Roman-Dutch law became part of the regalia was the ownership of
public rivers; the use of such rivers
remained public, as it was in Roman law,
subject only to such local limitations as were imposed from time to time by
various authorities
in Holland. That, then, was the legal position that
pertained in Holland when Roman-Dutch law was introduced into this country and
that is the position which pertained here consequent upon such introduction. It
was not suggested that any presently relevant change
in the legal situation
occurred between then and the present time. It follows, therefore, that the
Roman legal principles
12
applicable to the public's use of a public river still
apply in South Africa today subject, of course, to such legislation and such
local laws as might be applicable, (none of which are, however, presently
relevant) and subject to what I would, for convenience,
call the South African
legal context, to which I shall revert later.
Counsel were ad idem
(and rightly so - on the strength of much authority) that according to those
principles the right to use the
river carried with it the right to make some use
of the riverbanks even if the banks . were privately owned. Respondents' second
submission under discussion must therefore also fail.
Two crucial questions then arise: (1) Do the Roman law principles referred to find sufficient application in South Africa today to entitle members of the public to portage canoes unrestrictedly along the banks of a public river? (2) What in law constitutes the bank of a public
13
river? More particularly, what are the
respective riverside and landward limits of
the bank?
The starting point in relation to (1) is to be
found in Justinian's Institutes 2.1.4. Moyle's
translation (5th ed, 1913) is this (citing only the
relevant
portion):
"Again the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting-place for the cargo, as freely as he may navigate the river itself."
Digest 1.8.5 is to the same effect
and states, in
addition, that the banks could be used for
drying
fishing-nets.
In Institutes 2.1.2 it is stated that the
public's right to the use of rivers included the right
to fish. It would follow, therefore, that fishing from
the bank would seem to be a further instance of use open
to the public. And the boaters and swimmers referred to
14
in the BUTGEREIT case, supra, at 770A-C must have been free to use
the banks in order to enter and leave the water.
Commenting on the
Roman law concerning the use of riverbanks, Moyle (4th ed, 1903) says that they
were subjected by law to a kind
of servitude in favour of all members of the
public.
Most of the leading Roman-Dutch writers add little, if
anything, of note. Some merely state the general principle that riverbanks
were
for public use. Others go on to repeat some of the examples of use given in the
Institutes and the Digest. See Van Leeuwen,
Censura Forensis 2.1.8 and Huber,
Praelectiones (1766 edition) 2.1.6. As to those who expand somewhat more, Paul
Voet, Commentary
on the Institutes 2.1.4.1, says that public use of the banks
was a servitude imposed by the law of nations because without the use
of the
banks it would not be possible properly to make use of the river. This concept
of a natural servitude is expressed
15
in very similar terms by Vinnius, Commentary on the
Institutes, 2.1.4. He goes on in 2.1.23 to state that a riverbed bounded by
private
land was only public in so far as its use was necessary to the use of
the river. This passage was referred to with approval in VAN NIEKERK AND
UNION GOVERNMENT (MINISTER OF LANDS) V CARTER 1917 AD 359 at 372-3. This
must mean, I think, that the riverbank, too, is only public in so far as its use
is necessary to the use
of the river. And to that one must add - necessary
within the context of the limitations expressed or implicit in the Roman and
common
law authorities to which I have referred.
The
above-summarised argument for appellants amounts to this, that the bank of a
public river is not merely an area open to public
use where necessary at
confined, localised places along the riverside but in effect itself a public
thoroughfare. Accordingly, canoeists
who encounter a non-navigable stretch of
water are entitled to proceed on foot, if necessary for an
16
unlimited distance along the banks of any number of
properties, carrying their craft to the next navigable section of the
river.
No authority was referred to by appellants' counsel, nor have I found
any, which expressly supports that interpretation of the Roman
principles.
Accordingly it is necessary to determine whether any
implied support is to be derived from the relevant authorities.
It
is stated in D 43.12.3 pr that public rivers and their banks were res publicae
but this must be construed as referring to the use
of the banks, not their
ownership. Both I 2.1.4 and D 1.8.5 make it clear that while the public had use
-of the riverbanks, ownership
vested in the riparian proprietors. See, too,
RIVERTON DIAMOND SYNDICATE LTD V UNION GOVERNMENT AND THE MUNICIPALITY OF
WINDSORTON 1918-1927 GWLD 207 at 255-256.
Although the public's right to use a river and
17
its banks applied to all public rivers whether navigable
or not, it is clear that the emphasis, when it came to the protection of
that
right, was upon the promotion and maintenance of unrestricted traffic upon
navigable rivers. See D43.12, 43.14 and the BUTGEREIT case, supra, at
767G-H. And it is fair to assume that the bulk of such traffic comprised
commercial vessels or craft predominantly
used for commercial purposes.
Moreover, the examples of riparian use given in I 2.1.4 and D 1.8.5 are entirely
consistent with commercial
navigation. Mooring, off-loading and drying nets are
not activities associated with casual pleasure-boating. The recreational use
of
small boats such as those referred to in the BUTGEREIT case at 770B-C
must naturally have involved using the riverbank for the launching and beaching
of such craft but with a single exception
nothing in the relevant texts conveys
that navigation on a public river ever involved or necessitated the use of the
bank as a virtual
18
thoroughfare for getting a vessel or craft from one point
on the bank to another point downstream, whether materially distant or
not.
The exception is in D 43.12.1.14 where reference is made to the
use of a raft and to a footway, presumably a towpath from which the
raft was
pulled. However that is far more likely to have been an instance of a commercial
river use than a recreational one and it
is hard to envisage that it has or
could have any parallel in South Africa. And even in the towpath example the use
that was made
of the bank was contemporaneous with such use as was being made of
the river. The former use was therefore clearly a necessary incident
of the
latter.
But for that one exception, therefore, the situations
referred to in the Roman law texts involved the use of the riverbank being
exercised
in respect of only an essentially localised portion of the riverside.
Naturally one can envisage that on a busy section of a
19
major river many vessels might be moored near one another,
thus applying public user all at one time to a continuous stretch of the
bank of
perhaps some substantial length, but this does not warrant the conclusion that
the banks, for the entire length of the river,
through areas urban and rural,
constituted a public way along which portable craft could be carried where the
river was not navigable.
The aforegoing, then, was the factual and
legal context in which Roman law countenanced, in respect of public riverbanks,
public user
predominating over private ownership. A small illustration is given
in a gloss upon D 1.8.5 contained in the edition of the Corpus
Juris Civilis
with commentary by Accursius and others (Lyons, 1627) where the right of a
fisherman to spread his nets on a riverbank
tree to dry was said to prevail over
the riparian owner's right to fell the tree. Riparian rights of ownership were
thus subject
to limitations which, especially alongside a busy river,
20
could clearly have been severe.
In Holland the focus on
commercial traffic upon navigable rivers was even greater than in Roman times.
Most rivers were navigable
: VAN NIEKERK'S case, supra, at 373. In
addition to that, as stated in BUTGEREIT'S case, supra, at 768B-F, public
rivers became part of the regalia as also all things the use of which in Roman
law had been for public
use. Therefore the banks of public rivers also became
the property of the State. Rights forming part of the regalia could, of course,
be granted to others but unless that occurred in respect of any particular
riverbanks or sections of them, it follows that the banks
remained State
property. That being so, there would then no longer have been any question of
rights of private ownership in the riverbanks
competing with public rights such
as had been the position in Roman law.
In South Africa, however,
riparian property on public rivers came progressively to be conveyed
to
21
private owners: VAN NIEKERK'S case, supra,
at 377. It
is probably correct to say that nowadays most such
riparian land is privately owned. Not only that, but in
the VAN NIEKERK matter it was held that in the case
of
agri non limitati the owner's land extends to the
middle
of the river. Furthermore, no South African river
that
is not tidal, and therefore legislatively defined as
part of
the sea (s 1 of the Sea-Shore Act, 21 of 1935),
qualifies as
navigable in the sense in which that word
was understood in Roman
and Roman-Dutch law i.e. capable
of navigation by commercial vessels
: cf CG van der
Merwe, SAKEREG, 2nd ed, 234. In VAN
NIEKERKS'S case,
supra, at 378, in a passage stressed by the
Court a quo
and relied upon by respondent's counsel, Innes CJ
said:
"The current of South African decisions and legislation has set in the direction of encouraging and protecting riparian owners. Their rights, are, of course, subject to the rights of the public; but the practical opportunities for public user as regards the majority of streams in this country are small, for the means of access which would not involve a trespass upon private property are limited."
22
Although the basic
right of public riverbank user has endured from Roman times to the present, the
context in which that right can
be exercised has changed very materially -
topographically, climatically and juridically - in the intervening centuries.
The circumstances
which afforded great importance to public riparian user in
those legal systems do not exist in South Africa, and there is consequently
appreciably less justification for the law's allowing public user to compete
with its erstwhile inhibiting effect against riparian
rights of
dominium.
Accordingly, the relevant Roman and Roman-Dutch authors
must be read and understood in this changed context.
There being no
navigable rivers here in the sense already explained, one must equate our public
rivers with the non-navigable public
rivers of which they write. The latter
rivers were nevertheless
23
navigable in small craft, and most probably for mainly
recreational purposes (D 43.14). Although it might well be supposed that the
beds of some of such rivers, more especially perhaps those in Italy, might have
contained rocky obstructions, or waterless stretches
in summer, one finds no
reference by the authorities to activities akin to portage, which word means, as
defined in the Shorter Oxford
English Dictionary, the "carrying or
transportation of boats or goods overland between navigable
waters".
Apart from the mere absence of such reference, the reason
for its absence is no doubt because of the consideration, as valid now as
then,
that for purposes of recreational boating portage is not a necessary incident.
Generally, one does not need to use the riverbanks
other than for entering and
leaving the water. Portage is only necessary where other circumstances, in
addition to such recreational
purpose and use, make it so. In the instant case
the organisers
24
determined upon a course which required most competitors to negotiate the
rapids overland in order to complete the race. It was that
feature that
necessitated portage. Portage may be an incident of competitive canoe racing but
it is not required in the mere operation
of propelling a canoe on navigable
water.
Furthermore portage is not by definition confined to any
particular route and its distance is limited only by the locality of the
next
navigable stretch of river. No doubt canoe race organisers would not readily
subject competitors to portages that were too exacting
or that involved a
disproportionate degree of overland work but it is unquestionably so that if
portage were permitted as a matter
of public rights canoeists would be entitled
to traverse a riparian owner's property for a distance that could conceivably be
hundreds
of metres or even some kilometres in extent. And if the riverbank were
too steep to proceed along, could claim then be laid to the
right to use
ground
25
adjoining the bank?
Practically speaking, except where a very
short deviation on to the bank is involved around, say, a fallen tree or some
other relatively
minor obstacle which, if technically a trespass, would
justifiably warrant application of the maxim de minimis non curat lex, portage
as understood by all concerned in this case is in reality a substitute for
canoeing. It occurs not as part and parcel of navigating
upon the waters of the
river. It occurs where the river is either not navigable at all or not navigable
by those canoeists who seek
to portage. In that sense it is therefore not a
necessary incident of navigation.
By contrast, the examples of
public riparian use given in the Roman texts, although, as I have said, they
pertained essentially to
commercial vessels plying navigable rivers
appropriately so called, were clearly incidents necessary to
navigation.
In the result the answer to question (1) above
26
is, in my view, in the negative and appellants' main argument
fails.
In his alternative argument, counsel for appellants (who did
not appear in the Court a quo or draw appellants' heads of argument)
submitted
that the right to use riverbanks for portage should be afforded whenever in a
given situation such use was shown to be
reasonable. (I should stress that none
of counsel's contentions was intended to refer to a situation of necessity or
emergency.)
Assuming for purposes of that argument that a tenable
interpretation of the relevant authorities justifies the conclusion that public
user of riverbanks includes not only- necessary incidents of navigation but also
such activities as could fairly be said to be reasonably
incidental, the
following considerations must be borne in mind when deciding whether portage
should in this matter be said to be
one of them.
27
Appellants' case for relief must be judged on the facts which are common
cause and the facts alleged by respondents which appellants
cannot deny. Those
facts show that the encroachment upon the property in issue involved a detour
well in excess of 100 metres. It
necessitated hundreds of canoeists pushing
their way along a bush-covered riverbank with accompanying wear and impairment
of the
ground surface and the vegetation. In the past this activity has caused
damage to fencing as well. The incursions have regularly
occurred above the
bank. On occasions canoeists have even come through the
garden.
There is no doubt in my mind that that evidence fell
altogether short of establishing that portage of the order and nature revealed
in the papers would have been reasonable in all the circumstances, whether
viewed as an incident of navigation or at all.
In the result appellants failed to show that their members were entitled as of right to portage along
28
the riverbank of second respondent's property.
That being so,
it is unnecessary to answer question (2) above concerning the legal definition
of a riverbank or the question whether
the portage route for which appellants
sought approval lay within the limits of the bank. I would merely add that the
parties omitted
to address those questions not only in the papers but in both
Courts.
The conclusions reached in this case may conceivably have
harsh implications for competitive canoeists whose activities are, after
all,
not driven by anti-social motives but rather by the wish simply to employ the
country's natural amenities in the pursuit of
healthy, companionable exercise.
Giving full weight to that consideration, I nevertheless agree, with respect,
with the approach
adopted by the Court a quo at 530G that in striking a fair and
workable balance between public user and private dominium in South
African
circumstances, public rights must encroach as little as
29 possible
on the rights of riparian owners. If portage is required it will therefore have
to be the subject of negotiation with
the riparian owners concerned. It is also
feasible that rights of public riparian user could properly be dealt with by
legislation,
if not nationally then at least locally.
The appeal is dismissed, with costs.
C T HOWIE
ACTING JUDGE OF
APPEAL
CONCUR:
CORBETT CJ)
VIVIER JA)
F H GROSSKOPF JA)
JUDGMENT
VAN COLLER, AJA:
I have had the privilege of reading
the
2
judgment prepared in this appeal by my Brother Howie. I agree that the
appeal should be dismissed with costs. I have, however, come
to that conclusion
for somewhat different reasons, which are the following.
The
authorities referred to by Howie AJA clearly reveal that in Roman and
Roman-Dutch law the public had the right to make use of
the riverbanks even if
the banks were privately owned. What is less clear, however, is the extent of
that right. From the instances
given in Justinian's Institutiones 2.1.4,
and by Van Leeuwen, Censura Forensis 2.1.8 it appears that it was lawful
to moor ships to the banks, to fasten ropes to the trees and even to land cargo
on the riverbanks.
These instances could certainly not have been an exhaustive
list of the use that could have been made of the riverbanks. Howie AJA
mentions
fishing from the bank as a further instance of use open to the public. It is
true that there seems to be no reference
3
by the authorities to activities akin to portage. One can also not conclude that the right to use a riverbank included the right to use it as a public thoroughfare for the entire length of the river. It appears from the judgment of Rabie ACJ in the case of Butgereit v Transvaal Canoe Union 1988(1) SA 759 (A) that rivers not suitable to accommodate large vessels had been used for a variety of activities other than navigation. It is apposite to refer in this regard to what Rabie ACJ said at 769 I-J and at 770 A-C:
"The public could use a public river for the purpose of commercial navigation because of its public nature - and, of course, because it was large enough to accommodate large vessels. If a public river was not large enough to be used for such navigation, it could, I have no doubt, by reason of its public nature have been used by the public for such activities as such river rendered possible. There can be little doubt, I think, that such rivers would have been used for sporting and recreational purposes. Fishing, one knows,.
4
was not confined to fishing for commercial purposes. The Emperor Augustus, Suetonius (Aug 83) tells us, fished with a hook animi laxandi causa, and many others must have done the same. Horace (C 3.7.28 and C 3.12.6) tells of young men who swam in the Tiber, and there is no reason to believe that such activities would have been confined to navigable rivers. Pliny (Eg 8.8) tells of swimming in the Clitumnus, a small river in Umbria, and of pleasure-boating on that river. Propertius (C 1.11), too, tells of pleasure-boating. Latin, one may add, has several words for different varieties, or sizes, of small boat, which would seem to indicate that boating was not confined to commercial activities. With reference to one kind of such boats, viz a linter, it is interesting to note, having regard to the present case, that several literary references indicate that it was made by hollowing out the trunk of a tree."
It would have been impossible to exercise these activities if the riverbanks could not have been used and it must follow that the public would have been entitled to use the riverbanks in connection with the
5
sporting and recreational activities practised on the river itself. One is therefore justified in concluding that according to the common law the right to make use of the riverbanks was only restricted to the extent that the use should have been incidental to the use of the river itself. A fisherman would therefore have been entitled to stand cm the riverbanks to fish. It would be absurd to suggest that he would have been obliged to confine his fishing activities to one place along the riverbank. If he, not having met with any success at a particular spot, had decided to walk to another spot further down or higher up the river such use of the riverbank would in my view have been incidental to the use of the river for fishing purposes. Even if the fisherman walked along the riverbank past a rapid which extended for some distance in order to fish the use of the bank may have been incidental to fishing. There appears to be no reason why the common law on this
6
subject should not still apply today. It would follow, therefore, that a person in a canoe, who comes across an obstruction like a weir or impassable rapids and who carries the canoe along the bank to get past the obstruction in order to continue paddling would use the riverbank in the same manner as the fisherman would. In my judgment the use of the riverbank in this manner and for this purpose may be regarded as incidental to the use of the river. Although it is difficult to lay down a general principle, it will depend on all the circumstances of each case whether or not the portage can be regarded as incidental to the use of the river. Where rapids make canoeing difficult or impossible over a stretch of several kilometres, portaging along the banks for the entire distance may not be an activity incidental to the use of the river. Such conduct may then not be an incident of, but a substitute for canoeing.
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In this matter it is unfortunately not possible to determine whether the use which the appellants intended to make of the Crocodile river can be regarded as incidental to the use of the river itself. The appellants failed to make out a proper case with regard to where precisely they intended to portage. They referred in their founding affidavit to a strip some 100 metres long and between two and five metres wide on the eastern banks of the river. Precisely where this strip begins or ends has not been explained. It also emerged from the opposing affidavits that the canoeists have also made use of the the western bank of the river and will again do so. Apart from the fact that it cannot be determined on the papers where exactly along the riverbanks the portage is envisaged to take place, the relief sought in the Notice of Motion has not been limited to a defined area along the banks of the Crocodile river. It is couched in
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terms wide enough to include the whole length of the river and a case for relief of this nature has certainly not been established. There is also the dispute of fact referred to by Howie AJA in his judgment. It seems to me that there is some similarity between the rights pertaining to the use of riverbanks and those derived from servitudes. Such rights must be exercised civiliter modo, that is, in a reasonable manner and with the least possible damage or inconvenience to the servient tenement and its owner. Having regard to the large number of canoeists who take part in the races and having regard to what happened, according to the allegations contained in the opposing affidavits, it has not been shown that the rights will be exercised in a reasonable manner.
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I agree therefore that the appeal should be dismissed with costs.
A P VAN COLLER
ACTING JUDGE OF APPEAL
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