In this context the law ignores the ownership of the water and concentrates entirely on the ownership of the land and the rights existing over it. The general presumption is that the owner of the bank of a non tidal river will own the river bed up to the mid point. That ownership of the land under the river will bring with it the right to moor over it. If in the particular circumstances the owner of the bank does not own any part of the river bed he will have no right to moor.
The case of Nigel Moore v British Waterways Board concerned a stretch of tidal water. The presumption for tidal water is that the river bed belongs to the Crown and so Mr Moore was unable to show any property ownership or rights to allow him to moor his boats. The court rejected the argument that ownership of the bank brought with it an implied right to park a boat beyond any reasonable time necessary to achieve access.
That was not the end of the story. The British Waterways Board was seeking to remove Mr Moore’s boats pursuant to its statutory powers and to do so it had to show that the mooring was without lawful authority. The board’s preferred form of lawful authority was the payment to it of a licence but Mr Moore was not willing to do so. Although Mr Moore had no common law right for his boats he fell into a grey area in that there was no actual law against him mooring them. Applying the broad rule that everything which is not forbidden is lawful, the court decided that British Water Board failed to make the case that the mooring was unlawful, and accordingly it was not entitled to remove the boats.
The decision needs to be viewed with some caution. The result would have been different if the case had been brought by the Crown as owner of the river bed and based on nuisance or if, in the circumstances, the boats had impeded lawful rights of navigation.